Home | Comment & Analysis    Monday 1 April 2019

South Sudan: Peace without justice is only a ceasefire

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Ken Scott

It’s sad and makes me angry that South Sudan continues to be such a tragic place. There are a lot of good people there — millions — suffering horribly. Those who might have heard about a new or “revised” peace agreement may think that everything in South Sudan is on the upswing — that the war is over, that there are significant improvements in the government, fewer human rights abuses and an improving humanitarian situation. In fact, and with some local exceptions, nothing is further from the truth. A deeply flawed peace process produced a “deja vu all over again” power-sharing agreement involving the same warring South Sudanese elites that have failed twice in the past five years and was driven as much by agendas in Sudan and Uganda as by any genuine interest in ending the gross suffering of the South Sudanese people.

During 2018 alone, including since the latest peace agreement was signed, multiple senior United Nations officials, commissioners and other organizations, including Adama Dieng, the UN’s Special Advisor on the Prevention of Genocide, have found “alarming patterns of serious human rights violations and abuses, including killings, pillaging, abductions, rape and gang-rape committed by both parties during the fighting, leading to forced displacement of the population.” Sexual violence is described as endemic and “a widespread and systematic tactic of war ...” In May 2018, the UN called for all parties to the South Sudan conflict to cease the commission of atrocities and sexual violence, and to “hold the perpetrators of these heinous acts accountable as a matter of priority.” Another UN report found that in the northern part of one South Sudan state alone, 134 instances of rape and gang rape occurred, between September and December 2018 — after the “peace” agreement. Sixty-four were girls, some as young as eight. Mothers and daughters hold each other and cry.

More than four million of South Sudan’s pre-war population of twelve million people are either internally or internationally displaced, often in horrible conditions. Despite five months of “peace,” one and a half million South Sudanese are on the brink of starvation and more than six million face extreme hunger. South Sudan and the Democratic Republic of Congo lead the world in the number of children killed in the conflict. In 2018, for the third year running, South Sudan was the most dangerous place in the world for humanitarian workers, with, according to some reports, as many as 100 aid workers killed since the conflict began in 2013.

In publishing their most recent report only days ago, the UN Commissioners on Human Rights in South Sudan state that "There is no doubt that these crimes are persistent because impunity is so entrenched in South Sudan that every kind of norm is broken, even raping and killing the young and the elderly." The Commission chair, Yasmin Sooka, stated: “There is a confirmed pattern of how combatants attack villages, plunder homes, take women as sexual slaves and then set homes alight – often with people in them.” A joint UN Mission in South Sudan and UN High Commissioner for Human Rights report covering the period September-December 2018 plainly states that “The lack of accountability . . . is also a major driver of these attacks. Indeed, impunity has contributed to the normalization of violence against women and girls.”

But very little, virtually nothing is done.

In every respect, the most recent iteration of a peace agreement is paper thin, challenged and questioned on a virtually weekly basis by groups and individuals who either never joined the agreement or who might once have signed up, but in one fashion or another have withdrawn or changed their mind, or perhaps more truthfully, were never really part of it. Even the commitment of those who might be considered the core members of the agreement is questionable, perhaps a mile wide and an inch deep. Much of the international community, including the United States, views the peace agreement with great (and unfortunately justified) scepticism. Having been previously burned, they await some substantial bona fide indication that the parties — this time — are serious, which is yet to be shown. There may be a bit more activity than that which surrounded the 2015 agreement, but whether this activity actually means anything or is just churning the water remains to be seen. Milestones in the agreement are routinely missed or not accomplished at all.

Unfortunately, South Sudan suffers from a long history and deep culture of impunity. During and after all the mass violence that the world’s newest country has endured since a first civil war (when the country was still part of Sudan) from 1955 to 1972, there has never been any meaningful justice or accountability, with one pause in the violence lasting only a short time until the next outpouring of death and destruction.

South Sudan illustrates only too well that peace without justice, at least in most situations most of the time, is only a ceasefire — and maybe not even that. The so- called ceasefire in South Sudan — even now — is repeatedly violated, weekly if not daily.

Repeated calls for accountability from multiple quarters of the international community (in addition to those noted above) date to the conflict’s early months, with UN Secretary-General Ban Ki-moon, almost five years ago, calling for creation of an international hybrid tribunal in May 2014 — since South Sudan is not a party to the International Criminal Court and is highly unlikely to refer itself to the Court or accept its jurisdiction. In October 2014, the African Union’s own Commission of Inquiry on South Sudan reported human rights violations “committed in a systematic manner and in most cases with extreme brutality.” The commission, in October 2014, expressly called for “a legal mechanism under the aegis of the African Union supported by the international community, particularly the United Nations to bring those with the greatest responsibility at the highest level to account.”

In the August 2015 and September 2018 peace agreements the South Sudanese parties, the African Union and the regional countries have twice agreed, twice promised and twice “guaranteed” to establish a truth commission, a hybrid court and a reparations authority. Sadly, none of these institutions is anywhere to be seen. After a brief period of paper progress on the hybrid court in mid-2017, the court is no closer to reality today. Except for a handful of foot soldiers, there has been no accountability for the massive death, sexual violence, man-made starvation and destruction, and certainly none involving more senior actors — the decision- and policy- makers — on any or all sides. Which only perpetuates the deep impunity — “no one has ever been held accountable before, why will this time be any different?” Murder, rape, pillage with impunity.

All of this raises the question as to what justice, or the mix of justice elements, is required or needed. Covering that topic is beyond the scope of this writing, but in most of these tragic conflicts most of the time, these elements must include some old-fashioned criminal justice, especially for those whom the international tribunals and special courts over the past twenty-five years have commonly referred to as the “most senior responsible persons” — not the foot soldiers, but those more truly responsible for the horrific events that they set in motion, instigated, directed or failed to prevent. Such accountability is fully appropriate and needed, not only for purposes of the fully deserved individual responsibility of heinous actors but to demonstrate to suffering peoples such as those in South Sudan that accountability is finally real, that the long days of impunity are over.

It has become almost commonplace for many to refer to the truth and reconciliation process in South Africa as an alternative to criminal justice. That process was hugely important and clearly admirable. But as time has gone by and assessments made, there is a very substantial school of thought, if not consensus, that the South Africa process ultimately came up short, in not pursuing the prosecution of the worst offenders as was, in fact, always contemplated. Truth commissions and traditional justice processes have their place, but in most situations most of the time, there is a need for a more formalized criminal justice accountability and consequences, for personal responsibility beyond a hollow apology.

While often stated, it is simply not true that accountability efforts must wait until a conflict is over and “peace” established. As only one example, UN criminal investigators were flying into Sarajevo long before the 1995 Dayton peace agreement and doing good, important work. And important investigations have been going on for years concerning the ongoing Syria conflict, which are even now resulting in prosecutions in Europe. In fact, and it completely belies statements that “nothing can be done now,” governments and organizations are currently training and financially supporting various efforts to document the atrocities and abuses in South Sudan, during and while the conflict continues. Would investigations likely be more productive if an honest South Sudan government was genuinely cooperative? The answer is almost certainly yes, but that does not mean that important, productive investigations cannot be conducted now. In fact, much of the evidence is outside South Sudan, in the refugee camps in the surrounding countries and in the exile communities in Nairobi, Kampala and elsewhere. In the meantime, essential evidence is lost every day. The passage of time without action is itself a form of impunity — “we won’t do anything sooner until all the evidence is lost, all the witnesses gone.”

Ironically (and it would be laughable if not so terribly serious), the South Sudan government now says that it does not have enough money to implement the peace agreement and, while previously telling the international community to stay out its affairs, blames the international community for not writing it large (essentially blank) checks — despite the fact that the government says that the country’s oil production has returned to pre-war levels and, reportedly, that its non-oil revenue has recently hit a new record. Apparently, the government had plenty of money to prosecute the war, but not enough to prosecute war criminals.

After the UN was largely excluded from the August 2015 peace agreement, the African Union took on the responsibility to establish the Hybrid Court (“the Court shall be established by the African Union Commission”) — indeed, in the AU’s “High Level” committee signing the agreement (including the Chairperson of the African Union Commission), the AU “guaranteed” that it would do so. Based on this and related reasons, the international community, including the UN, has largely deferred to the African Union to solve the South Sudan situation, allowing for “African solutions to African problems.”

Establishing the court is in no sense a technical problem — there are plenty of precedents, procedures and templates for that. What is actually needed, what is really required is a genuine (rather than lip service) commitment to accountability and the courage and political will to make it happen. The African Union appears to lack all three. This is all the more discouraging, since there is much opposition to the International Criminal Court in Africa, in the midst of claims — apparently (and tragically) empty or false — that Africa can handle and deliver its own justice and accountability. Would that it was true.

While South Sudan’s close neighbour, the Central African Republic, has its own serious challenges, it is noteworthy, in comparison, that the CAR, working with the UN and the International Criminal Court, has actually established and operationalized a hybrid Special Criminal Court to investigate and prosecute atrocities and war crimes committed in that country’s recent and ongoing conflict.

Meanwhile, the African Union fiddles and South Sudan burns.

Ken Scott is a former UN war crimes prosecutor, international human rights lawyer and former UN Commissioner on Human Rights in South Sudan.



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