Op-Ed: No immunities from prosecution for grave human rights violations or serious international crimes can be contemplated

By Emma DiNapoli, Legal Officer at REDRESS*

Since the October 25 2021 military coup, rumours of an “imminent” political breakthrough have circulated countless times. This time around, almost exactly one year since the coup, a deal between the military and the Forces for Freedom and Change (FFC) may actually be drawing nearer.

Setting aside questions of the FFC’s legitimacy as a representative negotiation body—and with the important caveat that it is difficult to parse truth from speculation at the moment—at REDRESS (where I work on anti-torture and accountability issues in Sudan) we have read with alarm recent reporting about some features of the possible forthcoming agreement. Earlier this week, a story in Bloomberg indicated that “under the suggested deal… the pact would provide some form of independence and immunity from prosecution for the military, concessions that would roll back commitments made in a constitutional document written after Bashir’s fall.”

Indeed, outside of provisions contained within the Constitutional Document 2019, immunities from prosecution for certain crimes would also mark a significant departure from even the draft constitutional agreement prepared by the Sudanese Bar Association (SBA) (which reportedly forms the basis of the contemplated deal). Discussed here again without either endorsing or rejecting the process resulting in the document, the draft agreement as circulated earlier this month appears to proscribe any immunities for war crimes, crimes against humanity, extrajudicial killings, violations of human rights and international humanitarian law, the crime of undermining the constitutional order, and the crimes of corruption that were committed within the time period between June 30, 1989 and the date of signing this Constitution.

‘No concessions to the military in relation to immunities should be accepted…’

On this point, at least, the SBA is correct. Without knowing more about the specifics of the deal, no concessions to the military in relation to immunities should be accepted by either Sudanese opposition groups or international mediators—since this would be contrary to the international prohibition on amnesties in respect of international crimes subject to a treaty-based obligation to prosecute. This includes genocide, crimes against humanity, war crimes, torture, and enforced disappearance.

For example, Sudan is a party to several treaties, including the Convention against Torture and the Convention for the Protection of All Persons from Enforced Disappearance, which impose a concrete duty to investigate and prosecute acts of torture and enforced disappearance—both of which have been systematically deployed since the coup.

Human rights bodies, particularly the UN Human Rights Committee, which is responsible for interpreting the International Covenant on Civil and Political Rights (ICCPR), have clearly stated that “amnesties are generally incompatible with the duty of states to investigate [acts like torture],” because “states may not deprive individuals of the right to an effective remedy, including compensation and such full rehabilitation as may be possible.”

Some might argue that amnesties are necessary in Sudan to facilitate a political transition, looking to the example of other post-conflict contexts in which conditional amnesties were extended to support national reconciliation (see, for example, amnesty laws enacted in Uganda and Nicaragua). Evidently the military has made this point strongly, and perhaps persuasively.

‘Transitional justice requires accountability for serious human rights violations to erode these practices in the future…’

But the story of Sudan’s post-independence, post-coup politics is also one about the absence of respect for the rule of law and human rights protections; to take a leap of faith with regards to the military’s meaningful commitment to breaking the cycle of abuses and impunity now would be foolish. Transitional justice requires accountability for serious human rights violations to erode these practices in the future. Beyond adversely affecting victims’ access to the truth of what happened and to reparations, the extension of immunities from prosecution to actors responsible for serious international crimes will not promote a genuine and lasting transition towards a democratic Sudan.

In June 2022, at REDRESS we explained in greater detail what I will summarise now as the peace vs. justice problem: in democratising societies, victims will (for obvious reasons) expect justice, often in a courtroom, while internal and external political actors will prioritise stability, including economic stability, for the sake of what they present as long-term peace. “Long-term peace” often wins out over “justice.” But this is an unhelpful and false dichotomy, because impunity encourages repetition of violations and shakes victims’ trust in the rule of law—ultimately perpetuating the cycle of instability and human rights abuses which the revolution and pre-coup transitional agreement were designed to overcome for good.

This is exactly what has historically happened in Sudan and most recently. The task now is not to repeat these mistakes. Serious engagement with human rights and transitional justice challenges is a prerequisite for a democratic and peaceful Sudan. To this end, preventing the extension of immunities for grave human rights violations and international crimes is an obvious first step.

Disclaimer: The views and opinions expressed in this article are those of the contributing author and do not necessarily reflect the position of Radio Dabanga.

* The author, Emma DiNapoli, is Legal Officer at REDRESS, an NGO that operates from London and The Hague, which pursues legal claims on behalf of survivors of torture to obtain justice and reparation for the violation of their human rights. The NGO empowers survivors to access justice through human rights cases against governments, civil cases against individuals, and criminal cases where they advocate for law enforcement bodies to prosecute perpetrators under the principle of universal jurisdiction.