The Hybrid Court for South Sudan? Looking for a Way Forward (Part 2)

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.

Rebel soldiers on patrol in South Sudan, in 2014. (Photo: AP)

Rebel soldiers on patrol in South Sudan, in 2014. (Photo: AP)

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

Posted in Africa, African Union (AU), Guest Posts, Hybrid Court for South Sudan, Hybrid Tribunals, South Sudan | Leave a comment

The Hybrid Court for South Sudan? Looking for a Way Forward (Part 1)

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. Continue reading

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Re-Setting the Clock – South African Court Rules ICC Withdrawal Unconstitutional

(Photo: Mark Kersten)

(Photo: Mark Kersten)

For proponents of the rule of law, today’s ruling that the South African government’s withdrawal from the International Criminal Court (ICC) was unconstitutional is a major victory. Set aside opinions on membership in the ICC itself; the decision by the High Court in Pretoria defended something more fundamental: the country’s parliamentary democracy. Specifically, the High Court declared that the government cannot ignore the country’s democratically elected parliament when taking decisions of the magnitude of withdrawing from an international organization. Proponents of the ICC have also been quick to hail the ruling as a victory for the Court, for human rights, and for victims of international crimes. But to permanently keep South Africa in the ICC, much more needs to be done.

There should be no doubt: the High Court’s finding that the government’s withdrawal from the ICC is “unconstitutional and invalid” should provide a significant boost to efforts to keep South Africa in the ICC. But it should not be treated as a fait accompli or any sort of guarantee that the country will remain a member of the Court. The High Court’s decision is an important rebuke of the means used to withdraw South Africa from the ICC. But it should not be confused with a defence of South Africa’s membership in the ICC itself. The ruling alone won’t keep the country inside the Rome Statute system. The hard work of convincing the government to stay still needs to be done.

It is important to stress that neither the ruling African National Congress (ANC) government nor President Jacob Zuma have changed their position on withdrawing from the ICC. For them, the High Court’s order is likely being interpreted as an annoying impediment and not an opportunity to re-think their position regarding ICC membership. As the BBC’s Andrew Harding has observed:

The High Court’s decision marks a pause, rather than a full stop, for the South African government and its plan to withdraw from the International Criminal Court.

The government may choose to appeal the judgment, or it may simply do as the judges ordered and take the proposal to parliament where the governing African National Congress (ANC) continues to enjoy a comfortable majority.

In response to the ruling, Justice Minister Michael Masutha has clarified that the government will press ahead with its withdrawal from the ICC. Reacting to the High Court decision, he declared that “[t]he intention to withdraw still stands, as [withdrawing from the ICC] is a policy decision of the executive.” There is no doubt that the ANC government is peeved at any use of courts that obstructs their intention to join Burundi (and, to date, only Burundi) in withdrawing from the ICC. Last month, Masutha made controversial remarks criticizing the role of South African courts in limiting the powers of the government and insisted that he would not allow the judiciary to dictate the government’s position on the ICC.  Continue reading

Posted in Africa, African Union (AU), International Criminal Court (ICC), International Criminal Justice, International Law, South Africa | 2 Comments

Event: Prosecuting Sexual Violence in Conflict – Lessons from International Criminal Tribunals

For all interested and in Toronto (or nearby!), I have co-organized an event with Valerie Oosterveld at the Munk School of Global Affairs on the prosecution of sexual violence crimes. The event, which would not have been possible without the support of the Social Sciences and Humanities Research Council of Canada Partnership Grant fund, will take place 7 March 2017, from 4-6pm.

The event is headlined by Michelle Jarvis, Deputy to the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, Linda Bianchi of the Department of Justice, Canada, and Valerie Oosterveld of Western University’s Law Faculty.

Here is the abstract of what promises to be a fascinating and timely event and discussion:

Over the past two decades, international criminal tribunals have adopted groundbreaking judgments convicting individuals for rape, sexual slavery and forced marriage committed during armed conflict and genocide in the former Yugoslavia, Rwanda, Sierra Leone, the Democratic Republic of the Congo and elsewhere. At the same time, these tribunals have had some very public setbacks, with sexual violence cases dismissed, charges acquitted, and investigations failed. What lessons can be learned from these experiences that can inform future cases at the International Criminal Court and other tribunals?

This session will feature a keynote address by Michelle Jarvis, Deputy to the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY), on her new book, “Prosecuting Conflict-Related Sexual Violence at the ICTY”. Responses will be provided by Linda Bianchi (formerly of the International Criminal Tribunal for Rwanda, now Department of Justice) and Valerie Oosterveld (Western Law) on whether the ICTY’s lessons can be applied on a global scale.

For all interested, please see the events page here. Hope to see some of you there!


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The Human Rights Agenda and the Struggle Against Impunity

I recently reviewed an excellent new collection of essays Anti-Impunity and the Human Rights Agenda, edited by Karen Engle, Zinaida Miller and D.M. Davis (Cambridge, 2016). The book should be of interest to anyone working in the field of human rights and in particular those engaged with issues of international criminal justice. Below is an excerpt from my review, the full version of which is available on Lawfare here.

Towards the end of the twentieth century, the global human rights movement embarked on a major shift in its agenda and priorities. From the mid-1970s through the late 1980s, human rights groups tended to direct their advocacy in opposition to State criminalization of political activity and abuses within domestic criminal justice systems. The primary tactic was naming and shaming; the principal target was the State. From at least the early 1990s, however, the human rights movement underwent a “criminal turn,” increasingly directing its resources towards the promotion of criminal prosecution as an indispensable requirement for securing justice, peace and truth in the aftermath of mass atrocity situations. Under the banner of “ending impunity,” the primary tactic became the promotion of criminal accountability before domestic and international courts; the principal target was the individual.

Now, almost two decades into the twenty-first century, the correspondence between criminal prosecution and human rights has become so entrenched that to be anti-criminal prosecution is increasingly viewed as anti-human rights.

It is this turn towards an anti-impunity norm that forms the focus of a stimulating new collection co-edited by Karen Engle, Zinaida Miller and D.M. Davis: Anti-Impunity and the Human Rights Agenda. Arriving at a time when the international criminal justice project is increasingly under scrutiny and a surge in divisive and isolationist populism has put many in the human rights community on the defensive, this collection offers a timely problematization of the anti-impunity agenda that has come to dominate human rights thinking over the past two decades.
Continue reading

Posted in "Peace versus Justice" Debate, Academic Articles / Books, Amnesty, Brazil, Colombia, Economics of Conflict, FARC, Human Rights, International Criminal Court (ICC), International Criminal Justice, International Criminal Tribunal for Rwanda (ICTR), Justice, Latin America, Nuremberg, Peace Processes, Rwanda, Rwandan Genocide, South Africa, South America, Traditional Justice Mechanisms, Transitional Justice, Truth and Reconciliation Commissions | Tagged , , , , | Leave a comment

Not All it’s Cracked Up to Be – The African Union’s “ICC Withdrawal Strategy”

Leaders gather for an photo opportunity at the recent African Union Summit (Photo: Mulugeta Ayene / AP)

Leaders gather for an photo opportunity at the recent African Union Summit (Photo: Mulugeta Ayene / AP)

I want to make something clear from the outset: what follows is not a defence of the International Criminal Court (ICC). Seriously. It may sound like one or be interpreted as one, but it is not one. What follows is an attempt to clarify what actually happened last week when states at the latest African Union (AU) summit adopted an “ICC Withdrawal Strategy”. In doing so, they set parts of the internet ablaze with a new round of reports of a mass exodus of states from the ICC and the Court’s pending demise. It’s not going to happen — at least not now.

First, let’s tackle the actual resolution of the AU adopting the ICC Withdrawal Strategy. It is purposefully weak. Like, really, really weak. The non-binding resolution includes reservations from eight states. As Elise Keppler has pointed out, “Nigeria, Senegal, and Cape Verde ultimately entered formal reservations to the decision adopted by heads of state. Liberia entered a reservation to the paragraph that adopts the strategy, and Malawi, Tanzania, Tunisia, and Zambia requested more time to study it.” That’s a lot of reservations.

Further, the resolution’s operative paragraph declares that the Assembly of the AU “ADOPTS the ICC Withdrawal Strategy along with its Annexes and CALLS on member states to consider implementing its recommendations”. There are few things weaker in the vernacular of international legalese than calling on states to consider something.

But what about the ICC Withdrawal Strategy that was adopted? Its title certainly sounds menacing. But in substance, it is anything but. For one, it doesn’t actually call on a mass withdrawal of states from the Court. Here’s what the Strategy lists under “objectives”:

screen-shot-2017-02-06-at-3-02-22-pmIn reading the strategy, it is difficult not be left with the impression that African states remain engaged with the ICC. It certainly doesn’t sound like they’re collectively jumping ship. That’s because the Strategy reads like a largely reasonable list of possible reforms to the Rome Statute and the Court. Indeed, the arguments contained within the Strategy should be taken seriously and continue to be debated. There are at least a handful that should be acceptable to the Court and its champions, such as the long-standing request from Kenya to include “regional criminal jurisdictions” in the section of the Rome Statute’s pre-amble pertaining to the principle of complementarity. More attention also needs to be paid to the fact that the majority of the grievances and concerns expressed within the Strategy ultimately relate to the ICC’s relationship with the UN Security Council.

Perhaps the most unfortunate aspect of the Strategy is its misleading title. It is difficult, if not impossible, to read it and conclude that it proposes a roadmap for states to withdraw en masse from the Court. It really should be called “ICC Reform Proposals” or something similar. However, is clear that certain states prefer to muddy the waters and perhaps even want the media and observers to dramatize the possibility of a mass withdrawal. Advocates of the Court shouldn’t play into that game and, instead, ought to focus on encouraging African ICC member-states to advocate more accurate, and less inflammatory, titles for their documents and resolutions. That alone would help re-balance the narrative. Continue reading

Posted in Africa, African Union (AU), International Criminal Court (ICC), International Criminal Justice, Nigeria | 1 Comment

Could Yahya Jammeh End Up at the International Criminal Court?

Yahya Jammeh fled to exile on 21 January (Photo: BBC)

Yahya Jammeh fled to exile on 21 January (Photo: BBC)

It was unthinkable just a few short weeks ago. But today, Yahya Jammeh is no longer in power in The Gambia. Following last-minute mediation efforts by West African leaders, Jammeh’s twenty-two year-long rule came to a much-anticipated conclusion last week. After weeks of heightened tensions and fears that violence might erupt in the small country of just 2 million people, the crisis concluded peacefully — and Jammeh fled into exile. Adama Barrow, elected President of The Gambia on 1 December 2016, currently remains in neighbouring Senegal, but is set to return to Banjul and assume power. So what will come of Jammeh, a leader widely seen as responsible for political repression and a host of human rights violations? Could he end up facing charges at the International Criminal Court (ICC)?

The ICC, and the issue of retributive justice more generally, lurked in the background throughout The Gambia’s political crisis. Just weeks before the presidential elections, Jammeh declared that The Gambia would withdraw from the ICC. In response, Barrow pledged to keep the country a member of the Court, a promise he says he intends to keep following his ascension to the presidency.

Jammeh famously accepted the election results only to flip-flop on the decision a week later. In that intervening period of time, one of Barrow’s political allies stated that Jammeh would be prosecuted for his crimes within a year. Some thus speculated that Jammeh’s volte face was spurred by his fear that his giving up power would lead to his prosecution. But as Jammeh dug his heals in, the issue of investigating, let a lone prosecuting, Jammeh, was put on the back-burner. The priority was to ensure a peaceful transition of power and to avoid any bloodshed. Through successive rounds of negotiations, led by Economic Community Of West African States (ECOWAS), neither states nor major international human rights organizations voiced demands for justice and accountability. While both Nigeria and Morocco offered Jammeh asylum, Barrow smartly reiterated that Jammeh would be welcome to stay in the country.

As the political crisis unfolded, Senegalese troops, endorsed by ECOWAS and the UN Security Council, entered the country. The feasibility of Jammeh remaining in The Gambia evaporated. The question was no longer whether Jammeh would leave, but rather under what conditions. In the end, ECOWAS brokered a deal with the former despot. According to the terms of the settlement, Jammeh will not receive immunity but he did receive certain protections and a free path out of The Gambia. During the night of 21 January, he boarded a plane with Guinean President Alpha Conde. After reported stop-overs in Conakry and Malabo, Jammeh arrived in Equatorial Guinea.

Upon Jammeh’s departure, Barrow was asked about whether the former leader might be prosecuted. The President, however, said that his priority is to set up a truth and reconciliation commission to find the ‘truth’ of what transpired during Jammeh’s tenure:

We aren’t talking about prosecution here. We are talking about getting a truth and reconciliation commission. Before you can act, you have to get the truth, to get the facts together.

Still, there have been implicit suggestions that Jammeh may be concerned that he could find himself before the ICC and that his choice of Equatorial Guinea reflects that fear. According to a report in the BBC,

Equatorial Guinea does not recognise the International Criminal Court (ICC) and has weak civil society and opposition groups, reducing the chances of the government coming under pressure to hand over Mr Jammeh to either the ICC or Mr Barrow’s government for prosecution.

The CBC has similarly referred to the apparent importance of Equatorial Guinea not being a member of the ICC:

The unpredictable Jammeh… is now in Equatorial Guinea, home to Africa’s longest-serving ruler and not a state party to the International Criminal Court.

But does Jammeh have anything to fear from the ICC? Sure, the Court’s prosecutors may see Jammeh’s fall from grace as an opportunity to investigate and target him for prosecution. But it seems very unlikely. Here are four reasons why we shouldn’t expect the ICC to go after Jammeh.  Continue reading

Posted in Africa, International Criminal Court (ICC), International Criminal Justice, Transitional Justice, Truth and Reconciliation Commissions, Truth Commission | Tagged , , | 7 Comments