A Question of Justice

There have long been concerns about provisions for dealing with human rights abuses committed in southern Sudan.

As Sudan and the UN reach an agreement on peacekeepers in the Darfur region of Sudan, campaigners in the south are urging the international community to redouble its commitment to settle unresolved tensions in post-war southern Sudan.

After two bloody civil wars since independence from Britain in 1956, the legacy of brutal power struggles between north and south Sudan is holding up progress on reconciliation initiatives ahead of the 2011 referendum on independence for the south.

Since the mid-1950s, crimes against humanity have been committed by government forces and rebel militias. Humanitarian aid has been manipulated, civilians abducted and villages bombed to destruction.

Central government first set out to “divide and conquer” the south - a policy that resulted in famine - and later sought to gain control over its abundant mineral resources.

Sudanese experts go so far as to say that genocide was committed in the border area of the Nuba mountains during the early 1990s, when Sudanese government forces battling insurgents cleared the area of civilians.

The National Islamic Front, NIF, which took power in Khartoum in 1989, committed the worst atrocities, but internecine fighting between Dinka, Shilluk and Nuer militias was also responsible for grave crimes and loss of life.

The latest peace deal, the Comprehensive Peace Agreement, CPA, was signed between the NIF, later renamed as the National Congress Party, NCP, and the Southern People’s Liberation Army/Movement, SPLA/M, in January 2005 after numerous previous attempts at brokering an end to the conflict had failed.

The CPA included protocols on principles of governance, on the right to self-determination for the southern Sudanese, and on security arrangements, wealth- and power-sharing.

More importantly, it also sets out strategies for addressing fractious border areas like southern Kordofan, the Nuba mountains, the Blue Nile states and Abyei. These included plans to establish boundary commissions and hold referendums on whether civilians wish to be part of the south or north.

As part of the CPA, a Government of National Unity, GNU, was sworn in during September 2005, with the NCP controlling half of the appointed positions and dominating power, the SPLA/M a quarter, and other northern and southern parties accounting for the rest.

Progress on implementation of the CPA has been slow due primarily to a lack of political will on the part of the NCP. Also, the international community’s inability to support the CPA, and the SPLA/M’s lack of organisational infrastructure have delayed the process.

Certain issues like justice and reconciliation were hardly broached since the main parties to the CPA – the NIF and the SPLA/M – effectively determined its contents. Leslie Lefkow from Human Rights Watch, HRW, told IWPR that there has long been concerns about the CPA’s provisions for dealing with human rights abuses committed in southern Sudan.

She told IWPR that there has been some progress setting up the Southern Human Rights Commission but it is “far from where it should be”. Also, despite CPA provisions, a national human rights commission has not been established.

Despite these failings, Sudan experts such as Carol Berger, a former journalist and anthropologist who has worked in Sudan since the 1980s, and Eric Reeves feel that the CPA still holds out the hope for peace, but are less optimistic about other initiatives to bring about reconciliation and justice for entrenched north-south, and southern disputes.

“There is not a climate for an open dialogue yet about the injustices committed during the war,” said Berger.

But justice campaigners from south Sudan such as Florence Andrew told IWPR that people from the south need to rise above tribal differences to “stand firm against another invasion”, either by Khartoum or from dissenting southern rebels.

With no provision for addressing justice issues, and no will amongst the governments of north and south to address past crimes, some experts suggest that a Truth and Reconciliation Commission, TRC - akin to those in South Africa and Sierra Leone - could prove effective. While not perfect, these commissions provided some basis for coming to terms with the past.

Reeves told IWPR that a TRC at a tribal level could be of enormous use in south Sudan but warns that “this is not a panacea”.

The SPLA/M as a whole is reluctant to move on the issue, as it has also been implicated in atrocities. The SPLA/M’s position may also be attributable to a desire to avoid negative publicity at a time when the south is drumming up foreign aid. Allegations of civilian massacres and mass graves would, if proven, harm the SPLA/M’s image regionally and internationally.

Another option to resolve the north-south and internecine southern conflicts is to follow the example of the Nuer and Dinka tribes of the West Bank of the Nile, who came together in March 1999 to end infighting, which was partly due to a split in the SPLA/M.

Their representatives met in Wunlit, a village near the border separating the lands of the Dinka of the Lakes region from those of the Nuer of Western Upper Nile.

This “novel civilian peace and reconciliation conference”, held under the auspices of the New Sudan Council of Churches, NSCC, managed to end the border war. The Wunlit conference played a key role in that ethnic and ideological differences were put aside in favour of a united front against Khartoum.

Highly nuanced ethnic and ideological differences between Nuer and Dinka, plus fears of Dinka hegemony in the SPLA/M, and even internal Dinka divisions, had to be unpacked at Wunlit. Civilians agreed to end cattle raids and the destruction of villages, the abduction of women and children, and to make sure that pressure was applied on civilian grassroot leaders.

Sharon Hutchinson, professor of African Studies at the University of Wisconsin-Madison, said Wunlit was successful because those involved resolved not to participate in violent feuding in the south.

Chiefs and spiritual leaders of Nuer and Dinka realised that the conflict was not between their tribes, but between rival southern rebel leaders. Wunlit gave them the opportunity to regain control, stand up to the military leaders, and to heal wounds using traditional ways.

It was a grassroots revolt against military policies that were stoking violence in the south.

Kwesi Sansculotte-Greenidge, a traditional mediation expert who co-authored a 2006 Rift Valley Institute report called Local Peace Processes in Sudan, said that local-level peace meetings emphasise indigenous traditions of arbitration, reconciliation, forgiveness and resolution.

The report points out that the sacrifice of a white bull (a feature of Nuer and Dinka religious practice) at the first Wunlit meeting set the tone for the ritual component of peace meetings in the Nilotic area.

It also says that the reconciliation negotiated after eight years of internecine strife marked a change in the dynamics of the conflict, and describes Wunlit as a “watershed in the war in south Sudan” - but it also emphasised the need for “goodwill at a higher political level if local peace processes are to succeed”.

A HRW report said Wunlit was the Sudanese government’s worst nightmare, as it stymied their political strategy of dividing southerners and displacing them from their homes, to make it easier for the north to control oilfields in the south.

The current authorities are unlikely to welcome such a step as Wunlit, but if the unity government established by the CPA refuses to back a TRC, justice campaigners from South Sudan, such as Florence Andrew, say southerners must “go it alone”.

Berger believes it is “too early to think about justice”, because post-war South Sudan is “dominated by military prerogatives, and there is no climate for justice yet”.

Hutchinson was part of the civilian protection monitoring team during CPA negotiations in 2002 and 2003, and asked the SPLA/M and GoSS, together with representatives from the US, UK and Norway who were overseeing the talks, what was going to be done about justice.

She told IWPR that “they did not want to talk about justice” and that in a bid to accelerate negotiations, arbitrators did not encourage the factions to look into such issues. As a result, the CPA papered over the issue.

“Compromises were made, whereby all the thousands of Dinka and Nuer who were enslaved were left unnamed, unmentioned and unliberated,” said Hutchinson.

As a result of this omission, gaping wounds from years of conflict were left to fester.

So how has transitional justice been tackled elsewhere in Africa.

In South Africa, the provision of an amnesty was key to making the truth commission work. But in Uganda, President Museveni provoked international criticism for his apparent offer of a pardon to the Lord’s Resistance Army, LRA, if they signed a peace deal to end the violence in the north of the country.

In Rwanda, on the other hand, transitional justice was tackled with gacaca community courts at local level, while high-ranking officials suspected of major crimes faced war crimes prosecutions.

What would work for southern Sudan is unclear. Hutchinson told IWPR that some members of the new GNU realise that they have to act, because citizens need closure, and “a sense of hope that war is not just a free-for-all where the most aggressive party wins because no-one is willing to deal with the hard questions”.

In southern Sudan, the principle of compensation, known as Diya, is central to resolving conflict. There is a notion in traditional justice mechanisms that, for instance, cattle can be given for a life.

Diya ceremonies could serve as the equivalent of gacaca courts, where compensation has an important role, sometimes taking the form of community service.

In 50 local peace meetings, mostly in southern Sudan, over the last thirty years, the emphasis was often on cessation of hostilities but also on compensation and on dialogue and reconciliation, said the Rift Valley Institute report.

Women sometimes refrained from singing war songs or threatened not to bear children if their men did not stop fighting. Only on three occasions was an amnesty for crimes sought as part of a local peace process, although often the records of these meetings are poor.

The report made it clear that local mediation may be an important prelude to a national level peace process, or a necessary follow-up, but “the sustainability of the local agreements is dependent on support, or at least non-interference, from the government and other authorities”.

The report stresses that “local peace agreements have not endured where hostilities continue between insurgents and the government or government-backed forces”.

Although reconciliation is an absolute necessity, the south will not be ready for a formal truth and reconciliation process until certain basics are in place. The repatriation of displaced persons and diasporas needs to be more complete before a formal process can begin, as many of the victims or victims’ families would be absent.

But this need not preclude local reconciliation initiatives modeled on Wunlit and Diya ceremonies, which could help southern communities to come to terms with the past.

Katy Glassborow is an IWPR reporter in The Hague, and Dr Jan Coebergh is an independent Hague-based Sudan expert. Ayesha Kajee is the programme head of Democracy and Political Party Systems in Africa at the South African Institute of International Affairs.