By: Daniel Juol Nhomngek, Kampala, Uganda, JUL/15/2017, SSN;
The conflict in South Sudan broke between on 15 December 2013. The way it took ethnic dimension accompanied by gruesome killings that shocked the world. The killings were indiscriminate and barbaric.
The killings in Juba against members of Nuer Community on 15 December 2013 were carried out systematically. As a result, Dr. Riek Machar and other Nuer Army Generals declared a war against the government and the Dinka Community. The declaration was soon followed by systematic and widespread killings of Dinka community members in by then three states of Jonglei, Unity and Upper Nile.
Fearing that things would go from bad to worse between Dinka and Nuer that might lead into the country falling apart or the situation might go the Rwanda way, the IGAD and TROIKA moved swiftly to terminate the war by initiating the peace process.
It was this peace process that resulted in into the AGREEMENT ON THE RESOLUTION OF THE CONFLICT IN THE REPUBLIC OF SOUTH SUDAN, ADDIS ABABA, ETHIOPIA 17 AUGUST 2015.
In attempt to address the abuses of human rights that followed the outbreak of the 15 December 2013, the Agreement provides for the establishment of the Hybrid Court of South Sudan.
Thus, Article 1.1 under Chapter V of the above Agreement provides that upon inception of the Agreement, the Transitional Government of National Unity of the Republic of South Sudan (TGoNU) shall initiate legislation for the establishment of the following transitional justice institutions, inter alia, an independent hybrid judicial body, to be known as the Hybrid Court for South Sudan (HCSS) (see; Article 1.1.2). This Article, therefore, establishes the Hybrid Court.
As provided for in the Agreement, the main purpose of the Hybrid Court is to try the following crimes: Genocide (see; Article 184.108.40.206); Crimes Against Humanity (see; Article 220.127.116.11); War Crimes (see; Article 18.104.22.168); and Other serious crimes under international law and relevant laws of the Republic of South Sudan including gender based crimes and sexual violence (see; Article 22.214.171.124).
Enshrining crimes of Genocide; Crimes Against Humanity; and War crimes in the Hybrid Court for South Sudan indicates the intention of the framers of the Agreement who might want to domesticate the ICC Statute by implication. It should be noted that to adopt the general criminal principles in dealing with crimes in South Sudan is not a bad idea as long as it contributes to lasting peace.
However, the question we must answer before endorsing the idea of modern Criminal Justice in South Sudan is, can its adoption as envisaged in Article 3 of the Agreement Chapter V bring the lasting peace in South Sudan?
The answer to this question is negative. It cannot bring lasting peace or even temporarily halt the conflict because of the following reasons:—
First, the conflict in South Sudan is not normal conflict that may warrant criminal prosecution in the modern sense as understood in the West. But South Sudanese conflict is political violence. In this regard, political violence means the conflict perpetrated by either persons or governments to achieve political goals. Therefore, the solution to political violence is political settlement.
In political violence, criminal prosecution is not desirable as what is needed is political justice. Political justice is achieved through political agreement to meet political goals accompanied by reparations to the victims.
This implies that Criminal Prosecution as provided for under Chapter V of the Agreement is unrealistic as one of the methods of solving conflict in South Sudan.
Second, the proposed criminal prosecution to address crimes committed in the process of the war in South Sudan may not be effective for some reasons. What makes it ineffective and illusive in addressing human rights violations is that, it contemplates the prosecution of the President of South Sudan and other government officials.
Thus, under Chapter V of the Agreement, it is provided 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 shall be individually responsible for the crime (see; Article 3.2.1).
The use of the words as “…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 shall be individually responsible for the crime” implies the principle of command responsibility and because of that the president of South Sudan, Dr. Riek Machar and other army generals both in the oppositions and the government are all eligible to be prosecuted under the Hybrid Court in South Sudan.
The question is, it is feasible?
Of Course, it is not. Therefore, before adopting the Hybrid Court in South Sudan, the following questions must be answered: if prosecutions begin, where do they end? Should only the leadership be brought to justice? Should bureaucrats, judiciary personnel, members of police and security forces, members of the media, the medical profession, all of whom are often duplicitous in authoritarian regimes, be eligible for prosecution? Can a state finance such an endeavor?
Will the members of the elite allow themselves to be dragged through a criminal or civil proceeding? Will prosecutions ensure that future leaders do a better job covering up abuses so as not be subject to the same?
How will these prosecutions help a society move forward when a system is consumed with the past? How does a society prevent witch hunts and the guarantee of due process for those under prosecution?
If it is the military that’s the target of prosecutions, then there exists the threat of a coup in order for military leaders to protect themselves. Also, if only the top leaders, those who gave the orders, are prosecuted, then the junior officers, those who carried out the bloody orders, will move into top military positions, which may put us into uncertainty in relation to military.
Is criminal prosecution as we see in the case of Rwanda appropriate in South Sudan?
If the above questions are not properly answered and the typical criminal justice is hastily adopted as a method of conflict resolution in South Sudan, then there is likelihood that the future of South Sudan will be jeopardized.
Hence, instead of achieving lasting peace, the country may find itself in worse situations than what we are trying to deal with now. This means that there is a need for rethinking criminal justice as an approach to South Sudanese conflict resolution mechanism.
The criminal prosecution as was seen in the case of Rwanda is not applicable in South Sudan. This is because unlike Rwanda where the new government was already in place when the Court was being established, in the case of South Sudan, it is the same government, which is accused of human rights violations is the one expected to implement the provisions on the Hybrid Court, which is fallacy.
Entrusting the Government with the duty to prosecute herself is a mere dream that will never be realized in South Sudan. The president and other government officials and military will never accept to implement the provisions of the Hybrid Court in accordance with its spirit.
This is because the situation in South Sudan is different from that were prevailing in Yugoslavia and Rwanda.
As already pointed out above, the Hybrid Courts that were established both in Rwanda and Former Yugoslavia were able to operate effectively because by the time they were established, there were already New Governments in place.
Therefore, the New Governments were able to cooperate with the Hybrid Courts in surrendering the perpetuaters of human rights abuses during the Rwandan Genocide and the conflict in Yugoslavia.
In South Sudan, however, the government will never accept to willingly surrender the accused to the Hybrid Court as the accused are part of the government unless it is forced to do so.
Nonetheless, forcing the Government externally to submit to court can be categorized as an assault on South Sudan sovereignty contrary to Article 2 (4) of the UN Charter, 1945.
In addition, invading the country externally to force the government and its officials to surrender the culprits will be further throw South Sudan into even more chaos given the fact that a bulk of the members of our communities stand behind their own leaders.
For the above reasons, if the force is used against the government to obey Court orders then given the nature and mentality of the majority members of South Sudanese communities, there will be all out war between the invaders and the communities where leader comes from.
This means that in case of President Kiir and Riek Machar and any other personality from other tribes in South Sudan they cannot be prosecuted successfully without risking the country falling into further but more serious crises.
However if the government is still in power but not forced to implement the provisions on the Hybrid Court, then justice will never be done to the victims of human rights abuses. Hence, the government will remain operating as it was doing in the past and the country will continue being the same situation with no reforms.
What are needed in South Sudan are comprehensive reforms, which means that there is a need for safe transition that will help introduce strong democracy in South Sudan. This implies that the issues of criminal prosecution should be minimized, and instead, there is a need for dialogue with the President and other government officials to ensure that they accept reforms as we desire to see in South Sudan.
Apart from the above external issues that makes Hybrid Court undesirable, the provisions establishing the Hybrid Courts are not comprehensive enough to cover the human rights abuses that occurred before 15 December 2013. Article 3.1.1 under Chapter V of the 15 August 2015 Agreement provides, the Court shall 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.
As seen above, the Hybrid Court is incompetent to investigate and try the crimes committed before 15 December 2013. What those who formulated this position of law should have put into consideration is the fact that the killings on 15 December 2013 was between Dinka and Nuer. This means that the conflict is historical nature, which is the continuation of the massive killings that have been going between Nuer and Dinka between 1980s and 1990s.
In 1990s, there were mass massacres of Bor people under the Command of Dr. Riek Machar when he broke away from the SPLM/A mainstream in 1990. Unfortunately, when the Comprehensive Peace Agreement was signed between South and the North of Sudan, the human rights abuses were not addressed.
It should be noted that the failure to address the human rights violations that occurred during the conflict between SPLM/A and the Khartoum and its affiliated militias from 1983-2005 provided for the fertile ground for future massacres. The 2013 massacres of the members of the Nuer community in Juba and the killings of Dinka people afterwards in the three States of Jonglei, Unity and Upper Nile was caused by the failure to address the first human rights violation.
In respect to the above, if the Hybrid Court were to be established to address human rights violations in South Sudan, the timeline for the crimes to be investigated and tried should stretch back to 1990s. In addition, the Hybrid Court should have also contemplated investigating the conflicts between Nuer and Dinka Youths and among Dinka youth themselves and if possible try them as well. This is because these conflicts have been claiming thousands of lives since 2005 to date.
However, the weakness with the present contemplated Hybrid Court in South Sudan is that it will not address the violations of Human Rights that have been committed since 1990s or even before that. For these reasons, the people of South Sudan and in particular Nuer and Dinka will never be satisfied that justice has been done.
When people are not satisfied with justice, the chances of the future conflict reoccurring are high. In order to prevent the future conflict from reoccurring and at the same time ensuring the permanent peace, the dialogue, truth telling and reconciliation should be the way forward in South Sudan. The people obey the law not because of force but for the morals they attach to the law.
In regard to the safeguard of the rights of the Victims, Witnesses and the Accused, the standards differ. Article 3.4.1 of the Establishment of Hybrid Court under Chapter V provides that the HCSS shall implement measures to protect victims and witnesses in line with applicable international laws, standards and practices. While Article 3.4.2 under the same Chapter provides that the rights of the accused shall be respected in accordance to applicable laws, standards and practices.
The question is what, are these applicable laws, standards and practices, why not using the same language as in the case of the victims. Why? The difference in languages provided in the two provisions creates the difference in protection in regard to the protection of the accused. Besides, it is ambiguous and should be ratified.
Article 3.5.5 of the Agreement under Chapter V may be interpreted to have been intended to target the government officials and their subordinates only. This by implication excludes rebel commanders and their subordinates. Article 3.5.5 provides, “No one shall be exempted from criminal responsibility on account of their official capacity as a government official, an elected official or claiming the defence of superior orders”.
The fact that it specifically and expressly points out the government officials and those who took orders from them make it clear that the government officials are the target however excluding rebels and their commanders indicate that those who drafted the agreement were bias. The language of the Agreement should clearly mention both rebels and the government.
In summary, the criminal justice as found under the International Criminal Court Statute or as proposed under the Hybrid Court cannot. This is because the conflict in South Sudan is political violence which needs political settlement and the type of justice needed in South Sudan is restorative justice given the nature of injustices. The injustices committed in South Sudan are not pure criminal injustices but they are political injustices that have resulted into poverty and political violence, lack of confidence and distrust.
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