Why the Seat of Hybrid Court for South Sudan should be situated in South Sudan

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: tongbullen@gmail.com

16 Comments

  1. Eastern says:

    Nope. I disagree with your proposal that the locale of the proposed Hybrid Court should be in South Sudan. The court shouldn’t be in any of the six neighbouring countries bordering South Sudan either. For instance Museveni’s Uganda and Uhuru’s Kenya aren’t suitable for obvious reasons.

    The judicial officers won’t be safe questioning dreaded war criminals in their crime scenes/sites. As somebody proposed, the court should be in places such as Indian Ocean island nation of Seychelles or such far flunked locales. So that once convicted, such people will remain there serving their jail term….

    • info@southsudannation says:

      Eastern,
      It was me, the Editor, who first proposed and still seriously convinced that the Hybrid Court should be located in the Seychelles in the Indian ocean off the East African coast. Like the case of former Chadian dictator, Hissen Habre whose court and trial was successfully carried out in Senegal.
      As you clearly explained above, witnesses and lawyers will be scared, intimidated or even get killed if the court is in Juba or those countries like Uganda, Kenya, Ethiopia or even South Africa.
      Hopefully and when they get convicted for sure, our nation and its people would be much safer when those convicted murderers aka Kiir, Machar, Malong, Marial Chounoug, Makuei, Kuol Manyang and company would be languishing far away in the Indian ocean.
      Editor

      • Ishakho says:

        Dear Editor,

        Don’t you think it is biased, very biased to mention only individuals from one side, one tribe as the only likely culprits and potential convicts?

        There are also Gatdet, Kenyi, Duop Lam, Gathoth and the invisible internet warriors like Gatdarwich, Yien and yourself too.

        • info@southsudannation says:

          Ishakho,
          Truly, the list is very long and somewhere and sometime, I had listed most of the suspects eligible for trial such Machar himself, Wani-Igga, Lam and so on… just all too many.
          editor

      • Bentiu Ramaran says:

        Double blind lawyer like Tong Kot Kuocnin and Editor, my advise to you is that conviction without following the root course of conflict in December 2013 will not solve problem of South Sudan period. It is better to drop that directionless accountability if the hybrid court does not want to investigate the course of conflict in December 2013.

        Complete regime change and investigation of root Couse of conflict in December 2013 can definitely solve our problems. Anything more or shorter than finding the root cause of conflict will not solve South Sudan’s problem whether you believe it or not.

  2. Wan Ran says:

    Who needs that court in the first place, it is just am imagination and will only happened when Riak has been tried for crimes he committed in 1991 period

  3. To: Editort Dr.Peter Wankomo

    Your opinions are dangerous! If you think Kirr, Machar, Marial, Makuei, Manyang, Malong,to stand a trial,then South Sudan will be good without them! That is a wrong fantasy in your head please! Politics always repeating itself! History continue coming and going! A hybrid court,has no solution in the peace agreement that was signed between two SPLM warring factions! It will complicate the peace from being going forward TO BACKWARD!!!!!!!!!!

    What will bring stability in the country is that GENUINE PEACE!

    Now,I came to the author:Tong Kot Toucnin: Nairobi Lawyer who is a law student: I want ask him on a law.Please,can you differentiate the laws in between INTERNATIONAL LAW AND DOMESTIC LAW? What are the international crimes the defendants have broken?! What are the domestic crimes that they the defendants have broken??!! Do define both for me international law and domestic law!!

    MO.USA

  4. Tyson says:

    Chief Abiko

    There is no fantasy!
    Anyone who has committed crime MUST face justice! You are sitting in America because your rights are well protected. The poor people in South Sudan deserve less than that. South Sudan will be better without all the criminals and murderers, and that is when we talk of PEACE! No peace without Justice and respect!

  5. J A C Ramba says:

    My fellow compatriots

    To my surprise, someone is suggesting that justice and accountability is definite to take the country backwards instead of propelling it forwards! This is a weird way of reasoning and only referred here to be condemned.

    Criminals and their sympathizers are often seen to come out in support of impunity. How on earth can you actively engage in all kinds of heinous crimes like those which came to characterize the 21 months civil war in South Sudan, and still expect to enjoy a peace agreement that you think was imposed on you, simply because your wish were to go on the indiscriminate killing spree unabated.

    Nobody is going to hold up South Sudan as a hostage indefinitely. That era is long gone.The whole idea of having accountability through the court of law is all too important and respected to be changed or criticized.

    As the “Referendum” on the self-determination was sacrosanct in the Comprehensive Peace Agreement (CPA) of 2005 between the National Congress Party (NCP) and the Sudan People’s Liberation Movement/ Army (SPLM/A), so is the Hybrid Court for South Sudan in the August 2015 Agreement for Resolution of Conflicts in South Sudan (ARCSS).

    So whatever the cost will be, the Hybrid court for South Sudan is going to be formed and operationalized.

    Just as the international community was able to bring about pressure to bear on Omer Bashir and his NCP bigots, and made them accept both the holding of the 2011 Referendum, and abide with its outcome. That’s why today we are having this independent country of South Sudan.

    For those who don’t know, please let them sober up because the same International Community has time and again made it crystal clear that it is also determined to do the same with the SPLA/SPLM warlords when it comes to the formation and internationalization of this Hybrid Court for South Sudan.

    Money, capacity, infrastructure and logistics will all contribute when it comes to decide where the Hybrid Court will be located. Common sense says it will more likely be located outside South Sudan !

  6. Bentiu Ramaran says:

    J A C Ramba,

    I like the fact that you support accountability for the crimes committed in South Sudan since December 2013. However, I am afraid that the Hybrid court for South Sudan that is going to be formed and operationalized to try South Sudanese who committed atrocities and crimes against humanity is going to be extremely bias. The judges of the Hybrid Court for South Sudan will be from IGAD countries and IGAD Plus countries were so bias during peace talk in Addiss Ababa and condemnation of field commanders. As we all know that the IGAD, IGAD Plus, AU, Troika, UN Security, UN expert and United States were all so bias in Addis Ababa peace talk between the rebels and the government of Kiir.

    For instance, when the Killing of civilians occurred on December 15, 2013 in the present of United States Embassy, UK Embassy, UN Representatives, and various international communities offices, Kiir and his commanders were condemned. However, when rebels captured Bentiu on April 17, 2014, the UN, US, UK, and Canada sanctioned General Gadet and General Koang Chuol the next day, April 18, 2014. And the UN and US extended their sanction to all top rebels commanders while sanctioning only lower level commanders in the government, Malong Awan sent to war.

    Another example is that when civilians were killed in UN compound in Bor no one was held accountable and when civilians were killed in UN compound in Malakal by the government no one in the government was hold accountable. The government soldiers gather the Nuer boys together in Bentiu and castrated them in 2015. This case was reported by Human Right Watch Dogs, but no one was hold accountable in the government side.

    Imagine, people who instigated the killing of civilians since December 15, 2013 in Juba were not sanctioned. Kiir, Malong, Kuol Manyang, Makuei Lueth, Salva Mathok, and many others who were involved in the killing of civilians in Juba, Bentiu, Bor and Malakal were not sanctioned and I am afraid none of these people will go to hybrid court.

    • Eastern says:

      Bentiu Ramaran,

      The fact that those you listed don’t appear on UN list of sanctioned individuals doesn’t mean that they have been absolved of crimes committed during the 2013 war-and-still continuing war. Please gather the necessary evidence to build a case.

      To borrow the Nigerian proverb; “When one finger picks oil the others soon get soiled with it”. So let’s not cross the bridge of justice before we get to it!

      • Bentiu Ramaran says:

        Eastern,

        Thanks brother, your comments make me feel good and your advise is taken, less hope for the best. I trust that the hybrid Court for South Sudan would find the root cause of conflict and follow by African Union Report on South Sudan conflict.

  7. Tong Kot Kuocnin says:

    Bentiu Ramaran,
    Brother do you really read, digest and internalise what you read. Did I talked about anybody in this article nor have I point any finger at anyone and hold him accountable. Read the article once again and try to digest it’s ingredients before vomiting at me. Yes I maybe a double blind lawyer as you said but not like you who chained and blinded by tribal hatreds and sentiments. You’re the one blind not. That article is talking about the need and important of having the seat of the court located in South Sudan. I mean what’s bad about it that can brand someone a double blind lawyer. HCSS is an international court in character and establishment though the government of south Sudan will participate, it’s establishment is purely international in character. that’s the nature of all the hybrid courts across the globe, I wish you were a lawyer, you would have known it yourself. more important, have manners and respect for other people’s opinions on this website. hope you will get this comment.

  8. To:Dear J.A.C.Ramba:

    It was me by myself who have suggested that the country is moving backward from being running forward! The matter in the country is political in the government of South Sudan Republic! It has nothing to do with the so called Hybrid Court.

    The organization the so called Africa Union(AU),it has a link with ICC in the Hague in the Netherland! It has been used in order to avoid tension with the African leaders in the continent and the west on DOUBLE STANDARD POLITICAL. African leaders in the continent,they are not happy on ICC judiciary system.

    Now, I came to you. You saying you are going forward. Well,how can you go forward when there are problems coming fresh such as Raja,Keji Keji and many more on the ground?! The best in the country is A GENUINE PEACE! But not Hybrid Court.The United Nations being used for the interests on behalf of the INTERNATIONAL COMMUNITY COVER UP!

    Yes! South Sudan is going BACKWARD!!!!!!!!!!!

    MO>USA

    • Nuer-Another Israel In East Africa says:

      Chief Ablko,

      How do you reason? Please put your thinking cap on first before you unknowingly confused yourself and your readers. If you are a real chief, this explains why South Sudan is where it is right now. Call Museveni to do the thinking for you as it was for your master, Kiir Mayar. Bone head.

  9. abai okwahu says:

    folks, the idea of establishing a hybrid court to try the killers is just a proposal and nothing more. does anyone remember prosecutor ocampo from the icc who pursued omar el bashir with zeal? guess what, bashir is still in power since 1989, and the european union and others have diplomatic missions in khartoum as well as providing his government with aid while the war in the nuba mountains, darfur, and the blue nile regions is still going on. kiir and company must be lauging their asses off with this talk of one day throwing them in the clink!

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