BY: Daniel Juol Nhomngek, Lawyer, Kampala, JUN/07/2016, SSN;
The hybrid model in addressing crimes is characterized by a mix of national and international components. It is said to ‘hold a good deal of promise and actually offer an approach that may address some of the concerns about purely international justice, on the one hand, and purely local justice, on the other.
Thus, in this Article, I would like to explain why establishment of hybrid court is the most important opportunity South Sudan should not miss at this crucial time in which South Sudanese are emerging from horrors of war.
In that regard, the need for writing this article comes as a result for the need to clear some doubts that have recently been expressed by many people, and in particular, the South Sudanese government officials about the viability of the hybrid court in relation to the implementation of peace in South Sudan.
The doubts as pointed out in the above paragraph are that if the hybrid court is established, then, instead of bringing peace in the country, it may exacerbate the tension in the already existing tension in the country.
In response to the above concerns or doubts, I would like to say that such fears or uncertainties are unfounded. Instead, establishment of hybrid court will help establish the rule of law in the long run which will usher in the country permanent peace.
As pointed out in the above paragraph, the importance of establishing hybrid court in South Sudan should not be underestimated. It should not just be seen as a means of bringing peace per se in South Sudan, but in instead, it should be seen as a necessity for South Sudan to end the current and future conflicts through achieving permanent peace.
The reason I support the establishment of hybrid court in South Sudan is that it is an ideal court that is needed to comprehensively address the current problems in South Sudan.
Thus apart from the point I have stated in the above paragraph and before, I give other reasons for supporting the hybrid court or the HCSS, it is important to briefly look at the part of the Agreement which provides for its establishment.
The document that brings peace in South Sudan or the Agreement on the Resolution of the Conflict in the Republic of South Sudan signed in Addis Ababa in Ethiopia on 17 August 2015 in Clause 3 of Chapter V provides for establishment of Hybrid Court for South Sudan (HCSS).
It provides in clause 3.1.1 of the Agreement in Chapter V that there shall be established an independent hybrid judicial court. That the Hybrid Court be established by the African Union Commission to investigate and prosecute individuals bearing the responsibility for violations of international law and/or applicable South Sudanese law, committed from 15 December 2013 through the end of the Transitional Period.
In addition, Clause 3.1.2 of the same Chapter above provides that the terms establishing the HCSS shall conform to the terms of this Agreement and the AUC shall provide broad guidelines relating to including the location of the HCSS, its infrastructure, funding mechanisms, enforcement mechanism, the applicable jurisprudence, number and composition of judges, privileges and immunities of Court personnel or any other related matters.
Furthermore, in clause 3.2, the jurisdiction, Mandate and Supremacy of the Court are established. Thus, the crime the HCSS shall have jurisdiction include: 188.8.131.52 Genocide; 184.108.40.206 Crimes Against Humanity; 220.127.116.11 War Crimes.
In Clause 18.104.22.168, the agreement adds that the Court shall have power to try other serious crimes under international law and relevant laws of the Republic of South Sudan including gender based crimes and sexual violence.
Most importantly, the Agreement in Clause 3.2.2 provides that the HCSS shall be independent and distinct from the national judiciary in its operations, and shall carry out its own investigations and it shall have primacy over any national courts of RSS.
In clause 3.4, the rights of Victims and Witnesses are provided. It provides that the HCSS shall implement measures to protect victims and witnesses in line with applicable international laws, standards and practices. This clause is intended to encourage witnesses to give evidence that will help court to do justice and to found guilt against the culprits.
In Clause 3.4.2, the rights of the accused are respected and protected in accordance with applicable laws, standards and practices, which are important. It is important because criminal case against the accused should not be seen as revenge.
In other words, it should not be seen as persecution but it should be seen as prosecution in order to do justice. The reason is that justice and legal profession are founded on the concept of the people who will only believe that justice has been done, if it is not only done but seen to be done.
Finally, in Clause 3.5, the Agreement provides for Criminal Responsibility, Convictions and Penalties. It provides that a person who planned, instigated, ordered, committed, aided and abetted, conspired or participated in a joint criminal enterprise in the planning, preparation or execution of a crime referred to in Chapter V, Article 3.2.1 of this Agreement shall be individually responsible for the crime.
Clause 3.5 above is the most important aspect of criminal law. This is because it is one thing to claim that crime has been committed but who committed it is another thing. In this case, the witnesses and other evidences must be adduced to prove the guilt of the accused beyond reasonable doubt.
Hence, the responsibility in criminal law is established only when the person who commits the crime is proved to be the one who commits it. This is the reason why we talk of the accused before a person is committed other criminal.
Clause 3.5 therefore, introduces the aspect of criminal liability as it exists under the international criminal law.
In regard to the penalty it is provided in Clause 3.5.2, which states that the HCSS may order the forfeiture of the property, proceeds and any assets acquired unlawfully or by criminal conduct, and their return to their rightful owner or to the state of South Sudan.
In addition to the above, the agreement clearly provides in Clause 3.5.3 that while all judgments of the court shall be consistent with the accepted International Human Rights Law, International Humanitarian Law and International Criminal Law, the HCSS shall also award appropriate remedies to victims, including but not limited to reparations and compensation.
In this respect, it is important to note that the agreement is alive to the fact that there is a need for going beyond criminal justice, which only concentrates on punishment rather than compensation and reparation contrary to the concept of justice by South Sudanese.
Hence, it is the most important realization that whereas international law, which is made up of corpus of International Human Rights Law, International Humanitarian Law and International Criminal Law that focuses on punishment of the culprits only, in South Sudan, the local laws embody the aspect restorative justice.
In that regard, restorative justice according to John Braithwaite (see; Braithwaite, John (2004-01-01). Professionalization “The Good Society 13 (1): 28–31) is a process where all stakeholders affected by an injustice have an opportunity to discuss how they have been affected by the injustice and to decide what should be done to repair the harm.
As John Braithwaite, further noted, with crime, restorative justice is about the idea that because crime hurts, justice should heal. It follows that restorative justice involves the conversations with those who have been hurt and with those who have inflicted the harm on them which means that the two parties must be central to the process.
Coming back to this discussion as based on the foregoing discussion, it has to be correctly stated that the establishment of HCSS is necessity for South Sudanese that they must put in place if they want to achieve the permanent peace and to erode the present negative memories of the horrors of war in South Sudan.
It is the fact that terrible atrocities were committed in the current war we are trying to end through the peace agreement. For that reason, it can be concluded that the establishment of the HCSS is necessity for not only ending the war but also creating and ensuring the permanent peace in the country.
The war has inflicted a lot of injustice on South Sudanese citizens in general and there is a need for the State to commit itself to establishing the HCSS without backtracking to address all injustices that were committed during the war.
The forms of injustices committed in the South Sudanese civil war of 2013 to 2016 including the killings of ten thousand people, raping of helpless women and girls, wanton destruction of and pillages of property of the innocent people on the pretext that they belonged to a certain tribes.
As a result of killings, looting, maiming of citizens some South Sudanese citizens are have been left in abject poverty, which is extreme injustice.
It is injustice because the ones who has killed the victims or looted their property are roaming free. Instead they are the ones threatening instability of asked to account for their misdeeds.
This kind of impunity should not be allowed. South Sudan as a country whose motto is Justice, Liberty and Prosperity should not take the issues of injustices as explained above lightly because they go to the root of the nationhood.
South Sudan is founded on Justice, Liberty and Prosperity and if we allow the antithesis (injustice) of the three fundamental concepts of Justice, Liberty and Prosperity, then we are destroying the nation unknowingly.
Hence, it was wrong for South Sudanese Government to assert that the need for Hybrid Court is not a priority currently in South Sudan. The establishment of hybrid court is equal to the establishment of justice in South Sudan.
Thus, South Sudan should live up to its motto as stated above by being fair to its citizens who are wronged by individual members of the State apparatuses. As John Rawls defines it in his acclaimed Book, The Theory of Justice, justice means fairness. Hence, anything which is unfair is injustice.
In relation to the above what South Sudanese Government must know is that peace and justice are inseparable; they go hand in hand. Permanent peace will never be achieved without providing justice to the victims of injustice.
In this regard, the South Sudanese Government should see the establishment of Hybrid Court as an opportunity that will bring permanent peace in the country now and in the future and they should not miss it.
In fact, the implications of ignoring the aspect of justice in the implementation of peace in South Sudan will be grave if the aspect of peace is not considered.
Pessimistically, whether we like it or not, the genocide or other serious crimes will take place in South Sudan, particularly, between Nuer and Dinka unless the injustices are addressed.
This is a practical explanation of future of South Sudan as drawn from past experiences in Africa. Rwanda was one of the countries in which injustices were ignored until it was too late and because of failure to address past injustices Rwanda could not escape genocide.
In the same way, if South Sudan does not take the aspect of justice seriously now by looking at it as a matter of necessity, something bad will happen in the future. As a result, what will follow is the intervention by the international community in South Sudan whether we like it or not. 1994.
The international Community through the UN Security Council is authorized under Chapter VII of the UN Charter of 1945 in Article 39 to intervene in the country whether the State likes it or not where there is an existence of a threat against the international peace.
The only way of avoiding such negative consequences is to create rule of law that ensures respect and protection of human rights by establishing hybrid court that will provide justice through addressing injustices committed in the current war which are likely to provide cultural medium for future war between the two tribes.
It is injustice to allow criminals on both sides to walk freely in the fair that if they are asked to account for their mischief the peace may be put jeopardy. Such fear is unfounded.
If South Sudan is not willing to establish hybrid court as provided in the Agreement then I will not support on this point and I will campaign for the intervention by the international community to ensure that miscreant individuals are brought to the book.
In short, the establishment of hybrid court should not be taken slightly. It is one of the priorities in South Sudan in order to achieve permanent peace. Temporary peace is worse than permanent peace.
Therefore, we should campaign against any person who objects to the establishment of hybrid court because such a person is against the interest of South Sudan.
NB// The Author is Concerned South Sudanese Lawyer training in Bar Course in Uganda and he can be reached via: firstname.lastname@example.org; +256783579256