Criminal Justice and Restorative Transitional Justice for Post-Conflicts Sudan: Accountability, Reparation of Damage, Tolerance and Sustainable Peace

By Mohamed Elamin Elbushra Mahgoub

At the beginning of the twenty-first century, and in light of the tremendous development that pervaded information and communication technology, criminality entered a new phase characterized by exploiting information and communication technology in committing and concealing crimes. This resulted in new patterns of serious crimes known as cybercrime, which required a similar treatment based on Information Technology, Electronic communications, Digital Investigation , Digital Evidence and Artificial Evidence, which has introduced new terms into the lexicon of Forensics and police sciences.

• Language: English
• Publisher: Xlibris AU
• Release date: Nov 16, 2022
• ISBN: 9781669832799

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Copyright © 2022 by Mohamed Elamin Elbushra Mahgoub.

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Rev. date: 03/16/2023

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CONTENTS

1. PREAMBLE

1.1 Introduction

1.2 The importance and objectives of this study

1.3 A review of the literature on the study topic

2. THE THEORY OF THE CRIMINAL JUSTICE

2.1. The Criminal Justice: An overview:

2.2 Definition of the Criminal Justice System:

2.3 Models of Criminal Justice Systems

3. THE POLICE ROLE IN CRIMINAL JUSTICE SYSTEM

3.1 Concept of policing and criminal justice:

3.2 Standards and Functions of Criminal Justice:

3.3 The Functions of the Criminal Justice System:

3.4 Criminal Justice Process:

3.5 The responsibility of Police in maintaining standards of Criminal Justice:

3.6 The responsibility of the Police to Protect the Rights of Crime Victims:

3.7 Justification of Police Powers and Realization of Justice:

4. ISLAMIC CRIMINAL JUSTICE SYSTEM

4.1 Islamic Theory of Justice:

4.2 Sources of Islamic Criminal Justice

4.3 Islamic Criminal Justice system Components

4.4. The Islamic criminal justice process:

4.5 Procedures Governing Criminal Investigations:

4.5 The Rules of Evidence in Islamic Criminal Justice

4.6 Admissibility of Scientific Evidence before Islamic Courts

4.7 Classification of Scientific Evidence:

4.8 The Role of Judges in Islamic Justice System

5. COMMUNITY CRIMINAL JUSTICE AND RESTORATIVE CRIMINAL JUSTICE

5.1 The concept of community criminal justice and restorative criminal justice

5.2 Distinction between community criminal justice and restorative criminal justice:

5.3 Distinguishing between criminal justice and restorative justice:

5.4 Restorative Justice Experiences:

5.5 Restorative justice roots and theories

5.6 International interest in restorative justice

5.7 Mechanisms to enforce community criminal justice

5.8 Parallel Justice for Victims of Crime:

6. VICTIMS OF CRIME AS THE FOUNDATION OF THE COMMUNITY CRIMINAL JUSTICE AND RESTORATIVE CRIMINAL JUSTICE

6.1 Definition of Victims of Crime:

6.2 About Crime Victim Movement:

6.3 Victimization consequences:

6.4 New Patterns of Victims and Restorative Community Justice:

6.5 Protection of Victims of Crime:

6.6 Victim-Based Justice

7. TRANSITIONAL JUSTICE

7.1 Conflicts and wars in Sudan

7.2 Conflicts and Wars in Sudan and Scientific Theories:

7.3 Historical background to transitional justice

7.4 The concept of transitional justice

7.5 Post-conflicts institutions and mechanisms:

7.6 Steps of transitional justice processes launching

8. REFORMATION OF SUDAN’S POST-CONFLICTS CRIMINAL JUSTICE SYSTEM

8.1 The need for criminal justice system reform

8.2 Police and security are central to transitional justice in post-conflicts Sudan

8.3 Our vision for re-structuring police and security in a free democratic Sudan:

Recommendations And Proposals

References

Appendix 1

Appendix 2

Proposed Constitution

Proposed Constitution of the United States of Sudan

DEDICATION

I dedicate this book to victims of crime seeking rights, equity

and reparation, to justice advocates and peacemakers, and

to those who are in charge of the criminal justice system

CHAPTER ONE

PREAMBLE

1.1 Introduction

The Criminal Justice System is the governmental institution that consists of the police, the Public Prosecutor, the judiciary and the correctional institutions with their military, security and intelligence forces concerned with law enforcement, crime control and justice achievement. However, transitional justice refers to a temporary justice process adopted by countries emerge from periods of internal conflicts and large-scale repression or systematic human rights violations that the standard justice system will not be able to provide and adequate response. Transitional justice is rooted in accountability and redress for victims, recognizing their dignity as human beings.

For the first time, the transitional justice system was introduced in the African political culture in the 1990s to address security causes, political unrest, and social problems and achieve post-conflict justice in countries and regions torn apart by civil wars, armed conflicts, corruption and human rights violations. The transitional justice system aims to restore the conditions of societies and victims as they existed before the emergence of disputes and armed conflicts. It also aims to operate transparently and introduce speedy justice to enhance security and sustainable peace, following standards regulated by post-conflict law¹.

The criminal justice system and the transitional justice system represent the essential tools for addressing the situation, improving the environment and purifying souls in the post-conflicts and civil war phase. The two approaches differ in causes, actions, ends and results, but they complement each other.

The criminal justice system, as mentioned above, is the formal legal system that exists in the state and operates in accordance with the constitution, the criminal law, and the laws regulating the functions and procedures of the criminal justice system agencies such as the police, the public prosecution, the judiciary, penal and correctional institutions, and the juvenile justice system. A system precedes the emergence of conflicts and may be one of the causes thereof or involved in the practices that took place during conflicts.

The transitional justice system is a juridical justice system that usually arises after conflicts and civil wars have ended, whatever how conflicts have ended. The transitional justice system is established immediately after the conflict ends with a law that defines its procedures, specialized committees, stages of work, and how to coordinate with the existing criminal justice system. The initiation of the transitional justice system depends on how society has ended wars and settled the conflicts.

The end of the conflicts may occur through peaceful negotiations and compromise between all parties to the conflict. In this case, the peace agreements to end the disputes shall include explicit provisions to establish the transitional justice system, set up its work procedures, and define how it relates to the criminal justice system. Society, in this respect, may not face difficulties in establishing and activating the transitional justice system.

As is the case in Sudan in December 2019, the conflicts may also end with a violent popular revolution that topples the ruling regime during the conflicts, and the people declare their intense hostility to the existing criminal justice system involved in the conflicts. Herein lie great difficulties in developing and initiating the transitional justice system, selecting its members and working mechanisms due to the lack of trust between members of conflicting and rebellious societies. This requires wisdom, rationality and working as quietly as possible to understand the stage and the vision for sustainable peace. Hence, transitional justice must be viewed as a necessary foundational justice to move to a state of social harmony and political stability and to secure society by abolishing the environment that breeds violence and fortifying the constitutional system. Hence, the relationship of transitional justice to traditional criminal justice can also be viewed from several aspects.

It may be a prelude to traditional punitive criminal justice, national or international, as is the case in truth commissions in conjunction with the International Criminal Court in some countries. It may be a substitute for it in some instances, such as in the case of the death of suspects, or it may complement it by filling in gaps that traditional justice is unable to achieve, as in the case of reconciliations between the components of society and the resort to social norms and Islamic Sharia principles in this regard.² All of this is determined according to the transitional justice approach adopted and established under the constitution so that the law issued on transitional justice in the future can accommodate exceptions to the rules of traditional justice, such as those related to the statute of limitations, to investigations by truth commissions, to criminal case alternatives, to the force of res judicata, or to restorative justice that constitutes an element of transitional justice without being synonymous with it.

It is usually hoped that the transitional justice system will work alongside the criminal justice system with its consensual components. The transitional justice system collects information, receives complaints from victims, opens files of corruption and human rights violations, and reveals the facts transparently. The transitional justice system may just reveal and document the facts for national memory and history, make peaceful settlements between the parties and restore the situation of victims and the environment to its pre-conflicts status. It may also refer some or many cases to the criminal justice system, once reformed, to consider those cases as crimes that deserve punishment.

Here, intermediate or supportive justice systems emerge between the criminal justice systems and transitional justice systems to achieve post-conflicts goals and policies, i.e. Community-based Criminal Justice systems, Restorative Justice systems, and Parallel Justice systems. These are justice systems based on victims’ rights and redressing by parallel proceedings with those of the criminal justice and the transitional justice systems, apart from them, or in implementing their decisions. What are these justice systems, their proceedings, functions and working mechanisms? How to govern their performances in normal conditions and in post-conflicts situations in particular.

In this book, we deal with the definition and explanation of each of these justice systems and seek to make approaches between them. Undoubtedly, getting to know the various judicial agencies and their components and respecting and trusting them is a reason to ensure the desired results in achieving the goals of reformation processes in the post-conflicts phase. There is no doubt that the failure of justice systems in the post-conflict phase inevitably leads to disastrous results that bring back conflicts and wars.

1.2 The importance and objectives of this study

After the end of World War II, the international community began to pay great attention to justice, and equality, guaranteeing freedoms and preserving human dignity. Those concepts and values were included in the Universal Declaration of Human Rights issued in 1948. The United Nations has endeavoured to take care of criminal justice by elaborating all human rights instruments contained in the Universal Declaration of Human Rights and the Charter of the United Nations into conventions, guidelines and rules governing criminal justice and its organs and guiding their procedures. It has established committees and specialized offices to follow up on implementing those guidelines and regulations adopted by most world countries. In addition, the United Nations created five interregional institutes spread over the world’s continents. Their function is to conduct research and studies in the criminal justice field, train criminal justice agencies personnel, formulate illegal policies and provide technical assistance to the Member States. A similar interest accompanied the role of the United Nations from universities and research centres in many countries, which established colleges and schools specialized in criminal justice sciences and provided valuable literature for foreign libraries.

On the other hand, we find that the Arab library, universities and research centres have provided little in this section of Knowledge of human interest at every time and place. In Sudan, in particular, the criminal justice systems, agencies and procedures have become the subject of much dispute, criticism, and accusations of inadequacy and human rights violations. This is due, in our opinion, to the neglect of criminal justice-related studies and research, which has kept United Nations criminal justice standards, norms and guidelines away from the cultures and applications of the criminal justice system in the Sudan.

Accordingly, the significance of this study lies in the importance criminal justice has in today’s world because it is linked to the principles of human rights and the concepts of the rule of law as an indicator of good governance. This can be achieved by realizing the following objectives:

1. Introducing criminal justice systems

2. Enhance knowledge of the United Nations Standards for Criminal Justice

3. Remind educational institutions, research centres and criminal justice agencies of the importance of criminal justice

4. Study of modern criminal justice systems that focus on the rights of victims, such as community justice, restorative justice and parallel justice

5. Study transitional justice in the post-conflict phase

6. Clarify the role of criminal justice in sustainable peace

7. Reformation of the criminal justice system components to suit the requirements of sustainable peace-making

1.3 A review of the literature on the study topic

During the past four decades, studies of criminal justice systems have gone through many turns related to the contemporary criminality movement, its accelerating changes, and the global trends that dominate its treatment. These variables have been studied in the context of intellectual trends that, in their entirety, did not depart from the constants on which the concepts of contemporary criminal justice were founded in the early 1980s³.

• The studies dealt with criminal justice systems in terms of their functions, procedures, and agencies with a perspective aimed at combating crime with traditional concepts based on implementing laws, with modest references to human rights within the criminal justice system. This was when human rights were not a priority for the international community during the cold-war era.

• At the end of the twentieth century, criminal justice and crime control systems received the attention of scholars and graduate students. Moreover, the call was active for due process of law by harnessing all methods of forensic, technical, psychological and social research in crime detection and evidence to address the growing crime problem on the one hand and meet the requirements of human rights protection on the other hand.

With the decline of the traditional law enforcement perspective and the emergence of community police concepts, studies have tended to define community policing concepts and applications⁴, clearly calling for community participation in assuming security responsibilities whose costs have begun to exceed the potential and capacity of government agencies in many countries of the world. The call for adopting preventive thinking, problem-solving and proactive approaches, and involving the community in combating crime and facing security problems emerged, which opened the door to community criminal justice studies.

At the beginning of the twenty-first century, and in light of the tremendous development that pervaded information and communication technology, criminality entered a new phase characterized by exploiting information and communication technology in committing and concealing crimes. This resulted in new patterns of serious crimes known as cybercrime, which required a similar treatment based on Information Technology, Electronic communications, Digital Investigation⁵, Digital Evidence⁶ and Artificial Evidence, which has introduced new terms into the lexicon of Forensics and police sciences.

• In the twenty-first century, criminal justice scholars and the United Nations agencies concerned with crime and criminal justice tended to study the role of criminal justice agencies and their attitude towards contemporary problems affecting global peace and security, such as regional conflicts, civil wars, genocide and other crimes against humanity. Criminal justice research and studies for this stage raised questions about the role of criminal justice agencies and their attached military organs in fuelling conflicts and civil wars and how to deal with them in the post-conflict and post-war settlement phases. As a result, many scholars and the international community settled on a fundamental reform shift that would enable criminal justice systems to achieve justice and redress for victims and contribute to sustainable peace through innovative approaches.

In 2005, new theories were developed in criminology, victimology, and applications of the rights of victims of crime in the criminal justice system⁷ to keep pace with cybercrimes. The theory of cyber criminology emerged, which placed a degree of responsibility on societal activities in addressing the problem of crime and focusing on the protection of victims in particular, as an entry point to the transition of criminal justice from the responsibility of the state to that of the local community, the most effective in addressing local problems. The theory of community-based criminal justice was put forward as the least expensive and most beneficial to the conflicting parties. Looking at the issue of crime and criminal justice from the perspective of victims opens the door wide for all members of society to assume responsibility for security and judge by their position in the mechanism of harm from crime.

The previous studies in this field seem consistent and well sequenced with the security variables, social and political concepts, and global transformations⁸. This is because crime and delinquency a social phenomenon that needs to be addressed through societal mechanisms, compassion, kindness, openness, reconciliation and participation. However, this is supposed to be done in the context of the law, the provisions of Sharia and societal values, which put the rights of victims and the restoration of normality as a top priority.

This research brings together the ideas mentioned earlier and concepts to highlight an integrated conception of the criminal justice movement from the stage of a state-harnessed criminal justice for political purposes to a stage of criminal justice marked by legal provisions, democratic society values and community justice that reinforces the concepts of transitional justice, known as Community-based Justice and Restorative justice.

Criminal justice remained one of the most fortunate areas of human knowledge regarding abundant scientific research, field studies, jurisprudence references, specialized research centres, and scientific activities and meetings. It suffices to mention that five United Nations institutes specialize in criminal justice research, distributed geographically across continents⁹. Several institutes and centres cooperate with the United Nations in criminal justice studies¹⁰. These institutes maintain specialized libraries, organize scientific meetings and international conferences, and publish their outcomes regularly.

In addition to the scientific activities and periodic meetings organized by these institutes, the United Nations organisations a comprehensive international conference on criminal justice and crime prevention every five years. This conference, held since 1950, is the international legislative authority that proposes international conventions and charters in criminal justice and crime control. The efforts of United Nations institutes and international interest in criminal justice issues have strengthened scientific research in criminal justice colleges and schools in universities and training institutes for judges and law enforcement personnel. This provided a great deal of scientific output and enriched the criminal justice library with valuable studies that contributed significantly to the development of criminal justice systems.

In the 1990s, however, research studies on community justice, peaceful settlement of disputes, transitional justice, restorative justice, and other victim-based and human rights justice systems were highly prioritised among scholars, United Nations institutes and relevant agencies. Interest in studies of peaceful settlement and transitional justice has begun since the end of World War II. However, the genuine interest in these studies doubled in the late twentieth century due to the proliferation of armed conflicts and civil wars in many parts of the world and the international community’s focus on tragedies and human rights violations.

The following research and field studies are the most important ones carried out in these areas:

1. United Nations Surveys of Crime Trends and Operations of Criminal Justice Systems.¹¹ The series of these studies carried out by the United Nations Office of Criminal Justice and Crime Control with the support of the United Nations Office of Statistics is one of the essential references in measuring the performance of Criminal justice systems and crime trends globally. These studies began in 1978 and covered all United Nations member states. The results of these studies are published every five years. These studies follow the descriptive statistical analytical approach based on field data collected through a detailed questionnaire by member states annually. These studies aim to provide clear facts about the extent of crime worldwide, its trends and causes, with a focus on revealing the facts related to the procedures of criminal justice systems and their efficiency and commitment to standards, directives and established principles of justice.

These studies provide figures and rates that are easy to compare, which help identify the position of any country on crime patterns, detection methods, convictions, acquittals, rates of police, prosecution, judiciary and penal facilities, and the efficiency of offenders’ rehabilitation and reform processes. These studies enhance cooperation between countries in confronting crime and formulating social and economic policies. What doubles the scientific value of these studies is the recourse to statements made by crime victims about the extent of the crime instead of relying entirely on official statistics prepared by police agencies based on what they know of crimes. These survey studies have proven the existence of many hidden crimes that do not come to the attention of police. They also reveal facts about the perpetrators and the victims and the factors conducive to crimes that are not indicated by official statistics. Most countries have begun to follow this statistical approach to enhance their official statistics and measure their credibility.¹² Above all, these studies provide a specialized scientific research methodology in criminal justice with clear plans, timetables and questionnaires circulated to all countries and their published reporting formats.

2. Cindy Smith’s study on "Correctional Industries Preparing Inmates for Reentry Recidivism and Post-release Employment ¹³". It is a study by the National Institute of Justice of the Department of Justice in the United States of America, specialising in criminal justice research and studies. The study attempts to determine the extent to which prisoners can be prepared to return to society and integrate therein by developing industries inside correctional facilities to the extent that helps to establish inmates’ skills and prepare them to work after their prison sentence. This field study was carried out on a large scale in several US states that developed prison industries. In addition, the study followed the released people outside the prison. It monitored the decline in prison return rates because the freed people were involved in wage-earning manual activities that occupied their time.

3. Steven Weller’s¹⁴ study on Criminal Justice System: Critical Components for Successful Criminal Justice System Planning. It is one of the comprehensive field studies which aims to measure the effectiveness of penal correctional systems in light of reform programs and projects implemented in the prisons of the states participating in the project. This study concluded with four results and eight recommendations, the most important of which is that the project is a successful and inexpensive method for measuring the effectiveness of punitive policies. It also ensured the reality of great difficulties faced by American prisons and the low productivity and profitability of their inmates’ rehabilitating programs and limiting cases of recidivism due to lack of job opportunities, and the difficulties of convincing the community that the convict is capable of integrating into society.

4. Nancy Egan’s¹⁵ study is a comparative study of criminal justice systems in Asia and the United States of America. The study covered several countries in Asia and the Far East, including Japan, China, Korea, Thailand, Vietnam, Indonesia, the Philippines and Pakistan. The first part of the study covers criminal justice legislation, organs and procedures, with a comparison of organizational structures and the effectiveness of systems in carrying out their duties, taking into account human rights and the role of society in achieving criminal justice. The second part of the research focused on criminal justice systems in the United States of America and some Western European countries, intending to show