ISS Today: South Sudan needs more than a hybrid court

If the AU is serious about transitional justice, it can’t focus on the hybrid court alone. By Amanda Lucey and Liezelle Kumalo for ISS TODAY

First published by ISS Today

When government soldiers stormed the Terrain residential compound in Juba, South Sudan, on 11 July 2016, they attacked, robbed and raped foreign aid workers and shot dead a local journalist.

“I was trapped in a room and repeatedly raped – sometimes by one person, sometimes by many people in the room until I was taken out of that room and put into another room, and it started all over again,” was the chilling testimony of one of the foreign aid workers.

Thirteen soldiers are on trial for this attack, but whether they will be held accountable for their crimes remains to be seen.

South Sudan has seen over 50 years of conflict, with unimaginable atrocities and no justice for its victims. The Terrain attack is just one of many that have taken place across the country – most are undocumented.

South Sudan gained independence from Sudan in 2011 after a protracted armed struggle that started in the 1950s. Under the new administration, a civil war broke out in December 2013. This was initially seen as a struggle between Salva Kiir Mayardit and Riek Machar over the presidency, but the conflict has now taken on a more ethnicised dimension.

The African Union (AU) established a Commission of Inquiry in 2014 to investigate human rights violations but impunity in South Sudan remains rampant. Killings, kidnappings and disappearances are commonplace and the conflict is changing with new actors and conflict dynamics. Amnesty International reports that South Sudanese people are subjected to sexual violence on a “massive” scale.

The criminal justice system lacks the capacity to address crimes and the government lacks the political will. If peace is ever to be achieved, the country needs to reaffirm the rule of law and convince the population of a better future – one with basic security and strong independent institutions.

A 2015 peace agreement aims to achieve this through transitional justice processes, including the establishment of a hybrid court – the joint responsibility of the AU and the country’s Transitional Government of National Unity. But the establishment of this court – made up of South Sudanese and other African employees – cannot be the AU’s sole focus to the exclusion of other complementary transitional justice mechanisms, the Institute for Security Studies notes in a new report.

The establishment of the hybrid court has met resistance from within the South Sudanese governing elite, who are wary of being prosecuted for international crimes. It’s no surprise the government says it would rather opt for a mediated peace, truth and reconciliation process.

In the past, countries have dished out amnesties and cited truth commissions as a means of achieving justice through public acknowledgement of wrongdoings. But international law is clear – amnesty for gross human rights violations is not an option; and truth commissions should complement criminal trials, not replace them.

Criminal trials at international courts are lengthy, costly and often cause division in the post-conflict context. And one of the most complex aspects of international criminal trials is the prosecution of sitting heads of state. While they can be indicted, prosecution rarely occurs in practice.

The United Nations’ special rapporteur on transitional justice, Pablo de Greiff, stresses the importance of a victim-centred approach for effective transitional justice. This entails capturing a victim’s sense of justice to meet their needs. Truth commissions for example are often seen as providing an opportunity for victims to tell their stories in their own way.

A truth commission not only has the mandate to investigate and document human rights abuses with a focus on a victim’s stories, but must also examine the underlying causes of the conflict and provide recommendations to prevent a recurrence.

Reparations are a transitional justice mechanism to uniquely and remedially focus on the situation of victims. A reparations framework is primarily concerned with rehabilitation, restitution and compensation, and guarantees victims a non-recurrence of the conflict. Despite the potential to redress generations of economic disparity and inequality, the UN notes that reparations are often the least implemented element of transitional justice.

For transitional justice to be effective in South Sudan, the hybrid court, truth commission and reparations authority must be given sufficient attention by those involved in dealing with the past. They must coordinate and sequence their activities to avoid duplication and gaps, and contribute to a holistic strategy.

If the AU is serious about transitional justice in South Sudan, it can’t focus on the hybrid court alone. It must engage in a wide-ranging consultative process to determine both the victim’s needs and avenues to provide necessary redress. Evidence used by the court may contribute to establishing a narrative of events and the underlying causes of the conflict which could contribute to a common truth.

A victim-focused and complementary approach across transitional justice mechanisms is especially important. This would require consultative and inclusive dialogues and the right to participate in legal and administrative proceedings. Capacity building to ensure that victims are aware of their rights is also essential.

Moreover, a victim-centred approach requires that their rights are protected and that victims are entitled to reparations. This however will remain a challenge in South Sudan, especially regarding the precarious security situation despite Kiir’s declaration of a unilateral ceasefire.

Kiir’s recently announced national dialogue aims to link political settlements with grass roots grievances, redefine unity, address issues of diversity, agree on a mechanism for sharing resources and enhance reconciliation, he says.

A truly inclusive dialogue in South Sudan is necessary, but it can’t be used as a means to avoid the other transitional justice mechanisms in the peace agreement. And a single transitional justice mechanism such as the hybrid court or a truth commission won’t successfully address the country’s past crimes against humanity and build a society governed by the rule of law.

If South Sudan’s victims of atrocities are to achieve justice, a holistic transitional justice process is essential. DM

Amanda Lucey is a Senior Research Consultant and Liezelle Kumalo, a Researcher, Peace Operations and Peacebuilding Programme, ISS

Photo: A file photo dated 25 April 2016 showing a group of the 195 opposition soldiers arriving with General Simon Gatwech Dual, the chief of staff of the South Sudan rebel troops, in Juba, South Sudan. Reports on 10 July 2016 said hundreds were killed in two days of renewed fighting between supporters of President Salva Kiir and Vice-President Riek Machar. The UN Security Council condemned the fighting that erupted in Juba, the worst violence since a peace deal was signed in 2015 and forming the national unity government in April this year. Photo: EPA/PHILLIP DHIL