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  • on 09.01.2014
  • at 10:00 AM
  • by Kevin Hind

South Sudan talks must make provision for Justice and Reconciliation 0

As representatives of Salva Kiir and Riek Machar meet in Addis Ababa to negotiate a ceasefire to the conflict that has engulfed South Sudan in past weeks, the question of what a mediated outcome might look like is at the forefront of everyone’s mind.

Judging from public statements made by the two sides, there does not appear to be much common ground between them. Kiir maintains that Machar has tried to claim power through violence and as such cannot be rewarded with a power-sharing arrangement. Machar asserts that Kiir is responsible for the mass killings that took place in Juba in mid-December 2013 and is no longer fit to lead the country.

In the face of increasingly vocal calls for accountability from international leaders and South Sudanese civil society, the two parties have begun to acknowledge the need to investigate crimes committed in Juba and elsewhere in the country. Taban Deng Gai, head of Machar’s delegation in the Addis talks, has called for free access for humanitarian organizations and United Nations Human Rights Council to investigate atrocities and human rights abuses. For its part, the Government has announced the creation of two committees: one to investigate the killing of innocent civilians and the other to examine the causes of the divisions within the presidential guard. These public statements are a welcome first step, but specific and binding commitments to accountability must be detailed in any negotiated settlement in order to ensure that investigations and prosecutions actually take place.

Peace processes in South Sudan have a long track record of prioritizing reconciliation at all costs and failing to secure remedies for people affected by conflict. The 2005 Comprehensive Peace Agreement (CPA), which brought an end to the 22-year north-south civil war in Sudan, included only a vague reference to national reconciliation and neglected to mention the issue of accountability for past human rights violations. The ongoing efforts of the church-led Committee for National Healing, Peace and Reconciliation, established by presidential decree in April 2013, has so far been silent on the question of accountability. Past efforts to neutralize rebel groups in Jonglei, Unity and Upper Nile states have been initiated with offers of blanket amnesties and attractive political and military appointments; truth and justice have never figured in the negotiations.

Sidelining justice in peace negotiations may help to expedite political settlements in the short-term, but it fails to adequately address the question of impunity that lies at the heart of internal conflicts in South Sudan. Attempts to bury the past also give rise to contested and obscured histories, sowing the seeds for continued abuses by political and military actors in the years to come.

To avoid repeating past mistakes, an integrated process of truth-telling, justice and reconciliation should be included in any mediated agreement between Kiir and Machar. The two parties should be compelled to submit themselves and their supporters to an independent investigation into the crimes committed. Those that are found to be responsible should be punished through fair and public judicial mechanisms. Handshakes, smiles and a mere political settlement between the two parties will not set South Sudan on a path towards truth, sustainable peace, democracy and the rule of law.

The Need for a Hybrid Court

If the parties can agree to the principle of justice, the next question is how best to provide it in the context of South Sudan’s weak justice system. Past efforts to secure justice for crimes committed in the course of large-scale violence have all been hampered by the poor investigative capacity of police and prosecutors and the limited geographical reach of civilian courts. In Jonglei state, for example, thousands of people, including women and children, have been killed, tortured or abducted in the context of inter-communal violence, forced disarmament programs and government counter-insurgency campaigns in recent years. Yet, those responsible for the crimes, be they civilians, soldiers or politicians, have enjoyed almost total impunity.

Given the lack of capacity, credibility and independence of the justice system, it is clear that without international support, impartial investigations and prosecutions cannot take place. Such international support could best be provided within the framework of a hybrid court established within South Sudan’s judiciary. Hybrid courts have been deployed to address the legacy of large-scale conflict in countries such as Sierra Leone, East Timor, Kosovo and Cambodia. Senegal recently established a hybrid court to prepare a case against former Chadian president Hissène Habré.

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