This March marked the ten-year anniversary of the outbreak of civil war in Darfur, a western region of Sudan. The war was fought between the government of Sudan and two rebel groups: the Sudan Liberation Army (SLA) and the Justice and Equality Movement (JEM). This conflict led to the deaths of thousands of civilians, displaced millions, and created a humanitarian crisis in western Sudan. Some called the conflict a “genocide” and others a “holocaust,” while a United Nations report concluded that war crimes and crimes against humanity were committed. For these crimes, the International Criminal Court (ICC) indicted three Sudanese, including President Omar Al Bashir.
But criminal justice—the threat to hold perpetrators still holding power accountable for crimes—has prolonged the crisis in Darfur and postponed peace. Although the international community focuses on individuals like Bashir, durable peace is not always achieved in the court of law. Peace must be pursued within a comprehensive political agenda involving both yesterday’s perpetrators and today’s survivors, who must live side by side.
Two paradigms of justice have emerged to address the aftermath of violence. The first—advocated by the ICC—is criminal justice. Criminal justice is based on the Nuremberg trials of Nazi war criminals after World War II. The Nuremberg trials were effective because of the Allies’ military victory and the separation of survivors from perpetrators. These conditions do not hold in most African contexts, where violence has both history and agency, where conflict is ongoing, and where survivors have to live side by side with former perpetrators.
In these contexts, the Nuremberg model of justice proves ineffective, inappropriate, and an obstacle to peace. Achieving justice through a formal judicial process requires a dichotomy of right or wrong and seldom accounts for the politics behind violence. Such a model assumes criminal justice is a zero-sum game.
The second paradigm of justice is survivor justice. While the first demands criminal prosecution, the second combines impunity with reform. For example, the negotiations that ended apartheid in South Africa were based on an agreement to forgo criminal prosecution for a reformed state. The political settlement that ended Mozambique’s civil war was based on an agreement to decriminalize the main rebel group despite its notoriety for brutality against civilians.
Survivor justice has been the predominant paradigm in Sudan. Andrew Natsios, U.S. Special Envoy to Sudan from 2006 to 2007, noted that the Comprehensive Peace Agreement (CPA) said “not one word about prosecuting war crimes or compensating the victims of atrocities for just this reason.” John Garang, leader of the Sudan People’s Liberation Movement/Army (SPLM/A), recognized that “if he demanded justice, the north–south war would not end.”
The survivor justice paradigm was reinforced after South Sudan’s independence when newly elected President Salva Kiir Mayardit took office in 2011. He issued amnesty to six former South Sudanese rebel groups. In his inaugural speech, Kiir told the audience, “I want to offer public amnesty to all those who took arms against the people of South Sudan. Let them lay down these arms and help us in building this new nation.”
Survivor justice is not the exception in Africa; it is the norm. African experiences demonstrate that forgiving past wrongs combined with reform of the state is a better way to pursue peace than backward-looking judicial processes. The single-minded pursuit of criminal justice over survivor justice by the ICC has led to untold numbers of civilian casualties, a deteriorating humanitarian crisis, and a political leadership in Sudan determined to wage total war to save itself. The conflict in Darfur is ongoing with no military victory in sight. Even with a military victory and without a place for former perpetrators and political adversaries, the cycle of violence will return.
We must be willing to distinguish between violence as criminal and violence as political. To distinguish between these forms of violence is to recognize differences between a person who commits a crime and a regime that is violent. Sudan’s smallest problem is that individual leaders have committed crimes. The biggest problem is the regime itself. Changing personalities within a violent power structure will not solve Sudan’s political crisis. The punishment of an individual from a violent regime does not solve society’s problems if the system remains in place.
Survivor justice prioritizes the living over the dead. Criminal justice prioritizes victims while alienating perpetrators, thus postponing peace. To ensure peace in Darfur, a new paradigm is needed—one that includes survivors and perpetrators, addresses issues fueling violence, and reforms the state. Only comprehensive solutions that combine political reform with social justice can ensure a durable peace in Darfur.