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Will the hybrid court for South Sudan ever try the current leadership?
17 November 2016

The planned hybrid court for South Sudan – a war crimes court based on a mix of South Sudanese and international law – has still not seen the light of day. This is because those who are charged with setting it up, the current government and the African Union (AU) heads of state, are not keen on keeping leaders accountable. Many others feel, however, that this court is crucial in bringing an end to the violent conflict in Africa’s youngest state.

On 13 October 2016 the African Union Commission (AUC) launched a campaign to ‘restore the dignity of women and to ensure accountability in South Sudan’. The campaign was launched to lobby for accountability and an end to the atrocities that have disproportionately affected women in South Sudan. ‘This campaign is organised in solidarity with the women of South Sudan, who sometimes cannot speak because they are the ones that are facing the atrocities,’ AU Special Envoy on Women, Peace and Security Bineta Diop said at the launch in Addis Ababa. The outcomes of the campaign will be presented to high-ranking South Sudanese officials.

While accountability has been touted as a key element for peace and reconciliation in South Sudan, the elephant in the room remains whether the envisaged hybrid court for South Sudan will try sitting leaders and senior government officials who planned and commanded the atrocities in the country.

Reports on the South Sudanese conflict point out that leaders are responsible for war crimes
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Reports on the South Sudanese conflict consistently point out that the country’s leaders bear responsibility for the war crimes and crimes against humanity perpetrated in the country, and have in fact benefited from these. The reports include key reports by the AU Commission of Inquiry (2014) as well as Human Rights Watch, the United Nations Human Rights Council and Amnesty International. Thus any real effort to ensure accountability and end the violence in South Sudan has to engage the role of the South Sudanese leaders.

Deadline for setting up the court is creeping closer

Efforts are underway at the legal affairs department of the AUC to mobilise funds and finalise the memorandum of understanding (MoU) for the establishment of the hybrid court. This is in line with the Agreement on the Resolution of the Conflict in the Republic of South Sudan, signed by former vice-president Riek Machar and President Salva Kiir.

According to the peace agreement, the MoU, the mandate and the jurisdiction of the hybrid court should have been finalised within six months of the formation of the government of national unity, which took place in April 2016. That means the deadline expired last month. The hybrid court should then be operational within 12 months of that date, meaning April 2017.

However, the ongoing violence and the replacement of Machar with Taban Deng Gai as vice president of the government of national unity are now stalling this process because all the attention is focused on ending the current crisis.

The ongoing violence and the replacement of Machar with Taban Deng Gai are now stalling the process
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Internal hindrances aside, the crucial question is: will the AU Assembly of heads of state and government – its highest decision-making body – draw up legislation for the hybrid court that enables it to try leaders and senior government officials? It is worth noting that Chapter 5 of the peace agreement stipulates that the hybrid court ‘shall not be impeded or constrained by any statutes of limitations or the granting of pardons, immunities or amnesties. No one shall be exempt from criminal responsibility on account of their official capacity as a government official, an elected official or claiming the defence of superior orders.’

AU in favour of immunity for heads of state

The AU has over the years developed an immunity principle for sitting heads of state and senior government officials. This came after the International Criminal Court (ICC) had issued an arrest warrant for President Omar Al Bashir of Sudan in 2009. The immunity stance of the AU led to the inclusion of an immunity clause in Article 46A of the 2014 Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights. This is to replace the 2008 Protocol on the Statute of the African Court of Justice and Human Rights, which had no immunity clause. Although the protocol is yet to enter into force, Article 46A bis of the amended protocol stipulates that ‘no charges shall be commenced or continued before the court against any serving AU head of state or government or anybody acting or any entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office’.

The AU contends that the prosecution of sitting leaders is detrimental to state stability
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The AU contends that the prosecution of sitting leaders and government officials is detrimental to state stability and has fought desperately in the case of Kenya and Sudan for the lifting of the ICC charges against these leaders. The AU also recently called for an inquiry into a collective withdrawal from the ICC based on the differences over immunity and concerns that the ICC targets Africa. Burundi, South Africa and The Gambia recently announced their withdrawal from the ICC.

The leaders of the warring factions in South Sudan are also not unaware of the immunity principle of the AU.

Warring parties in South Sudan remain in power

Within this context, many questions are being asked about how far the AU will go to hold the warring South Sudanese leaders accountable. According to the peace deal, the same leaders who would have to be tried by the hybrid court are meant to occupy leadership positions in the transitional government of national unity.

This is unlike the case of Madagascar, where the international community supported an election in 2013 without the candidacy of former presidents Marc Ravalomanana and Andry Rajoelina, who were the key divisive figures in the country. This followed the 2009 political crisis when Rajoelina staged a coup against Ravalomanana with the support of the military and opposition parties. Instead the South Sudanese deal puts the South Sudanese leaders back in the positions they occupied before the war started.

IGAD leaders not in favour of accountability

The dynamics among the member states of the Intergovernmental Authority on Development (IGAD) that are mediating in the South Sudan conflict show that the question of leadership accountability is not a favoured topic there either. Hence, there is not enough regional support for the issue to deter the South Sudanese leaders from orchestrating further violent atrocities.

There is not enough regional support to deter leaders from orchestrating further violent atrocities
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The hybrid court for South Sudan could thus end up prosecuting lesser officials and soldiers – the scapegoats for the Kiir and Machar factions. This already happened when the government of South Sudan, through the military court, recently convicted 60 soldiers for murdering civilians and looting in Juba in July 2016.

Can the international community intervene?

Due to these concerns a number of reports on accountability in South Sudan have recommended that an alternative international body should provide the necessary checks and balances. Others recommended that the South Sudanese leaders should be bound through the peace agreement to ratify the Rome Statute, thereby enabling the ICC to intervene if they attempt to undermine the efforts of the hybrid court. Although the peace agreement is vague about the role of the transitional government in the hybrid court, Chapter 5(1.1) of the agreement states that the transitional government ‘shall initiate legislation for the establishment of the transitional justice institutions’, and Chapter 5(1.5) expects the hybrid court to cooperate with the AU and the international community in the operationalisation of the court. This gives the transitional government some leverage in influencing the establishment and mandate of the hybrid court from the outset. The amount of support the transitional government will give the hybrid court is also questionable in view of a recent call, published in international newspapersby South Sudanese leaders, for the court to be scrapped. They argue that it will destabilise the country and scupper any peace deal.

In order for the AU campaign to fight for the rights of women in South Sudan to succeed it is crucial to underline the liability of South Sudanese leaders for the heinous atrocities and human rights abuses in the country.

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