Interview – Elin Skaar on Sudan transitional justice: ‘No victorious army has ever been prosecuted’

The hope and outcry for justice and peace throughout Sudan have raised questions regarding the possibilities of administration of justice, democracy, and peace after the downfall of Al Bashir’s regime. To what extent is the current Sudanese interim government willing to deliver justice? Whether or not can the Sudanese legal system deal with grave human rights and international humanitarian laws? Will the transitional government opt for peace or justice or both?

In an interview with Mohammed Elgizoly Adam on Radio Dabanga, Elin Skaar, Senior Researcher at the Chr. Michelsen Institute (CMI) in Norway, explained how she has developed transitional justice as an educational programme to raise awareness among the vast victimhood, activists, and practitioners across the country regarding the concept of transitional justice and its mechanisms. “No victorious army has ever been prosecuted, and this is true. Also, there is no country has actually tried to prosecute its military at the time of transition. This is almost a universal rule.”

She also, clarified that it is unlikely to build a democratic judiciary that is capable of upholding the rule of law in a very short time period. It can take years to establish strong legal system that is competent to rule on grave human rights violations.

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‘I have defined transitional justice quite broadly, as processes and mechanisms that deal with past atrocities’

Skaar: Well, let me just try to define transitional justice for you, because there are many different definitions out there. The way I have defined it in the work that I have done, is quite broadly, as processes and mechanisms that deal with past atrocities. When I say atrocities I mean different kinds of human rights violations, such as forced exile, mass murder, rape, killings, and in worst cases, genocide. These are crimes that transitional justice covers, and they do so through a range of formal and informal mechanisms. This can happen in post-authoritarian contexts, or through conflict situations, like the Sudanese case. Some of the mechanisms that are employed are for example: prosecution through the courts, either national courts or international courts, also through truth commissions, reparations to victims of violence which can take many different forms, or through amnesties, which basically are laws that prevent prosecution of those who are responsible for the violations, and vetting, which means that you remove people from office who have taken part in human rights violations. It can also be institutional reform, which means you try to spread democratic institutions, for example, the courts, or the police, or other offices. Also, memorial projects, which means that you put in place different means of commemorating victims of violence.

This means that there are lots of different ways that you can deal with human rights violations. I find it really interesting that Sudan, which has now very recently come out of conflict, wants to implement transitional justice. Normally, it takes quite some time before governments try to deal with human rights violations. Also there has already been a transition to democracy. I noticed that already in the draft constitution, the charter for the 2019 transitional period, which was signed in August last year, 2019, transitional justice was actually a big topic.

‘If you have a human rights violation, which means that you break national law, and you break international law in some cases…’

RD: You mentioned judiciary reform as a part of transitional justice, isn’t that overlapping with rule of law programming?

Skaar: Of course. I mean the judiciary is there to solve legal problems, as we know, but it’s also there to deal with criminal matters. So if you have a human rights violation, which means that you break national law, and you break international law in some cases, this is what the judiciary is supposed to deal with. But what happens is that when you’ve had a conflict which has lasted for a long time, usually the courts don’t work very well. I assume this is also the case in Sudan, because I know that part of the programme of the interim government is strengthening the courts and implementing the rule of law, which are central components of the reform programme.

RD: Do you want to go back to the constitutional document?

Skaar: Yes, I just wanted to make a couple of comments because I read this today, and I see that right at the beginning of the second page of the vast constitutional charter, transitional justice is actually mentioned as the first thing that the declaration of freedom and change, which is agreed upon by the military council and the Forces for Freedom an Changes (FFC), in Sudan have agreed on. So they are striving to implement measures to achieve, and I quote this from the document, transitional justice as the first item, and then it goes on to fight corruption, reform the national economy etcetera. The transitional justice is actually the first point. And then transitional justice is mentioned again as a very central part of the comprehensive peace issues, can I just read to you what it says?

RD: That would be great.

Skaar: It says, this is chapter 15, point G, it says: “The government of Sudan should start implementing transitional justice and accountability measures for crimes against humanity and war crimes, and also present the accused to national and international courts, applying the no impunity principle.” This means that there are certain crimes which you cannot offer impunity for, and these are crimes that violate international law, specifically crimes against humanity and war crimes, and these are some of the charges that have been brought against the former president Al Bashir.

RD: You mean the ICC?

Skaar: Yes, the International Criminal Court has actually accused Al Bashir of both. There are five counts of crimes against humanity against him: murder, extermination, forcible transfer, torture and rape. And then he is also accused of two counts of war crimes: deliberate attacks on the civilian population in Darfur, and taking part in hostilities and pillaging. Finally, there are three counts of genocide against Al Bashir: genocide by killing, genocide by causing serious bodily or mental harm, and genocide by deliberately inflicting on a target group conditions bringing about their physical destruction. These are crimes that have taken place in Darfur. So, this is what the international criminal court is trying to do with the ex-leader of Sudan. But there is also, the way I understand it, there is also an expressed wish to deal with other people in Sudan who have been involved in gross human rights violations. This is what the country is trying through transitional justice, as I just mentioned to you, in the document that was signed between the two parties in August last year as a part of the peace process.

RD: Does the constitutional document actually refer to the international criminal tribunals as part of the transitional justice, right?

Skaar: Yes, it does. In the points that I just mentioned, Sudan should present the accused to national and international courts, so it wants to do transitional justice both through the Sudanese courts and also through the ICC, which is an international court.

RD: That means the rule of the ICC is a part of the possible transitional justice process in Sudan?

Skaar: Exactly. The thing is that one of the criteria of having to appear before the ICC is that all national ways of achieving justice have been explored. This happens normally when the courts of the country are not able, or not willing, or both, to hold leaders accountable for human rights violations. I think this is the case in Sudan. So, it remains to be seen, then, whether national courts are able to prosecute more people than just the top leaders. Strengthening national courts is on the political programme of the current government in Sudan, but this takes a long time. You can’t really build a democratic judiciary which is capable of upholding the rule of law in a very short time period. This may take many years to actually complete, before you have a court that is competent and can actually rule on human rights violations. We have seen this repeatedly in Latin American countries that I have been working on…

RD: The legality issue  is also trickier in this case, right?

Skaar: Yes, because these things are connected. So, if you want to deal with human rights violations, you have to have… There are several steps in this process, first you have a violation, so there are victims. Normally the victims have to claim justice, or you have to have an organisation on behalf of the victims to claim justice. This is normally done through the courts. So, first you have to have a claim for justice. Then you have to have a response, so if you have political will in a country to actually do the prosecution, the government is going to signal to the courts that this is okay. And then the courts have to have the legal rules in place, and they have to have the competences, and they have to have the will, and they have to have the witnesses and the material and the evidence necessary in order to reach prosecution, in order to get these court cases started.

RD: That is what you actually mentioned in your paper, that there must be a claim to justice and a will, and there must be the minimum degree of independence of the court and the competence to rule on serious cases like in Sudan.

‘When you have a very delicate political transition like in Sudan… it means that there are still people who represent the military who may have connections to the Al Bashir regime…’

Skaar: Yes, because what happens when you have a very delicate political transition, like in Sudan, where you have an agreement between the democratic forces and the military, it means that there are still people who represent the military who may have connections to the Al Bashir regime. So, in the Sovereign Council which has been set up, there are eleven people, five of them are civilians which are selected by the FFC, and then you have five members selected by the Transitional Military Council, and then you have the eleventh member, which is a member which both parties have agreed upon. This means that at least half the people in the Sovereign Council has strong ties to the military. If the military was responsible for the violations, it is quite obvious that they are not interested in taking that responsibility, since they are trying to govern the country. Which is why it is so hard to get the political backing you want for court cases through the courts, of human rights violations, because this is not possible while they are in power. This is something that we have seen in all the Latin American countries that I have worked on. We looked at 13 different countries which have had a transition from either an authoritarian military regime to a democratic regime, or countries which have had long standing civil wars, which is also the case in Sudan.

‘When the military is in power, either partially or wholly after the transition, even after you have a civilian government, but when you have a strong military, prosecutions are not going to happen at the time of transition’

What happened is, when the military is in power, either partially or wholly after the transition, even after you have a civilian government, but when you have a strong military, prosecutions are not going to happen at the time of transition. In the case of Sudan, there has been a statement that these processes of transitional justice, which in this case means tackling criminal courts, they wanted actually to do that in the first six months of the transition, which is from august to January, where we are right now, thinking that this was going to happen in six months. But if you look at the world, globally, it is not likely to happen so soon after the transition, precisely because you have a strong military, and you have people that are implicated, for example in the Khartoum massacre in June last year, there are people in the government today who are responsible or partly responsible for that massacre. What are the chances that they are willing to start up a court and say yes, this is exactly what we did and we want to take the responsibility for it?

RD: That is one of the big questions we have in Sudan now, whether the transitional government has the capacity to address such a vast human rights violation and crimes against humanity, war crimes and genocide. I find your article very interesting. Personally, I feel a little bit frustrated with some statements like if the military is strong enough, the persecution is not likely to happen. You are an expert in this field and you have written about it, and you have seen a lot of these atrocities in Latin America and other places, across the globe. My question is, is there any possibility Sudan could be different from the states in Latin America and other states in Africa?

‘As along as the military is strong and the military has the arms and the military is controlling power, they do not want to be held responsible for the violations they have committed’

Skaar: I wish I could say yes, but I don’t think I can on the basis of experiences across the world. This is not only Latin America, but we’ve seen the same in other African countries and Asian countries, even in Europe after the end of the fall of the communist regimes in the 1980s. No country has actually tried to prosecute its military at the time of transition. Which means that there is a period of time where prosecuting is politically and legally impossible because of the power balance. As along as the military is strong and the military has the arms and the military is controlling power, they do not want to be held responsible for the violations they have committed. This is almost like a universal rule. I said in that article that no victorious army has ever been prosecuted, and this is true. Argentina tried, back in 1985, which is now about 35 years ago. The military had lost an international war against Britain, the Falklands war, so the military was weak at the time of the democratic transition. They had to give the power to a civilian government. The president promised to prosecute the military. He tried, he instructed the courts, and the courts are quite strong in Argentina, they had a very professional judiciary, so the courts had been working throughout the dictatorship period.

They had good judges, they had good prosecutors, they had a functioning institution, they had president backing the idea of prosecution, and the second they started to indict the military, the military revolted. They gathered forces, there were two or three unsuccessful military revolts and the president of Argentina was just forced to say: “Listen, we can’t prosecute the whole military, we will be out of power in no time, they are going to ruin the democratic government, there will be an armed coup again.” So, the president stepped back and said: “Okay, fine, we will prosecute only the top generals.” So, they issued two amnesty laws, which made widespread prosecutions legally impossible and they indicted nine top military people in the end. Five of them were found guilty in court with enough evidence and put into jail. Then, three years later these people are out of jail because there was a new president and he thinks it’s better to pardon the generals, to look to the future and to forget the past. This is the country in the world that has done the most, and still the generals came out of jail so quickly.

But, if you look at Argentina's history, in the south of South America, twenty years later they started requesting that the military appear in court again, and they have been extremely successful. There are new people in power, they had the backing of the civilian government, the courts have been reformed, some of the old judges are out, there are new judges, they have a better legal framework. They have made the amnesty laws unconstitutional, which means they no longer apply. At the moment there are thousands of people being prosecuted, very successfully, with five thousand witnesses, huge number of court cases. This just shows that if you give things time, there can be prosecutions in the long run, if you wait five years, ten years, maybe even twenty years. I don’t think it’s likely to happen in the first six months after a transition to a democracy, when this peace is still very frail and where the military is still very strong.

RD: As an outsider, you might be able to see things that we do not really pay attention to. For those whose rights are seriously violated, for example in the case of Darfur, and in other places like the Nuba mountains, and Blue Nile, for them to wait for justice might seem as injustice in itself. The overlapping of justice, democracy and peace are somehow intertwined in this process. If you don’t have peace, you won’t be able to have justice. Without peace, you won’t have justice and without peace and justice you won’t have a democracy. So, it’s seems they all go together.

‘One of the things which is really hard for a country coming out of conflict is trying to tackle so many problems at the same time’

Skaar: You know, one of the things which is really hard for a country coming out of conflict is trying to tackle so many problems at the same time. Do you try to put a peace agreement in place which is respected by all parties so that the conflict doesn’t start again? Maybe the first priority of a government is to secure that the peace is not interrupted again by a coup. And if that is the most important thing, you can’t provoke the military into a new reaction. That’s one part of the puzzle. Another part is that you have to try to spread some democratic institutions. If they have been interrupted or haven’t been working very well, you need to put a working parliament into place, you need to get the economy going, you need to strengthen the courts, you need to ensure that people have health facilities, you need to open the schools again so that kids can go to school.

So, a government coming out of conflict has to operate in many different arenas and all these arenas require competences, and people with skills, and resources. I think one of the most challenging things for a government is to try to prioritise in a very fragile political setting. How do you prioritise? The first thing you have to do is to ensure that peace actually lasts, so that you can democratise and ensure people’s rights over time. This is what most governments do, which is why sometimes transitional justice, at least in the form of criminal prosecution, is put on hold. What governments can do, is give at least some kind of compensation to the victims, so that, although they don’t get justice, although they don’t see the perpetrators in jail, at least they get the feeling that the government is trying to seriously address the wrong that has happened in the past.

RD: What you mean is that the other pillars of transitional justice can be done now and the justice, accountability pillar can come later. Is that what you mean?

Skaar: Yes, that is one possible solution. The document, that I cited right at the beginning, the first constitutional chart, that the Sudanese government signed last August, they actually list that they will have independent commissions. I don’t know if you know this, but they have actually promised they will establish a human rights commission and they also promised that they will establish a transitional justice commission.

‘The current government is actually willing, at least they have discussed and agreed that they will set up commissions to investigate human rights violations’

This is in chapter 12 of the constitutional charter. Which means that the current government is actually willing, at least they have discussed and agreed that they will set up commissions to investigate human rights violations. Many people have suffered, for example family members disappeared, family members have been put in mass graves, family members have been forced to flee in exile, they have been tortured, nobody knows who tortured them, they have been raped. At least, these commissions can give the people some information by investigating these human rights violations. They can offer victims information that they haven’t had before. For a lot of people that is actually very important to know what happened to family members who have disappeared. This information in itself can have a reparatory part, if you want.

What I am trying to say, I guess, is that transitional justice is not only about putting people into jail. Transitional justice is also a way of a government to meet victims in different ways. So, investigating violations can be one, giving reparations to victims can be another. This can take many different forms. It can be an official apology, for example, by the military. They can say: “Listen, we have committed these violations against our own citizens, we are sorry that we did it.” And this apology in itself can be important and it shouldn’t cost too much. Sometimes it takes the military years to say sorry, but they have said sorry in many different countries. Another way is to give material reparations: people have been forced to flee their homes, children haven’t been allowed to go to school, political opponents have been killed. I mean, you can give people pension schemes, you can promise them jobs, you can give them monetary compensation if the resources are present. If the government doesn’t have the resources, sometimes the government can ask the international community to assist.

‘Transitional justice is not only about putting people into jail. Transitional justice is also a way of a government to meet victims in different ways’

For example, in Peru 70.000 people have been killed, many people have been forced to move from their villages. The government of Peru said: “Listen, we know that all of these people have suffered and we don’t have the resources and the people to actually compensate for this.” And they asked several foreign governments: can we be given resources to establish a truth commission, can a preparatory programme establish health schemes, vaccination programmes, a pension scheme set up, with international help. So, if the Sudanese government wants to do something for victims and they feel that they do not have the resources, material or human resources to do this, there is the possibility that the international community can actually step in and help. So, that’s one way to go which has worked in some other countries.

RD: With regard to the justice issue. The case of Sudan is politically very complicated. For example, the Sudanese army forces, the army was deconstructed by the former regime of Al Bashir. Then some replacements took place and they created the Rapid Support Forces. The Rapid Support Forces are a beast that the former regime created. Our brotherhood regime got out of control and that was the major development in the last regime. So, the Rapid Support Forces got out of control from the former regime. Currently, the Sudanese army is not as strong as before the 1980s. The army has been deconstructed and replaced by some other forces. The military institutions are no longer that capable, we don’t have one national army per se. We have different forces which might have different interests, the strongest one among these might be the Rapid Support Forces. My question is that whether or not the Rapid Support Forces tend to have an interest in justice, would that change the process?

‘The difference between the Sudanese army, the way you describe it, and the military forces in other countries, is that it is more fragmented’

Skaar: I mean, possibly. What’s the difference between the Sudanese army, the way you describe it, and the military forces in other countries, is that it is more fragmented. So, you have different conflicting interests within the military institution. The parallel that I see to some other countries is that you had government military forces and then you had what you call paramilitary forces, which have been representing the people, which operate more local. For example, if you take the case of Colombia: there you had armies fighting the government, so you had the government military fighting the people’s military if you want. And this has created a lot of complications, also from the standpoint of transitional justice, because they have different interests. One big thing has been: how do you disarm different military factions? How do you make sure that they actually hand in weapons? So, that they physically cannot continue the fighting and kill civilians. I think the more splits you have within the military, the more different factions you have, the more holistic policy you have to have from a government’s point of view, because you don’t want different military factions starting to fight each other again. I don’t know the Sudanese situation well enough. What I hear from you is, that there may be factions within the military who actually are for transitional justice, right?

RD: I’m not sure. I am just wondering that in the case the Rapid Support Forces have an interest in justice, for example, you can say it’s a private or paramilitary army, that this interest might be entirely different than the interests of the Sudanese military forces. So, in that case, whether or not that will change the scenario in the context of justice.

Skaar: Well, who sits in government and who controls most of the weapons is going to be key. Because even if you have factions or armies on the side which are not government structured but which carry weapons, they still have military power. And you don’t want to provoke those with military power into a coup, regardless of which side they are on. I think, for example in the Colombian case: those who have been fighting on behalf of the people against the government, the guerrilla movements, there were several factions. They have been responsible for killings as well but they would say: “Oh, we did it in the name of the people. We were fighting the government.” But they still have weapons, which have not only been used to fight government forces, but they also have used these weapons against civilians. In the current peace agreement in Colombia, there were big discussions what to do with different military factions, whether they were private or whether they were government sponsored. And the big thing was to make people actually hand in weapons, the private armies. I think this is going to be challenge in Sudan as well but I don’t know the case well enough.

‘It seems very unlikely that you will see prosecution of either side of the conflict very soon after the transition’

Of course, those who have been fighting the government army, they want the government military people to end up in jail. But as long as they don’t dominate the political situation, they are not very likely to get those kind of wishes through. This is just speculation, because I don’t know the case well enough, but to me it seems very unlikely that you will see prosecution of either side of the conflict very soon after the transition, maybe in the long term. But I think you are likely to see other things, like truth-finding and reparations to victims, before you see prosecutions in Sudanese courts. This will be my guess.

RD: Some people also think that when both parties have been involved in human rights violations and crimes against humanity, it is easier for them to avoid the accountability pillar. So, the accountability pillar in cases where both parties might have been involved in human rights violations can be turned a blind eye on. How accurate is that in some other cases?

Skaar: No, I think it is true though. Where you have negotiated settlements, and you have that in many countries where the civilian government actually sits down and discusses, the military says: “Ok, we will make a peace agreement with you or we will agree to hold national elections, if you agree to the following: A, B, C, D. And then they have a long list of demands. Usually, having an amnesty law in place and avoiding prosecution are very simple demands for those who have been actually involved in human rights violations. And in many countries you have strong links between political parties and the military. Typically, in the Latin American setting, you will have strong links between right-wing parties and the military government. Right-wing parties are the ones that applaud the military in the first place, so they are playing along with the military throughout. Traditionally, in most countries the left-wing parties suffered the majority of the victims and also were against the military. On your question: there are strong links between political parties and the military. And those who have blood on their hands, regardless what name of the political party is, will normally not want to be prosecuted. There is another thing we should not forget and that is the economy: in many countries, there are strong links between military actors, political actors and economic actors. Where these overlap, it becomes even more complicated in terms of who is going to end up in jail. So, in most scenarios people just avoid prosecutions for many years. I mean, in the Latin American case, except for Argentina which I mentioned, it usually took anywhere between 15 and 25 years for prosecution to start. Transitional justice, in a very narrow sense of criminal justice, takes a very long time.

RD: That’s very long. What I am certain about in the case of Sudan is that the of majority of Sudanese people whose rights have been seriously violated, see nothing more important than justice. According to what you have been saying, the possibility to persecute those perpetrators is unlikely to happen. The issue of peace as well might be hindered in a way.

‘Once the fighting stops, then you can try to achieve a deeper peace’

Skaar: I think, it depends on how you define peace. But if you have a very minimalist definition for peace as the absence of war, maybe even the Sudanese people will prefer to have a stop to the violent actions, a stop to the human rights violations as their first priority, before justice. And sometimes you need to have a lasting peace in the sense that the fighting has to stop. And once the fighting stops, then you can try to achieve a deeper peace, if you want, where human rights are actually respected. And also, where human rights violations have ended. I think it might be useful to think about peace building and democratisation as long-term processes that happen in different steps. What is not possible in the first step, may be possible in the second, third or fourth step. It is very difficult for a very new government to do all at once.

RD: In that case the rule of law programming can be more effective than the accountability pillar of transitional justice, in the case of Sudan.

Skaar: Well yes, I think they are connected. You can’t really have credible accountability if you do not have a functional judicial system. When you have a functioning judicial system, you will have a rule of law. A rule of law in essence means, that everybody is treated as equal before the law, regardless of position, ethnicity, political rank, religion etcetera, everybody is equal before the law. If you have very strong power conflicts, courts don’t treat people equally, which is why is it really difficult to hold the top military accountability in any country. It is normally easier to prosecute a soldier who has killed somebody for that specific crime, than prosecuting the head of the state for planning genocide for instance.

I think I would just like to add that I think it is actually really good that Sudan has actually managed to sign a peace agreement. That is a very important first step to increase respect for human rights in the long run. If the Sudanese people are patient, and if human rights are being put on the agenda, and if individuals as well as legal experts and human rights organisations keep on demanding justice from the Sudanese government, I think at some point in time we can hope that the Sudanese government is going to deliver transitional justice to the people.