Set Up Hybrid Court to End Impunity in South Sudan

By Khalifa Hemed
Published December 18, 2017

Four years into the conflict, feuding parties in South Sudan have not only failed to set up an African Union-South Sudanese hybrid court to try international crime committed during the country’s civil war but continue to commit grave human rights crime against civilians.

South Sudan’s transitional government has neither ended violation by its army nor made progress toward setting up the court, Human Rights Watch says.

The rights body calls for targeted sanctions against officials responsible and an arms embargo as abuse of civilians by warring parties persists, with the conflict continuing to spread despite the August 2015 Agreement on the Resolution of Conflict in South Sudan (ARCSS) which had envisioned the establishment of a hybrid court.

“The government has consistently let deadlines slip while its forces commit crimes with impunity,” says Mausi Segun, Africa director at Human Rights Watch. “The people of South Sudan deserve justice, not a chain of broken promises, and so the international community should impose consequences.”

Segun argues that African Union (AU) “should ensure progress on the hybrid court, if necessary without cooperation from South Sudan’s leaders, or consider coercive measures like targeted sanctions against anyone responsible for obstruction. If the leaders won’t stand by the victims of atrocities, the African Union should step up and show it won’t abandon this precedent-setting plan for accountability in one of the continent’s worst human rights crises.”

South Sudan’s civil war began on December 15, 2013, when troops loyal to president Salva Kiir – a Dinka – clashed with those of then-Vice-President Riek Machar – a Nuer – in the capital, Juba. Within hours, mainly Dinka government troops carried out large-scale targeted killings, detentions, and torture of mainly Nuer civilians in various parts of Juba, while thousands of Nuer soldiers defected to an opposition army. In the following months, fighting spread to Bor, Bentiu, Malakal, and across the Greater Upper Nile region. As towns changed hands, soldiers on both sides killed thousands of civilians, often based on their ethnicity, and destroyed and pillaged civilian property.

In late 2015, conflict spread to the Equatorias, as new rebel groups claiming an affiliation formed, and government forces carried out deadly counterinsurgency campaigns in previously stable regions south and west of the capital. Government soldiers and allied fighters have attacked civilians sheltering inside the UN bases in Malakal and Juba, in blatant violation of international law. In July 2016, government and opposition forces fought in Juba and government forces attacked, killed, and raped civilians, including displaced people and foreign aid workers. Since the Juba crisis, government forces have continued to fight rebels in Central and Western Equatoria, Unity, and northern Jonglei.

The impact of the violence and abuses is devastating. More than four million people have fled their homes, with more than two million now refugees in neighbouring countries. In February, the UN declared a famine in parts of Unity state, and almost half the country’s population faces acute food shortages.

In October 2015, the AU released the final report of the Commission of Inquiry on South Sudan (AUCoISS), which found that the warring parties had committed grave human rights abuses and war crimes. The commission’s findings were largely consistent with Human Rights Watch reporting, and proposed creating an AU-led process to bring those with the greatest responsibility for the atrocities to account.

The August 2015 agreement included a hybrid court to be established by the AU Commission to investigate and try those responsible for grave abuses since 2013. Under the agreement, the court is to consist of South Sudanese and other African judges and staff. Human Rights Watch findings on significant weaknesses in the national justice system support the need for the court.

In early 2017, the AU held consultations with the South Sudanese Justice Ministry that led to a draft statute for the court and a memorandum of understanding between the AU and the South Sudanese government on the establishment of the court. Both documents were submitted to the South Sudan council of ministers in August, but the government has taken no further action.

In a September communiqué, the AU Peace and Security Council said the South Sudanese government should expedite creating the court and completing its part of the agreement, or face “necessary steps, including sanction measures, that could ensure effective and efficient implementation” of the agreement.

In December, government officials told Human Rights Watch researchers in Juba that a number of key ministers oppose the court, including the communications minister, Michael Makuei – against whom the US brought sanctions in September for undermining the peace process; the cabinet affairs minister, Martin Elia Lomuro; and the defense minister, Kuol Manyang.

Under the August 2015 agreement, the AU Commission has the authority to establish the court with or without the engagement of the South Sudanese government. If the transitional government continues to ignore its responsibilities under Chapter V of the peace agreement, the AU should proceed with the court on its own, Human Rights Watch says.

If a credible, fair, and independent hybrid court does not progress, the option of the International Criminal Court (ICC) remains and should be pursued, Human Rights Watch said. As South Sudan is not a party to the ICC, the UN Security Council would need to refer the situation to the court in the absence of a request from the government of South Sudan.