A time for justice in South Sudan

By Ken Scott

The African Union’s long overdue report into the conflict in South Sudan delivers shocking but not surprising conclusions on the current state of the country. Its evidence of killings, torture, mutilations and rape against civilians - as well as forced cannibalism, serve to highlight the urgency for impartial investigations into war crimes, if further atrocities are to be deterred and those suspected of criminal responsibility for crimes under international law held to account. 

In the 15 months since the Commission’s researchers concluded their investigations the conflict has intensified with serious human rights violations and abuses committed by both sides to a non-international armed conflict that has seen tens of thousands killed and two million people forced from their homes.

The African Union’s report serves to highlight the urgency for impartial investigations into war crimes, if further atrocities are to be deterred and those suspected of criminal responsibility for crimes under international law held to account
Ken Scott

While the publication of the report is a significant - if tardy - step towards accountability in South Sudan, its impact will depend on how quickly a systematic framework to investigate these crimes can be set up. As evidence degrades and memories fade, each passing day takes South Sudan’s victims further from justice.

It is the peace accord, signed in August by South Sudan’s President Salva Kiir and opposition leader Riek Machar, which holds the country’s best hope for a sustainable peace, despite regular violations of the agreed ceasefire. It provides for power sharing, demilitarization and security sector reform, while also setting out important transitional justice mechanisms. These include a reparation authority, a truth and reconciliation commission and a special hybrid criminal court, to be established by the African Union Commission (AUC).

Surprisingly the criminal accountability mechanism was readily accepted by both sides of the conflict. Indeed, when President Kiir signed the agreement, he listed 16 major reservations, but the establishment of a criminal court that might someday hold senior South Sudanese political and military leaders to account was not one of them.

The complete lack of accountability for previous cycles of violence in the region that has become South Sudan has been one of the root causes of the recent conflict.  A failure to deal with deep grievances and to achieve real justice has too often only nurtured the next round of mass violence. With few exceptions, most of the community leaders with whom I spoke during a recent trip to South Sudan believe that any hope for a sustained peace in South Sudan must include real accountability for the horrible wrongs done. They also believe that the vast majority of South Sudanese people, who may not have been convinced of this need in the past, now see it as a necessity.

The peace accord requires the transitional government, “upon inception,” to initiate legislation to establish the hybrid court which, according to the agreement, will be put in place by the AUC.  As illustrated by a joint letter sent on September 23 by numerous South Sudanese and international non-governmental organizations to the Chair of the AUC, Dr. Nkosozana Dlamini Zuma, there is a genuine need for the Commission to put an operating hybrid court in place as soon as possible.

This provision is a positive step but what matters is seeing it become a reality. And sooner, rather than later.  

We know that establishing a fully-operational court, with the necessary personnel, infrastructure and funding, will take some time.  But there is an urgent need to collect and preserve evidence now. Physical evidence degrades quickly in a tropical environment and may also be intentionally destroyed, altered or concealed. Witness memories fade and their whereabouts become unknown. Vital evidence is lost forever.  This is why it is important that, alongside prompt steps to establish the hybrid court, the African Union or the international community urgently establish an interim investigative mechanism with a robust mandate to investigate possible war crimes and collect and preserve evidence.

There is plenty of authority and clear precedent for such actions.  Commissions of experts were conducting investigations before the Yugoslavia and Rwanda tribunals were fully set up and functioning

As evidence degrades and witness memories fade, it vital that alongside prompt steps to establish the hybrid court, the African Union or the international community urgently establish an interim investigative mechanism
Ken Scott

. Likewise in Sudan, the International Commission of Inquiry on Darfur was set up as a precursor to the Security Council referring the situation to the Prosecutor of the International Criminal Court.

The African Union report – and numerous other reports by organizations including Amnesty International – leave no doubt of the crimes under international law that have been committed in South Sudan by both parties to the conflict. It is now time for the perpetrators of these crimes to be found and held to account.

Taking immediate steps to set-up investigations on the ground will send a clear message that the demand for justice is being heard and that the AU’s report is more than shocking words on paper. For it to deliver any real value, it needs to act as a trigger for serious accountability measures to be put in place with genuine steps toward justice, truth and reparation in South Sudan.

 

Ken Scott is a consultant with Amnesty International and former senior prosecutor at the International Criminal Tribunal for the former Yugoslavia, a special prosecutor at the Special Tribunal for Lebanon.