South Sudan unity government a chance to ensure justice for possible war crimes

By Ken Scott

On Wednesday, South Sudan’s rebel leader, Riek Machar was sworn in as first vice president. Yesterday, the new cabinet, which includes former rebels and members of the opposition, was sworn in. The formation of a transitional government of national unity is a big step forward for a nation ravaged by more than two years of armed conflict. But if a lasting peace is to be found, it will need to be built on the foundation of justice, truth and reparation.

As shown by numerous reports, including those of the recent United Nations Office of the High Commission for Human Rights (UN OHCHR) assessment mission to South Sudan and the African Union Commission of Inquiry on South Sudan (AU CISS), released in October 2015, parties to the two-year conflict committed shocking crimes under international law, such as acts of killings, torture, mutilations, rape and even forced cannibalism. These crimes must be urgently and impartially investigated and all those suspected of criminal responsibility held to account in fair trials without recourse to the death penalty. 

It is imperative that a systematic framework is quickly set up to investigate these crimes as a first step towards accountability. As evidence degrades and memories fade, each passing day takes South Sudan’s victims further away from justice.

The peace agreement signed in August last year, is a positive contribution towards ending impunity for abuses of human rights and international humanitarian law. It provide 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 hybrid criminal court, to be established by the AU Commission (AUC).

Pleasantly surprising and encouraging is that 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 is now South Sudan is one of the root causes of the recent conflict.  A failure to deal with deep grievances and ensure real justice only nurtured the next round of political violence. With few exceptions, most of community leaders Amnesty International has spoken with during this round of political violence believe that sustained peace can only be assured by real accountability for crimes committed by both parties to the conflict.

Taking immediate steps to set-up investigations on the ground will send a clear message that the demand for justice is being heard
Ken Scott

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 in September last year by numerous South Sudanese and international non-governmental organizations (NGOs) to the Chair of the AUC, there is a genuine need to operationalize the hybrid court as soon as possible. 

 

Establishing a fully-operational hybrid court, with the necessary personnel, infrastructure and funding, will take some time, but collection and preservation of evidence must start 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 can be lost forever. This is why it is important that, alongside prompt steps to establish the hybrid court, the AU and the rest of the international community must urgently establish an interim investigative mechanism with a robust mandate to investigate possible war crimes and collect and preserve evidence. Taking immediate steps to set-up investigations on the ground will send a clear message that the demand for justice is being heard.

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.

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

The AUCISS report – and numerous other reports by organizations including Amnesty International – leave no doubt that crimes under international law have been committed in South Sudan by both parties to the conflict.

It is now time now for all those suspected of criminal responsibility to be brought to justice in fair trials.

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