Transitional Justice Strategy for South Sudan

September 2014

Table of Contents

Summary

• This strategy paper focuses on the ongoing peace talks in Ethiopia sponsored by the Intergovernmental Authority for Development (IGAD). The strategy’s objectives are to ensure that provisions for transitional justice are included in any agreement that comes out of the peace talks and that the transitional justice mechanisms in the agreement are designed and implemented in an effective manner.
• The strategy is also relevant to the African Union Commission of Inquiry on South Sudan (AUCISS), which has been tasked to investigate human rights violations and make recommendations on how to achieve reconciliation, healing and accountability in light of current conflict.
• The strategy recommends that responsibility for promoting truth, accountability, reconciliation and healing be allocated among three separate institutions: a reconciliation and healing commission, a truth commission and a hybrid court. Distributing responsibilities among three separate institutions would lessen the burden on any one institution to deliver on multiple objectives at once.
• The reconciliation and healing commission would spearhead efforts to repair relationships and rebuild trust among individuals and communities impacted by the conflict. The commission would make a concerted effort to build upon the gains of past reconciliation efforts, including the National Reconciliation Committee led by the former vice-president and the Committee on National Healing, Peace and Reconciliation (CNHPR) established by presidential decree in April 2013.
• The truth commission would be responsible for documenting and reporting on human rights violations committed by state and non-state actors since 1972.
• The hybrid court would be mandated to investigate and bring cases against people responsible for violations of international human rights and humanitarian law since 15 December 2013. The body would be comprised of South Sudanese and foreign judges, prosecutors, investigators, lawyers and administrators. To maximize its independence and credibility, the hybrid court should be separate from the judiciary of South Sudan with its own appeal structure.
• The strategy requires the transitional government to ratify the Rome Statute, and to commit to doing so in any peace agreement that comes from the IGAD peace talks. In case either of the parties undermines efforts to establish the hybrid court, or if the legislative assembly fails to enact the court’s implementing legislation within the specified time period, the peace agreement should require the transitional government to invite investigations by the International Criminal Court (ICC).

Introduction

The core elements of this strategy were developed at a conference on transitional justice in South Sudan held in Nairobi, Kenya in August 2014. The conference, entitled, Towards a New Beginning: A conference on truth, justice and reconciliation in South Sudan, brought together more than 60 South Sudanese and international participants for three days of deliberations on what South Sudan could do to come to terms with the legacy of mass human rights violations in the country.

The strategy focuses on the ongoing peace talks in Ethiopia sponsored by the Intergovernmental Authority for Development (IGAD). The strategy’s main objectives are to ensure that provisions for transitional justice are included in any agreement that comes out of the peace talks and that the transitional justice mechanisms in the agreement are designed and implemented in an effective manner. The strategy is also directed at the African Union Commission of Inquiry on South Sudan (AUCISS), which has been tasked to investigate human rights violations and make recommendations on how to achieve reconciliation, healing and accountability in light of current conflict. The AUCISS’s mandate comes to an end in September 2014, and the body is expected to turn its report over to the African Union shortly thereafter.

As points of departure, the strategy uses two core documents in the peace process: the Single Negotiating Text Arising from Draft II Framework for Political and Security Negotiations Towards Resolution of the Crisis in South Sudan (hereinafter Single Negotiating Text) and the Protocol on Agreed Principles on Transitional Arrangements Towards Resolution of the Crisis (hereinafter 25 August Protocol).^[1] These documents provide important insights into the types of transitional justice mechanisms that have been tabled for discussion thus far, though neither gives rise to binding obligations on the parties to the conflict.

This strategy paper is organized in three sections. Section one provides an overview of the transitional justice provisions in the Single Negotiating Text and 25 August Protocol. One major critique of the framework presented in these two documents is the manner in which it merges the issues of truth, reconciliation and healing in a single national commission. This strategy proposes that responsibility for truth, accountability, reconciliation and healing be clearly allocated among three separate institutions: a reconciliation and healing commission, a truth commission and a hybrid court. Section two provides an overview of the three proposed institutions, including descriptions of their objectives, functions and mandates. It also puts forward a proposal for how the International Criminal Court (ICC) could be involved in the event that the accountability measures called for in the agreement are not established or implemented in an effective manner. The concluding remarks discuss the importance of transitional justice as an integral component of any post-conflict transition in South Sudan. To facilitate and expedite the implementation of this strategy, proposed text for the peace agreement is included in Annex I.

Single Negotiating Text and 25 August Protocol

The Single Negotiating Text is a tool developed by IGAD to structure discussions among stakeholders to the peace talks in Ethiopia. The 15-page document covers a range of issues relating to the post-conflict transition in South Sudan, including: governance arrangements; security arrangements; resource, economic and financial management; transitional justice, reconciliation and healing; humanitarian issues; parameters for a permanent constitution; and implementation mechanisms.^[2] As mentioned above, it is meant to act a starting point for more substantive discussions on these issues and does not give rise to any binding obligations.

The section on “Transitional Justice, Reconciliation and Healing” in the Single Negotiating Text is structured around three main institutions: a National Commission for Truth, Reconciliation and Healing, a judicial body and a Reparations Commission. The National Commission for Truth, Reconciliation and Healing is mandated to spearhead efforts to address the legacy of conflict in South Sudan by:

i. establishing an accurate and impartial historical record of human rights violations, which shall include the identification of victims and perpetrators;

ii. recording the experiences of victims;

iii. investigating the causes of conflict and making recommendations to prevent the repetition of conflict;

iv. facilitating local and national reconciliation and healing.^[3]

The judicial body is specifically identified as being hybrid in composition, meaning that it would involve South Sudanese and foreign judges, prosecutors and investigators. The body is mandated “to investigate and prosecute individuals bearing the greatest responsibility for violations of international humanitarian law, and/or applicable South Sudanese law, committed since 15 December 2013.”^[4] Lastly, the Reparations Commission is mandated “to assess the needs of victims, and develop and implement reparation programmes, including urgent reparations, consistent with the UN Basic Principles and Guidelines on the Right to Reparation.”^[5]

Section 8 of the Single Negotiating Text includes a provision that would bar people that have committed atrocities from serving in the transitional government. It states:

“Individuals, groups and parties to the conflict shall be accountable for their actions. In this regard, those found responsible for atrocities and other crimes being investigated by AU Commission of Inquiry for South Sudan, shall be removed or barred from the Interim Government.”^[6]

The 25 August Protocol was developed at the 27^th Extraordinary Session of the IGAD Heads of State and Government, shortly after the Single Negotiating Text was distributed to stakeholders to the peace talks. As noted above, President Salva Kiir signed the 25 August Protocol along with the IGAD heads of state, but neither the Sudan People’s Liberation Movement-in-Opposition (SPLM-IO) nor any of the other stakeholder groups involved in the peace talks affixed their signatures.^[7]

The 28 articles in the 25 August Protocol touch on many of the same issues as the Single Negotiating Text, with a few differences. Article 15 would bar people that have committed serious international crimes from serving in the transitional government, and Article 23 calls for the establishment of a National Commission for Truth, Reconciliation and Healing with an identical mandate to the body called for the Single Negotiating Text. Article 24 calls for the establishment of an independent judicial body “to investigate and prosecute individuals bearing the greatest responsibility for violations of international humanitarian law, and/or applicable South Sudanese law, committed sine 15 December 2013.”^[8] Unlike the judicial body in the Single Negotiating Text, the judicial body in the 25 August Protocol is not specifically identified as being hybrid in nature.

Transitional Justice in the Peace Agreement

The Single Negotiating Text and the 25 August Protocol represent an important, albeit unbinding, starting point for discussions about transitional justice. However, this strategy proposes a number of changes to the institutional framework as laid out in the two documents. The main shift in approach would be to clearly distinguish truth seeking, on the one hand, and reconciliation and healing, on the other. By assigning both objectives to a single commission, the Single Negotiating Text and the 25 August Protocol place an undue burden on the institution and undermine its ability to deliver on either objective.

This strategy proposes that the task of promoting reconciliation and healing be assigned to a reconciliation and healing commission. The truth commission would focus on documenting human rights violations committed by state and non-state actors from 1972 until the date of the signing of any peace agreement in Ethiopia and the task of promoting reconciliation would not be included in its mandate. The judicial body would be specifically identified as a hybrid court, as it is in the Single Negotiating Text. In order to limit the burden on the transitional government, the truth commission would be mandated to make recommendations for the establishment of a reparations program, and the transitional government would not be required to establish a reparations commission during the transitional period.

Reconciliation and Healing Commission

The reconciliation and healing commission would be mandated to undertake activities that aim to repair relationships and rebuild trust among individuals and communities impacted by the conflict. In approaching its mandate, the commission should make a concerted effort to build upon the gains of past peace and reconciliation initiatives, including the National Reconciliation Committee led by the former vice-president, Dr. Riek Machar Teny, and the Committee on National Healing, Peace and Reconciliation (CNHPR) established by President Salva Kiir in April 2013.^[9] For example, the 200 ‘peace mobilizers’ that were trained by the National Reconciliation Committee could be recruited to assist in reconciliation activities at the grassroots level. The commission could also build on the work that the CNHPR has done in developing the human resource capacity of its secretariat, establishing networks with civil society and faith-based organizations, and developing a strategic plan for its activities. Certain core principles for the reconciliation and healing commission should be included in the peace agreement, but additional detail on the composition, mandate, functions and time period of operation should be formalized in legislation at the start of the transitional period. Institutions with overlapping mandates should either be dissolved or absorbed into the new body.

Given the politicization that has undermined past peace and reconciliation efforts, steps should be taken at the outset to insulate the reconciliation and healing commission from political interference. The implementing legislation should establish it as an independent commission and stipulate a selection process for commissioners that ensures their independence and credibility. Members could be selected from among the various stakeholder groups that are participating in the peace talks in Addis, including the Government of the Republic of South Sudan, SPLM-IO, faith-based organizations, civil society organizations, women’s groups, and others. Non-state groups should enjoy equal representation to political actors to reduce the opportunities for politics to influence institutional decision-making. Women should be represented in no less than 30 percent of positions at all levels in the institution, including leadership positions, in accordance with the international standard expressed in the resolutions and decisions of the UN Economic and Social Council.^[10] The implementing legislation should also include a process for vetting of candidates in order to ensure that staffing decisions are based on expertise, that nepotism and corruption do not play a role, and that individuals suspected of involvement in human rights abuses are barred from serving on the body.

In terms of timeline, since grassroots peace-building is likely to be a longer-term activity in South Sudan, the commission could be given a time period of five years from the enactment of its legislation to conduct its activities. Over the course of this period, it should issue periodic reports to the public detailing its progress in meeting its institutional objectives. At the conclusion of its mandate, it should issue a public report detailing its recommendations for peace, reconciliation and healing in South Sudan.

Truth Commission

This strategy proposes that a truth commission be provided for in any agreement that comes out of the peace talks in Ethiopia. The truth commission would be responsible for documenting and reporting on past human rights violations by state and non-state actors, and the task of promoting reconciliation and healing would not be included its mandate.^[11] The commission would be tasked to document incidents dating back to 1972, the year in which the Addis Ababa peace agreement was signed bringing to an end Sudan’s first civil war and the establishment of the first regional government in South Sudan. This time period is long enough that it would cover rights violations committed against most communities in South Sudan but not so far back as to make the task unmanageable for the commission. Since the purpose of a truth commission is for a state to reflect on abuses that it has committed against its own citizens, it also makes sense for the time period to start when southern Sudanese were first granted a degree of regional autonomy.

In terms of composition, the truth commission would be a hybrid body, meaning that international commissioners would serve in the body alongside their South Sudanese counterparts. The international commissioners could be selected through nominations from a range of intergovernmental organizations to which South Sudan is a member. For example, the IGAD mediators, the AU, the UN and the International Conference of the Great Lakes Region (ICGLR) could each be responsible for nominating one commissioner.^[12] The remaining three commissioners could be nationals nominated by stakeholders to the peace agreement. Seven commissioners would provide a good number in that there would be enough people to manage investigations on the scale that would be required in South Sudan but not so many that decision-making would be rendered cumbersome.

As with the reconciliation and healing commission, certain core principles for the truth commission should be stipulated in the peace agreement, but the details of the institution should be reserved for implementing legislation enacted during the transitional period. The peace agreement should require the legislative assembly to enact the legislation to later than one year after the signing of the peace agreement. This would enable time for the pre-transitional period, the establishment of the transitional legislative assembly, and public consultations to obtain views from the public about what they would like to see in the commission’s mandate. The commission would be given a six-month preparatory period to establish itself and three years in which to fulfill its mandate, with a possible extension of six months, if necessary.

In order to maximize its impact, the truth commission should be authorized to issue subpoena’s to compel testimony from individuals suspected of human rights violations and to search and seize documents and other evidence from any location in the country with the support of the police. The body should also be empowered to name perpetrators and to make recommendations for promoting criminal accountability in its final report. Finally, the legislation should provide for a vetting process similar to the one mentioned in relation to the reconciliation and healing commission to ensure that staffing decisions are based on expertise and individuals with poor human rights records are barred from serving on the body.

Hybrid Court

The hybrid court would be responsible for investigating and prosecuting individuals suspected of violations of international law, including crimes against humanity, genocide, and serious violations of international humanitarian law, in additional to crimes arising under South Sudanese law.^[13] The court would be staffed by a combination of South Sudanese and foreign judges, prosecutors, lawyers, investigators and administrators. The international involvement would help to ensure that trials adhere to international standards, while the participation of nationals would ensure local ownership and skills transfers to South Sudan’s justice system. To give the body the independence that it would need to adjudicate highly sensitive trials, the hybrid court should be separate from the South Sudanese judiciary with its own appellate structure.

As with the previous two transitional justice mechanisms, the core principles for the hybrid court should be included in any peace agreement that comes out of the IGAD peace talks, but implementing legislation would be required to provide details on the structure and mandate of the institution. The court could be established as a joint project of the government of South Sudan, the African Union (AU) and the United Nations (UN). An agreement with the AU and the UN would spell out the respective roles and responsibilities of the three parties. In terms of subject matter jurisdiction, the court would be given jurisdiction over crimes committed within the territory of South Sudan from 15 December 2013.  

The activities of the hybrid court would need to be carefully coordinated with other transitional justice mechanisms and with prosecutions in the national system so as to minimize the potential for conflict among the various initiatives. The vetting procedures discussed in relation to the previous two institutions should also be included in the statute for the hybrid court.

Role of the International Criminal Court (ICC)

Lastly, this strategy puts forward a number of recommendations for the role that the International Criminal Court (ICC) could play in the peace process. First, any peace agreement that comes out of the peace talks should require the transitional government to ratify the Rome Statute. By ratifying the Rome Statute, the transitional government could send a powerful signal to the people of South Sudan that it is committed to building a culture of respect for human rights and rule of law. The agreement should also require the transitional government to issue a declaration acknowledging that its ratification of the Rome Statute applies to acts dating back to South Sudan’s independence on 9 July 2011. This would give the ICC jurisdiction over violations of international human rights and humanitarian law committed in the current conflict.

Second, as a safeguard against non-implementation of the accountability measures in the peace agreement, if any of the parties undermines efforts to establish the hybrid court, or if the transitional legislative assembly fails to enact legislation for the hybrid court within the specified time period, the transitional government should be required to request the ICC to investigate and bring cases against those that bear greatest responsibility for international crimes committed in South Sudan since 15 December 2013.

Concluding Remarks

South Sudan stands at a crossroads. For the nation to emerge from this conflict and set itself on a path towards sustainable peace, a colossal effort will be required from the people of South Sudan. To ease the burden on the transitional government, transitional justice mechanisms should be approached in a targeted and efficient manner. This strategy proposes that responsibility for promoting truth, accountability, reconciliation and healing be allocated to three separate institutions: a reconciliation and healing commission, a truth commission and a hybrid court. The establishment of these institutions would be an important first step for South Sudan in coming to terms with the legacy of human rights violations in the country.

Moving forward, it is vital that the people of South Sudan be engaged in these discussions, both to improve policy-makers’ understanding of South Sudanese perceptions of truth, justice and reconciliation and to educate people about the field of transitional justice. A successful transitional justice strategy cannot cut-and-paste from practice elsewhere. It must be people-driven and tailored to the circumstances in South Sudan, learning when appropriate from the successes and failures experienced by other countries. The Government and the SPLM-IO should support these civic engagement activities and provide space for public debates to take place. If South Sudan is to develop an approach to transitional justice that is responsive to the views and aspirations of its people, the discussion must start now.

Annex I – Proposed Language for Peace Agreement

TRANSITIONAL JUSTICE AND NATIONAL RECONCILIATION

Cognizant that the people of South Sudan yearn for peace, justice, reconciliation and healing, the Stakeholders agree to respect and uphold the following rights set out in the Bill of Rights of the South Sudan Transitional Constitution, 2011 and in UN General Assembly resolution 60/147^[14] as elaborated upon in the United Nations’ Principles on Impunity^[15], including the: right to truth^[16]; right to access to justice^[17]; right to reparation and rehabilitation^[18]; and right to ‘never again’ or the guarantees of non-repetition.^[19]

1. The Stakeholders agree to establish processes and mechanisms for accountability, truth and reconciliation that shall include, but will not be limited to:

a) A non-judicial reconciliation and healing commission to lead efforts to promote peace, reconciliation and healing in South Sudan. The reconciliation and healing commission shall:

i)  be comprised of members nominated by the stakeholders to this agreement, including: the GRSS, SPLM-IO, former political detainees, other political parties, faith-based organizations, civil society organizations, and women’s groups;

ii)  promote and facilitate local and national healing, peace and reconciliation in relation to the conflict that erupted on 15 December 2013, as well as past conflicts;

iii)  issue periodic reports updating the transitional government on the Commission’s progress in meeting its objectives; and

iv)  issue a final report at the conclusion of the Commission’s mandate that shall be made public and shall include the observations and findings of its documentation activities and its recommendations for peace, reconciliation and healing in South Sudan.

b)  A non-judicial truth commission to spearhead efforts to address the legacy of conflict in South Sudan. The truth commission shall:

i)  be established in cooperation with regional and international authorities, including the Intergovernmental Authority for Development (IGAD) mediation on the crisis in South Sudan, the International Conference for the Great Lakes Region (ICGLR), the African Union (AU), and the United Nations (UN);

ii)  be of a hybrid nature involving both national and foreign commissioners and staff;

iii)  establish an accurate and impartial historical record of human rights violations, which shall include the identification of victims and perpetrators;

iv)  record the experiences of victims;

v)  investigate the causes of conflict and making recommendations to prevent the repetition of conflict;

vi)  be endowed with subpoena and search and seizure powers; and

vii)  issue a public report upon the conclusion of its mandate detailing its findings and recommendations.

2.  A judicial body to investigate and prosecute individuals responsible for and other notorious perpetrators of violations of international law and/or applicable South Sudanese law committed since 15 December 2013. The judicial body shall:

i)  be established in cooperation with the African Union and the United Nations;

ii)  be of a hybrid nature involving both local and foreign investigators, prosecutors and judges;

iii)  be distinct and separate from the judiciary of the Republic of South Sudan and have its own appellate structure;

iv)  not be impeded or constrained by any statutes of limitations, immunities or amnesties in respect of the prosecution of serious violations of international humanitarian law;

v)  be required to leave a permanent legacy on the South Sudanese criminal justice system through training, mentoring and capacity building of local practitioners.

3. Other bodies or processes to guarantee the rights referred to under this section, including statutory, customary and traditional mechanisms.

4. The parties agree that:

a)  National legislation shall be enacted within 12 months of the signing of this Agreement for the bodies referred to in sub-clauses 1(a), (b) and (c), and such bodies shall be operationalized within 15months of the promulgation of such legislation.^[20]

b)  In the event that the timeline stipulated in sub-clauses 2(a)(i) and (ii) is not adhered to, whether due to act or omission by any party to the peace agreement or by the failure of the legislative assembly to pass the legislation, the transitional government shall be required to request the International Criminal Court to investigate violations of international human rights and humanitarian law committed since 15 December 2013 and prosecute those who bear responsibility for the acts.

5. The parties agree to establish a process to bar or remove individuals, groups and parties that have committed genocide, crimes against humanity and other serious violations of international humanitarian law from the Transitional Government or any of the bodies provided for in sub-clauses 1(a), (b) and (c).

6. The parties agree that the Rome Statute of the International Criminal Court^[21] will be ratified and implementing legislation enacted within 12 months of the signing of the agreement.

7. The parties agree that the specific mandates of the bodies created in terms of this clause shall be guided by consultations with the affected communities and shall:

a)  be independent and autonomous;

b)  be fair and impartial; 

c)  employ members and staff who are suitably qualified, not implicated in the subject matter and broadly representative of society;

d)  thirty percent of positions at all levels shall be staffed by women;

e)  have the necessary investigative and other powers to complete their mandate; and that secrecy laws shall not apply to their investigations; and

f)  protect the dignity, safety and wellbeing of victims and witnesses.

Annex II – List of Signatories

The following South Sudanese civil society organizations endorse this strategy: