Patryk I. Labuda joins JiC for this two-part post on the ongoing political and legal challenges facing the creation of the proposed hybrid tribunal for South Sudan. You can read Patryk’s previous contributions to Justice in Conflict here. 

Tens of thousands of refugees have been displaced by conflict in South Sudan, including these civilians in Jamam camp (Photo: Robert Stansfield / Department for International Development).

In December 2013, South Sudan erupted into civil war. Three years later, there is still no end in sight to the violence that has claimed tens of thousands of lives and displaced over three million civilians. In fact, the conflict may get worse. The UN’s Special Adviser on the Prevention of Genocide warned recently that there was ‘potential for genocide’, while a separate UN-mandated Commission of Inquiry cautioned that South Sudan stood ‘on the brink of all-out ethnic war’.

Although the root causes of the South Sudanese conflict remain stubbornly entrenched, a silver lining may be the role of justice and accountability in its otherwise moribund peace process. As is well known, an entire section of the August 2015 peace agreement covers transitional justice issues, including victims’ rights, compensation, and truth and reconciliation. Most notably, it also calls for the establishment of the Hybrid Court for South Sudan (HCSS) “to investigate and prosecute individuals bearing responsibility for violations of international law and/or applicable South Sudanese law”, in particular war crimes, crimes against humanity, and genocide.

Eighteen months later, however, the transitional justice provisions have – like most of the peace agreement – yet to be implemented, and a host of questions about the HCSS remain unanswered. To make matters worse, a perfect storm of political and military developments in the region and at the international level raise difficult questions about the future of the hybrid court. In this two-part post, I will consider some of the challenges awaiting the HCSS (part 1) and what can be done to overcome them (part 2).

Delayed Justice

It is no secret that the establishment process of the HCSS is severely delayed. In line with the 2015 peace agreement, the hybrid court was expected to be fully operational one year from the date that a transitional government was sworn in, which translates into an estimated start date of April 2017 (Appendix VI). It is clear that this and other deadlines will not be met. Mandated to “provide broad guidelines” on the “infrastructure, funding mechanisms… [and] number and composition of judges”, the African Union (AU) has made little progress on legislation and other arrangements that are needed to bring the HCSS into existence. As of today, eighteen months after the peace agreement, the hybrid court exists only on paper.

There are various reasons for this delay, not least of which is the continued fighting between forces loyal to Salva Kiir, the country’s current president, and Riek Machar, his former deputy who launched a rebellion in 2013. But the biggest obstacle facing the HCSS is resistance from the government of South Sudan. This is not entirely surprising. Unlike other conflicts where hybrid tribunals eventually emerged as a tool of transitional justice, the war in South Sudan is far from over. Crucially, in South Sudan it is governmental forces – not the rebel movement led by Machar – who are allegedly responsible for most of the violence. In its October 2015 report, an AU-mandated commission of inquiry concluded that, while both sides were responsible for war crimes and crimes against humanity, evidence also “point[ed] to the existence of a state or organizational policy to launch attacks against civilians based on their ethnicity or political affiliation”. Leaders on both sides “dread the proposed hybrid court”, but it is the prospect of prosecutions against governmental actors that makes the HCSS inherently contentious.

Host State (Consent)

President Kiir’s government has, from the beginning, sent mixed signals about the hybrid court. For starters, Kiir famously refused to sign the peace agreement, and then only agreed to it with reservations at the signing ceremony in Addis Ababa. Although insiders suggest there was broad consensus on the need for accountability throughout the peace negotiations, the government’s commitment to the HCSS has wavered on multiple occasions since. In June 2016, Kiir and Machar penned an infamous op-ed in the New York Times, which called on the United States and Britain to reconsider their support for the HCSS and back “a mediated peace, truth and reconciliation process” (this was when Kiir and Machar were still president and deputy president in the transitional government). Although he later denied authoring the article, Machar’s professed support for the hybrid court probably had less to do with his commitment to justice than the instrumental benefits of a rebel leader projecting a human rights friendly image to an international audience — something Machar has consistently sought to achieve.

Following a resumption of violence in July 2016, which eventually led to Machar’s exile in South Africa, Kiir’s government has continued to undermine the HCSS. In one of the few official statements on the matter, the government declared in November 2016 that the hybrid court should:

be seen as complementary to the national judicial responsibility for justice. In that connection, it must carefully balance the quest for justice and accountability with the promotion of peace and national reconciliation. For… the Hybrid Court to succeed, cooperation and constructive partnership with the Government are critical.

This position is notable for two reasons. First, it reverses the legal framework established by the 2015 peace agreement, where the HCSS is independent from and enjoys unconditional primacy over national courts. Second, it appears to draw on the complementarity language of the International Criminal Court, which is more than a little ironic given South Sudan’s refusal to accede to the Rome Statute (see my blog post from January 2015).

The AU is unlikely to concede primacy to South Sudanese courts while the HCSS plays merely a “complementary” role. Yet even this arrangement now seems too costly for the government. A few weeks ago, Michael Makeui, the South Sudanese minister of information, ruled out the possibility of a hybrid court altogether, arguing that it would “undermine peace”. A hardliner in the transitional government, Makeui is known for his strong pro-sovereignty rhetoric, but his objections are noteworthy because they reflect a growing confidence among governmental actors who are openly defying the AU and the broader international community on a series of initiatives, including the deployment of a special peacekeeping force mandated to protect civilians.

Will the HCSS be a Hybrid Court?

The government’s resistance is troubling because it implies that the HCSS will be based outside of South Sudan. The peace agreement (presciently) left open this possibility and it has been discussed openly for months. But locating a hybrid court in a third state raises a number of logistical, practical and political difficulties. First of all, who will agree to host the court? There is presumably a strong preference for a country in the region, but this could have negative diplomatic consequences if the state is perceived as being too friendly with, or too hostile to, the South Sudanese government. One option could be Arusha, Tanzania, where the former Rwanda Tribunal used to be located. Mark Kersten has argued that the premises of the Mechanism for International Criminal Tribunals in Arusha could be used as a permanent tribunal housing hybrid mechanisms, including the HCSS. Second, if the government is so hostile that it will not host the HCSS, what are the chances that it will cooperate with the AU at all? Will the government nominate judges to the court, as required by the peace agreement, and what would non-cooperation imply for the HCSS’s legacy — i.e. its ability to develop the capacity of the domestic justice system? Put differently, would the HCSS be a ‘hybrid court’ in nothing but name? This in turn prompts the third and biggest question: how are the HCSS investigators and prosecutors expected to build cases if the government withholds consent and cooperation, for instance by refusing access to the country?

The UN’s inability to deploy the Regional Protection Force over the government’s objections illustrates that these are anything but hypothetical concerns. In the second post, I will consider what can be done to overcome these challenges.