By Peter Reat Gatkuoth
March 17, 2020 (SSNA) — A key element in resolving the brutal civil conflict, which has cost about 400, 000 lives and displaced more than 4 million people since its beginning in December 2013, is the signing of the Revitalized Agreement on conflict resolution in South Sudan (R-ARCSS), which was concluded in Khartoum in September 2018 by former rivals Salva Kiir and Riek Machar. Among several items, the agreement sets out to create transitional justice, transparency, reconciliation, and cures for the new transitional government. To this end, in Captain 5, the Agreement requested RTGoNU to establish three parastatal governments; the Commission for Truth, Reconciliation, and Healing (CTRH), the Hybrid Court of Southern Sudan (HCSS).
In order to achieve the aforementioned objectives of transitional justice, transparency, reconciliation, RTGoNU was tasked with establishing three government institutions thus the Commission for Truth, Reconciliation and Healing (CTRH), the Hybrid Court for South Sudan (HCSS), an independent hybrid judicial body, and the Compensation and Reparation Authority (CRA). This commentary shows that these institutions have high reaching powers in regard to how they intend to achieve their purpose and target objective. As a result, the stakeholders have shown mixed reactions and other officials may have, as a result of fear for the consequences likely to come, derailed the establishment of the CTRH, HCSS and the CRF till further day.
The author takes an in-depth review of the fifth chapter of the agreement by analyzing each body that will be established by the transition government. From this, policy implications are borne, and recommendations are provided thereinafter. In conclusion, a realist stand is taken which suggests that both stakeholders and victims have to compromise to a given level if peace is to be achieved. This might be achieved through loosening the grip of the HCSS and the CTRH and buffing up the skeleton of the CRF.
The obstacle confronting our greater society has a historical route that came along within our societies. Bitter ethnic schisms, social tension, historical political differences (within the military files) and communal violence have discouraged a healthy way of life in urban and rural sectors. Prior to the signing of peace agreement with the north and the celebration of independence or hard-won independence, the elite and country leaders had mistakenly forgotten that the society does not live in peace. It would have been appropriate to quickly prioritize and mobilize the public to forgive themselves during the independence days through National Peace dialogue and communal gathering mechanisms. National Peace dialogues should not be just lips services mechanism rather because thousands of individuals live with huge grievances across the territories of South Sudan (villages level). The initiative would have been very instrumental for those who aim to bring harmony and lasting peace in South Sudan than compensation and reparation agenda. Compensations and Reparations agenda comes with huge challenges that I fear not to waste my energy and thinking as its obvious that it will stir another figure pointing when its initiated.
South Sudan became an independent State in July 2011 after decades of a protracted civil war with the North and the signing of a Comprehensive Peace Agreement in 2005. The Agreement ushered in a new era of hope to the people of South Sudan. The country had experienced violent rebellions, armed conflict and the societal confrontation/grievances had reached a vantage point and extremely high across the country and with itself even before the hard-won independence of the nation. Long periods of armed conflict coupled with historical political differences/regimes and lack of trust have marked South Sudan’s recent history. At the same moment, the constitutional protection of human rights has been extremely weak, both as regards the recognition of liberties and as regards the accessibility of mechanisms for their effective implementation. These blended factors have resulted in a situation of systemic and serious violations of human rights in the context of broader concerns about the rule of legislation.
South Sudan had once slipped into a vicious civil war with ethnic aspects that was described as “lying on Genocide’s cusp for many years running” (Amnesty Internal, 2019). The signing of the agreement in September 2018 by former rivals, Salva Kiir and Riek Machar, of the Revitalized Agreement on Conflict Resolution in South Sudan (R-ARCSS) in Khartoum was a milestone to resolve the brutal civil conflict, which has cost an estimated 400,000 lives and displaced more than 4 million people since its start in December 2013(Anapa, 2019).
This agreement, among very many things, set out a road map upon which the new transitional government would establish transitional justice, accountability, reconciliation and healing. To do this, the agreement called upon RTGoNU in chapter 5 to establish three government parastatals such as the Commission for Truth, Reconciliation and Healing (CTRH); the Hybrid Court for South Sudan (HCSS), an independent hybrid judicial body, and the Compensation and Reparation Authority (CRA). Upon publication, several stakeholders shared their mixed views about how the agreement handled transitional justice, accountability, reconciliation and healing. This was one of the reasons for the culmination of a meeting between Salva Kiir and Riek Machar in Juba in order to handle and sort out some of the issues regarding the agreement’s implementation. In an attempt to review and analyze the issue at hand, the paper, therefore, seeks to provide an in-depth analysis of chapter 5 of this agreement and in so doing, highlight different policy implications that have been promoted in the chapter.
Analysis of the Policy Implications and Advancement of Justice
The R-ARCISS instructs the RTGoNU to establish a commission for truth reconciliation and healing (CTRH) in chapter five which is intended to be a critical part of the peacebuilding process in South Sudan that will lead efforts to address the legacy of conflicts, and promote peace, and national reconciliation and healing (Ch 5 R-ACISS). This agency is tasked with ensuring that the experiences of women, men, girls, and boys are sufficiently documented and that the findings should be incorporated in the resulting legislation. Among very many other activities, this agency will investigate, document and report on the circumstances of all aspects of human rights violations and abuses. It will also look at breaches of the rule of law and excessive abuses of power, establish an accurate and impartial historical record of human rights violations and investigate the cause of conflicts (Ch 5-2, R-ACISS).
While the creation of this body is based on a novel idea, many stakeholders have been found to be off-put by the reach given to the CTRH. It is ideal to note that more half of the stakeholders and members of the parties have been involved in the aforementioned conflicts. As this is the case, these stakeholders are riddled with fear in the off chance that they may be investigated or have their documents subpoenaed. As a result, the transitional government could cartel the establishment of the CTRH as a way of avoiding such suctions.
On the positives side, however, many of the citizens have applauded the establishment of the CTRH viewing it as a step in the right direction. More to that, it has been found assuring by citizens that CTRH will draw on best practices for promoting truth, reconciliation and healing from Africa and elsewhere. In addition, Chapter 5 of the R-ARCSS calls upon the RTGoNU to put in place Hybrid Court for South Sudan (HCSS) which is to be an independent hybrid judicial court. The HCSS will 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.
This court is intended to have jurisdiction with respect to the following: Genocide; Crimes Against Humanity; War Crimes; and other serious crimes under international law and relevant laws of South Sudan, including gender-based crimes and sexual violence (Ch 3.3, R-ACISS). The HCSS will implement measures to protect victims and witnesses in line with applicable international laws, standards and practices, and the rights of the accused will be respected. No one will be exempted from criminal responsibility on account of their official capacity as a government official, an elected official or by claiming the defence of superior orders. The granting of pardons, immunities or amnesties will not impede or constrain the HCSS.
It has been found that leaders of the transitional government are most likely to be reluctant to implement the mandate of the HCSS, given the prospects of their liability and culpability. As a matter of fact, the Final Report of the African Union Commission of Inquiry on South Sudan of 2014, which the R-ARCSS recommends as useful material for the investigation and prosecution of those alleged to have committed human rights violations and crimes against humanity, states that “there was overwhelming evidence gathered through testimonies and field visits to the effect that the SPLM/A-IG, SPLM/A-IO and other opposition armed groups engaged in tragic human rights violations and abuses through abductions; illegal detentions; rape; sexual violence; systematic torture; cruel, inhumane and degrading treatment of civilians; looting; property destruction; and indiscriminate killings using cluster bombs in various sites, cities, towns, and villages in South Sudan” (Ch 3.3, R-ACISS).
One would even be more remise to discover that the 2015 ARCSS had provided for the establishment of the HCSS by the African Union (AU) Commission, but it remains unimplemented except maybe, the development of a draft statute of the court and a memorandum of understanding in 2017 between the AU and South Sudan on the establishment of the court, which were both unapproved by the country’s Council of Ministers, as it emerged that a “number of key Ministers opposed the court.”
Interviews with signatories of the agreement, as well as public statements from the citizens indicate that there is a relative consensus among the parties that no accountability should be assigned for human rights abuses committed during the conflict, in line with the provisions of the Agreement (Ch 3.3, R-ACISS). Setting up the Hybrid Court and getting to the point of first convictions will likely take years and several hundreds of millions of dollars. Perhaps the parties might unlikely contribute any resources for accountability and will seek to forestall any international efforts to move forward with the court. In view of the above, there are two likely scenarios or remedies that will play out during the transition.
- The first is that parties to the Agreement may ignore the requirement for the Hybrid Court and proceeding without sanction either disavowing it completely, or taking the position that it should be postponed until after the completion of the peace process and when elections have taken place, knowing that these conditions will not be met.
- The other alternative and one that is recommended is that government should promote a local accountability mechanism that focuses on “community reconciliation, forgiveness and compensation” but avoids a criminal accountability for senior level officials. It is unlikely that South Sudanese funds will be available for compensation as foreseen in the R-ARCSS. Therefore, in turning to international donors, the government would present this limited form of accountability as “locally owned and the only way of preserving peace.”
Partial implementation effectively amounts to immunity for senior politicians and generals responsible for suspected crimes against humanity, thereby entrenching elite control of the rest of the reform agenda and preventing a meaningful change in South Sudan. The failure to implement broader criminal accountability would then all but ensure that the other elements of R-ARCSS would remain unimplemented as the elite would see few incentives to change from behaviors that have, to date, ensuring their control over the political process. Those who view the establishment of HCSS as a move in the right direction have however expressed their satisfaction in the ability of the court to order the forfeit of the property, proceeds and any assets acquired unlawfully or by criminal conduct, and their return to their rightful owner or to the state of South Sudan, and the HCSS will also award appropriate remedies to victims, such as reparations and compensation. As a result, individuals indicted or convicted by the HCSS will not be eligible for participation in the successor governments when an election is conducted.
Lastly, the R-ACISS tasks the RTGoNU to establish a Compensation and Reparation Fund (CRF) that will be administered by the Compensation and Reparation Authority (CRA). The CRA will be composed of an executive body formed by the Parties in the RTGoNU, and representatives of CSOs, women groups, faith-based leaders, the business community, youth and traditional leaders. The CRA will provide material and financial support to citizens whose property was destroyed by the conflict and help them to rebuild their livelihoods. The CRA will receive applications from victims and make the necessary compensation and reparation as provided for in this agreement.
Analysts have however expressed their dissatisfaction in this subsection due to its lack of specificity and the fact that a lot of mistrust on how to carry out the mandate. The mandate of the CRF does not specify the mechanisms of compensation, the time structure for compensation, the financial ideals to be used to obtain how much one is due to be compensated and quality management principles for the fund. These create gaps in the agreement that could be capitalized on by individuals in the government to either upper pay the war victims, delay compensation for long periods or even deny the victims their compensation. The mixed concern on how to handle the funds is more than fear of God for there is a great mistrust on how the funds can be handled and the accuracy of listing the real victims. The whole country had once gone into chaos and any person is a victim of war. If the CRA opened and called for the victims to show up and register the names of their loved one, the whole towns/cities will show up and perhaps their names will disappear after registration. Therefore, there is a need for mechanisms of registration of the victims, verifications of the names and payment hereinafter should the agreed principle be adopted.
It is very important to note that the whole point of formulating and passing the R-ARCISS is to obtain and create a peaceful South Sudan. In this sense, both parties and the citizen’s body have to reach a point of agreement that provides peace for each party as soon as it can be. In the spirit of such, it is advisable to curb the reach of the CTRH in regards to who should be punished and investigated. The list of the people involved in the civil wars runs to the highest offices of the government of South Sudan and therefore passing and establishing the CTRH would imply that the leaders and top Generals are liable for questioning for the violation of Human rights. If found guilty after such investigation, this would mean that these officers would cease to work for the Government of South Sudan and in some cases, it is very difficult to investigate government top leaders while working in the government as leaders.
I do realize that this is not suitable for all citizens and most especially South Sudan citizens, however in the fight to rebuild the country, time is of the essence. The CTRH mandate should be amended to investigate and punish only those with serious human rights violations like murder, rape, and arson. Small-time criminals and civil servants caught up on the wrong side of the conflicts should be let off with hefty fines. These conditions will ensure that both the needs of the parties and the citizens are met.
More to that, the process of establishing the proposed hybrid court should be accelerated. The African Union should consider appointing the prosecutor prior to the signing of the memorandum of understanding envisaged in the peace agreement. Also, Juba should fast track national legislation that affirms cooperation between the hybrid court and the Government of South Sudan, including with regard to access to witnesses, review of documents in the custody of the government, and sites of burials, among other issues. Now should the AU’s Peace and Security Council’s calls for the adoption of national legislation fail to elicit a response, and if the prosecutor is unable to proceed for lack of cooperation; consideration should be given to establishing a UN-backed ad hoc international tribunal or triggering the jurisdiction of the International Criminal Court.
It is pivotal to note that just like the hybrid court of South Sudan, the government of South Sudan has also delayed the establishment of the Compensation and Reparation Fund. As such, it is advisable that donor support should, therefore, be strengthened for efforts by civil society to record violations and crimes. Lastly, more care should be taken to provide a detailed of the conditions and mandate of the CRF that should be provided by the RTGoNU with an informative and clear compensation mechanism that details who is legible for compensation, how interest for compensation is accumulated and other vital details.
Despite having a long journey to achieve peace in South Sudan, the nation has shown that it is willing to take a step forward in the right direction by signing the R-ARCISS agreement. Among the very many issues in the agreement, South Sudan is willing to have a dialogue on transitional justice, accountability, reconciliation, and healing. In this spirit, the agreement calls for the establishment Commission for Truth, Reconciliation and Healing (CTRH), the Hybrid Court for South Sudan (HCSS), an independent hybrid judicial body, and the Compensation and Reparation Authority (CRA).
These bodies have been found by some stakeholders to be having high reaching powers and as a result, the leader has curtailed their establishment for fear of them being criminalized or found guilty of humanitarian rights abuse. This has brought the peace-making process to stagnation as the biggest stakeholders, the citizens have not been appreciative of the delay to establish these bodies.
While many call for swift peacemaking that entails a punishment of the culprits, realists do understand the value of time, patience and understanding of each other’s position. With this in mind, I recommend an amendment of chapter five to loosen the powers of the CTRH and HCSS to investigate and bring offenders to be punished in the courts of law. This would put the stakeholders at peace which would benefit the country better and fast compared to how it running at the moment.
African Union (2014) op. cit., pp. 215–229
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