By: Tong Kot Kuocnin, LL.B, LL.M, FEB. 29/2016, SSN;
Questions of responding to legacies of past and present injustices in South Sudan inflicted by cruel, harsh and brutal armed forces, militias, warlords and powerful individuals has sparked contemporary policy, social and academic debates in the country.
In the 1990’s, in the wake of 1991 split which caused a civil brutal conflict between SPLA factions of Torit and Nasir characterized by systemic and massive violations of human rights and international humanitarian law, consensus evolved in 2002 to stop atrocities and merge two warring factions under one leadership, but efforts to bring those responsible for these human rights violations and other inhumane acts to justice wasn’t attended to.
The CPA (Comprehensive Peace Agreement) outweighs justice and nobody was held responsible for inhuman acts committed by either side of the warring factions and the Sudan government as well.
However, this has provoked many unanswered questions in recent years where ending conflicts through negotiation has raised eyebrows of whether peace and justice are competing goals or whether peace precedes justice.
This dilemma implies that, of course, peace and justice are incompatible and cannot be pursued at the same time.
Human rights perpetrators often enter negotiations and firstly demands immunity as a guarantee before they sign any peace agreement.
On most occasions, the perpetrators of human rights violations see accountability as an obstacle to peace and hold our communities hostage by threatening to continue violence if there is no guarantee of immunity from inhumane acts they have committed.
Proponents of human rights however do also recognize that reconciliation is critical to the attainment of lasting peace, political stability and a just society governed by the rule of law.
Human rights practitioners on the other hand have been faced by the stiffest challenge of finding a way to confront past human rights violations, punish those who perpetrated and committed such heinous crimes and seek redress for victims of such violations without undermining the peace process and its implementation or recreating conditions for instability.
However, the question of whether peace take precedence over justice where human rights violations and war crimes have taken place constitutes the core of critical debates in the growing field of transitional justice which constitute and hence include complex ethical, legal and political choices that various actors confront to end conflict, restore peace and prevent the recurrence of violent conflict but forego justice and its tenets in entirety.
The unaccountable presidential amnesties and pardons the president issued in good faith with hope to contain the continuation of violent conflicts and stop further bloodshed have been taken for granted by numerous militias and notorious warlords in this country and have exacerbated the already worsening human rights situation across the country.
Discussions on any settlement of the conflict in South Sudan in the past had neglected the need for accountability in which peace took center stage over justice raising controversial questions of whether or not peace and justice are competitive or complementary goals.
There are always two incorrect assumptions that peace processes are solely about ending violent conflict and the other being the tendency to perceive justice in terms of retributive justice, that is, prosecution and criminal accountability.
These extreme positions did ignore the intimate link that exists between peace and justice. The more accurate conception is to treat peace and justice as fundamental pillars to end violence and prevent its recurrence.
Most mediators settling violent conflicts in the Sudan and now South Sudan recognize that building a durable peace involves addressing the underlying root causes and sources of that violent conflict putting the package of justice on hold, compromising concerns about competition for power and marginalization being outcomes of the flagrant injustices and human rights violations committed by elites and state institutions.
Although there are few instances of indictments and prosecutions helping to secure peace by removing spoilers from the peace process such as in the former Yugoslavia, more often peace and justice cannot be achieved at the same time.
In most cases, there is a need to stop the fighting, seek a ceasefire and encourage perpetrators to negotiate.
But with advances in international legal obligations and increasingly sophisticated international justice architecture, mediators do no longer ignore questions of justice as witnessed recently with entrenchment of hybrid court for South Sudan in order to redress human rights abuses during and after the violent conflict which has rocked the country since 2013.
South Sudan’s multiple armed conflicts have underscored the dilemma between search for lasting peace and justice which has remained a challenge to both regional and international community to craft solutions to contain violence and bring some kind of peace for the sake of vulnerable people.
The ability of the mediators and other interveners in conflict to grant immunity has been curtailed by growing international justice architecture including the Rome statute of international criminal court which prohibits amnesty for crimes against humanity, war crimes and genocide; hence mediators no long ignore questions of justice after peace.
In the quest for justice, the United Nations has established a binding rule prohibiting its officials from granting amnesties for crimes against humanity, war crimes and genocide.
It was this reason that the UN envoy for Sierra Leone at the time of the 1999 Lome Peace Accord, appended the UN’s refusal to accept the amnesty clause to the accord that the government and rebels signed.
This gesture paved the way for a policy that has influenced subsequent mediation processes in Africa by national, regional and international actors.
Despite these international norms, South Sudan continues to confront difficult choices in the task of balancing the imperatives of justice and reconciliation with the political realities of managing incessant rising impunity in the country.
Therefore, overcoming tensions between peace and justice entails sequencing justice activities as demonstrated in Argentina in the 1980’s.
Although Argentina was facing armed conflict like South Sudan, Argentina confronted the dangers of a transition from military dictatorship to democracy.
However, successive governments from 1983 took gradual steps in building peace and justice that involved a mixture of punishment of and amnesty for military officers implicated in human rights abuses during the period of military rule.
The Argentinean experience reveals that while political realities complicated the search for accountability, multiple truth-seeking initiatives continually exposed perpetrators and a vigilant array of victim’s groups and civil society organizations kept the demand for justice alive.
In the end, receptive governments and a conducive political climate made the pursuit of justice possible.
These Argentinean experiences demonstrate that peace and justice are compatible and that a variety of accountability mechanisms can be pursued over time in the search for sustainable peace.
This was articulated also in a seminal report to the UN Security Council in August 2004 when the then Secretary General, Dr. Kofi Annan, articulated the importance of sequencing and strategic planning when he asserted that “justice, peace and democracy are not mutually exclusive objectives, but rather mutually reinforcing imperatives.”
In conclusion, however, ending impunity has become a collective international enterprise to promote justice, reduce human suffering and foster amity within and across societies.
Afflicted for long time with wars and armed conflicts and inter-communal violence with no redress to human rights abuses, South Sudan has made strident attempts to remedy the culture of impunity in the country.
The challenge in South Sudan has been to create stable institutions that balance forgiveness, and peace and reconciliation with justice in the context of broadening political, social and economic freedoms.
For South Sudan, questions of impunity, justice and reconciliation have been increasingly sought by regional and international actors and harmonized global search for peace, justice and reconciliation.
Tong Kot is a Master of Laws (LLM) Candidate at the School of Law, University of Nairobi. He specializes in Law, Governance and Democracy. He can be reached via: firstname.lastname@example.org