By Tong Kot Kuocnin, Lawyer, NAIROBI, JUN/11/2016, SSN;
Successive crises have beset the Republic of South Sudan since its independence from Sudan marked by rising militias and warlords fighting for petty interests and demands. The most recent and more devastating one is the conflict which erupted on 15th of December 2013, due to failure of the SPLM leadership to amicably settled the procedures and mechanisms of voting within the SPLM primaries if need be, causing untold suffering and unspeakable human and material destruction.
While the virulence of the violence which shook the country transcended into unprecedented scale in particular, its tribal dimension around which the events crystallized constituted just one episode in a thorny political and security crisis resulting into the signing of the Compromise Agreement on the Resolution of the Conflict in South Sudan in August 2015.
In the Agreement, chapter V, article 3, ushered in the establishment of an independent Hybrid Judicial Court for South Sudan thus far known as “The Hybrid Court for South Sudan (HCSS).”
The court shall inter alia be established by the African Union Commission to investigate and prosecute those bearing the greatest responsibility for the violations of international law and/or applicable South Sudanese laws committed from 15th December 2013 through to the end of the Transitional Period.
The terms of the HCSS shall therefore conform to the terms of the Agreement and African Union Commission (AUC) shall provide guidelines relating to and including the location of the HCSS, its applicable jurisprudence, infrastructure, funding and enforcement mechanisms, number and composition of judges, privileges and immunities of the court personnel and other related matters thereto.
This is, however, the theme of this article, ‘why the seat of the Hybrid Court for South Sudan should be located in South Sudan’s territory.’
It is apparent that hybrid courts are set up in transitional states, following a time in which serious crimes have been committed on a large scale during the armed conflict and where the national justice system is unavailable or incapable of conducting trials adequately, neutrally, impartially and independently.
Moreover, since hybrid courts can be given under both crimes under international law and domestic crimes, they may cover a more extensive catalogue of crimes than purely international or purely domestic courts.
Hence, to have the seat of the hybrid court for South Sudan situated in the country’s territory has a lot of jurisprudential benefits because working alongside international judges, prosecutors or lawyers and national jurists are likely to gain valuable legal expertise and experiences because trials taking place before international court removed from the state concerned cannot promote local capacity building which is particularly desirable in post-conflict states like South Sudan.
Similarly, the prosecutions of crimes under international law with help of international community and international experts are instrumental in the promotion of the norms of international law on the national level.
This not only includes norms of substantive international criminal law, but also fair trial standards but it points to the fact that a hybrid court established in the state concerned is moreover a practical advantage.
Unlike international courts that are far removed from the commission state such as the ICTY, ICTR or the ICC, the hybrid courts have more direct access to local witnesses and other evidences.
With hybrid court located in the commission state, there are fewer logical obstacles involved, which in turn results into low costs and speedier proceedings.
Moreover, the applicability of national law and the involvement of national personnel can ensure that domestic legal culture and corresponding expertise are represented.
At the same time, the involvement of the international community counteracts perceptions of bias and lack of impartiality that may be associated with trials carried out by judges and prosecutors who had worked under a prior repressive regime.
Thus, the combined national and international elements can be instrumental in ensuring that the proceedings are perceived as legitimate and impartial.
Hitherto, criminal trials within the commission state can constitute opportunities for a society to come to terms with atrocities committed in its past.
The society’s interest in conducting trials through its own criminal justice system, the involvement of national personnel, and the local exposure of the perpetrators of these crimes can best be described as ‘ownership’ of such criminal proceedings.
Therefore, hybrid courts provide a conducive atmosphere for potential national reconciliation and provide the best avenue for the society’s attempts to come to terms with atrocities committed in its past.
Moreover, having the hybrid court for South Sudan situated or located in its territory provides not only jurisprudential outputs but it equally presents a rear opportunity for infrastructural development for the country.
It also provides economic opportunity for such foreign members of the court will equally contribute to the development of economy of the country.
The court will equally leave behind a judicial legacy which will further develop and strengthen the capacity of the local or domestic judicial system.
This is why the African Union Commission should consider locating the seat of the Hybrid Court for South Sudan in any part of the country. This is to ensure a long lasting legacy for the rule of law and human rights and equally contribute to ending a culture of impunity by ensuring the prosecution of particular serious crimes committed during and throughout the period of the conflict.
The writer is a Master of Laws (LLM) Candidate at the School of Law, University of Nairobi specializing in Law, Governance & Democracy. He can be reached via: firstname.lastname@example.org