Prof Sara Nouwen interview: The possibility of transitional justice in Sudan

With the surrender, transfer to The Hague and first appearance before the International Criminal Court in The Hague of former Darfur janjaweed leader Ali Abdelrahman (‘Kushayb’) last week, the issue of Transitional Justice in Sudan was never more topical. Prof Sara Nouwen* (SN) is a Reader in International Law and Co-Deputy Director of the Lauterpacht Centre for International Law at University of Cambridge. She’s also a student of Sudan. Mohammed Elgizoly Adam of Radio Dabanga (RD) spoke to her about her perspective on the practicality and possibility of transitional justice in Sudan.

RD: Welcome to Radio Dabanga.

SN: Salaam Aleikum. I am a Reader in Special Law at the University of Cambridge and I teach International Law and I am also very interested in the specific area called Transitional Justice. I also consider myself a student of Sudan. I visited Sudan for the first time in 2005. I was supposed to stay there for three weeks but fell in love with the country and ended up staying for much longer. We spent a lot of time there in 2005 and 2011.

RD: So, it would be great if you could give a brief introductory remark about Transitional Justice.

SN: In one way Transitional Justice and Sudan are a bit alike and that may seem surprising, because a lot of people say that Transitional Justice may seem entirely new to Sudan. But they share one thing, the more one knows about it, the harder it becomes to give any definitive answers. Sudan, I have often been told, the longer you stay in the country, the more complex it becomes. Similarly, Transitional Justice at first looks very simple. It is often defined in simple terms and it is said to have four pillars. Accountability, reparations, institutional reform, but the more you study it, the more complex it becomes.

RD: Even the facts on the ground, the downfall of Al Bashir, the Transitional Government that came about with high expectations of peace and justice. How practical and possible is it to have Transitional Justice in Sudan, in particular the accountability as people said.

SN: Before I answer that question, may I say one thing about why I fostered Transitional Justice? It becomes quite complex. At first many people can agree on a definition of Transitional Justice. The United Nations have been quite successful in promoting its understanding of Transitional Justice. Its full range of processes and mechanisms associated with society’s attempts to come to terms with the legacy of large scale past abuses in order to ensure accountability, serve justice and achieve reconciliation. But even among people who share that understanding of Transitional Justice, they can have fundamentally different emphases. Let me give you one example: when I was working in Northern Uganda, Kampala about Transitional Justice, I interviewed several people about their understanding of Transitional Justice. I interviewed one internationally funded Transitional Justice expert or advisor on what Transitional Justice meant. She immediately said: Trials, Truth Commission, Reparations and Vetting. Vetting comes from the administration process making sure the people who serve for the Government have not committed international crimes or human rights abuses. So, in her answer we immediately recognise the by now standard instruments of Transitional Justice. I then asked the Chairman of then recently created Transitional Justice working group, a Ugandan Judge, and he responded Transitional Justice is justice involving short punishments. I think what these two statements illustrate is there are two very different emphases.

RD: Can you elaborate on that?

SN: Regarding justice involving short punishments. So, what he emphasised is the following. For him Transitional Justice is ordinary justice in very difficult circumstances. His understanding of Transitional Justice is trying to pursue justice, but in a way that also promoted peace. His argument was, if you tell the large resistance army that if they conclude peace, they are going to be locked up in a prison either in The Hague or in Uganda forever, you are not going to get a peace agreement. So there needs to be a compromise. Transitional Justice for him is ordinary justice with compromises, so justice involving short punishments. Whereas earlier, the Transitional Justice expert from abroad that I interviewed, hei emphasis was trial, truth commissions, reparations and vetting without a compromise. For the work transition was only about the context in which these things take place, but almost as a reminder, you may be transitioning, but you have to do these things without a compromise. There are fundamentally different opinions as to whether Transitional Justice is something that is just ordinary justice in the context of a transition, or whether Transitional Justice is justice that aims to facilitate a transition and for that reason has to make some forms of compromise. It cannot be ordinary justice.

RD: That means Transitional Justice associated with societal aspects, certain perspective, and situation itself. So, in simple terms Transitional Justice in Uganda is not necessarily the same as in South Sudan, Sudan or South Africa?

SN: That is true, but one element of it is the following. If you look at the definition of Transitional Justice as the right to truth, the right to reparations, the right to accountability, you can say that victims have these rights anyway. What if they are transitional about it? They have it in the case of a political transition, they have it without a political transition. So, in the technical approach to Transitional Justice is a toolbox consisting of all these things, the emphasis is on you have to do this and the transition is merely the context within which we are doing it. In the other more political understanding of Transitional Justice, the justice cannot be the justice as in ordinary circumstances, actually it never happens like that in ordinary circumstances, but in an idealised way, because the justice also has to facilitate the transition. That is where your example of South Africa is really beautiful. The justice done after apartheid in South Africa was a compromise. Yes, there will be accountability in the sense that people have to come forward and tell the truth, otherwise they will be prosecuted. But if they do tell the truth, that is the end of the accountability, because they will not be prosecuted. They will get amnesty in exchange for telling the truth. So that was a political compromise, and, in that sense, Transitional Justice is a compromise, which is very different from the kind of toolbox approach. Transitional Justice is all these things without any compromise.

RD: Some argue that Transitional Justice highly depends on political will and strong leadership. Otherwise it is unlikely to have a successful Transitional Justice programme.

SN: That is true. I think that the term ‘political’ is so cheap, in a way we can always say we need political will. It becomes interesting the moment you start analysing why there is no political will. To understand that, you need to know what the political costs are. Why are they afraid? Why is there no political will? That is because Transitional Justice can be politically costly. I am not saying therefore one should not do it, but one should analyse what are the political costs in order to be able to understand what the possibilities are of actually pursuing Transitional Justice.

The same point with respect to leadership, you are right. What you need is political leadership, but a few individual leaders – even if they are Nobel prize winner – cannot change the nature of a society. Going back to Sudan, Sudan is not alone in this, many states in the world have faced the challenge on how do we move from a society that is based on patronage, a society in which everything one gets is based on loyalty. If I am loyal to X you get weapons from X, or you get food. And in exchange, I give my votes.

How do you move from a society like that to a society that is based on impersonal rules that apply to everybody? That question has been a huge challenge for Europe. Europe was a very feudal society, totally patrimonial. It has been a challenge for countries all over the world and I think it is a challenge still for Sudan. As Alex De Waal has argued, it is based on the political marketplace. It is still entirely based on patronage.

That is the challenge that the new leadership in Sudan is facing and it not something that one new prime minister on his own can change. It is something that is so true throughout society that all levels of society needs to be changed. And if you insert Transitional Justice in this as if this context does not exist, as if you are in an ideal political world, then there is a huge risk that Transitional Justice itself becomes subjected to the laws of that patrimonial society. Transitional Justice itself will become an instrument to either punish your enemies or reward your friends. I would really argue always to see Transitional Justice in that political context.

That is not to say it is all political and we cannot do justice. Not only to make sure that justice being done is actually meaningful, and does not get highjacked by these political processes. Another lesson that we got from history throughout the world, as Schneider and Vincher Morey have argued, is that justice does not lead, it follows. What you really need is to work on these institutions. Institutional reformis an element of Transitional Justice. Once you have strengthened institutions, once you have a stronger civil society, and by civil society I don’t mean western sponsored NGO’s but I mean professional organisations, labour unions, trade unions, and those organisations that in Sudan have brought de revolution about. Once you have those and once they are in a stronger position, then it is possible to get strong institutions and more impersonal rules. Also then traditional justice mechanisms will be perceived as more just and fair.

RD: That is an interesting point. In terms of prioritisation, do you think it is reasonable for now to focus on accountability or legal reform or over preparation to standing, given the fact that the institutions in Sudan for the last 30 years have been highly and seriously weakened and are unlikely to function properly.

SN: I think the first thing I should say is that justice is a political objective. Justice in any society has to be done in accordance with law, but as an objective it is a hugely political aspiration. What justice will look like has to be determined by the community that pursues it. So, what does justice look like in Sudan is a question that has to answered by the Sudanese. Of course, the challenge is that there will be as many opinions as there are Sudanese. So many people will have slightly or very different views on that question. But it is not to me as an outsider to say what justice has to look like. All I am saying in a way to these people that are advocating for Transitional Justice is not to do that purely on the basis of ‘you have the right to this’ ‘you have the right to that’.

They think that this can be implemented without addressing that other context. The example you are giving is a good one. The Sudanese legal system. I have always been struck by the quality of many of the Sudanese lawyers. It is not is that they did not know the law or that they did not have enough training. Many international actors say that the first thing we need to do is capacity building. I am not so sure. Everybody’s capacity can always be built, including my own. I love more training. Everybody likes more training, so in that sense it is perfect, but I don’t think it is the essence of the problem. The essence of the problem is that Sudanese lawyers, in particularly judges and also prosecutors, were very much aware of the boundaries where they could go politically and where not.

They would perfectly apply the law in a commercial dispute or in a non-armed conflict related crime, but the moment is was about the armed conflict they said this is political. We cannot go there, because it would have huge ramifications for us. How do you change that? That is not just a matter of saying your judges or your prosecutors ‘you have to be more brave, you just have to do it’. No, they probably had good reasons to be fearful. The entire security state has to change. The security system has to pay more respect to the legal institutions. That is the essence of the rule of law, we too are subject to the rule of law.

And of course, you can have a few courageous judges and prosecutors who try to push those boundaries and insert themselves in those areas where they felt they could not go. But the moment you get a backlash from the national security system or from the army, then that is not going to be sustainable. So that is why I think all these things have to go in tandem. I can imagine that you want some practical suggestions. One of the things that is characteristic of Sudanese law is the extensive immunities they give to the police, the army. If you want to prosecute a police officer or army official, you need to get permission from their superior which hardly ever given. In these areas the law could be changed and that would send a signal to private lawyers who want to pursue such cases and public or state prosecutors. We are actually encouraging this rather that creating as many obstacles as we can.

RD: A couple of months ago we interviewed a number of IDPs camp leaders in South Darfur, in El Fasher, El Geneina, in all these camps and they all agreed on one thing. International prosecution. They first want the government to hand over Al Bashir and the others to the ICC, and then there was talk about domestic prosecutions. As I mentioned earlier, the importance of leadership, as a goodwill for the government to hand over these individuals, to show the readiness and willingness and the seriousness of the government in accountability issue of Transitional Justice. In other words, how will international prosecution facilitate the Transitional Justice programme in the country?

SN: This raises the interesting question to what extent international criminal justice is part of Transitional Justice? On the one hand you can say, yes, it is part of it, in the sense that Transitional Justice has this one component, accountability. Accountability can be done at various levels, including the international level. On the other hand, the two are somewhat separate in this, if you regard Transitional Justice as a society’s attempt to deal with the past. Because what an international court does cannot be controlled by that society.

An international court pursues or prosecutes in the interest of international rule of law. Not necessarily in the state in which it intervenes. That is also the reason why I did not emphasis the international criminal court in advance, because I don’t think it is, from a Sudanese perspective, its own instrument of Transitional Justice. It cannot control it. That said, it exists. The ICC has issued arrest warrants for the former Sudanese president and there have been signs that the government may now be willing to hand him over to The Hague.

For a lot of Darfuris this would be hugely significant if that happens. I can also imagine that they have little faith in him being tried by people who, to a large extent, were loyal to him, in the sense that they received salaries from that government. On the other hand, I don’t think that the prosecution of Bashir and possibly a few others, would provide meaningful Transitional Justice for everything that has happened in Darfur and many other parts of the country. Note that the ICC has only issued a few arrest warrants for the former leadership.

RD: What about the symbolic aspect of the international trials? How can that facilitate goodwill for the broader justice crisis in the country?

SN: I can imagine that symbolically it is very important, and that it is just a matter of justice. That is not even a matter of Transitional Justice. It is important that the former president is held to account for everything he is been accused of. But I would not consider that as an instrument of Transitional Justice, mostly because the Sudan cannot use the ICC as an instrument. It is doing this anyway. How important it issymbolically, I cannot answer. You have much more on the ground information of Darfur. I entirely believe what you say. About that it is important, but perhaps it would be the beginning of several processes. But it does not help the Sudanese transition in the sense of fostering faith in the Sudanese legal system. It fosters faith in an international legal system.

RD: Back to the system of issue of leadership and its significance in the transition process. Transitional Justice was included in the constitutional document in the first and second articles. In the beginning the government showed its willingness and raise high expectations for justice and peace in the country. But since then the government has not taken any decisive state to establish for example the commissions to come up with a proposal. Tangible proposal for the Transitional Justice. Nothing really decisive has happened since the formation of the transitional government.

SN: In a way these constitutional documents are often aspirational. They often say this is what we want to achieve. This is what we want to get at. This is the same thing with the bill of rights. In Sudan, the bill of rights, if you look at the implementation thereof it falls way behind in what the constitution promises. Then the question arises, should it not be included in the documents at all. Perhaps it should be because we can look at it. This is what we are aiming for. This is what we are striving at. To give an example, the international constitution that was adopted in 2005 after the adoption of the comprehensive peace agreement.

That had a clause, I think it was article 1.3, in the beginning of the INC, the government shall implement a programme of national reconciliation. Then they understood that as a form of Transitional Justice – nothing happened. When I interview parliamentarians about why nothing had happened, they said ‘Oh you mean the amnesty clause?’ Amnesty? There is not reference to amnesty whatsoever here. Oh yes, were not allowed to include an amnesty in the peace agreement they explained. Therefore, we called it a national reconciliation programme. But by doing nothing, that was for them national reconciliation. I am not saying that the new document is similar. I think the facts are very different. The people who brought about the revolution were genuine in their desire for justice. But they are confronted with the reality of the political and financial cost of Transitional Justice in the midst of an economic crises. The financial cost of Transitional Justice brings up huge questions.

There are countries, for instance, Sierra Leone, if victims would get 100 dollars per person then the trial of the individual person had cost 300 times as much. Where do you spend the money, where is the emphasis? And in an ideal world, I am an idealist, I would love to have it all, victims get reparations, you do trials of each and every one who has committed crimes, etc. But if you look at the reality that Sudan currently is confronted with and an international community that is focused on Covid-19, choices have to be made, priority have to be set. That is why it is so important what you are doing with the interview series is raising questions about Transitional Justice and encouraging a debate among Sudanese.

What are our justice priorities, should money go to reparations first or do trials or perhaps do both? What level of leadership in the commission are we going to prosecute, are we going to go for each and every militia member who has committed crimes in Darfur or army officials who has crimes in the Nuba mountains or Blue Nile? Or are we going to focus on the political leadership. There are all kinds of questions like that. Such a debate among Sudanese about the priorities of Transitional Justice and how it relates to the other objectives of getting the economy out of the current situation. And protecting the extremely vulnerable but at the same time admirable political transition.

RD: Given the situation on the ground in Sudan, Nuba Mountain, Blue Nile, Darfur, Khartoum, the complexity of the situation in Sudan. Given all these facts, how important is Transitional Justice in Sudan? As Sudanese do, we have alternative justice mechanisms to achieve justice for the entire country? Or all people.

SN: I love that question. If you define Transitional Justice as a society’s attempt to come to terms with crimes committed in the past, I think Transitional Justice is essential for Sudan because so many injustices have been left unaddressed in Sudan and have always created resentment and therefore become a source for further conflict. The way I have defined Transitional Justice is really a society’s attempt to deal with these things. That is different from subscribing ways of doing that.

Many different societies have chosen different ways of doing that. Rather than immediately leaping at which mechanisms are we going to use, which truth commission or trials, etc. I think the first question should be what does justice look like for the Sudanese? Where is the emphasis? Is it reparation? Is it on a fair distribution of the wealth that the country generates? Is it about fairer distribution of a political position? Is it about individual accountability of people who have committed crimes? And probably it is a bit of everything or as much as possible of everything.

That leads me to this question about peace versus justice. I would not immediately say Transitional Justice is just promoting peace instead of justice. It is the maximum amount of justice you can do while still promoting the transition and that is the challenge the current leadership faces. May I get back to your question about Sudanese mechanisms? In terms of Sudanese mechanisms as you indicated, the judicial has been heavily criticised as in weakened during the years of NIF rule. At the same the legal system and especially Sharia law also has elements that could promoted aspects of Transitional Justice.

Transitional Justice is about accountability and you have criminal justice but actually it is almost the weakest element of the Sudanese legal system because a lot of the work for accountability has to be done by victims themselves rather than the state. It is only if you have Hudud crimes, I believe, that the state prosecutors would initiate this themselves. Very often if individual victims are the victims, they have to pursue justice and that is an obstacle race for them. What needs to change is that there is much more of a state policy to prosecute crimes committed against civilians rather than leaving the initiative with them. If you look at the strength of the Sudanese legal system, it is an element for reconciliation, so I think the criminal procedure code even encourages judges to help the parties to come to a settlement and to focus on reparation. If you compare international criminal justice, where attention for victims is rather late in the day, the attention has always been on the perpetrator. Only since a few decades are the ICC paying more attention to victims. The Sharia law has much more attention for reparation and the demands of victims.

What type of justice do you want as a victim? In that sense I think looking a Sudanese law and looking at Sudanese institutions such as the Judea mechanisms in Darfur could be helpful forwards. Now the Judea mechanism itself has been weakened by the conflict and is probably not very well suited for dealing with when the government is involved in the commission of crimes and yet the way of dealing with crimes is very much focused on dispute settlement. That is a judicial justice way of doing things. Now that you see crimes in the context of conflict.

RD: As an outsider, someone who has a good understanding of Sudanese politics and the complexity of everything in Sudan, how hopeful are you with this Transitional Justice programme in Sudan? do you see the possibility of Transitional Justice in Sudan? Are you hopeful?

SN: That is a really difficult question. On the one hand if any country in the world inspires hope it is Sudan. It’s the Sudanese who did what nobody thought would be possible and what no foreign actor managed to do which is to oust president Bashir and his regime out of power. It’s the Sudanese people who risked their lives and managed to get the army to intervene and oust the president. So, in that sense the Sudanese can do so much. At the same time, it also depends on which you recognise, in the sense of what your eyes perceive as being Transitional Justice.

If it is massive trials, really accountability of each and every perpetrator of crimes committed in Sudan over the last decade, Darfur 3 June massacre in Khartoum, Nuba Mountains, Blue Nile, it is so massive that even the most developed justice systems in the world would not be able to cope. If that is the expectation for Transitional Justice, I am not very hopeful. But I don’t think that should be the expectation. I think what the expectation should be is that the Sudanese come together, they have already done so, so that is not that new, but develop further a programme of what would be meaningful Transitional Justice for them. Again, I go back to South Africa, what happened in South Africa was not comprehensive Transitional Justice. It was impossible and there were a lot of victims who were very angry about that, who said not I want the person to be held accountable and to actually service a prison sentence.

It was controversial. But the political ANC with very strong grass root organisation made this compromise but they pursued a maximum amount of justice that was possible in that context. That is exactly what I hope for Sudan is that the level of societal organisation that was demonstration during the demonstrations against the government and that brought about the changing government and that that continues. That is the type of societal organisation that can come up with a Transitional Justice programme that does the maximum amount of justice. Justice is defined by those Sudanese, not by me. Under the circumstances while still protecting that amazing political transition that they have achieved.

RD: But unlike South Africa, Sudan has almost 50 political parties. A number of weapon groups and other political actors. For instance, last year Sudanese people demonstrated a great inspiration for democracy, peace, and justice. But unfortunately, we don’t have one political party with strong grass roots as the ANC in South Africa.

SN: Yes, that is where the work ahead lies. The problem with a lot of the rebel movements in Sudan was that they fought in the name of the people but were quite disconnected from the people. Even the NP11 in South Sudan was a very successful movement in what they eventually achieved in self-determination. But it came at the expense of many ordinary South Sudanese. It was not an organisation that had that bottom up support in the sense of political leadership from below. It was all dominated by certain leaders. That is really an issue in Sudan that armed movements, political parties are very top heavy but little local organisations, local support and that is exactly what I mentioned that institutional change needs to come.

That instead of relying on pay outs for getting loyalty, political parties need to be able to rely of the services they organise for people on the ground. That people know that if I vote for this party it will mean I get access to clean water. The roads in this area will improve. My kids will be able to go to school. In that way that political accountability of the leadership towards the people will be much stronger. That will also be a way in which you can maintain this unity among civil society organisations.

Because with the demonstrations it is so easy which is true in any country in the world, look at Brexit and country where I currently am. It is so easy to unite very different people with very strong different opinions against something. It’s so easy to unite against Bashir, but it is much harder to unite with a political vision for where one should go, what one is in favour of. That requires hard political work. I think that is where the priorities should lie. But that is not to say wait is Transitional Justice. Make Transitional Justice part of transitional work.

RD: That is really an interesting point you have raised. So, we are approaching the end. Do you have anything to add?

SN: The one point I thought of mentioning that we have not discussed is the report, the AUPD report of 2009 of the Mbeki panel. That actually has a very expensive discussion off. They don’t call it Transitional Justice, but they mean it. It is really rich in the sense of that they really analysed Sudanese law and Sudanese institutions. It may be a good basis for the discussions that are currently going on to look back at this report because it is not just about justice in Darfur, it’s about justice in Sudan in the sense that they consider Darfur a manifestation of Sudan’s bigger political problem.

RD: Thank you, professor, for such a remarkable interview and the interesting points and issues you have raised.

Listen to the interview here (MP3)

* Trained in both international law and international relations, Dr Sara Nouwen works on the intersections of law and politics, war and peace and justice and the rule of law. Building on her experience in diplomacy and peace negotiations, her research focuses on how international law plays out in concrete situations. It combines doctrinal analysis and theory with empirical research and draws on law, politics, and anthropology. 

Her book Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan (Cambridge University Press, 2013) explores whether, how and why the complementarity principle in the Rome Statute of the International Criminal Court has had a catalysing effect on the legal systems of Uganda and Sudan. She spent many months in both countries, interviewing officials, observing proceedings and searching documents to discover whether domestic legal reforms have taken place in response to the Court’s involvement. She also served as a Visiting Professional for an ICC judge.

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