On 7 March, the African Union (AU) opened a commission of inquiry on South Sudan. Established by the AU Peace and Security Council (PSC), the commission will investigate the atrocities that were, and potentially still are, carried out in South Sudan.
The country disintegrated into conflict in December 2013 after clashes broke out between troops loyal to President Salva Kiir, and those loyal to the former vice-president Riek Machar. The fighting has since also taken on ethnic undertones.
It has been documented that both parties to the conflict have committed atrocities and war crimes. The United Nations (UN), European Union (EU) and the United States of America (USA) have condemned these developments, while the AU ‘noted with concern the eruption of this violence’ and subsequently established the commission of inquiry.
Headed by former Nigerian president Olusegun Obasanjo, the commission’s terms of reference include mechanisms to ensure accountability. The commission therefore gives the AU an opportunity to show renewed commitment to combatting impunity.
The commission’s mandate can be seen as impressive, yet ambitious
The AU’s stance on impunity is set out in Article 4(o) of its Constitutive Act, which states ‘respect for the sanctity of human life, condemnation and rejection of impunity and political assassinations.’ Furthermore, Article 4(h) describes ‘the right of the Union to intervene in a member state pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity.’ Nonetheless, the AU has been criticised for not adhering to these provisions, and instead allowing impunity to continue.
Arguably, the AU appears to give more weight to Article 4(g) of the Constitutive Act, which states its belief in the ‘non-interference of any member state in the internal affairs of another.’ This principle of ‘non-interference,’ which relates to state conduct and not the actions of the AU as an umbrella body, may conflict with human-rights issues in cases of crimes against humanity.
The mandate of the South Sudan commission of inquiry includes the investigation of human rights violations and other abuses committed during the armed conflict. The commission must also include recommendations on the best ways and means to ensure accountability and reconciliation amongst the South Sudanese community. In addition to Obasanjo, the commission includes various accomplished and respected experts on transitional justice and human rights, including Mahmood Mamdani, Bineta Diop, Pacifique Manirakiza, and Sophia Akuffo.
The AU has been previously criticised for its stance towards human-rights violations by leaders of African states. This was shown by the AU’s refusal to cooperate with the indictment of Sudanese President Omar al-Bashir in 2009 by the International Criminal Court (ICC) on charges against him that included crimes against humanity and genocide. The AU’s stance on al-Bashir may have set the tone for its current concerns with the ICC over the indictment of recently elected Kenyan President Uhuru Kenyatta, and his deputy, William Ruto, who are alleged to have orchestrated violence after the country’s 2007 elections.
The AU has requested that the ICC defer these proceedings. Moreover, it has stated that it does not support the indictment of siting heads of states. The AU has often criticised what it considers as the ICC biased targeting of African leaders.
The AU should use this opportunity to send a strong message that impunity will not be tolerated
Many perceive the AU’s stance toward the ICC as a means to preserve the political elite of African states, which could set a precedent that other African heads of states who stand accused of committing war crimes would also be protected, should the ICC ever indict them.
Despite the AU’s stance towards the ICC, it has consistently stated and reiterated its commitment to accountability – and Obasanjo stated on 12 March that ‘whoever is responsible must not get away with impunity.’
It is worth noting that the AU High-Level Panel on Darfur in 2009, led by Thabo Mbeki, had a similar mandate. It also included the investigation and recommendation of policies to achieve peace, reconciliation and justice in Darfur, and similarly placed emphasis on accountability. Nonetheless, the recommendations of the commission to combat impunity largely failed to be implemented.
Often, the perpetrators who commit atrocities during a conflict are needed in the peace negotiations in order to facilitate long-lasting stability. Thus, if perpetrators are to be held accountable, it remains to be seen how the commission will affect prospects for peace in South Sudan. The commission also focuses on ‘healing mechanisms,’ suggesting a comprehensive solution to the problems related to violence during conflicts.
The commission’s mandate can be seen as impressive, yet ambitious. To fulfil it, the commission will require numerous resources and support. It will also require strong political will to ensure that perpetrators are held accountable. Nevertheless, the AU should use this opportunity to send a strong message that impunity will not be tolerated.
Teboho Moleko, Intern and Amanda Lucey, Researcher, Conflict Management and Peacebuilding Division, ISS Pretoria