Patryk I. Labuda joins JiC for this second piece of a two-part series on the ongoing political and legal challenges facing the creation of the proposed hybrid tribunal for South Sudan. The first part can be read here.
In the first post, I considered a number of challenges facing the establishment of the Hybrid Court for South Sudan (HCSS). The AU and civil society have been puzzling over these questions for well over a year. Under the 2015 peace agreement, it is the Chairperson of the Commission of the AU who will ultimately “decide the seat of the HCSS”, but the court’s success depend on the South Sudanese government’s willingness to cooperate. Whatever happens in the next few months, it seems clear that Moussi Faki of Chad, elected a few weeks ago to replace Dlamini Zuma of South Africa, will have his work cut out if President Salva Kiir refuses to sign a memorandum of understanding with the AU, as required by the peace agreement.
Looking for Alternatives
But what happens if the government’s obstructionism continues? Some observers argue that the government has already consented to the HCSS by virtue of the peace agreement, so either the AU or the UN should enforce the agreement regardless of the government’s current opposition. There is precedent for this in international criminal justice: when the Lebanese government reneged on its promise to legislate for the Special Tribunal for Lebanon, the UN Security Council enacted the text of a previous agreement by way of a Chapter VII resolution.
But if a Chapter VII resolution is needed to bring the HCSS into existence, the obvious question is whether it would not just be easier to refer South Sudan to the ICC? Although there has been little discussion of an ICC intervention, the South Sudanese government’s obstructionism coupled with the practical difficulties of operating a hybrid court against the wishes of a host government could make this possibility more appealing. Moreover, it is possible that the mere threat of ICC intervention could persuade the South Sudanese government to cooperate with the HCSS.
However, there are two major problems with the idea of a Security Council referral. First, the Council has on several occasions refused pleas for greater UN assistance, arguing that the HCSS is the AU’s sole responsibility, and – more generally – there seems to be little or no appetite among Council members for ICC-related action. The AU, in turn, continues to (publicly) denounce the ICC and champion ‘African solutions to African problems’, as evidenced by last month’s adoption of a ‘withdrawal strategy’ at the AU summit in Addis Ababa.
Unpacking the AU’s Role in South Sudan
The AU’s views on the HCSS and international criminal justice are not without controversy. While its leadership on justice issues in South Sudan is an obvious concession to the AU’s fierce criticisms of the ICC, skepticism remains about the AU’s resolve to tackle impunity. It does not help when leading African figures like Thabo Mbeki and Mahmoud Mamdani, both of whom remain deeply involved in the South Sudanese peace process (albeit in different roles), argue in the New York Times that “courts can’t end civil wars”. Although the AU’s official position is that it recognizes the need for criminal accountability in South Sudan, the parallels with Kiir and Machar’s self-interested pleas for ‘truth, not trials’ are hard to miss. Continue reading