The ICHR blog welcomes Benty Kumbogbia Paulino for this guest post on the state of transitional justice in South Sudan. He is a lawyer and private Prosecutor in South Sudan, and is a graduate of the Irish Centre for Human Rights. He holds an LLM in Peace Operations, Humanitarian Law and Conflict.
After years of recurring atrocity, this post addresses the systemic impunity and lack of accountability for serious crimes in South Sudan. It is the author’s view that the obstruction of the Hybrid Court for South Sudan (HCSS) is politically motivated so those responsible can avoid accountability. In the absence of domestic remedies, there is an urgent need for international intervention via the UN Security Council or the African Union Peace and Security Council (AUPSC) to prevent the country from sliding back into a full-scale conflict.
Background
In recent years, South Sudan has been marred by bloody conflict with no accountability for perpetrators of serious crimes. Moreover, political violence and everyday criminality are rampant. For example, armed groups carry out regular road ambushes, armed robberies and targeted killings, particularly on the roads linking Western Equatoria State to the country’s capital, Juba. No one is held to account. All of these crimes are extremely difficult to investigate as most armed groups have little control over their forces.
South Sudan’s Transitional Justice process is a product of the 2018 peace deal. The deal followed years of conflict between forces loyal to President Salva Kiir and those of his suspended deputy, Riek Machar. This later transformed into ethno-political conflict between the ‘Sudan People’s Liberation Army’ (SPLA) and the ‘Sudan People’s Liberation Army – In Opposition’ (SPLA-IO), who were led by the same protagonists although new actors emerged at later stages. The conflict was attributed to allegations of dictatorship, tribalism and corruption within the government. Many human rights violations occurred including rape, sexual violence and extra-judicial killings. In 2018, the parties signed a peace deal with the aim of revitalising the 2016 deal which had collapsed. Chapter 5 of the 2018 deal committed the parties to transitional justice, accountability and reconciliation. A Commission for Truth Reconciliation and Healing, Compensation and Reparation Authority was to be established, in addition to a Hybrid Court for South Sudan to try persons responsible for the most serious crimes committed from 2013 onward.
The non-existent Hybrid Court of South Sudan
The HCSS was intended to be an independent and impartial hybrid judicial body with jurisdiction over Genocide, Crimes Against Humanity, War Crimes and other serious crimes under international law and the laws of South Sudan. It was envisaged to exercise supremacy over all courts locally.
However, this process has since stalled as the African Union Commission (AUC) and the South Sudanese Ministry of Justice and Constitutional Affairs have not taken steps to create it following the commencement of the Revitalised Transitional Government of National Unity (R-TGONU). Although the transitional government was formed on 22 February 2020, there has not been any legislation giving effect to the HCSS. Comparing the transitional justice events unfolding in South Sudan with similar contexts in the region, respective regional and international actors have been instrumental in establishing criminal accountability mechanisms elsewhere.
Comparative accountability in Africa
South Sudan ought to learn from various regional and international criminal justice mechanisms. Alleged perpetrators of serious crimes were put on trial regardless of their status or official position. States emerging from conflict have often embraced accountability mechanisms to investigate and prosecute gross humanitarian and human rights violators.
Africa has substantial experience with hybrid and international tribunals to address mass atrocity. Following the Rwandan genocide, the International Criminal Tribunal for Rwanda (ICTR) was created at the request of the Rwandan authorities.
Similarly, the Special Court for Sierra Leone (SCSL) was created by way of special agreement with the United Nations. The United Nations Security Council adopted a resolution expressing dismay at the horrendous crimes executed against civilians in Sierra Leone between 1991 to 2002. President Ahmad Tejan Kabbah of Sierra Leone requested the UN to establish a court with jurisdiction to prosecute grave offences that occurred.
The African region has also witnessed hybrid courts in recent times, including the Extraordinary African Chambers in Dakar, Senegal, which conducted the trial of former President of Chad, Hissène Habré. Similarly, the Special Criminal Court in the Central African Republic is holding trials involving international crimes following recent conflict.
Consequences of continued impunity in South Sudan
The absence of the HCSS has led to a situation of general impunity in the country, as civilians continue to be targeted by armed groups. There have been reports of extrajudicial executions, attacks on civilians and destruction of civilian infrastructure. Reports have also emerged of gang rapes, sexual slavery, enforced disappearances, abductions, the use of child soldiers, and forced displacement of civilians by vigilante groups and militias. There have also been reports of indiscriminate aerial bombardments by government forces. Most of this conduct ostensibly amounts to violations of international human rights and international humanitarian law. Domestic law enforcement authorities and the courts are presently unable to hold armed groups and belligerents to account due to lack of capacity.
In a recent letter written by over 120 organizations calling for the extension of the mandate of the UN Commission on Human Rights in South Sudan (UN-CHRSS), international scrutiny of South Sudan’s human rights situation was called for. The UN-CHRSS has warned that South Sudan’s “political transition was falling apart” as the country faced a “renewed slide into full-scale conflict unless urgent international action is taken.” It continues to assert that all indicators point to South Sudan recurring toward another deadly war.
Combating impunity is more than just extending the mandate of the UN-CHRSS but also establishing the HCSS. Key provisions in the 2018 peace deal remain unimplemented raising fears of a return to conflict. Most civilian areas remain highly militarised. The country is currently witnessing high-profile trials involving key signatories to the 2018 peace deal by a special court. The indictment and trial of the suspended First Vice President, Riek Machar and seven others on charges of murder and treason in relation to the Nasir incident is perceived by some commentators as usurping the jurisdiction of the would-be independent HCSS.
In the absence of action by the African Union to establish the HCSS, impunity will continue. A concerted effort by the international community is therefore needed. A United Nations Security Council resolution calling for the expeditious creation of the HCSS would place much-needed political pressure on the relevant parties to progress its creation. It should be done without delay so that transitional justice in South Sudan can be real and not theoretical for the thousands of victims who still hope for justice.
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