Civil society and transitional justice
Civil society pushing for freedom, truth, and justice in Sudan
In the wake of revolution, hopes are high that human rights wrongs will be addressed. Civil society in Sudan has been pushing for freedom, truth, and justice. Yet, pushing too hard too fast may threaten the fragile peace. Although the peace agreement promises to hold members of the Islamist regime accountable for all crimes committed against the Sudanese people, the prospects for full criminal justice in the near future seems unlikely. If criminal justice is out of reach, what can civil society hope to get in terms of redress for past wrongs?
The Sudanese government has already signalled that is willing to set up commissions to investigate human rights violations. Chapter 12 of the Constitutional Charter signed on 4 August 2019 states that “Independent commissions shall be established, and figures with attested competence and integrity shall be nominated therefore. They are formed and their competencies defined by the laws that establish them». Specifically, the government wishes to establish a Peace Commission, a Human Rights Commission, and a Transitional Justice Commission. For each commission, The Sovereignty Council appoints the chairman and commission members “with attested competence and integrity” in consultation with the Cabinet. Although the more common term «Truth and Reconciliation Commission» is not specifically mentioned in Chapter 12 of the Constitutional Charter, we may reasonably assume that one or several of the recommended commissions will exercise the functions of a truth commission, once established.
In response to civil society’s call for truth regarding human rights violations, the Sudanese government can build on and be inspired by numerous truth commissions that have been established across the world since the early 1980s. However, civil society can also push for other transitional justice options.
International experiences with civil society claims for truth, justice, and reparations
Governmental efforts to set in motion various transitional justice initiatives almost always come in response to vocal and persistent claims from civil society and its allies. Civil society is here understood broadly to encompass a diverse range of actors at the national and local levels, such as national human rights groups, other civil society organisations, victims’ organisations, churches, mass publics, community-level traditional sources of authority and organisation, community organisations, indigenous or ethnic groups, ordinary citizens (marked in red in Table 1 below). However, it is important to note that civil society are not the only actors interested in transitional justice. There is also a myriad of other actors who either have an interest in transitional justice to happen, or alternatively, have strong reasons to work against transitional justice. Table 1 sums up a range of these actors with opposing interests.
• Post-war government
• Police and other security personnel
• Government bureaucracies
• Opposition groups
• Political parties
• Socio-economic elites connected to the old or the new order
• National human rights groups
• Other civil society organisations
• Victims’ organisations
• Mass publics
• Community-level traditional sources of authority and organisation
• Community organisations
• Indigenous groups
• Ordinary citizens
• States (involved in peace talks and/or as foreign donors or countries with other interests, i.e., allies and adversaries of the government)
• Intergovernmental organisations (IGOs) (i.e., United Nations, World Bank) • International courts (i.e., ICC)
• Transnational activist networks/civil society
• Epistemic communities/technical experts (i.e., International Centre for Transitional Justice, ICTJ)
Source: (Skaar and Wiebelhaus-Brahm 2013, p. 132).
The three most common claims set forth by civil society after (and sometimes also during) conflict or authoritarianism, are demands for “truth, justice, and reparations”. As shown elsewhere (see Parts 1, 2, and 3) delivering on the justice bit can be politically dangerous in a fragile setting, and national/local courts are often not in a position to exercise justice in a free and fair manner (see Part 3). What responses can civil society reasonably expect from the government? Taking a quick look at Latin America, which is the region in the world that has the longest track record with transitional justice, may offer some useful lessons.
The Latin American experience: Justice takes time
From being a continent dominated almost entirely by either military dictatorships or internal armed conflict in the 1970s and the 1980s, practically all countries in Latin America but Colombia had made successful transitions to democratic rule by the early 2000s. How did the new democratic governments deal with those responsible for the continent’s massive human rights violations committed under authoritarian rule or civil war? In the close to twenty other Latin American countries that made a transition from non-democracy to democracy in the 1980s and 1990s, none repeated the Argentine experience of trying to prosecute its military at the time of transition. Why? Because the first and most important aim of a newly installed democratic government is simply political survival.
Instead, therefore, rather than prosecute the military, the post-authoritarian regimes in Latin America frequently established truth commissions to investigate the human rights abuses. Where political tensions with the military were particularly high or where links between the outgoing military elites and the newly elected democratic elites were particularly strong at the time of transition, the democratic governments were even reluctant to set down truth commissions. It could take years, sometimes decades from the violations were committed until a truth commission was given the mandate to investigate the violations (as in Brazil). Many of these truth commission unearthed massive torture, disappearances, rape, forced exile, killings, even genocide. This detailed information of atrocities spurred more demands for justice from victims and their families. The almost uniform response from the governments was to pass amnesty laws precluding the prosecution of the military and other state officials responsible for human rights violations. Some governments passed amnesty laws even before truth commissions started their work, anticipating what was coming. Others hastily passed amnesty laws when they realised the potential dynamite in the truth commissions’ findings – including in some cases specific recommendations to prosecute the military.
Justice in the form of criminal prosecution of alleged human rights perpetrators was not really perceived as a viable option at the time of transition in Latin America. Years later, as political power relations have shifted over the decades, and as new generations of military recruits have replaced those who once were responsible for the abuses, the courts in at least some countries have started to investigate human rights abuses and to prosecute the military. In a small number of countries – with strong courts and a long distance to the violence, like Argentina - the prosecutions are thorough and many. With hundreds of (former) military in the docs or in court procedures, Argentina is, in fact, now called the regional protagonist of transitional justice. Other countries that more recently have come out of internal armed conflict, like Guatemala and El Salvador, have been much slower in holding the military to account. Things take time.
Lessons for Sudan:
- Demands for redress for human rights violations is a necessary (although not sufficient) condition for a government to deliver transitional justice.
- Civil society can actively collect information and evidence on human rights violations. This information can later be used by truth commissions and as evidence in criminal prosecutions. Evidence of violations can be used to identify victims who are eligible for reparations.
- Local NGOs can partner with international non-governmental organizations to make their voices better heard.
- Civil society involvement in transitional justice mechanisms, such as truth commission and various forms for reparatory measures, is crucial.
- Civil society push for transitional justice usually takes a lot of persistence and courage over a long period of time. However, without it, the government is likely not to prioritize transitional justice measures in a transitional period where it is overwhelmed by multiple demands.
The selected readings are journal articles or book chapters that focus on the different actors who have a stake in transitional justice processes (i.e., the drivers of justice); the different transitional options and possibilities that civil society may push for; and the role of civil society in the establishment of truth commissions. Finally, there is a link to a recent panel debate organized by the International Center on Transitional Justice (ICTJ) on the experience of the Central African Republic with respect to delivering justice for victims in a very fragile political setting. All sources are available online for free, unless stated otherwise.
- "The drivers of transitional justice: An analytical framework for assessing the role of actors", journal article by Elin Skaar and Eric Wiebelhaus-Brahm (2013)
(NB! Available online against fee – or from author upon request)
- "Civil Society and Transitional Justice: Possibilities, Patterns and Prospects", journal article by David Backer (2003)
- "Truth Commissions, Transitional Justice, and Civil Society", draft book chapter by David A. Crocker (2000)
- Online resources that may be relevant to Sudan:
Panel Discussion: "Justice for Victims in Very Fragile Contexts: Central African Republic"
 This section is based on “Is Sudan Ready for Transitional Justice?”, by Elin Skaar (2019)
Bergen: Chr. Michelsen Institute (Sudan Blog) 4 p. https://www.cmi.no/publications/7071-is-sudan-ready-for-transitional-justice