Human rights in Sudan: the new test case for the Human Rights Council

by Marc Limon, Executive Director of the Universal Rights Group and Sandra Petrovic, Universal Rights Group Blog, Blog, Uncategorized @nyc

The situation of human rights in Sudan, and the fortunes and history of the UN human rights system, have been closely intertwined for decades. Indeed, one of the reasons the former Commission on Human Rights collapsed after the turn of the century was because Sudan won a seat on the Commission at the same time as the State was responsible for killing hundreds of thousands of non-Arabs in its restive Darfur region. Likewise, after a very difficult start for the new body from 2006-2009, many observers of the Human Rights Council believe that a 2009 vote on a resolution the situation in Sudan (the first important vote the West had been able to win since the Council’s establishment – with 20 in favour, 18 against and 9 abstentions) was a key turning point for UN’s new apex human rights body. With this background in mind, it is perhaps only fitting that as the fortunes of the Council have improved over the past three years, so has the situation of human rights in Sudan. While the Council can claim little credit for the democratic and human rights revolution that has taken place in Sudan over the past year, the situation has become an important new test case for the body. Can it effectively transition from ‘naming and shaming’ a country like Sudan, to working with the State (including all national stakeholders) to help strengthen its long-term human rights resilience, including through the provision of capacity-building and technical assistance? After the Council’s repeated failure over the years to manage this kind of transition in places like Myanmar, it remains to be seen whether it will be able to do so this time with Sudan. Notwithstanding, there are some cautious signs for optimism.

The UN and the situation of human rights in Sudan

The situation of human rights in Sudan has been on the UN’s agenda for decades. Already in 1993, the Commission on Human Rights was expressing its ‘deep concern at the serious human rights violations in the Sudan, including summary executions, detentions without due process, forced displacement of persons and torture.’ In the same resolution (resolution 1993/60), the Commission decided to establish a Special Procedures mandate to look into serious violations in the country. Ten years later, in 2003, Sudan’s Darfur region became the centre of global media attention when the Sudanese Government responded to attacks by rebel groups by carrying out a campaign of ethnic cleansing against the region’s non-Arabs. These widespread killings resulted in the indictment of Sudan’s then President, Omar al-Bashir, for genocide, war crimes and crimes against humanity, by the International Criminal Court (ICC).

As noted above, Sudan also played a key – if unintentional – role in the replacement of the Commission by the Human Rights Council in 2006. In 2004, in the midst of reports of terrible human rights violations in Darfur, Sudan was re-elected to the Commission. Three years earlier, Sudan had been elected to the body at the same elections that had seen the US lose its seat for the first time since 1947. These events, together with Libya’s accession to the Chairmanship of the Commission in 2003, played a key role in the subsequent collapse of the body, and the emergence of proposals for a smaller, stronger, Council.

Revolution

In December 2018, a series of demonstrations broke out in several Sudanese cities, due in part to rising costs of living and deteriorating economic conditions at all levels of society. The protests quickly turned from demands for urgent economic reforms into demands for President Omar al-Bashir to step down. In late February 2019, al-Bashir declared a state of emergency and dissolved the national and regional governments, replacing the latter with military and intelligence service officers. On the weekend of 6–7 April, there were massive protests for the first time since the declaration of the state of emergency, and during the protests soldiers were seen shielding protesters from security forces. On 11 April, the military removed al-Bashir from power in a coup d’état.

Following al-Bashir’s ouster, street protests organised by the Sudanese Professionals Association and democratic opposition groups continued, calling on the ruling Transitional Military Council (TMC) to ‘immediately and unconditionally’ step aside in favour of a civilian-led transitional government. Negotiations between the TMC and the civilian opposition to form a joint transitional government took place during late April and May, but stopped when the Rapid Support Forces and other TMC security forces killed at least 128 people, raped more than 70 and injured others in the Khartoum massacre of 3 June.

Opposition groups responded to the massacre and post-massacre arrests by carrying out a general strike, and calling for complete civil disobedience and non-violent resistance until the TMC transferred power to a civilian government. On 12 June the opposition agreed to stop the strike and the TMC agreed to free political prisoners.

After renewed negotiations, military and civilian leaders reached a power-sharing agreement on 5 July 2019, and a written version of the agreement was signed by the TMC and FFC on 17 July. The Political Agreement was complemented by the Constitutional Declaration, formally signed by the FFC and the TMC on 17 August 2019, which paves the way for a transition to an elected civilian government by 2022. The transition plan created the Sovereignty Council with eleven members – five military leaders selected by the TMC, five civilian leaders selected by the FFC, and one civilian leader selected in agreement between the two parties. It also stipulated that the leadership would be transferred from a military leader to a civilian leader 21 months after the signing of the agreement, for a total 39-month transition period leading into elections. The agreement also called for a bill of rights and freedoms for all Sudanese citizens.

The TMC was dissolved and the Sovereignty Council was created on 20 August 2019, and Abdalla Hamdok was appointed Prime Minister. The Transitional Cabinet, with four female and 14 male civilian ministers, including the country’s first female foreign affairs minister, Asma Mohamed Abdalla, was announced in early September. Nemat Abdullah Khair was appointed as Sudan’s first female Chief Justice on 10 October.

Ethiopia and the African Union: the importance of preventative diplomacy

The military takeover that followed al-Bashir’s removal from power amounts to an ‘unconstitutional change of government,’ which is prohibited under Article 4 of the African Union’s (AU’s) Constitutive Act. This breach of regional law empowered Moussa Faki Mahamat, the chairperson of the AU Commission, to denounce the military’s actions.

Following the official denouncement, the AU’s Peace and Security Council, which is mandated to prevent, manage and resolve conflicts, adopted a decision stating that the actions of the Sudanese military amounted to an unconstitutional change of government. The April 2019 decision also reiterated the need for a civilian-led and consensual transition and demanded that the military hand over power within 15 days.

Failure to hand over power should have led to the automatic suspension of Sudan from the activities of the AU, as provided for by the Council’s protocol. However, an extension of three months was subsequently agreed to allow for further negotiations. Due to lack of progress and escalating violence, the Council eventually suspended Sudan in June.

During the three-month notice period, the AU continued to engage with the key parties in the conflict. This happened even as the military continued its attacks on protesters. Finally, in July, a joint AU-Ethiopia mediation team convinced both parties to resume talks. This led to the signing of the aforementioned Constitutional Declaration.

Human rights in the new constitutional settlement

Significantly, this Constitutional Declaration contains a Rights and Freedoms Charter, including provisions on the right to equality before the law, women’s rights, freedom of expression and of the press, freedom of assembly and organisation, and freedom of religious belief and worship. By overturning repressive laws and making bold commitments to human rights, the transitional Government has regularly demonstrated its determination to keep equal citizenship at the forefront of the political transition.

In the framework of its reform and national reconciliation process, and in line with its Constitutional Declaration, the Government has abolished apostasy as a criminal offence, abolished the death penalty for children, made amendments to male guardianship laws, introduced a new policy on press freedom, and criminalised female genital mutilation. In November 2019, the Government also repealed the Public Order Law, which had been used by the former regime to target women and restrict individual freedoms. Moreover, the Government established a Legal Reform Commission to review all national laws in accordance with human rights obligations, adopted a National Action Plan on Women, Peace and Security in June 2020 (with extensive participation of civil society, including women’s organisations), and signed the Framework of Cooperation with the Special Representative of the Secretary-General on Sexual Violence in Conflict. These changes respond to recommendations made in Human Rights Council Resolution 42/35, particularly with regard to women’s rights, women’s participation in the peace process, and freedom of religion or belief.

The promise of international cooperation

The new Sudanese Government has regularly demonstrated its eagerness to cooperate with international actors in guiding and supporting the country’s transition to democracy, including by strengthening the promotion and protection of human rights. For instance, it is significant to note that the new Constitutional Declaration called on State agencies to facilitate the establishment of an OHCHR mission in Sudan during the transitional period.

This paved the way, in September 2019, for the UN High Commissioner for Human Rights, Michelle Bachelet, to sign an agreement with the Government of Sudan to open a UN Human Rights Office in Khartoum, as well as field offices in Darfur, Blue Nile, Southern Kordofan and East Sudan. Bachelet and Sudan’s newly appointed Minister of Foreign Affairs, Asma Mohamed Abdalla, signed the agreement in the presence of Prime Minister Abdalla Hamdok in New York, where they are attending the UN General Assembly.

Speaking of events in Sudan, the High Commissioner said:

“We have witnessed with admiration the persistence of the women, men and youth in Sudan in asserting their human rights. The road ahead promises to be full of challenges, but we are ready to assist to ensure human rights permeate the transition. With this milestone agreement, we are poised to accompany Sudan through an important moment in its history, to offer all our support to make this transition a success for the human rights of all the people of Sudan.”

The countrywide OHCHR presence seeks to support the transition in four critical areas, as agreed with the Government:

  1. Combatting inequality and supporting the development of policies that will help provide for basic economic and social rights and the empowerment and participation of women;
  2. Legal and institutional reform to help the Government bring domestic legislation into conformity with its international human rights obligations, and develop strong institutions for the protection of human rights;
  3. Transitional justice – to support accountability and reconciliation, with the meaningful participation of victims; and
  4. Strengthening the opening of democratic and civic space, including through the improved participation of women and minorities.

Speaking about these developments, the High Commissioner for Human Rights, who deserved enormous credit for the speed and openness with which she reached out to, and began cooperating with, the Sudanese authorities (in stark contrast to the foot-dragging of her predecessor, Zeid Raad Al Hussein, in the case of Myanmar), said:

“The Constitutional document signed in Sudan on August 17 already contains many positive commitments to human rights, including the bill of rights and a commitment to work with my Office. I note also the establishment of an independent national investigation committee to investigate the repression of peaceful protestors on 3 June. I look forward to working with Sudan to build on the momentum of the remarkable gains of the past few months and ensure that they are firmly entrenched and irreversible.”

Furthermore, in June 2020, the UN Security Council, in a rare example of a human rights-based approach to peacebuilding, adopted resolution 2524 (2020) mandating the creation of a UN Integrated Transition Assistance Mission in Sudan (UNITAMS). While it was established to assist the Transitional Government in meeting the political benchmarks of the Constitutional Declaration, UNITAMS is also mandated to work in close cooperation with the OHCHR Country Office in Sudan, to ‘support the implementation of the human rights, equality, accountability and rule of law provisions of the Constitutional Document, in particular those provisions that guarantee women’s rights, and future peace agreements.’ Since the UN peace and security pillar has usually tended to ignore the role of human rights, the explicit link between the work of the OHCHR and the Security Council-mandated UNITAMS is significant.

A test case for the Human Rights Council

The Human Rights Council was largely absent from these historic developments, largely because of its failure since 2006 to operationalise its prevention mandate (as provided by paragraph 5f of GA resolution 60/251), meaning it did not have at its disposal the preventative diplomacy tools leveraged so effectively by the AU and Ethiopia. It should be pointed out, as an aside, that the absence of a strong Council intervention was not necessarily a bad thing. International human rights NGOs had called upon Council members to hold an urgent debate on the unfolding situation. The UK, a key interlocutor on the situation in Sudan in the Human Rights Council, wisely – as it turns out – failed to heed these calls. Instead the Council adopted resolution 39/22 on ‘Technical assistance and capacity-building to improve human rights in the Sudan,’ which Human Rights Watch subsequently (and short-sightedly) labelled ‘an abdication of the Council’s responsibility to human rights victims in Sudan while grave violations are ongoing.’

Notwithstanding, it is vital for the future of Sudan, and for the credibility of the Council, that it does not remain on the side-lines as a new country emerges from decades of misrule. On the contrary, it is vital that the Council works hand-in-hand with the High Commissioner for Human Rights, and – most importantly – with Sudan itself, to help build a strong, democratic, inclusive and resilient Sudan, built upon the foundations of human rights and sustainable development while ‘leaving no one behind.’

The Sudanese authorities, for their part, seem to understand this only too well. In September 2019, the Minister of Justice of Sudan, Nasruddin Abdel Bari, delivered a remarkable speech to the Council in Geneva – a speech that sought to turn the page on Sudan’s troubled past with the UN human rights system and place that relationship on a new footing, one premised on cooperation rather than the confrontation. (In an interesting aside, Mr Abdel Bari had also attended the previous session of the Council – but on that occasion as a human rights defender).

The Minister began his speech by describing the five months of negotiations that followed the overthrow of al-Bashir, and the journey towards a civilian government under the ‘Constitutional Document’ agreed upon with the help of Ethiopia and the AU. This Document, and the rebuilding of the State’s institutions, he said, would see Sudan transformed ‘into a democratic nation where the Government will always be of the people, by the people and for the people.’ ‘History has given us an opportunity to write a new chapter.’

In the area of human rights, Mr Abdel Bari said the new Government is committed to guarantee freedoms of expression and assembly, and to hold those responsible for recent serious human rights violations to account. ‘The Government will also soon establish a Legal Reform Commission,’ he said, ‘that will amend or abolish pieces of legislation in Sudan that restrict freedoms or are inconsistent with international law.’ The Minister also announced Sudan’s intention to join the international human rights conventions to which it is not yet party, particularly the Convention on the Elimination of Discrimination against Women (CEDAW) and the Convention against Torture (CAT).

It is clear then that, notwithstanding the fundamental challenges involved, the stage is perfectly set for the Human Rights Council to make a strong and potentially decisive contribution, alongside OHCHR, the wider UN system, the AU and – most importantly – the State itself, to the construction of a new, democratic Sudan.

It is vital that it does so – for the sake of both the people of Sudan, and its own credibility. Sudan’s democratic and human rights transition remains extremely fragile, especially in the near term (as is usually the case with countries in transition). There is a widespread and wholly understandable fear amongst the people of Sudan that the military will not agree to cede power when it comes time to pass the leadership of the Sovereignty Council to a civilian leader, and thus that there never will be free and fair elections. Exacerbating these concerns, in March 2020 Prime Minister Abdullah Hamdok survived an assassination attempt. As warned by the Prime Minister in a letter to the Security Council on 27 January 2020, ‘the reconfiguration of the United Nations footprint must assist and complement Sudan’s priorities and support Sudan in achieving the full democratic transition throughout the transition period, ending in November 2022.’

So, will the Human Rights Council seize this historic opportunity and play its part?

At the moment, there are both reasons for concern and reasons for cautious optimism. On the negative side of the ledger, as noted above, the Council’s track record in transitioning from an approach premised on criticising and condemning States to one premised on recognising progress and helping them move forward, is lamentable. Where it has done anything at all, the Council’s usual strategy is to appoint an ‘Independent Expert’ (a Special Procedures mandate focused on capacity-building) to a country in transition, with a mandate to assess its technical assistance and capacity-building needs. The mandate-holder (usually an academic, and usually on the basis of a single one-week visit – clearly insufficient in the context of a large country) is then expected to report back to the Council and provide recommendations to States on what to do next. The longstanding problem with this approach – beyond the conceptual issue of expecting a single academic to cover and understand the needs of a country the size of Sudan – is that the Independent Expert is only expected to report on the capacity-building needs of the State, not to mobilise support or deliver on those needs. This leads to a situation whereby Independent Experts visit countries year-on-year for long periods of time (e.g. the Independent Expert on Haiti was in existence for over two decades), and each year present much the same reports with much the same recommendations. What is more, recommendations are often directed to the State concerned (which, by definition, often lacks the capacity to implement them) rather than the international development community, and are so vague as to be largely useless (contrary to paragraph 98 of the Manual of Operations of Special Procedures of the Human Rights Council, which calls for recommendations to be ‘SMART’ [specific, measurable, achievable, realistic and time-bound]).

Unfortunately, all these problems have been evident in the conduct and work of the Independent Expert on Sudan, who presented his most recent report (pursuant to resolution 42/35) at the recent 45th session of the Council (in September-October 2020).

The report of the Independent Expert ends with 23 recommendations, 17 of which are directed towards the State (only five are addressed to the international community – the last is directed towards ‘armed opposition movements’).

Moreover, most of the recommendations to Sudan are extremely broad. For example, the Independent Expert variously calls upon the State to: ‘uphold the constitutional commitment to carry on comprehensive legal reforms and rebuild the justice system to ensure the protection of human rights in conformity with international human rights standards;’ ‘ensure that judicial authorities uphold victims’ rights to effective remedies;’ ‘establish a comprehensive, consultative and holistic victim-centred transitional justice process;’ ‘take all necessary steps to ensure a safe and enabling environment’ for civil society; ‘ensure that economic reforms protect the minimum core content of economic, social and cultural rights;’ ‘continue to promote women’s rights and combat discrimination against women through legal reforms;’ and ‘undertake a credible and transparent security sector reform to address security concerns.’

Even where recommendations are more specific and – in theory – ‘implementable,’ there is no specific guidance or offers of assistance to help Sudan achieve the stated goals. For example, one recommendation calls on Sudan to ‘ratify the international human rights conventions that have not yet been ratified.’ That is all well and good, but treaty ratification is not a simple process. To be done properly, it requires public consultations, legal analyses including ‘gap’ analyses, consideration by the legislature, etc. Likewise, the Independent Expert recommends that Sudan ‘establish the 12 independent commissions provided for in the constitutional document’ and ‘reform the existing National Human Rights Commission’ in compliance with the Paris Principles – clearly no easy undertaking. But again, the Expert offers no specific guidance nor any suggestion of how Sudan might secure the international help necessary to realise these laudable objectives.

We are not amused

Unsurprisingly, the Sudanese Government was not impressed. In its official comments to the report it reiterated criticism it had previously levelled, where it began by noting that it had been given only two weeks to review the report and recommendations, in violation of ‘paragraph 74 of Manual of Operations of Special Procedures […] which provides for six weeks as the ideal period for submitting the State’s comment, and not less than four weeks in all cases, unless otherwise agreed with the Government.’ The State also notes that the Independent Expert not only failed to undertake a second planned visit to the country, but did not even inform the Government of its cancellation.

Regarding the substance of the report, Sudan noted that ‘the report did not focus on the ideas and proposals needed to address challenges that require technical assistance and capacity-building […] We respectfully submit that such tendency is inconsistent with the mandate of the Independent Expert.’ Where there are observations and conclusions, these are ‘clearly not based on credible evidence,’ and ‘underestimated’ and in many cases ‘totally excluded’ information provided by the Government.

Moreover, the recommendations (like previous recommendations issued by the Independent Expert), according to the Government, do not ‘comply with the guidelines which entail that mandate-holders recommendations shall be specific, measurable, achievable, realistic and time-bound (SMART criteria), as set out in paragraph 98 of the Manual of Operations of Special Procedures of the Human Rights Council.’

Fortunately, perhaps stung by these criticisms, as well as criticisms levelled by other members of the Council, the Independent Expert’s performance during the interactive dialogue with the concerned State and the Council during the 45th session was somewhat better, with more practical and concrete recommendations.

Based on the Independent Expert’s report and recommendations, and the comments of Sudan, on 6 October 2020 the Human Rights Council adopted a resolution on ‘Technical assistance and capacity-building to further improve human rights in the Sudan.’ Fortunately, the resolution represents a marked departure from the Council’s usual ‘item 10’ (capacity-building) resolutions. Most importantly, as well as recognising the important progress achieved by Sudan since the revolution (the Council acknowledges ‘that the situation of human rights in the Sudan has significantly improved and is on track to improve further’), the resolution recognises that in order to improve further, international ‘technical assistance and capacity-building will nevertheless continue to be needed.’ Importantly, in order to secure those improvements, the resolution carefully balances calls for accountability for past violations with international support for long-term efforts to build the human rights capacity and resilience of Sudan, including through the implementation of recommendations received from the UN human rights mechanisms (e.g. UPR). Regarding the delivery of international support, the resolution ‘urges Member States, the United Nations High Commissioner for Human Rights, relevant United Nations agencies and other stakeholders to continue to support the efforts of the Government of the Sudan to further improve the situation of human rights in the country, including by responding to the Government’s requests for technical assistance and capacity-building,’ and ‘requests the Secretary-General to provide all the resources necessary to enable the country office of the Office of the High Commissioner in the Sudan and its field presences to fulfil their mandates.’ Importantly, in order to maintain close cooperation between the UN human rights system and Sudan, and to continually assess progress and evolving needs, the Council ‘requests the High Commissioner to prepare a written report that assesses progress and challenges, including the work of the country office and its fields presences, in accordance with their mandates, and to present it to the Human Rights Council at its forty-eighth session, under agenda item 10.’

Finally, and perhaps unsurprisingly, with the resolution the Council decided to ‘end the mandate of the Independent Expert.’

These assertions and decisions by the Council, together with the High Commissioner’s rapid response to the situation in Sudan, especially her decision to establish a strong, country-wide presence, suggest that the UN’s human rights pillar may have learnt the lessons of its past mistakes, and be ready to rise to the challenge posed by this important new test of its effectiveness and delivery. For the sake of the long-suffering people of Sudan, the Universal Rights Group certainly hopes that is the case.


Feature picture: 11 March 2013. El Fasher: Local Singer Islam Ahmed performs a song during the celebration organized by UNAMID to commemorate the International Women’s Day in El Fasher, North Darfur. With the slogan “Together to promote the dignity of Women and Girls”, the event was organized in coordination with UNHCR, UNFPA, UNDP, UNICEF, UNWomen and the Government of Sudan. Photo by Albert González Farran, UNAMID. Licensed under CC BY-NC-ND 2.0

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