Home | Comment & Analysis    Thursday 10 October 2019

The Sentry Report, War Crimes: Isn’t it time for immunities and restarting South Sudan afresh?

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By Roger Alfred Yoron Modi

Last month, The Sentry Report released a report titled “The Taking of South Sudan- the Tycoons, Brokers, and Multinational Corporations Complicit in Hijacking the World’s Newest Nation.”

The report argues that The Sentry’s investigation exposes an array of international actors who stand to profit from the U.S., UK, Asia and elsewhere, the looting of state assets, and reveals one of the biggest companies in the world providing direct support to deadly militias.

“Our report details the carving up for the private profit of the most lucrative economic and government sectors in the world’s youngest nation. Meanwhile, the South Sudanese people starved were killed, and were run off their homelands,” it added.

“The men who liberated South Sudan proceeded to hijack the country’s fledgeling governing institutions, loot its resources, and launched a war in 2013 that has cost hundreds of thousands of lives and displaced millions of people.

“They did not act alone. The South Sudanese politicians and military officials ravaging the world’s newest nation received essential support from individuals and corporations from across the world who have reaped profits from those dealings. Nearly every instance of confirmed or alleged corruption or financial crime in South Sudan examined by The Sentry has involved links to an international corporation, a multinational bank, a foreign government or high-end real estate abroad. This report examines several illustrative examples of international actors linked to violence and grand corruption in order to demonstrate the extent to which external actors have been complicit in the taking of South Sudan.”

The report says, the “local kleptocrats” and their international partners—from Chinese-Malaysian oil giants and British tycoons to networks of traders from Ethiopia, Eritrea, Kenya and Uganda—have accumulated billions of dollars.

The report alleges that President Salva Kiir’s global corporate network includes Members of his immediate family as shareholders and directors in companies alongside dozens of foreign nations from 13 different countries

A multinational oil consortium in South Sudan controlled by China National Petroleum Corporation and Malaysia’s state-owned oil company, Petronas, offered material support to a pro-government Padang militia that committed gross human rights violations in Melut, Malakal and Renk, the report says.

It further states that some of the South Sudanese worked with the companies, including the former minister of petroleum Ezekiel Lol Gatkuoth and General Malek Reuben:

“Dar Petroleum agreed to pay $686,056 to Crown Hotel in Juba to cover bills racked up by then-Minister of Petroleum Ezekiel Lol Gatkuoth—a dual US-South Sudan citizen— at a rate of $30,000 to $59,000 per month,” added the report.

Other records indicate that funds earmarked for community development were diverted to Dar Petroleum to finance oil production, purchase armoured vehicles and pay for the college tuition of the son of Malek Reuben Riak, according to the report.

In September 2016 also, The Sentry released another report on alleged corruption in South Sudan.

The report says leaders, including President Kiir, SPLA Chief of General Staff Paul Malong and former first Vice-President Dr Riek Machar “appear to have accumulated significant wealth since 2005.”

“Much of the wealth that has been accumulated by these top leaders is in the form of high-end properties outside the country and extensive commercial holdings in both public sector and oil services contracting in South Sudan,” the Sentry said.

However, there is one key similarity about both reports: the timing. At the time of releasing the first Sentry report in September 2016, Igad and the international community were making progress in restoring peace and moving forward with the ARCSS implementation as could be seen from the then-latest communique of the second IGAD-plus extraordinary summit on the situation in the Republic of South Sudan which resolved that, they “Encourages Dr Riek Machar to rejoin the peace process and for President Salva Kiir Mayardit and the people of South Sudan to embrace a return to the spirit of long-lasting peace in their country. In this regard, welcomes the gesture of General Taban Deng Ghai to step down with a view of returning to the status quo ante in line with the ARCSS for the sake of peace and stability in the Republic of South Sudan.” The timing of that Sentry report had a negative impact on the peace efforts that was going on.

Now again, the release of the last month’s Sentry report cannot be argued to be by accident since the Country is almost moving towards the formation of the Revitalised Transitional Government of National Unity scheduled for November with the aim of restoring peace and implementing the R-ARCSS as others who want peace continue to urge for dialogue with the non-signatories of the R-ARCSS. Did The Sentry have all the information all this time and still waited for this moment to release them? Why? Are those the only information they have on alleged corruption in South Sudan or they are just specifically targeting certain individuals with the aim of prolonging the war? It is well known that corruption in South Sudan is huge and wide. However, the solution will be to go back to where and how it all started.

No doubt, we South Sudanese started on the wrong foot. In terms of institutions for justice (including for historical injustices), anti-corruption, reconciliation healing and nation-building, almost everything was wrong. Even our friends in the region and the world community turned a blind eye when our leaders were starting wrong despite outcries from other peaceful oppositions at the time. Was it by design in order to get South Sudan into the current mess and deadlocks?

Immunities and restarting South Sudan afresh the way forward to lasting peace?

It is important to distinguish between war talks during war times and peace talks during peace processes. When the war in South Sudan was raging, several of the rebels (opposition) groups used to say President Kiir lost his legitimacy and that his regime is genocidal, ethnocentric, etc. Similarly, the government used to call many of the rebels (opposition groups) terrorists, bandits, etc. But all these dramatically changed when there was progress in the peace talks and since the R-ARCSS was signed.

When the SPLA/M under Dr John Garang de Mabior was fighting the successive Khartoum based governments, he would tell the SPLA soldiers in a rally (ies) that the SPLA/M was never going to sign an agreement with the government in Khartoum that would make them share power. He would insist that the SPLA/M was a government by itself that would simply replace/overthrow the government in Khartoum and take overpower. But what happened later? In 2005, the SPLA/M signed a power-sharing agreement with Al-Bashir’s government known as the Comprehensive Peace Agreement CPA which later gave birth to the Republic of South Sudan through several of its provisions have not been implemented.

In his famous speech at a rally in Rumbek after the signing of the CPA, Dr Garang declared, “Achin Akuma tok, ajama Akuma ta John Garang wa Akuma ta Bashir biga wahid” which translates to “the government is now one, the government of John Garang and the government of Bashir are now one” contrary to his promise to the SPLA/M (dead and alive) that the SPLA/M was a government by itself and would not share power with any government in Khartoum.

The key lessons we can learn from both scenarios are that war languages during war times and peace languages during peace processes are different things altogether.

Also, though the CPA guaranteed, among others, the right of self-determination to the people of Southern Sudan and a Referendum to the people of Abyei and Popular Consultation to the People of South Kordofan and Blue Nile state, the CPA did not provide accountability for the gross abuses and war crimes committed from 1983 to 2005 in which an estimated two million died and four million were forcibly displaced, including the Bor Massacre and the 1992 Juba Massacre, etc. The CPA also did not make provision for prosecuting against corruption committed during that period.

In 2011, South Sudan’s Independence Constitution (the Transitional Constitution of the Republic of South Sudan) provides that all levels of government shall initiate a comprehensive process of national reconciliation and healing that shall promote national harmony, unity and peaceful co-existence among the people of South Sudan. Though a Commission was formed for that purpose, it has not achieved the objectives so far and that has a direct impact on the war which started in 2013 in the Country since several people and communities remain unreconciled and unhealed.

Today, Human Rights Watch said South Sudan’s government and the African Union should urgently meet to clarify plans to set up a proposed hybrid court for wartime atrocities in a letter to both the government and the AU.

In June 2017 I wrote an article for African Arguments arguing that the military trials of South Sudan Soldiers’ accused of raping foreign aid workers and killing a local colleague is a publicity stunt and distraction since those alleged crimes ought to have been tried under the Hybrid Court per the 2015 Agreement on the Resolution of the Conflict in South Sudan ARCSS.

I wrote:

“The fact that these government troops are being tried may appear to be a positive development amidst the country’s devastating conflict, lack of accountability, and dire humanitarian situation. It will be for the victims if justice is served.

However, in terms of tackling impunity in South Sudan more broadly, the trial is sadly little more than a publicity stunt – and one that could even forestall wider justice in the country.” Over two years later, I am still right as I was then.

But the big question is would partial justice to crimes committed from 2013 reconcile and heal the nation? What about those committed during the last liberation war as indicated above?

Furthermore, will the Hybrid Court have enough evidence to prosecute all or most of the major crimes? If not, what shall be the impact on national reconciliation and healing in the Country?

According to ARCSS, the South Sudanese parties agreed that a Hybrid Court would be established by the African Union Commission, to investigate and prosecute crimes committed from 15 December 2013 through to the end of the Transitional Period, which concluded in 2018. The Court, per the Agreement, would include personnel from both South Sudan and abroad, and it would have jurisdiction over allegations of genocide, crimes against humanity, war crimes, and other serious violations including gender-based and sexual violence.

Despite the fact that that Transitional Period ended, the Hybrid Court has yet to be established.

As of 2017, according to the Commission on Human Rights in South Sudan, established by the UN Human Rights Council, these delays mean that “valuable time was lost, and possibly, important evidence of major war crimes and human rights abuses.”

Now the September 2018 Revitalized Agreement on the Resolution of the Conflict in South Sudan R-ARCSS provides that Hybrid Court for South Sudan (HCSS) shall be established by the African Union Commission “to investigate and where necessary” prosecute individuals bearing responsibility for violations of international law and/or applicable South Sudanese law, committed from 15th December 2013 through the end of the Transitional Period.

Though the terms “where necessary” are new and were not there in the original ARCSS, it is also not mentioned who or which body shall determine that necessity prosecute.

If the parties to the R-ARCSS find it appropriate, they can collectively agree that it is no longer necessary to prosecute “individuals bearing responsibility for violations of international law and/or applicable South Sudanese law, committed from 15th December 2013 through the end of the Transitional Period. Legally speaking, the R-ARCSS provision on the Hybrid Court is not like that of the 2015 ARCSS and the parties have options to substitute trials/prosecutions with truth, reconciliation, healing and reparations for all the gross abuses and war crimes going before December 2013. Isn’t that how best South Sudan could be healed and reconciled?

The same with corruption allegations like those included in The Sentry. Will selective or partial prosecution of corrupt individuals and corporation lead to justice and peace? If it can be done at the external levels, outside South Sudan, well and good. However, in South Sudan, there are no strong institutions to deliver justice. The anti-corruption commission and the Judiciary are still under the direct influence and control of the executive and the president. That is why the R-ARCSS provides for their reforms and making them independent and powerful. When the Colonialists were leaving, the legal order established was that the law does not apply retroactively and they went away with their sins. And so wouldn’t a start with immunities for all the crimes (current and historical) be the best option for peace and reconciliation and establishing a new South Sudan? So that we make reforms and laws that apply forward and not backwards? Isn’t that how we could protect the peace agreement and include its non-signatories and move our country forward and maintain regional peace?

One important thing is to incorporate the R-ARCSS into the transitional Constitution for that is where the next Revitalized Transitional Government of National Unity RTGoNU shall gain legitimacy from. You cannot swear in the RTGoNU using a Constitution that has not incorporated the very R-ARCSS.

The fear of the Hybrid Court against the incorporation of the R-ARCSS is an error since it is now provided that the prosecution shall be done “where necessary.”

Forming a government without incorporating the R-ARCSS into the Transitional Constitution is not only a road towards being illegitimate but also a receipt for collapse or being challenged legally. It is worth mentioning that despite the flaws with the CPA, Dr Garang ensured that before assuming power, the CPA was incorporated in both the Interim Constitution of the Republic of Sudan and the Interim Constitution of Southern Sudan. That was what majorly let to the success that came including the Independence of South Sudan.

In an article in February 2017, I argued that the National Dialogue initiated by President Kiir is not consistent with the then peace agreement (ARCSS) due to technicalities of the Articles he cited while forming the responsible committee and the non-inclusion of many opposition groups in the process.

Now even, it is not anymore the ARCSS but the R-ARCSS and more or less different circumstances. Given the general momentum for peace, if all or most of the parties, including the opposition, could agree to join the National Dialogue and use it to complement, not undo, the R-ARCSS, well and good, especially in the area on reconciling and healing the Country.

The options for true peace, reconciliation, healing and starting a new, reformed and federal republic in South Sudan is still on the table. Do not let it slip away just because some are under the pay of war profiteers.

The Author, Roger Alfred Yoron Modi, a South Sudanese journalist, is the former Editor-in-Chief of Radio Bakhita and Managing Editor of Juba Monitor Newspaper living in exile. He can be reached via rogeryoron@gmail.com



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