Sudan's Recent Amnesty Resolution Undermines the Prospects for Accountability and Peace

opinion

Who would have believed that an agreement with Darfuri armed movement's leaders would be used to justify granting amnesty to the Janjaweed for atrocities committed against innocent civilians in Darfur? And yet, that appears to be exactly what has happened.

On November 12, 2020, General Abdel Fattah Al-Burhan Abdel-Rahman, in his capacity as Chairman of the National Sovereign Council, issued a controversial resolution granting amnesty as part of Juba Agreement, signed to resolve the conflict in Darfur. The resolution grants general amnesty to "All those who took up arms, participated in any military or war operations, or contributed to any act or statement related to combat operations."

It also includes court rulings issued and cases filed against the political leaders and members of the armed movements because of their membership in the same and or against the regular forces for actions that occurred or were committed by them in the context of the military confrontations or war between the Sudanese government and the armed movements.

The Use of Amnesties in the Implementation of Peace Agreements and Resolution of Conflicts

A recent review of amnesties and peace agreements reported that 75% of amnesties adopted since 1990 relate to conflict and 49% of comprehensive peace agreements in the same period included some kind of amnesty. While amnesties were generally associated with positive peace outcomes,[1] there is increasing consensus that amnesties should not apply to war crimes, crimes against humanity or war crimes.[2] The established UN position regarding amnesty is clear.

Although it can consider amnesties for rebel leaders that allow them to engage in peace making processes, it "... cannot endorse peace agreements that provide for amnesties for genocide, crimes against humanity, war crimes or gross violations of human rights, including sexual and gender-based violence; amnesties for other crimes and for political offences, such as treason or rebellion, may be considered - and are often encouraged - in situations of non-international armed conflict."[3]

The November 12 Resolution

On the positive side, the recent resolution acknowledges this trend by making some exclusions. Omar Al Bashir and others against whom the International Criminal Court (ICC) has issued arrest warrants are excluded.

However, the resolution goes on to exclude those "against whom charges of genocide, crimes against humanity, war crimes, and gross violations of international human rights law and international humanitarian law since 2002 had been brought, which fall within the jurisdiction of the Special Court for Crimes in Darfur" or "against whom criminal cases and court rulings related to the private right and provisions of 'gassas' (private claims for compensation) have been made." In other words, international crimes are only excluded from the amnesty where proceedings were already instituted either by a Special Court for Darfur Crimes or where cases are brought by private actors seeking compensation (gassas).

These exclusions are overly narrow and if implemented will undermine the fight for justice and accountability in Sudan. Because they refer only to cases that have already been initiated, victims would not be able to file any new cases.

This is particularly problematic in the context of Sudan because the previous regime of Al-Bashir weakened and manipulated the justice system to such an extent that most victims were loath to bring legal actions, which could expose them to retaliatory actions and stood virtually no chance of success. Although a judicial reform process has been initiated by the transitional government, its outcome remains uncertain and little trust has been built. In this context, few victims have had any real opportunity to initiate an action.

The government may argue that the dropping of cases against rebel leaders was a prerequisite of the peace-making process, but in fact the resolution is not consistent with the Juba Agreement.

The Juba Agreement did not include any amnesty for international crimes committed by the Sudan Armed Forces or Janjaweed. It only provided in Article 17.1 for an amnesty regarding court rulings and criminal cases filed against political leaders and members of armed movements because of their membership in the armed movements, after conducting the necessary legal review. In this resolution, however, General Al-Burhan manipulated this provision to extend the amnesty to the SAF and Janjaweed.

Although the provision in the Juba Agreement focuses on political leaders and armed movements, the resolution actually provides additional protections to the armed forces. The November 12 resolution provides that regular forces are protected from "cases filed against the regular forces for actions that occurred or were committed by them in the context of military confrontations or war between the Sudanese government and the armed movements." Similar protections are not extended to the Darfuri movements, so they can be prosecuted for their actions in conflict whereas regular forces cannot.

The resolution also goes directly against the Juba Agreement's affirmation of the need for accountability for international crimes. Article 1.31 explicitly states that "war crimes, crimes against humanity, genocide, sexual crimes, enlisting soldiers under the age of 18 years, and serious violations of human rights and international humanitarian law" should not be amnestied. The agreement also further affirms the importance of accountability in Article 1.22, which states that "justice, accountability, reconciliation and transitional justice are essential requirements to ensure sustainable peace and security in Sudan.

Justice is based on respect for the rule of law and international human rights covenants ratified by Sudan and international humanitarian law. This includes mechanisms that are derived from the customs, cultures and heritage of the peoples of Sudan" and Article 1.24 which states that "Fighting the phenomenon of impunity and providing redress to victims is a necessity to build national reconciliation, heal wounds, promote the values of peaceful coexistence and strengthen the social fabric."

Thus there is no reason why resolving the conflict would require a resolution that restricts access to justice to this extent. The Juba Agreement provides no basis for asserting that all international crimes should not be excepted from the amnesty (regardless of whether or not proceedings have so far been initiated) or to provide protections to government forces that are not extended to rebels.

This resolution also undermines the efforts made by civil society and the Ministry of Justice to promulgate a Transitional Justice Act. Any future transitional justice actions will need to litigate and address this purported amnesty.

Overall, if this declaration remains in place it will undermine the possibilities of creating a durable peace. The people of Darfur have consistently placed high priority on accountability and if their demands in this area are not heard this is likely to undermine the long-term prospects for peace, not to mention that the discrepancies between the resolution and the Juba Agreement are likely to undermine the confidence of the rebel movements.

By Ali Agab, a Sudanese human rights lawyer. He holds a master degree, LLM in Human Rights, Conflict and Justice from SOAS University of London; and Olivia Bueno, an independent consultant on human rights issues.

[1] Louise Mallinder, "Amnesties and Inclusive Political Settlements," PA-X Report, 2018, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3341311

[2] ICRC, "Amnesties and International Humanitarian Law: Purpose and Scope,"

[3] Louise Mallinder, "Amnesties and Inclusive Political Settlements," PA-X Report, 2018, p. 10, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3341311

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