Is South Sudan coming to terms with the violent five-year civil war that left 400,000 dead, and millions displaced? By 2018, a peace deal recommitted both sides to establishing a Hybrid Court for South Sudan, along with a truth-telling mechanism and reparations. The peace agreement that supporters and opponents of President Salva Kiir had agreed to now hangs by a thread.
To date, none of the peace agreement’s transitional justice mechanisms are operational. And, in an apparent setback, the United States reportedly pulled its funding for the court, a move some analysts see as a quiet signal that U.S. officials have given up on the court.
Why did parties initially commit to establishing this court, rather than pursue cases through South Sudan’s domestic legal system or the International Criminal Court? And what happens now to the hybrid court?
Research suggests that war crimes tribunals tend to emerge when the demand is high for criminal accountability — and the constituencies that oppose prosecutions are weak. While the demand for criminal accountability in the form of a hybrid court has remained strong among nongovernmental groups within South Sudan, important backing for the court from the United States and African Union appears to be faltering. Meanwhile, the constituencies likely to resist such a court — the government and rebel officials whose forces stand accused of perpetrating atrocities — have grown stronger.
Many abuses were reported during the civil war
The 2013 conflict stemmed from a political crisis among Kiir, Vice President Riek Machar and other politicians. Kiir fired Machar and accused him of attempting a coup. The brutal fighting that ensued took on ethnic dimensions, with fighters from the Dinka ethnic group supporting Kiir and fighters from the Nuer ethnic group backing Machar.
Reports of horrific acts of violence on all sides prompted the African Union to establish a Commission of Inquiry on South Sudan. Its purpose was to investigate human rights violations and other abuses in the conflict, but it also recommend ways to ensure accountability, reconciliation and healing among all South Sudanese communities.
The commission’s 2014 final report proposed a hybrid court and other transitional justice measures. The report uncovered evidence of extreme violence — including killings, torture, mutilations, rape and even episodes of forced cannibalism — perpetrated by government forces and by rebel forces, mostly against civilians.
It also found that the weak capacity of South Sudan’s national criminal justice system meant the existing courts would be unable to deliver accountability, particularly in cases involving top political and military leaders. Consequently, the commission recommended, among other measures, the establishment of “an Africa-led, Africa-owned, and African-resourced legal mechanism under the aegis of the African Union,” which would be supported by the international community and include South Sudanese judges and lawyers. This “legal mechanism” involves a mix of international and domestic legal processes and personnel — the “hybrid” nature of the court.
Consistent with what scholars call the “justice cascade,” or the “revolution in accountability,” international, regional and domestic leaders rallied behind the idea of creating a hybrid court. Diverse groups, including the United Nations, the U.S. and U.K. governments, and South Sudanese nongovernmental organizations, pressured recalcitrant government and rebel officials to commit to the establishment of the hybrid court and other transitional justice mechanisms, first in 2015 and then again in 2018. In 2015, the United States pledged $5 million to kick-start the creation of the hybrid court.
Why not use the existing International Criminal Court, or ICC? Before the ICC’s 1998 creation, hybrid tribunals addressed alleged atrocity crimes in Kosovo, East Timor, Sierra Leone, Cambodia, Bosnia, Iraq and Lebanon. The ICC was supposed to replace this patchwork approach to international criminal justice with a permanent court for global accountability.
The ICC has its limitations
But ICC jurisdiction does not extend to nonmembers like South Sudan. This means the court can open an investigation only if the U.N. Security Council refers it, or if South Sudan’s government requests ICC involvement. So far, neither scenario has transpired.
Moreover, a number of African leaders claim the ICC is politicized and biased, particularly against their citizens, who have — thus far — overwhelmingly landed in its dock. While some analysts disagree about the allegations of anti-African bias, the emphasis on creating an “African” hybrid tribunal could well be read as a rebuke to the ICC’s alleged biases.
South Sudanese officials have also gone out of their way to oppose the hybrid court, even taking the step of hiring a U.S. lobbying firm to help block its creation. The 2015 and 2018 agreements expressly preclude the possibility of immunity (including for heads of state) and render people indicted or convicted by the court ineligible to participate in the government for “a period of time determined by the law.”
Both Kiir and Machar have repeatedly spoken out against the creation of the hybrid court, instead advocating for a “national truth and reconciliation commission,” an approach that could shield them from criminal prosecution and thus keep them in power. The government has yet to fully approve various legal instruments necessary to formally establish the court.
This type of reluctance is not surprising. Scholars like Samuel Huntington have long argued that in contexts where those accused of atrocity crimes remain in office, prosecutions — which could undermine these leaders’ power — are unlikely to occur. More surprising, perhaps, is the apparent wavering of international and regional support for South Sudan’s hybrid court.
The United States has played a central role in launching hybrid courts elsewhere, while the African Union has authority under the 2018 peace agreement to formally establish this court. Activists have accused South Sudan’s neighbors of perpetuating an “environment of silence,” which has served to undercut efforts to create the court.
At this point, it might take continuous pressure from international, regional and domestic constituencies to counteract the opposition from national authorities and get the hybrid court up and running. But nongovernmental groups both within and outside South Sudan continue to push for accountability for crimes committed during South Sudan’s civil war. The scholarly research suggests that so long as the demand for accountability persists, war crimes tribunals can still occur down the road.
Jacqueline R. McAllister is an associate professor of political science at Kenyon College in Gambier, Ohio.