ANALYSIS: How the Hybrid War Crimes Court Could End Post-War Violence in South Sudan
Additional members of the SPLA arrive in Juba, South Sudan. (Flickr/UNMISS, Isaac Billy)
Madeline Hart (SFS ‘23) is the editor of the Middle East and North Africa section and a contributing writer to the Caravel's Crow’s Nest. The content and opinions of this piece are the writer’s and the writer’s alone. They do not reflect the opinions of the Caravel or its staff.
The South Sudanese cabinet approved the creation of a hybrid war crimes court with the African Union (AU) on January 29. The South Sudanese Civil War has ravaged the country since 2013; the creation of a hybrid court with the AU is part of a series of peace agreements in 2018 intended to end the conflict. This development, though it arrives three years after the agreements, is a promising sign. However, the hybrid court still has to overcome significant hurdles standing in the way of providing justice for those harmed during the South Sudanese Civil War.
The AU has a dual obligation to the victims of the civil war. While the court must provide swift justice so that survivors can see their abusers prosecuted in their lifetimes, it must also ensure its trials are as impartial as possible—a steep request for a court in a place as intensely politicized as South Sudan. Though these two goals seem difficult to achieve simultaneously, it is both possible and necessary. The survivors of this civil war have endured all manner of atrocities, and those responsible must be held accountable for their crimes.
From a Political to Ethnic Conflict
The South Sudanese Civil War began in 2013 as a primarily political war over leadership conflicts within the Sudan Peoples’ Liberation Movement (SPLM). Those in the SPLM disagreed on various issues stemming from South Sudan’s war for independence from Sudan. Several members left and created a new party, the SPLA in Opposition. Those from the Dinka ethnic group tended to side with new South Sudanese President Salva Kiir Mayardit, while those from the Nuer ethnic group mostly joined the SPLA in Opposition, headed by the ousted vice president, Riek Machar. The armies of both groups began to fight each other, pulling the new country apart. As fighting escalated, the civil war transformed from a political conflict into a violent ethnic one. Those on both sides of the war committed crimes against humanity, including the killing of civilians in churches and hospitals.
As violence increased, so did ethnic targeting. Dinka groups began to attack the Nuer in Juba, the capital of South Sudan, and, in retaliation, Nuer military groups began to target Dinka civilians. Thus, different regional groups in South Sudan became roped into the conflict as incidences of brutality against civilians rose.
Different countries and regional groups attempted to intervene in the conflict. One regional organization, the Inter-Governmental Authority on Development (IGAD), sent representatives from Ethiopia, Kenya, and Sudan to take part in peace talks. They threatened international sanctions on South Sudan, after which Kiir agreed to a peace treaty with Machar in 2015. Machar came back to Juba in 2016 and resumed his term as vice president. However, violence soon broke out again, leading Machar to leave the South Sudanese capital once more. IGAD continued to attempt to reach a peaceful settlement. Though they helped pass multiple ceasefire agreements between the belligerents in 2017 and 2018, none of them lasted for any meaningful amount of time.
The UN Mission in South Sudan, which is still in the area, attempted to provide a haven to civilians. Under the mandate of the UN Security Council, the UN sent security forces into South Sudan in 2013. In 2014, the Security Council also authorized the use of force in the protection of civilians. The UN mission sheltered more than 70,000 civilians facing ethnic violence in 2014 alone. Various groups attacked the mission itself as the conflict continued to escalate in South Sudan.
By today, more than 50,000 people have been killed in the South Sudanese civil war, and millions have been internally displaced or have become refugees. For the sake of the millions who have lost their homes and family members, or who have been subject to brutal ethnic violence, South Sudan must reach peace and begin implementing a judicial system to prosecute those responsible for atrocities against civilians.
Peace Negotiations, Round 2
In 2018, events seemed to be looking up. Kiir and Machar took part in negotiations along with representatives from Uganda and Sudan. These negotiations resulted in the signing of the Khartoum Declaration of Agreement. Among other things, the agreement called for a ceasefire and sharing of power between Kiir and Machar. Another agreement was signed later that year by SPLM, SPLA in Opposition, and several other groups. This agreement, titled The Revitalized Agreement on the Resolution of Conflict in South Sudan (2018 Revitalized ARCSS), had more specific, concrete plans for peace in South Sudan.
Signing of the 2018 Revitalized ARCSS. (Flickr)
Unfortunately, these agreements failed to secure genuine peace in South Sudan. Despite these agreements, there are still significant reports of attacks in the country, and the “peace” that Kiir and Machar achieved seems highly tenuous. For this reason, the AU must use its abilities, as outlined in the 2018 Revitalized ARCSS, to help bring the perpetrators of violence to justice.
The 2018 Revitalized ARCSS called for the creation of three mechanisms by which to address the past violence in South Sudan. These are the Commission for Truth, Healing and Reconciliation (CTRH), the Compensation and Reparations Authority (CRA), and the Hybrid Court for South Sudan (HCSS).
The CTRH is to be established by the transition government, with the purpose of “inquir[ing] into all aspects of human rights violations and abuses, breaches of the rule of the law and excessive abuses of power.” The CTRH also has the power to handle reparations and compensations for the victims of these violations and abuses. The CRA is also under the jurisdiction of the transition government and is meant to “provide material and financial support to citizens whose property was destroyed by the conflict and help them to rebuild their livelihoods.”
Since both of these mechanisms fall under the transitional South Sudanese government, the rest of the world, though it can attempt to persuade or coerce South Sudan, cannot directly ensure their success.
However, the third mechanism, the HCSS, lies under the jurisdiction of the AU. The Hybrid Court is responsible for investigating and prosecuting those deemed to have violated South Sudanese and international law from the beginning of the civil war until the end of the Transitional Period. To staff the Hybrid Court, the AU can select judges, prosecutors, and defense counsels from any country in Africa, not just South Sudan. The court will also be the highest in South Sudan, so whatever it rules cannot be overturned. Anyone “convicted or indicted by the court” will not be allowed to run for office or serve in the South Sudanese government.
For several years, the South Sudanese cabinet did not pass any legislation allowing for the creation of the HCSS. Although many called for the unilateral creation of the court by the AU, the AU did not do so. Finally, the cabinet approved the creation of the HCSS on January 29.
This approval is a huge step forward. The Hybrid Court will help uncover the depths of the abuses committed in South Sudan and will start to deal with those accountable. It will provide justice for the victims and survivors of these horrendous crimes. And, hopefully, it will kickstart the implementation of the other two mechanisms outlined in the 2018 Revitalized ARCSS. However, there are still many hurdles.
Justice Delayed is Justice Denied
Although the cabinet has approved the creation of this hybrid court, the process of prosecution could still drag out for decades. A lengthy, drawn-out judicial process would be one of the worst possible outcomes in this scenario.
This court will be relying almost exclusively on eyewitness reports, with physical and video evidence playing a smaller role. The longer trials get delayed, the more witnesses forget details or move away. Evidence is more likely to be lost or taken and the accused have time to flee the country. There are plenty of past examples for this. In the Democratic Republic of the Congo, efforts to implement justice and reparations were discarded in favor of achieving peace and stability. However, this backfired. In addition to a lack of justice for victims of abuse, some military groups even committed abuses with the direct intention of gaining more leverage in peace negotiations.
Representing justice as something that must be given up in order to achieve peace creates a false dichotomy. Lasting peace cannot be achieved without true justice, not just concessions and negotiations. And true justice will only occur if the AU conducts their trials in this hybrid court with expediency. They should hold timing in the highest regard as they start to create the HCSS.
The emblem of the African Union. (Wikipedia)
However, although the timing is of the utmost necessity, the AU must not forget how intensely politicized South Sudan is. The AU will likely be prosecuting members with close ties to the current South Sudanese government. Thus, they must take several steps to ensure justice reaches even those in positions of power. The AU must make sure they heavily vet Hybrid Court staff to find both impartial Sudanese and African judges.
They must also emphasize eyewitness and victim testimony. To do this, they must use whatever funds are available to uncover and document as much testimony and accounts as possible. Not only are these accounts crucial to the persecution of war criminals, but they also serve as a reminder that the victims, and not anyone in politics, are the people for whom this court is intended to serve. Their experiences are the most valuable. Maintaining this emphasis on the experiences of victims, and not as much on the choices of those in positions of power, will both keep the court apolitical and ensure that civilians’ voices are heard.
If the HCSS is to succeed, it must simultaneously work quickly to enact justice and ensure impartiality and an emphasis on victim testimony.
A Step Forward
The approval of the South Sudanese cabinet for the creation of the South Sudan-AU Hybrid Court is a monumental step forward. It signals that South Sudan may be starting to take the concrete steps toward peace outlined in the 2018 Revitalized ARCSS. It signifies that the war criminals of South Sudan may be prosecuted, unable to harm anyone again. And it brings hope that the thousands of Internally Displaced Persons, refugees, and other survivors of ethnic violence and abuse may see an end to their pain, and maybe even reparations as well.
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