Transitional injustice between the Sudanese reality and global experiences (3 - 3)
Kamal Algezouli
V
The actual history of the formation of the concept of "transitional justice" is not accurately known. It was traded, first, in the field of French politics. But his appearance, in his current application, dates back to 1992, in a three-part book by Neil Curtz entitled "Transitional Justice: How fledgling democracies view past regimes ", encompassing the most important early writings in which the concept was used in the literature of politics and law in various countries, as an exceptional concept that links the concepts of" Justice "and" Transition ", as we have seen, operates only in countries that seek to establish inclusive conditions, establish peace, achieve democratic transformation, restore internal frontier cracks, move towards social reconstruction and achieve" All-encompassing national reconciliation, from above a history weighed down by the legacy of social division caused by prolonged civil war, armed internal conflicts, genocide, general brutal repression, systematic torture of political adversaries, human rights violations, war crimes, or crimes against humanity. The concept of "transitional justice", historical and intellectual, is based on two main pillars:
One: societal, thanks to the evolution of the human rights movement, the concept is centred around the status of "victims", where efforts are focused on their rights, the rights of their families, and the rights of society as a whole, individually and collectively, as without guaranteeing these rights, the wounds remain open, threatening the collapse of any endeavor of "peace" or "stability".
Second: Authoritarianism derived from international humanitarian law and international human rights law, where countries of transition are obliged to:
a/Cessation of ongoing human rights violations;
b/To provide justice for perpetrators of previous violations;
Reparation for victims, their relatives and the community around them, individually and collectively, preventing future violations, consolidating peace and promoting individual and collective reconciliation.
As a method, the concept recognizes that "transformation" or "transition", to the extent that it is a process fraught with opportunities for innovative democracies and the establishment of a stable peace environment, is also a complex process, with obstacles and risks of relapse. For example, this process can be based on lengthy negotiations, leading to weak peace, fragile democracy, or a large number of violators, which may outweigh the ability to deal with them; The number of victims or their relatives who wish to tell their stories and receive reparations is also large; constitutional or legal impediments arising from previous rounds of negotiation, such as amnesties for criminals associated with the former regime; Fledgling democracies may suffer from defunct power interventions, "deep or hidden circulation", or the effects of former systemic criminals, making the concept detracted from other important values, such as entrenched peace, democratic stability, the rule of law, equality before it, justice for victims and their families. etc.
The historical circumstances of the application of the concept and term have not occurred in a single, but gradually, blow through the experiences of different countries and peoples as we have already pointed out:
In Western Europe, the world was limited by the models of "Nuremberg and Tokyo", as historically important, after the Second War, to millions of civilian victims. The need for "transitional justice" thus crystallized, as a concept and as a more mature and meaningful course of action, with high debates, later leaders, 5th and next and their trial.
In Eastern Europe, societal efforts to deal with past violations have contributed to the opening of previous security agency files, such as the Stasi Records Act in Germany, 1991, and to the global push for justice during periods of political transition.
In Latin America, civil disclosure institutions contributed to the "truth", such as the Argentine National Commission for the Investigation of Abductees, 1983; The non-governmental effort in Uruguay, which led to the monthly report "Uruguay: not again"; The Chile Truth and Reconciliation Commission, 1990 ", made a significant contribution to the development of the concept of" inclusive justice "during periods of" transition ", based on the fact that" truth "is a fundamental principle that must not be derogated from. Additional victim compensation efforts in Argentina and Chile also contributed to justice for victims.
In Africa, guided by the experiences of Latin America and Eastern Europe, South Africa, in 1994, formed the Truth and Reconciliation Commission to deal with racial discrimination. Since then, the Commissions model has become a global mechanism for "transitional justice", with similar committees formed in East Timor, Ghana, Peru, Sierra Leone, Morocco and others, although distinct, and each creating its own style, such as adding "fairness" between "truth" and "reconciliation" in Moroccos experience, paradoxically to South Africa.
The logic behind the need to sweep through the "transitional justice" pattern is based on several elements, including:
(1) The magnitude of the crimes committed during the period preceding the transition, constituting the legacy of the past to be liquidated, vertically in terms of quality, and horizontally in terms of the number of violators and victims, so that all of them are difficult to address through ordinary court proceedings.
(2) Restrictions on ordinary litigation before criminal courts and the rigour of its rules, such as:
a/Proof without reasonable doubt beyond a reasonable doubt, requiring proof, identification and failure to expedite proceedings, is therefore not sufficient to disclose a wide range of offences.
b/Some ordinary litigation proceedings, such as Pardons offer of pardon in exchange for statements on the roles of partners King s Evidence, collide with certain international legal principles that do not accept it in cases of serious violations of human rights and international humanitarian law.
c/The immunity of information given by witnesses to hearings from being used in proceedings against them in ordinary courts, whether the victim or his or her pardons are refused, and they choose to proceed to litigation in traditional courts. This information is required not for criminal proof, but only for disclosure of the "truth" during "public hearing".
The natural evolution of civil society relations and conflicts with Moroccos past system has led to a more democratic transformation within the structure of the same system, while, in South Africas experience, it has led to a different paradigm of achieving the complete break with the former apartheid regime. Many executioners had to confront their victims in South Africa, publicly confessed to what they had done, and in Morocco the victims were able to "make their voices heard from an official public platform. (f) The establishment of a national narrative on past suffering and suffering "(see the final report of the Moroccan Equity and Reconciliation Commission).
While experience in Christian culture environments, such as in South Africa, is based on ecclesiastical teachings about the virtue of tolerance and pardon, it is also desirable to pay for experimental applications in Muslim culture environments, such as Morocco, that the teachings of Islam itself are based on the propagation of the virtue of "amnesty at ability". It is certain that this mechanism of "public hearing", and the like, ensures that executioners and their political system are "capable" of publicly "recognizing" the truth ", or at least enabling" victims "to tell" what happened ", as well as publicly asking violators to" pardon "victims.
VI
In view of the central location of the "Public Hearing" in the context of the "Transitional Justice" projects, we need to revert here to further illuminate its most prominent characteristics, as follows:
(1) It is held in open rooms, in which violators, victims and their relatives participate, and its attendance is made available, without any restrictions, to the public in general, and to media and journalists in particular, and its facts are transmitted by paper newspapers, electronic media, radio and television devices, domestic and foreign, etc.
(2) In the course of which violators are offered the transaction to make full confessions about the "truth" of what happened, without the slightest attempt to hide the most accurate detail, in exchange for the victims responding to the "pardon" requested by the violators at the end of their confessions. When asked about his guarantee of such a response after the violator had made his full confession, Mandela replied: "I trust in the goodness of the human heart", and such a confession is, as we have already said, immune to victims from being used in criminal evidence by victims who do not accept the practice of "amnesty", and decide to resort to "traditional courts", who must bear the full burden of proof alone.
(3) If the violators agree to the confession transaction, but fail to conceal the minimum breakdown, they lose the right to request a "pardon".
(4) If the victims occur and are pardoned, they are offered various types of "reparation", both morally and materially, and violators who implement the full "recognition" requirement are required to perform various forms of voluntary "social service" for a fixed period of time.
(5) "reparation" may be individual, or collective. The first may include "functional, educational and housing compensation." etc; The group may include "positive discrimination of entire areas, ethnic groups or specific social segments - immortalization of victims with statues and memorials - institutional reforms of laws, judicial mechanisms, the prosecution, police, security and prisons." etc.
* Reduced from a paper presented at the Second Reflective Meeting, Daabah, entitled "Hugging the Other", 22-24 August 2012; An intervention at the symposium "Visions and Prospects for Democratic Transformation in Sudan" held at the Cultural Cafe at the Khartoum International Exhibition on the evening of October 28, 2019.
