Blood Money in Sudan and Beyond: Restorative Justice Or Face-Saving Measure?

BLOOD MONEY IN SUDAN AND BEYOND: RESTORATIVE JUSTICE OR FACE-SAVING MEASURE? A Thesis submitted to the Faculty of The School of Continuing Studies and of The Graduate School of Arts and Sciences in partial fulfillment of the requirements for the degree of Doctor of Liberal Studies By Jacqueline H. Wilson, M.S. Georgetown University Washington, D. C. March 25, 2014 Copyright © 2014 by Jacqueline H. Wilson All Rights Reserved ii BLOOD MONEY IN SUDAN AND BEYOND: RESTORATIVE JUSTICE OR FACE-SAVING MEASURE? Jacqueline H. Wilson, M.S. Mentor/Chair John O. Voll, Ph.D. ABSTRACT This thesis assesses the restorative justice aspects of blood money processes used around the world but focuses primarily on Sudan and South Sudan. It examines sulha, judiya (Darfur), galad (eastern Sudan) and other processes using a mixed methods approach and a multi-site ethnography methodology. The paper scrutinizes these processes from foundational agreements, information gathering and truth-telling, through selecting a third party, and examines truces, exile, women’s roles, compensation agreements, closing rituals, and implementation measures. The paper documents contemporary challenges facing these blood money processes such as collective responsibility, global trends like urbanization, widespread killing and retaliation that rises to a feud, situations where killer and killed are unknown to each other, and situations where blood money is paid by outsiders. I identify shortcomings within these processes relative to international legal norms and human values, as well as areas where they are consistent. Using a restorative justice analytical framework, I determine whether blood money processes are restorative and constitute justice, and ask whether these iii traditional mechanisms are sufficiently robust to stop the cycle of violence. I examine concepts of reconciliation, including truth telling, recognition, rituals, and forgiveness. I consider cultural, historical, and psychological aspects of retaliation and revenge, as well as the Arabic concepts of qisas,1(retaliation) and tha’r2 (blood feud), cultural codes of honor and shame (sharaf and `ayb), and the complex Dinka (and Nuer) concept of cieng, to assess factors impacting blood money’s effectiveness at breaking the cycle of violence, as well as examining the role it plays in preserving honor (or saving face). I determine that, in many cases, these compensation processes are not fully restorative, in large measure because some key aspects of their practice are circumvented or neglected, or due to other challenges facing these processes. Yet their primary aim remains to restore communal relationships, and they continue to hold value for many people. I conclude by recognizing that blood money processes may be the most accessible and culturally acceptable conflict resolution practice in ungoverned spaces experiencing violent conflict, and therefore recommend improving, not replacing, these practices. Keywords: diya; blood money; restorative justice; sulha; judiya; rule of law; tha’r ajaweed; reconciliation; multi-site ethnography; sharaf, honor, `ayb, cieng, qisas 1 J. Milton Cowan, ed., Hans Wehr: A Dictionary of Modern Written Arabic, 4th ed., (Ithaca: Spoken Language Services Inc., 1994), 896. Qisas has meanings including ‘to retaliate; to return like for like; to avenge; to take vengeance.’ 2 Ibid., 121. Tha’r has meanings including ‘to avenge the blood of; to take blood revenge; retaliation; take vengeance’. iv PREFACE What may be the oldest conflict resolution mechanism known to man—the compensation mechanism known as blood money—is still practiced and holds great meaning for millions around the world. Muslims, tribal chiefs, and customary law practitioners claim it as their own, but the practice itself can be traced through many generations, from Herodotus and the ancient Greeks to contemporary Sudan, and across the miles ranging from ancient Iceland to Papua New Guinea and many times and places in between. I was first introduced to the concept of blood money during a conflict resolution training workshop I conducted for the U.S. Institute of Peace in Darfur, Sudan in 2006. The workshop topic was about customary law and its contributions to peace and conflict resolution. Much of Darfur was, at the time, embroiled in a raging war—some called it genocide—between the Government of Sudan and various rebel movements in Darfur. Yet in addition to this civil war, in which the government had armed and engaged certain ethnic groups to attack certain other tribes, high levels of inter- and intra-tribal violence were ongoing as well.1 The workshop included opportunities for the participants, who consisted largely of traditional leaders from multiple tribes who identified themselves as 1 Controversy exists within academia regarding the suitability of the word “tribe” to describe ethnic groups, persons affiliated through familial ties, or other entities who share a common identity frequently associated with blood relationships. My use of the term ‘tribe’ refers more specifically to identity groups which may cross ethnic, political, geographical, blood, or other boundaries, but within which some members practice collective responsibility. I use the term recognizing its problematic nature, but I find that alternative terms fall short as well. v sheikhs, omdas, nazirs, sultans, and a variety of other traditional titles, to examine their customary mechanisms for resolving conflict and reflect on reasons why the mechanisms were falling short in terms of stopping violence from escalating. One of the reasons cited by these leaders for their inability to stop the violence was the government’s intervention in diya payments-- compensation payments from a killer’s clan to the clan or extended family of the victim--citing situations where the government paid the compensation on behalf of tribal members who participated in intentional killing (murder) even when the tribe’s members themselves refused to pay the diya. (According to custom and some laws, murders are not supposed to be resolved through payment of compensation, but are supposed to be adjudicated in a court of law, normally with compensation as part of that process).2 The leaders also cited situations where family members of victims had refused to accept the diya, because they wanted the offenders to face justice in a court of law (versus being settled outside of court through payment of the blood money), but the families were, in 2 Carolyn Fluehr-Lobban, “Homicide in the Afro-Arab Sudan,” Journal of African Law 20, no. 1, (1976): 22 and 34, and Carolyn Fluehr-Lobban, Shari’a and Islamism in Sudan: Conflict, Law, and Social Transformation (London: I.B. Taurus, 2012), 115-120. The 1991 Shari’a Code of Law in Sudan incorporated diya as part of the legal code. Legal codes in Sudan and in many other countries are a mélange of civil law, criminal law, customary law and Shari’a law. A snapshot of legal codes in Sudan in the 1970’s clarifies distinctions between criminal law and Shari’a: “The law recognizes several types of homicide: (i) murder; willful and intentional killing; (ii) culpable homicide: killing in self-defence or under sudden and grave provocation; Sudan Penal Code, section 253; (iii) killing with the intent to cause grievous hurt: S.P.C., section 254.” The Islamic law was somewhat different: “According to the laws of Islam, willful homicide is punishable by God and by retaliation (qisas). Unintentional homicide is punishable by God and by the payment of dia or compensation for the loss of life, but not by retaliation ([Sudan] Code of Mohammedan Personal Law, section 299).” vi essence, coerced by third parties/mediators into accepting the diya (and therefore could not pursue prosecution of the offender).3 I asked myself whether this manipulation of this traditional conflict resolution mechanism could be directly related to increasing levels of violence, and I vowed to look into the matter. Almost eight years later, I still cannot confidently answer that question. Yet in this paper I come as close as possible to addressing the core issues embedded within that question and consider how we might know whether the mechanism of blood money is effective at breaking the cycles of recurring violence. My insights into the practice of blood money are therefore informed, in large measure, by my personal and professional experiences with people whose communities practice this mechanism. I have met people and heard stories about blood money from Sudan, South Sudan, Afghanistan, Yemen, Iraq, Somalia and beyond. Having worked in the peacebuilding arena in all of these places (except Somalia), I have a unique cross-cultural and interdisciplinary lens through which to view this mechanism. However, clearly I am still a ‘stranger,’ as is desired for objective academic research.4 My experiences led me to ask questions and search for answers, and 3 Fluehr-Lobban, Shari’a and Islamism, 116. According to the Shari’a code of 1991, “It is the personal choice of the victim to forgive or to accept the diya, in whole or in part; otherwise the qisas punishment is to be applied….” 4 Georg Simmel, “On Individuality and Social Norms,” in D. N. Levine, ed., Selected Writings (Chicago: University of Chicago Press, 1971). Simmel describes a ‘stranger’ for academic purposes as one who “is not a member of the society being studied, but is a man who is accepted within the society that he visits…” Cited in Joseph Ginat, Bedouin Bisha’h Justice: Ordeal by Fire (Brighton: Sussex Academic

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