STEERING COMMITTEE FOR HUMAN RIGHTS IN THE TRANSITION IN SUDAN
This paper was prepared for the Committee based on research by Yoanes Ajawin
Human rights violations have been at the centre stage of the Sudanese political crisis since independence in 1956. All Sudanese governments since independence have been responsible for various human rights abuses, including the suppression of democratic freedoms, torture, and extra-judicial killings. Unfortunately, the perpetrators of these human rights abuses have seldom been brought to justice. It is widely believed among both Sudanese and international human rights groups that a future transitional government in Sudan may provide a moment of opportunity for human rights justice. This paper argues that Sudan will never enjoy a just and lasting peace until the issue of accountability for human rights violations is addressed seriously by the Sudanese people and their political parties. The Steering Committee strongly believes that the challenge for Sudan as a nation is its ability to ensure the respect of human rights for all its citizens and the courage to hold accountable all those who are responsible for human rights crimes.
This paper therefore intends to discuss the possibility of accountability during a future transitional period in Sudan. It is not an indictment paper for future trials but an attempt to highlight the human rights challenges and issues of justice that will certainly face a post-National Islamic Front government in Sudan.
Although it is intended to be forward-looking, this paper will include a brief historical background. It will primarily attempt to propose recommendations of how human rights justice can be tackled by a future transitional government.
Human rights abuses in Sudan did not start in June 1989. Successive governments have prosecuted war and been responsible for violations of human rights in Sudan. Many of the officials, politicians and military officers, currently in positions of responsibility, served in previous administrations as well. Other former officials, politicians and soldiers form the main opposition to the current NIF government.
The first democratic government (1956-58) violated human rights in its handling of the Torit rebels. Military courts handed down severe sentences without due process. Many mutineers were summarily executed in what proved to be victor's justice over the vanquished. A second main incident of human rights violation under that government was the death of striking farmers in an overcrowded cell in Jawda in White Nile Province. The deaths were concealed from relatives and from the public.
The first military government, headed by General Ibrahim Abboud (1958-64) that overthrew the democratic government suspended the Constitution and all basic rights. Politicians from various parties were detained for long periods without trial. In northern Sudan many officers were summarily executed for alleged coup attempts and in order to suppress discontent within the army. Meanwhile in Southern Sudan the war was intensified, and suspected Anya-nya supporters were extra-judicially executed. Religious freedom in the South was curtailed. Missionaries were expelled and the draconian Missionary Act was promulgated.
The military regime was toppled by a Popular Uprising in October 1964. The transitional government immediately embarked upon elections and a new democratic government was installed in 1965, lasting until 1969. During this period, human rights abuses were directed mainly against Southern Sudanese. In July and August 1965 massacres took place in Juba and Wau targeting educated Southerners. In Wau, civil servants attending a wedding party were surrounded by the army and killed. In Juba the army burned down Southern Sudanese residential areas and killed many Southerners. Even the wounded were taken out of their hospital beds and executed. In February 1967, fourteen Dinka chiefs of Bor were accused of aiding the Anya-nya; they were summoned to Bor town by the army and executed. In Awarjwok village near Malakal, 500 people including women and children were paraded by the army and shot.
Other atrocities committed by Sudan government troops outside the three main Southern towns were reported at that time. Those voicing the atrocities of the government in an attempt to exposed them were harassed and in many cases prosecuted. The commanding officers responsible for these abuses were rapidly promoted instead of being disciplined.
In May 1969 the second democratic government was overthrown by officers lead by Col. Jaafar Nimeiri, establishing what became known as the May Revolution. During the period of the May Regime many human rights violations were committed by the government. Opponents of the government were detained, tortured and even executed without due process of law. Detention without trial became routine. Some stark violations included the bloody repression of the Ansar resistance in Wad Nubawi and Aba Island in 1970, the mass execution of Communist Party members in 1971, and the mass killing of Sadiq el Mahdi's National Front supporters in 1976. In the latter, many were buried alive by bulldozers supervised by high ranking officers. Repressive laws were enacted under the guise of national security and the State Security enjoyed wide powers. Security personnel were answerable only to their officers. Judicial supervision regarding arrest or periods of detention was superficial. In 1983 the regime enacted the harsh September Laws, imposing laws on the Sudanese people that contravened internationally-respected human rights conventions. Not surprisingly the human rights record of the May Regime became one of the rallying points of the opposition that finally toppled it during the Popular Uprising of April 1985.
The April 1985 government became known as the transitional government. Human rights was not high on its list of priorities. It set up tribal militias and supplied them with arms, intensifying ethnic conflicts in Kordofan, Bahr el Ghazal and Upper Nile. This added a new dimension to the human rights violations in Sudan, creating a new volatility, and its legacy continues up to today with the loss of many lives. The transitional government organised elections and a new democratic government was formed in April 1986.
The third democratic government (1986-9) headed by Prime Minister Sadiq el Mahdi committed massive violations of human rights, especially in Southern and western Sudan. It intensified the civil war and the situation for human rights deteriorated, especially in the war-affected areas. The country witnessed the proliferation of government-established militias. In western Sudan and Upper Nile the government strengthened the militias it had inherited from its predecessor. Numerous raids and massacres were carried out by these militias, with the connivance of some army officers, culminating in the ed Daien massacre in 1987 where about 2,000 Dinka lost their lives. In Wau, the army under Maj-Gen Abu Gurun, along with militia, killed even larger numbers of Dinka civilians. In the Nuba Mountains and southern Blue Nile, many civilians were detained and executed by the government's security organs, in a campaign aimed at eliminating educated people and community leaders.
Though killings in rural areas were the main human rights violation during that period, there were other abuses too. There were attempts to undermine freedom of expression. For example, one of those who exposed the ed Daien massacre, Dr Ushari Mahmoud, was arrested. Participants in a workshop in Ambo, Ethiopia, in which issues of peace were discussed, were arrested and interrogated. Some journalists were also detained for reporting what the government called 'national security' issues.
THE PRESENT NIF GOVERNMENT: CURRENT SITUATION
On 30 June 1989, Sudan entered an era of unprecedented violations of human rights. The National Islamic Officers in the army took power, calling themselves the Revolutionary Command Council for National Salvation (RCC). The RCC immediately embarked on arresting its actual and potential enemies. Leading figures of the former democratic government and trade unions were arrested and imprisoned. Officers suspected of anti-government sympathies were dismissed or arrested. Some observers thought that the arrests were a precautionary measure to consolidate the coup but the RCC and its political patron, the NIF, proved them wrong: it was policy.
The RCC created a new security agency staffed solely by members of the NIF, headed by Dr Nafi Ali Nafi, a well-known NIF academic. This became known as 'The Security of the Revolution.' Eight years after the coup, its identity remains so shadowy that it is still not clear if it is a single organisation. It is the principal organisation responsible for the mass arrests since July 1989. Top government officials sought to justify the new agency in terms of the need to create 'a security agency with an ideological commitment', in the words of the then-Minister for Presidential Affairs, Lt-Col Tayeb Ibrahim 'Sikha'. Long before the current regime seized power, it became apparent that the NIF had its own security force. It hired a number of former security agents who had worked under Nimeiri until the agencies were disbanded in 1985. The Security of the Revolution has become synonymous with extreme arbitrariness, ill-treatment, torture and execution of detainees.
The military organs of the state, including the army, military intelligence and the Popular Defence Forces, have also become servants of the NIF. They have continued to commit gross abuses against civilians in the war zones.
REACTIONS TO HUMAN RIGHTS VIOLATIONS IN SUDAN
The international community, both UN, governments and NGOs, have strongly condemned the human rights record of the current government. This has led to several UN bodies examining complaints against the Sudan Government. Notable are the following:
- In 1992 the UN General Assembly resolved to express deep concern at serious human rights violations and recommend that the situation be monitored.
- In December 1993, the UN Special Rapporteur on extra-judicial, summary and arbitrary executions stated that he was 'deeply concerned at the scale of the reported violations of the right to life in Sudan.'
- In 1993 the UN Working Group on Arbitrary Detention found that ten Sudan Communist Party members arrested in Khartoum were detained arbitrarily.
- In February 1993 the UN Commission on Human Rights resolved that the issue of human rights in Sudan be placed on the public agenda and appointed Mr Gaspar Biro as Special Rapporteur on Sudan. He submitted both an interim and a full report detailing evidence of violations.
- The UN Special Rapporteur on torture concluded in his 1994 report that systematic torture is practised in Sudan.
The Sudan government's reaction to accusations of human rights violations is one of contempt. It describes these accusations as conspiracies against its Islamic path by the enemies of Islam. It is also dismissive of all evidence so far produced, and argues that many abuses are the result of inter-tribal fighting or old customs that cannot easily be stamped out by the government. This is the line that it has taken in responding to accusations of slavery. When faced with hard evidence it resorts to public relations exercises rather than addressing the real issues of human rights abuses.
However, the NIF government implicitly admits the validity of the human rights framework. Its strenuous efforts to rebut the charges made against it, such as the creation of its own commission on human rights, show that the criticism has hurt. On occasions, the government has disputed some part of the international human rights framework, such as when it accused Gaspar Biro of being anti-Islamic because he pointed out the incompatibility between parts of the Penal Code and international treaties signed by Sudan. However, even in its stated adherence to Islamic concepts of rights, the NIF is asserting the value of human rights. But the government's reaction also illustrates its impunity. In a few cases, the government has been forced by families of victims to prosecute its own officers, but there has never been a conviction.
Despite the efforts of the international community to expose the human rights record of the Sudan government, and a range of restrictions on foreign aid imposed by the United States and European countries, there has been relatively little success.
HUMAN RIGHTS CHALLENGES DURING THE TRANSITION: THE TASK AHEAD
This paper argues for human rights accountability during the coming transitional period and would like to underline some basic principles for providing accountability for human rights crimes. Human rights redress is a complicated issue. In principle, it cannot be selective, though the degree of responsibility varies; in practice, constraints of resources and time make it necessary to compromise.
The task is very large. The judiciary is in poor shape after many competent judges and attorneys were removed by the NIF government. Based on the experiences of Rwanda, Ethiopia and Former Yugoslavia, human rights tribunals are a very expensive process. Unless properly prepared, they can be slow and cumbersome, and their legitimacy and credibility can become eroded as time passes and convictions are few and delayed. This implies that it is not too early to begin searching for funds.
Sudan has much to learn from its own experience with human rights justice and from others. In the past, Sudanese governments and individuals have tried several approaches to transitional justice and accountability for human rights violations. These will be summarised here.
The Pardon or Forgiveness Approach
In October 1964, General Abboud and his cabinet were pardoned for human rights abuses committed during their rule. The pardon was issued in order to encourage them to hand over government to the civilians. While this expedited the transfer of power and the return to democracy, it also set the precedent that human rights abuses could be compromised for political expediency.
This approach is less acceptable now. It is generally recognised that governments are not entitled to issue pardons or forgiveness to human rights criminals: that right rests with the victims and their families only. Moreover, considering the magnitude of recent abuses of human rights abuses, issuing a pardon would almost certainly encourage victims and their families to take the law into their own hands and engage in revenge killings. The Sudanese public are not prepared to accept an indiscriminate pardon this time; they cannot accept the human rights violations of the past as a closed book.
The Amnesty and Indemnity Approach
During the first civil war, both the government forces and Anya-nya committed various human rights violations. In 1972 the Addis Ababa agreement was signed, which contains a general amnesty covering the seventeen years of war. All acts of criminal and civil nature committed in the course of the rebellion during that period were sealed and put aside into the archives of history. Proceedings initiated or pending before the courts were dropped. Decisions already made by any government agency, judicial or otherwise, sanctioning acts or omissions connected with the rebellion, mutiny or sedition in the South ceased to have an effect. All persons serving terms of imprisonment or held in detention for offences connected with the rebellion were to be released within fifteen days of the date of the ratification of the agreement.
The Amnesty and Judicial Arrangements were promulgated into law, the Indemnity Act, on 3 March 1972. Over 2,000 detainees and prisoners charged with or convicted of crimes associated with the rebellion were released. These arrangements were generally well received by the public which was prepared to let bygones be bygones. Many communities were prepared to put the past behind them.
But there were also some notable negative reactions against the amnesty law. Some citizens were resolutely unforgiving; some of the victims did not share the spirit of the indemnity act. There was pressure on the Regional Government to bring to justice some of those involved in the abuses. One citizen from Western Equatoria whose ears and lips had been lopped off in 1970 by local Anya-nya functionaries for allegedly informing on them, sought compensation for inhumane treatment. The incident was covered by the indemnity act and he was told so.
It should be noted that the Indemnity Act gave amnesty to the former SSLM members and supporters, but was silent regarding human rights violations committed by the Sudan government forces. (No government officers were detained on account of these abuses, so none needed to be released.) This means that the act is of limited use in investigating future challenges after the end of the current war.
In 1976 this amnesty approach was repeated in northern Sudan, after the Sudan Government and the National Front opposition signed the National Reconciliation Agreement. Sayed Sadiq el Mahdi and his followers were granted amnesty for crimes committed during their July 1976 attempt to seize power. Again, this act dealt solely with abuses committed by former rebels and was silent on the crimes of the government forces. It should be noted that the magnitude of violations committed by the government during the suppression of the 1976 coup attempt led to the resignation of the prosecutor general and his deputy in protest.
The Judicial Approach
Modern war crimes tribunals derive their legal authority from the Nuremberg Principles, the 1948 Genocide Convention, the four Geneva Conventions of 1949 and the 1977 Additional Protocols, the 1984 Torture Convention, and other instruments of international law. The Nuremberg Trials after World War II established the precedents of state accountability and individual culpability for gross human rights violations and international responsibility for protecting human rights (the nullification of sovereignty for crimes against humanity). Another important Nuremberg principle is the inadmissibility of the defence of following orders.
In Sudan, the sole experience to date of using the law to prosecute human rights trials has been the limited experience of the 1985-6 transitional period. Immediately after the fall of Nimeiri, Sudanese human rights activists pressed for the prosecution of persons who had committed human rights abuses during the May Regime.
The government successfully prosecuted the leaders of the original 1969 coup for overthrowing a democratically elected government. Nimeiri himself was tried in absentia. Six members of the May coup were convicted and imprisoned, later to be released by the NIF in July 1989. The government also prosecuted some of those engaged in the smuggling of the Falasha Jews from Ethiopia to Israel.
Although these trials were widely acclaimed by the public, there was a disappointment that the transitional government did not go any further. The government was reluctant to set up a special prosecutor's office or to assist the victims to litigate. It did not set up a special court, appoint a special prosecutor, or provide legal aid to victims of abuse. Instead, some victims and their families, supported by sympathetic members of the public and some organisations, took the initiative to prosecute former security personnel. The trials were conducted in accordance with the 1983 September Laws in the normal courts of the judiciary. The Ba'ath Party, which was both financially strong and well-organised and therefore able to pursue litigation, scored some successes, including convictions for torture. However, most human rights victims were unable to press prosecutions because of lack of financial resources to pursue a private prosecution. For this reason, justice was denied and the opportunity to expose the abuses of the May Regime was lost. This created bitterness among victims but fortunately did not lead to extra-judicial acts of vengeance.
Leading members of the opposition to Nimeiri sought compensation for their losses during the May Regime, specifically property that had been confiscated. Ordinary citizens were not given compensation. This created a very unfortunate impression that justice and democracy were primarily for the elite, or at least could be manipulated by the elite for personal advantage.
Any future transitional governments should critically evaluate the political and human rights trials of 1985. They are a positive, if limited, precedent.
Experiences of Other Countries
The most prominent attempts to attain justice for crimes against humanity are the activities of the UN Special Tribunals for Former Yugoslavia and Rwanda, in The Hague and Arusha respectively. These have the virtues of being very high-profile and being above criticism as regards due process. They have the disadvantages of being slow, extremely expensive, and of removing the alleged criminals from their home countries, so that they are not tried in front of their own people. The Rwanda tribunal has also been dogged by accusations of incompetence and worse. At present, it is unlikely that the UN or major western countries would be willing to set up another special international tribunal for a country such as Sudan.
There is a call for the UN to establish a permanent international court for war crimes that would have a world-wide jurisdiction. This would probably be beset by similar problems that afflict the existing international tribunals.
Many countries, especially in Africa and Latin America, have experience of attempts to obtain transitional justice.
In Ethiopia, the transitional government that took power after deposing the dictator Mengistu Haile Mariam created a Special Prosecutor in August 1992. At that time nearly 2000 officials from the former regime were in detention. About 1700 remain in detention five years later, accused of involvement in crimes against humanity. 43 have been brought to court. The Special Prosecutor has established three categories of guilt: decision makers, field commanders and actual perpetrators.
The main problems encountered by the Ethiopian Special Prosecutor are logistical and financial: it is proving to be a very slow and tedious business to bring charges against all of those held in detention, and to complete court proceedings. Also the lack of a possibility for plea-bargaining and mitigation of sentence has meant that all the accused have pleaded not guilty, which has slowed down the process. In the meantime, western human rights organisations are accusing the Ethiopian government of violating the rights of detainees by this prolonged process.
The experience of domestic prosecutions in Rwanda after the 1994 genocide has also demonstrated that it is a painfully slow experience, especially when the judiciary is weak and depleted. The Rwandese prosecutions have also had to proceed under a barrage of international criticism over poor and overcrowded prison conditions, the continuation of the death penalty on the statute books, and the detention of individuals with links to international organisations (whose innocence those organisations vigorously claim).
In Uganda, the government of President Yoweri Museveni established an important precedent by setting up a Judicial Commission of Investigation in 1986. The public hearings of this Commission played a key role in educating the general public on the principles of human rights and the responsibilities of government. However, the Commission failed to bring a significant number of individuals to trial, and took more than five years to prepare its report, thereby seriously sapping its credibility and with it the credibility of the government's commitment to human rights.
In both these cases, the new governments have the advantage of the complete defeat of their predecessors. In other cases, human rights investigators and their democratic masters have been required to cohabit with the perpetrators of human rights abuses who were still in positions of power. This has occurred in South America. In Argentina, for example, the fact that army officers responsible for abuses were still able to threaten the new civilian government meant that it was impossible to ensure that justice was done. Some of the abusers were, however, at least exposed to the public.
In South Africa, the ANC government has sought to combine the search for accountability with the search for reconciliation. This has resulted in a complicated formula in which the courts are prosecuting some of those allegedly responsible for major human rights crimes, while the Truth and Reconciliation Commission hears evidence about other abuses. Those who testify to the TRC are amnestied, but first their confessions are studied to see if they are entitled to amnesty or should be prosecuted. In some cases, the families of victims have been unhappy at the amnesties granted to the violators.
Most domestic procedures for bringing prosecutions have involved international observers at the trials, and many have involved foreign funding for part of the expense involved.
A number of countries have tried a range of measures short of actual prosecutions. These include lustration (withdrawing civil rights, such as employment) from alleged human rights abusers, opening security files to the public, and other initiatives.
At the July 1998 Rome Conference, international agreement was reached on setting up an International Criminal Court with jurisdiction to bring prosecutions for war crimes, genocide and crimes against humanity. This court will take some time to be properly set up but will be an immensely important precedent. One of the key issues is complementarity: both the International Criminal Court and national courts will be able to undertake investigations and bring prosecutions without prejudice to the operation of the other.
Several conclusions can be drawn from Sudan's experience with the search for accountability.
Indiscriminate pardon is unacceptable to the Sudanese people, whatever its attractions for political expediency.
Amnesty and indemnity for former rebels is insufficient; the problem of abuses committed by government soldiers and officials must also be addressed.
The judicial approach is preferable, but the government must take the initiative and responsibility for seeing that there is a systematic search for justice.
The judicial approach can be combined with other approaches, including a truth commission and even an international tribunal.
BASIC PRINCIPLES FOR FUTURE TRIALS
In advance of a future transitional government, some basic principles for providing accountability need to be underlined.
- There is no statute of limitation for crimes against humanity. This implies that accountability for human rights crimes should stretch back as far as Sudan's independence in 1956. However, more recent abuses should receive priority.
- It is the rights of those who are victims of human rights abuses, and their relatives, to see that justice is done. The right of pardon lies with the victims of the abuse, not with any authority.
- The trials should be public with due regard to procedure and the substantive issues of a fair trial by an independent judiciary.
- Human rights accountability and the prosecution of individuals for their alleged crimes establishes a precedent for the rule of law. It sends a clear message to the members of the transitional government and its officials that all could be brought to book if they engage in human rights abuses. In short it indicates an end to the history of impunity.
The Scope of the Crimes
The scale of the human rights abuses under the current NIF government is so great that it is not practical for every individual offender to be prosecuted. Though the decision to prosecute or not lies with the prosecution, the experience of other countries suggests that resource constraints will mean that the extent of the prosecution must be limited. This paper argues that a small number of those primarily responsible for gross abuses of human rights should be tried. The judicial authorities should be left to decide on the scope of the trials but the architects of human rights abuses should be given priority.
Individual responsibility rather than membership of any particular organisation should be the basis for criminal trials, though it is legitimate to deny some civil rights to individuals solely on the basis of their membership of certain political or security organisations (see below). Procedures short of prosecution may also be used for more minor or junior offenders. For crimes committed by members of organisations organised on an ethnic basis, such as tribal militias, it may also be more appropriate to invoke semi-traditional methods of conflict resolution and restitution.
There are two options for defining the crimes under which individuals are to be prosecuted:
To bring the prosecutions under relevant domestic law, where appropriate, where that law has applicable provisions governing basic human rights violations.
To use the Universal Declaration of Human Rights and other international human rights conventions that have been ratified by successive governments of Sudan. The Convention against Torture is particularly applicable here.
This paper recommends that both options should be used as appropriate. The domestic law should be reinforced by international law where the former is inadequate.
Procedures for Investigation
This paper argues that the preferred course of action is to establish a Special Prosecutor's Office (SPO). This should have regional offices in different parts of the country. It should have a clear mandate to deal with human rights violations preceding the establishment of the transitional government.
The first task of the SPO is to identify the types of human rights violation, the maximum time for investigation, the law to be applied, the level of responsibility and the proposed location of the trials. It should immediately embark on the following:
1. Identifying the suspects and issuing warrants of arrest.
2. Classifying the types of human rights crimes committed.
3. Developing categories of guilt for suspects.
4. Identifying the types of courts and the locations of the trials.
The SPO will have a mandate that allows it to receive information from members of the public.
The SPO is also charged with an important public information function: gathering, organising and disseminating information on human rights abuses and justice.
The SPO will be expected to make specific legal and institutional recommendations that will assist in preventing similar abuses from happening in the future.
The Court and Conditions for a Fair Trial
Since the NIF seized power in 1989 the professional quality of the judiciary has sharply deteriorated, due to numerous purges of the judiciary. Dismissed judges have been replaced by those loyal to the regime. The transitional government will face the daunting task of reforming the judiciary without compromising its independence.
It is preferable for the reform and rehabilitation of the judiciary and the prosecution of human rights crimes to proceed separately. This implies setting up special courts or a special prosecutor, separate from the ordinary judicial system.
The court should follow ordinary court procedures wherever possible. The members should be appointed by the Chief Justice and should ordinarily be members of the judiciary. Regional courts should be established in centres such as Juba, Wau, Malakal, Kadugli, Damazin and Kassala, which will bring justice closer to the people and reduce the costs for victims.
The Sudan Penal Code and Criminal Procedure of 1974, supplemented where appropriate by procedures drawn from internationally-accepted precedents for trials for crimes against humanity, should be used as sources of law to try the offenders. The courts are already familiar with the 1974 laws, which are fair.
Some may argue that the 1974 laws were not the prevailing laws at the time of crimes committed since the Islamic Penal Codes of 1983 and 1991 were promulgated, and therefore that these latter laws should apply. There are strong arguments against the application of the Sudan Penal Code of 1991, among them:
It does not conform to some aspects of international human rights conventions and standards of fairness. Some of its provisions are barbaric or harsh.
It is marred by ambiguities, which can be cleared up only by Islamic interpretation.
The absence of legal precedents in the 1991 Islamic laws and the predominance of Ijtihad (free interpretation based on Islamic sources) in determination of cases makes it uncertain for both the courts and the accused.
The accused should be granted their rights, including the following:
The right to trial before an independently-constituted court. There should be no political interference in the court's functions.
The right to be tried for a crime that is clearly-defined and derived from pre-existing domestic or international law.
The right to be presumed innocent.
The right to a defence counsel and adequate opportunities for counsel to prepare a defence.
The right to call and cross-examine witnesses.
The right to appeal against conviction and sentence to an independent tribunal.
The right to choice of defence counsel. For accused who cannot afford their own counsel, the government should provide them with one.
Certain defences should be prohibited for the accused, specifically:
The claim to be acting on order from a superior is not admissible as a defence against conviction. However, a defendant should be allowed to argue for the mitigation of a sentence on this basis. On the other hand, a claim of acting under duress should be allowed in defence; that is, if a defendant argues that his or his family's life was endangered if he did not carry out a crime, he should be permitted to produce evidence to this effect.
The claim to have been following laws or provisions under a state or emergency that permits actions that clearly violate basic human rights protected by international agreement or human rights and customary law shall not be admissible as a defence.
However, individual accused who were junior in the hierarchy of the regime could be granted immunity from prosecution or mitigation of sentence if they fully confess their crimes and become prosecution witnesses. Such confessions must be genuine, detailed and true before any privilege of immunity is granted.
There should be provisions for plea-bargaining, namely that those who plead guilty and cooperate with the prosecution will have their sentences reduced. A recent ruling by the International Criminal Tribunal for Rwanda have ruled that plea bargaining is inappropriate for the crime of genocide, but that should not prevent its use in cases where lesser charges are brought.
There may also be a need to make changes in rules of evidence brought before the court. For example, for crimes involving killings, it may not be possible to produce the bodies of the victims. The absence of the corpse should not prevent trials for murder proceeding.
Punishment should be proportionate to the human rights crime. Lesser punishments may be imposed for those who have cooperated with the prosecution and expressed genuine remorse. The death penalty exists in the Sudanese penal codes and should not be removed specifically for crimes against humanity.
Procedures Short of Prosecution and Other Penalties
It will not be feasible for all perpetrators of human rights abuses to be brought to court. One of the main functions of the SPO (central and regional offices) will be to expose human rights abusers, even though they will not necessarily be prosecuted. The very fact of truth-telling is an important exercise and exposure to public shame is itself a punishment.
Minor abusers and members of important political and security organisations that are implicated in widespread human rights abuses can be subjected to some denials of civil rights, including the right to employment in public service and the right to travel abroad.
While investigations are continuing, all members of certain political or security organisations can legitimately be denied some of their civil rights, including the right to travel and the right to employment in government service.
The Office of the Special Prosecutor will exist alongside ordinary Sudanese courts and (should it be set up) the planned International Criminal Court. These courts should be able, without prejudice to their independence, to be able to use evidence produced by SPO investigations when it is deemed appropriate. Moreover, the creation of the SPO does not by any means bar individuals or groups from initiating prosecutions in the ordinary courts or the ICC.
The scope of human rights abuses is too broad for a Special Prosecutor. The numbers are too great, and the length of time required to assemble the evidence and bring successful prosecutions is likely to be too long. Hence it is proposed that a Truth Commission be established to operate alongside the SPO. This can work more speedily and more widely.
Truth telling is a precondition of reconciliation, which will be necessary if there is to be peace and democracy in Sudan. A future transitional government will include parties that, at one time or another in the past, have been enemies. The truth about abuses committed by all parties must be told.
There are many reasons for establishing a Truth Commission:
- Truth-telling is highly-appreciated in Sudanese society. It is the most basic form of justice.
- In cases where it is not possible to bring prosecutions, the fact that individuals responsible for abuses are exposed, provides consolation for victims and their families, and is itself a form of punishment on the perpetrators.
- A truth commission can help to break the cycle of impunity and provide a public forum for discussion regarding the fate of the guilty and the future for human rights in the country. In addition, a nationwide process of truth-telling can engage many more people than prosecutions in the courts. It can be an important exercise in public participation and education.
- An exercise in truth-telling is an important opportunity for reconstructing a sense of Sudanese national identity, or indeed new Northern and Southern identities if the country divides. The recent level of abuses has been widely regarded as 'non-Sudanese', as reflecting a brutality alien to Sudanese society. The Sudanese people therefore have to come to terms with abuses committed in their name and by and against themselves. This cannot be done in silence: it needs an honest appraisal of the past and a free debate about the conditions in which political power has been exercised in total disregard of humanity.
- A Truth Commission, like human rights trials, must clarify that individuals, not whole religious, political or ethnic groups, committed crimes for which they must be held accountable. This is essential to long-term reconciliation as it subverts collective blame, guilt and retribution, and helps to prevent re-awakened hostility.
To operate effectively, the Truth Commission must operate with powers of amnesty. Many victims would like the truth to be told, but it is unlikely that many individuals will come forward to confess their misdeeds unless an amnesty can be provided, especially for events that happened long ago and for which evidence and witnesses are hard to find.
To guarantee its effectiveness, the Truth Commission should be impartial, complete and objective. It should be independent from politics with sufficient resources to ensure a full investigation.
The task of a Truth Commission will always be larger than it can achieve, especially if its mandate stretches back beyond the NIF coup or before the 1983 outbreak of war. To remedy this, its mandate should include the power to recommend different investigations and reports into different issues, regions and past regimes.
All the Truth Commission's proceedings and findings should be in the public realm.
INTER-TRIBAL RECONCILIATION COMMISSION
One of the most dangerous and iniquitous acts of recent Sudanese governments has been the policy of divide and rule: setting rural people against each other by inciting tribal disputes. The actions of tribal militias have involved gross abuses of human rights, such as massacres and enslavement.
Many of the leaders of tribal militias were appointed by the government and followed government commands. These individuals should be prosecuted where appropriate by the SPO. But many junior members of these militias, or civilian members of the tribes, have a lower level of responsibility, and some of them acted out of a sense of tribal solidarity or fear. It would not be appropriate to prosecute these individuals, even if it were practicable.
A Local Reconciliation Commission (LRC) should be established to cover these cases, and the local origins of inter-ethnic disputes that have led to violence. The LRC should conduct investigations into the activities of tribal militias since 1983 and recommend measures for reconciliation. The LRC should be guided in its work by past tribal reconciliation conferences and mechanisms. The LRC should include tribal chiefs and other dignitaries as its members.
For the future of Sudan, it is essential that there is an end to impunity and a fair and honest exposure of the past. The future transitional government must not succumb to any pressure aimed at avoiding any prosecutions against persons responsible for human rights abuses during the NIF regime or its predecessors.
The trial of those responsible for human rights abuses under the NIF will serve several important purposes:
- It will prevent retribution from the victims of human rights abuses, that could lead to a cycle of violence and anarchy.
- It will create an educational process showing that all human rights violators are accountable for their acts, and thereby establishes a precedent for the rule of law.
- Justice is a precondition for meaningful reconciliation. It is only on the basis of widely known and accepted truth about the past that reconciliation can proceed.
The right to forgive lies with the victims of abuses. At present, they shun the voices calling for forgiveness and immediate reconciliation. The goals of a lasting political settlement, reconciliation and justice can only be achieved if those primarily responsible for gross abuses of human rights in the past are brought to book for their crimes.