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PSC calls for a hybrid court and 'strong institutions' in South Sudan
2 October 2015

On 26 September 2015 the heads of state of the Peace and Security Council (PSC) met on the margins of the 70th United Nations (UN) General Assembly to discuss the ongoing war in South Sudan. In a statement after the meeting, the PSC released details of the controversial report of the Commission of Inquiry into South Sudan and took on board some of its recommendations. These include setting up a hybrid court to try those guilty of human rights abuses during the conflict.

There was relief in the African Union’s (AU) PSC when South Sudanese Vice-President James Wanni Igga presented his government’s report on the recent peace deal.

‘It was so positive, we wanted to clap. We don’t usually clap hands in these meetings,’ said an ambassador who attended the PSC meeting on September 26.

While South Sudanese President Salva Kiir did not attend the meeting, reportedly accusing the AU of treating him like a ‘schoolboy’, he did address a UN high-level meeting on South Sudan via a video link three days after the AU meeting.

Aides and security officials were asked to leave at the start of the more-than-4-hour PSC meeting
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Aides and security officials were asked to leave the room at the start of the more-than-four-hour PSC meeting, at the AU’s permanent mission to the UN in New York, due to the sensitivity of the discussions. The South Sudanese government’s positive report to the meeting paved the way for the release of a report on the atrocities compiled by the AU Commission of Inquiry led by former Nigerian president Olusegun Obasanjo.

The report, which focuses on the 2014 conflict, has been ready since the end of last year. In January, however, during a meeting on the sidelines of the AU summit in Addis Ababa, the PSC refused to receive Obasanjo’s report, saying it would scupper sensitive peace negotiations.

Diplomatic sources at the time said the report recommended sanctions against the top leadership of the two warring parties, and this was greeted with resistance by the government of South Sudan and discomfort by regional leaders. South African International Relations Minister Maite Nkoana-Mashabane, however, said there was no political process to deal with the report.

Conditions favourable for the release of the report

An ad hoc subcommittee, consisting of Algeria, Chad, Ethiopia, Nigeria, South Africa, Tanzania and Uganda, was appointed by the PSC in July to consider Obasanjo’s report and make recommendations on the way forward. Now that a peace agreement has been signed – in August – the report can be released.

During the meeting there was a disagreement about what it meant to release the Obasanjo report
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The annual UN General Assembly was the first opportunity the heads of state of the PSC had a chance to meet and hear these recommendations. During the meeting there was, however, a disagreement about what it meant to release the report. Some leaders said the report should be made available to the UN Security Council, but this suggestion was defeated by other leaders who argued that the UN Security Council had never been involved in the inquiry.

There are nearly 13 000 UN peacekeepers in South Sudan.

‘We will shoot ourselves in the foot if we don’t release the report [to the public],’ an AU official said soon after the meeting. The PSC’s initial communiqué was redrafted considerably before it was released two days after the meeting, the official added.

In the communiqué’s summary of the report, there was no mention of sanctions or any suggestion that Kiir and rebel leader Riek Machar should be excluded from a transitional government, as suggested by the leaked Obasanjo report.

The communiqué ordered two reports to be released: the Obasanjo report, and a separate, dissenting report, written by Prof. Mahmood Mamdani.

PSC takes on board recommendations on hybrid court

There was no mention of sanctions in the South Sudan communiqué
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The most important recommendation of the report, accepted by the PSC and noted in its communiqué, is that the AU Commission should establish an independent hybrid court to investigate and prosecute those guilty of war crimes under international and local law.

The PSC also accepted the report’s recommendations about the establishment of a compensation and reparation authority and fund, and that a healing and reconciliation process be put into place. Such a process should include the return and resettlement of refugees and internally displaced persons.

South Sudanese leaders should ‘thoroughly study the report and fully internalise it, as part of the necessary introspection and critical assessment of their deeds and failures’. The reunification process of the Sudan People’s Liberation Movement (SPLM), facilitated by leaders from other liberation parties on the continent such as ANC deputy president Cyril Ramaphosa, should also continue.

The PSC recommends that ‘strong, accountable and efficient institutions’ be built in South Sudan, and literacy should be increased. There should also be an ‘adequate devolution of resources, decision-making power and guarantees against undue interference in devolved units by the centre, through the full implementation of the current constitution until a new one is adopted’.

Atrocities

The PSC was horrified by the atrocities outlined in Obasanjo’s report, calling it ‘a scar on the conscience of Africa’.

The PSC was horrified by the atrocities outlined in Obasanjo's report
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According to the communiqué, there was ‘sexual and gender-based violence committed by both parties against women, as well as other acts of extreme cruelty and inhuman brutality’, most of it against innocent civilians.

Places of religion and hospitals were attacked, humanitarian assistance was impeded, towns pillaged and destroyed, places of protection attacked, and children under 15 conscripted.

The report did, however, find that the violence did not amount to genocide.

It said structural causes of the violence included ‘fragility and weakness of all South Sudanese institutions, the lack of accountability, rampant cases of impunity and corruption, extreme ethnicization of politics and the military’, as well as historic divisions within the SPLA/M.

‘The manner in which top-down unity was given priority over genuine reconciliation’ was another cause.

World leaders call for peace

At the UN high-level meeting on South Sudan on September 29, a few days after the PSC meeting, there were once again pleas by world leaders to the South Sudanese to honour the August 27 peace agreement. The ceasefire concluded 21 months of conflict, which started when Kiir accused his former deputy Machar of wanting to overthrow him. More than 700 000 people have fled to neighbouring countries and the conflict has displaced more than 2 million people.

However, there have already been accusations from both sides of violations of the August peace accord.

UN Secretary General Ban Ki-Moon said: ‘The road ahead will be difficult. I urge the signatories to honour their solemn commitment and implement the agreement without delay. Reverting to war yet again cannot be an option.’

Kiir and Machar accused one another of violating the ceasefire
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He called on the parties to form the Transitional Government of National Unity to which they have agreed, and grant access to humanitarian assistance for those in need. His deputy, Jan Eliasson, who has been involved in resolving problems in the Sudan for 25 years, expressed hope that ‘the nightmare’ had finally come to an end.

During the meeting Kiir and rebel leader Machar accused one another of violating the ceasefire, but Ban asked them not to betray and disappoint the leaders trying to help them.

Kiir told the meeting he was ‘determined to stop this senseless war’, but he also accused Machar’s opposition forces of violating the permanent ceasefire. Machar, who attended the UN meeting in person, in turn blamed Kiir. ‘The strange thing is, we are attacked, [yet] we are blamed [for violating the ceasefire].’

In March 2015, 77 civil society organisations had written to the PSC to ask for the release of Obasanjo’s report. According to their statement, the release of the report ‘could make an important contribution to South Sudan’s peace process and to the attainment of a peace that is both lasting and sustainable’.

‘[The report] could advance South Sudan’s pursuit of transitional justice and national reconciliation, defer future serious crimes by parties to the conflict, benefit victims and survivors who provided witness testimony, and build confidence in the AU’s commitment to combat impunity on the continent.’

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