Prior to the April 2023 outbreak of conflict, Sudanese people saw accountability as the top priority, with institutional reforms, guarantees of non-repetition and reparations as almost equally important.[i] Women’s groups, youth and victims’ associations had been particularly committed to holding perpetrators accountable and ensuring institutional reforms to prevent future atrocities.[ii] Unfortunately, justice has rarely been prioritized in past peace agreements and transitions, which lacked broad consultative participation and transparency and were not victim-centered. Furthermore, the co-optation of justice institutions by political elites and the absence of the rule of law have negatively impacted Sudan’s transition and its transitional justice agenda, including the right to truth.[iii] Since the 2021 coup and the April 2023 outbreak of violence, the prospects have become even more bleak for a transitional justice process that holds perpetrators accountable and considers the needs of victims and survivors.[iv]

State-Led Accountability and Justice Mechanisms

The Sudanese people’s desire for justice has not been matched by action since al-Bashir’s ouster. The 2019 Draft Constitutional Charter directed the prime minister to establish a Transitional Justice Commission, but it had not begun to operate by the time of the coup.[v] The military government has similarly derailed work by the investigative committee for the June 2019 killings of protesters, the committee to investigate the 2018 killing of protesters in al-Gedaref, the Missing Persons Investigation Committee and the Committee for Investigations of Extrajudicial Killings, Violations of Human Rights and Acts that Constitute Crimes under the Criminal Code of 1991.[vi] Before the coup, the head of the June 3 committee said they had interviewed over 3,000 witnesses, including Gen. Burhan and Hemeti.[vii] In November 2021, the Sovereign Council appointed two well-known allies of al-Bashir as chief justice of the Supreme Court and head of the public prosecutor’s office, respectively.[1] These offices had previously been empty because Burhan had opposed everyone nominated by the Forces of Freedom and Change (FFC) coalition.[viii]

There have been criminal trials, particularly after the 2018 revolution, involving torture cases and extrajudicial killings of peaceful demonstrators. These were pushed by families, victim groups and lawyers, not the transitional government and not as part of any organized accountability mechanism. Moreover, these efforts have largely failed to impose consequences on perpetrators due to the weakness of the justice system and lack of protection for victims and witnesses.[ix]

This does not mean that the justice system was not willing to hold perpetrators accountable, but rather that justice system actors lack the independence or the legal framework to do so. For instance, the public prosecutor’s office initiated its first crimes against humanity case in March 2021. In January 2022, 51 judges, four Supreme Court justices and 220 prosecutors released a statement accusing the military leadership of the coup of engaging in “heinous violations against unarmed demonstrators,"” including extrajudicial killings.[x]

The framework agreement signed by the Sovereign Council and the FFC in December 2022 postponed discussion of transitional justice and security sector reform, which are interlinked in Sudan, to a future phase of negotiations. This sparked criticism from domestic and international human rights organizations, which pointed out that violence and abuses have only increased since the coup.[xi] Furthermore, external observers, as well as former members of the FFC, are skeptical that the military will allow any meaningful accountability work to move forward.[xii]

International Accountability and Justice Mechanisms

The ICC issued an arrest warrant for Omar al-Bashir, former minister of Defense Abdelrahim Hussein and former minister of State for Humanitarian Affairs Ahmed Haroun in 2010 for genocide and other international crimes committed in Darfur. While the warrant constrained some of al-Bashir’s international travel, no Sudanese institutions attempted to enforce it until after al-Bashir fell from power in 2018. The transitional government announced that it would hand al-Bashir over to the ICC for prosecution, then reaffirmed its promise in the Juba Peace Agreement, but up until the April 2023 outbreak of violence, the transitional government had not yet done so. Prior to the coup, however, ICC prosecutor Fatou Bensouda was allowed to visit Darfur twice to talk to victims.[xiii] In August 2021, the Council of Ministers agreed to ratify the Rome Statute, which if approved by the Sovereignty Council would give the ICC jurisdiction over Sudan.[xiv]

After both the 2021 coup and the April 2023 outbreak of violence, the situation is unclear. An ICC delegation visited Khartoum in November 2021 to ensure that the post-coup Sovereign Council remained committed to enforcing the warrants but did not receive a definitive answer. Many legal observers in Sudan believe that Gen. Burhan never intends to turn over al-Bashir or any other members of the military to international prosecution, regardless of his public rhetoric.[xv] The Office of the Prosecutor at the ICC noted that the post-coup government has not designated anyone to liaise with their investigation. No progress has been made on the draft bill to ratify the Rome Statute since the coup.

Community and Civil Society Contributions to Justice

While currently under enormous pressure due to the humanitarian situation, civil society remains the foremost proponent of accountability and other justice mechanisms in Sudan, retaining more trust from the increasingly skeptical Sudanese people than do the transitional justice institutions or the post-coup governing bodies.[xvi] Individuals and groups advocating for justice or documenting abuses face increasing danger of retaliation, including closure of organizations, harassment and intimidation, arbitrary detention, torture and killing.[xvii] Even before the coup, civil society groups reported that they were being excluded from transitional processes intended to design accountability mechanisms and consider the human rights impact of economic reforms.[xviii]

CSOs were engaged in monitoring transitional justice processes with the establishment of the 2021 Transitional Justice Commission Act, but with limited success. Before the act was promulgated, it was assumed that a national committee would be formed to conduct extensive consultations with displaced persons, individuals from conflict areas and victims’ families and communities. However, consultations did not take place and the law failed to draw on any overarching policy (e.g., the African Union Transitional Justice Policy)—an area of significant disagreement between government and civil society. Furthermore, CSOs expressed concerns that the establishment of a truth commission without a specific mandate and clear powers would lead to the failure of transitional justice in Sudan before it had begun.[xix]

As far as restorative justice is concerned, there is no alternative victim-centered framework for addressing crimes in Sudan. However, traditional justice mechanisms not associated with the government have some legitimacy at the local community level and are based on the application of customary law, as applied between and within communities. With their substantive norms and procedures, customary law and courts—such as the judia system in Darfur or galad in Eastern Sudan[2]—can play an effective complementary role in ensuring access to justice, pending peace being achieved.[xx] Unlike formal justice mechanisms, their philosophy is based on victim redress through restorative, not retributive, justice and can thus advance communal peace and reconciliation from a traditional justice perspective. However, given the scale of the ongoing violence in the region, it is unlikely that these mechanisms will have the capacity to address the large number of victims.