On 7 December, Nicholas Haysom, the Secretary-General’s Special Representative for South Sudan and Head of the United Nations Mission in South Sudan (UNMISS), presented his latest report on the situation of South Sudan (doc. S/2021/1015), pursuant to the Security Council Resolution 2567 (2021). Also, on 2 December, in an informal meeting chaired by Dang Dinh Quy, the Permanent Representative of Vietnam to the United Nations, the Security Council Sanctions Committee concerning South Sudan (established under the Resolution 2206 (2015)), discussed the report of the chair regarding his visit to South Sudan. Both aimed at gathering information regarding the progress in the implementation of the Revitalized Agreement on the Resolution of Conflict in the Republic of South Sudan (R-ARCSS) of 2018, for speedy application of the same.
After South Sudan’s declaration of independence in July 2011, this youngest country in the world was plunged, between 2013 and 2020, into a politically motivated ethnic conflict between the supporters of the President Salva Kiir (Dinka ethnicity) and those of the then Vice-President Riek Machar (Nuer ethnicity). This political struggle between the government forces and armed opposition groups completely divided the nation on the basis of ethnicity. The world then witnessed ethnic massacres and widespread human rights abuses and atrocities, hence, plundering the most cherished principles of article 3 of the Geneva Conventions of 1949 and Additional Protocol II, as well as customary international law.
All parties to the conflict used violent tactics, some of which involved targeted killings of civilian population, including the disabled, elderly, women and children in their own homes. Sexual and gender-based violence, including rape of women and children, was a rampant tactic used from both parties. Hospitals and humanitarian aid supplies were purposely targeted and the tactic of targeted starvation of civilian population was used as a method of warfare, thereby forcing thousands to seek shelter at United Nations bases. All these violations escalated ghastly with the brutal attack, in February 2016, on the UN base at Malakal which housed internally displaced persons.
Apart from the political motive that the conflict aims at serving, the failure of the judicial machinery in prosecuting the culprits of the various violations is another reason which unintentionally pushed the conflict to horrendous levels. In March 2020, Ms. Yasmin Sooka, the Chairperson of the Commission on Human Rights in South Sudan, while presenting the Commission’s fourth report (A/HRC/43/56) before the UN Human Rights Council, showed concern towards inadequate resources and capacity, insufficient infrastructure, unpaid salaries of judges, biased trials and lack of judicial independence, especially in customary law courts prevalent in South Sudan, as reasons of trust defect among the civilian population. In general, blanket amnesty and impunity for the violators have only added volumes to miseries of the civilian population.
In order to put an end to the civil conflict, two agreements between the stakeholders were reached: one in 2015, namely the Agreement on the Resolution of Conflict in the Republic of South Sudan (ARCSS), which eventually failed to achieve its purpose due to lack of political will and several outstanding issues, the second one in 2018, called the Revitalised Agreement on the Resolution of Conflict in the Republic of South Sudan (R-ARCSS). This 2018 agreement repealed the 2015 agreement in its entirety. Amongst other important provisions, the chapter V of the R-ARCSS provided for three mechanisms of transitional justice to deal with past abuses, namely the Commission for Truth, Reconciliation and Healing (CTRH), which is mandated to “inquire into all aspects of human rights violations and abuses, breaches of the rule of law and excessive abuses of power” committed by all state and non-state actors, the Compensation and Reparations Authority (CRA), the aim of which is to “provide material and financial support to citizens whose property was destroyed by the conflict and help them to rebuild their livelihoods”, and the Hybrid Court for South Sudan (HCSS).
Considering, in particular, the deterrent nature of punishment and the lack of judicial efficiency at the national level, the need for a tribunal similar to that of the HCSS was of utmost importance. As per the R-ARCSS, the Hybrid Court is to be established by the African Union (AU) Commission, in order to “investigate and where necessary to prosecute individuals bearing responsibility for violations of international law and/or South Sudanese law, committed from 15th December 2013 through the end of the Transitional Period”, in a position of primacy over domestic tribunals.
The HCSS is “mixt” or “internationalised” in nature, which implies a mixed composition and jurisdiction, involving both national and international aspects. On one hand, the judicial body selection procedure is placed under the exclusive authority of the AU Commission. The AU Commission Chairperson shall appoint all judges, whether South Sudanese or international. He or she shall also appoint prosecutors and defence counsels, while African countries (other than South Sudan) shall appoint the registrar. On the other hand, the crimes for which the HCSS is mandated are genocide, war crimes, crimes against humanity, and other serious crimes as defined by international law or applicable South Sudanese laws, including gender-related crimes and sexual violence.
In spite of the crucial role of the HCSS, the key to ignite this machinery rests solely with South Sudan, more specifically with the Revitalized Transitional Government of National Unity of Republic of South Sudan (RTGoNU), which was required, within three months of its establishment, to initiate a legislation for the creation of the HCSS, as well as the two other mechanisms. Thus, this provision within R-ARCSS meticulously upholds the concept of State sovereignty of South Sudan.
In spite of the given time frame under Appendix D to R-ARCSS, the RTGoNU could only be formed in February 2020, and even though a draft legal instruments for the HCSS was already prepared by 2019 through the joint efforts of AU Commission and South Sudan, the HCSS could not be established due to the lack of political will on the part of RTGoNU, which the Covid-19 pandemic situation has exacerbated since 2020. It failed to sign the memorandum of understanding with the AU Commission, and also failed to floor a legislation for the establishment of the HCSS, as required by the R-ARCSS.
Today, peace in South Sudan remains extremely fragile, while violence persists, though in a localized manner. According to the fifth report (A/HRC/46/53) of the Commission on Human Rights in South Sudan of February 2021: “The ongoing clashes are motivated by, inter alia, territorial disputes, access to lucrative gold mines, illegal taxation, extortion and smuggling, and retaliation against persons suspected or accused of supporting opposing sides” (§ 27). Therefore, the immediate establishment of the HCSS is the need of the hour. If the RTGoNU continues to abstain from its duty of establishment of the HCSS, then it is incumbent on the international community to take the lead in contributing to establish peace in the region, either through a referral by the Security Council to the International Criminal Court (ICC) under the Rome Statute, either through pressions on the South Sudan Government to accept the jurisdiction of the ICC.
However, either way remains hypothetical. After the referral of the situations in Libya and Sudan (Darfur), in 2005 and 2011 respectively, the members of the Security Council are struggling to agree to refer other situations to the ICC, even in cases of major violations, such as those recently perpetrated in Syria or Myanmar. In addition, South Sudan remains sovereign in its decision to accept or not the ICC jurisdiction or to accede to its Statute. It should be noted, nevertheless, that by its Resolution 577 (2021), the Security Council – “[r]eiterating its alarm and deep concern regarding the political, security, economic, and humanitarian crisis in South Sudan, taking note of the impact of the Covid-19 pandemic, and emphasizing there can be no military solution to the situation in South Sudan” – decided to extend for one year, until May 2022, the arms embargo imposed since 2018 on South Sudan, with a clause providing for a review of its relevance in mid-April 2022.
In order not to further delay justice for victims, one way remains possible, that of the AU Commission, designed by the R-ARCSS as having a crucial role in many aspects of the HCSS, such as funding, infrastructure, funding, judges, as well as privileges and immunities of the Court personnel. As recommended by the Commission on Human Rights in South Sudan in its March 2020 report, the AU could “[m]ake contingency preparations for unilaterally establishing a hybrid court, in line with the decisions made by the Peace and Security Council, in the event that the Government of South Sudan fails to meet the deadline to establish the Court” (§ 83-c).
Until today, lack of justice for past violations in South Sudan has fuelled a vicious circle of violence. If the necessary steps are not taken very soon in order to punish the offenders and compensate the victims, there would not be long till all efforts of a lasting peace shall be in vain.
© AFP
Catherine MAIA, Shashaank BAHADUR NAGAR, "South Sudan: a precarious peace process and an eclipsed hybrid court", Multipol, 05/01/2022
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