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  • Ahan Gadkari

Finally Placing Accountability: Hybrid Court Being Set Up in South Sudan - Part II

This article is authored by Ahan ​Gadkari, a Final Year Student of Law at Jindal Global Law School.


The Agreement Establishing the Hybrid Court

The 2018 agreement, which includes the hybrid court initiative just described in the previous part of this piece, lays out the territory of ending hostilities in South Sudan and putting into effect a set of procedures meant to ensure lasting peace and unity in the nation. Therefore, it aims to show the way to finally establish a lasting peace, which is predicated on “the restoration of dignity to South Sudanese citizens,” “the fight against impunity for the commission of international crimes,” and the reconstruction of the truth regarding past violations and the structural causes of episodes of political violence.


After laying out the structure and authority of the transitional government in detail, the document declares a permanent ceasefire and includes several commitments regarding the release of prisoners of war, the cessation of violent acts, South Sudan’s compliance with international standards for the protection of human rights, and the protection of civilians.

Chapter V of the 2018 agreement refers to the need of using instruments of reconciliation and transitional justice and particularly calls for the establishment of a hybrid court for these ends.


Entitled “Transitional Justice, Accountability, Reconciliation, and Healing,” begins by stating that the transitional government of South Sudan commits to supporting the adoption of the legislation necessary to establish three institutional mechanisms of transitional justice: Truth and reconciliation (Commission for Truth, Reconciliation, and Healing, CTRH); an independent judicial apparatus, which takes the name Hybrid Court for South Sudan (HCSS); and a Truth and reconciliation commission (CRA). The mechanism created by the three organisations would work toward helping the truth come out, sparking reconciliation efforts, and compensating and reimbursing victims. Domestic legislation, which is expected to be approved considering the government’s pledge, will be responsible for outlining the mission and authority of the three separate entities.


To evaluate previous abuses of international law and human rights in a reconciliatory context, each of the three bodies would obviously be entrusted with different powers. The commitment to prosecute those responsible for international crimes by judicial means is not left as a political choice within the country, but instead fully responds to the commitments undertaken by South Sudan at the international level and the three institutions can best fulfil the task of establishing peace and restoring dignity and justice to the victims when they work together. The African Union found that the measures outlined in Chapter V of the 2018 agreement were suitable for the African and South Sudanese context.


What is Next?

Now more than ever, actions need to match words. Human Rights Watch, an NGO that has been monitoring the situation in South Sudan since the war broke out, has publicly reaffirmed

“how critical accountability is to repairing the country’s social fabric and to the healing of victims. All parties to the conflict have committed war crimes and possibly crimes against humanity. Reckoning with South Sudan’s history through fair, credible trials, along with truth telling and reparations, will serve justice to victims and chart the away for future generations.”


South Sudan’s national authorities’ dedication and readiness to set up and support a hybrid strategy to addressing international crimes is crucial to its success. The South Sudanese civil society group had previously urged the African Union Commission to independently go through with the establishment of the Court, but this prospect had left them sceptical.


Given the enormous challenges that may still lie ahead on the path leading to the operation of this Court, other subjects have invited the African Union to reserve the possibility - as plan B - to proceed in this way separated from South Sudan, should the government still delay in issuing the legislation required by the agreement to establish the Court in cooperation with the African Union, thus basing the initiative solely on the provision, contained in Chapter V of the 2018 agreement, that the Court shall be established by the African Union.


However, if South Sudan were to act as an impediment to the Court’s functioning, the cooperation and arrest of those responsible would become much more difficult. Since South Sudan is not a State Party to the Rome Statute, the intervention of the International Criminal Court would necessitate either a declaration by the government of South Sudan of voluntary acceptance of the jurisdiction of the Court (a scenario, at the present time, little plausible) or, alternatively, the referrals by the UN Security Council to the Court.


Like the war crimes chambers in Bosnia and Herzegovina, some analysts have envisioned a gradual shift from a hybrid court to a permanent institution, based on the legal system, which becomes the natural judge for international crimes. The victims of the war, who have had severe traumas due to the continued reign of terror, would also benefit from the establishment of a hybrid court as a fort signal. The pervasive belief that South Sudan’s transitional justice is “retributive and foreign” was underlined in recent schooling. South Sudanese communities’ input towards the development of transitional justice initiatives that live up to their hopes is, therefore, crucial.


The 2018 agreement includes two separate orders of protection for victims: the first ensures that victims, like witnesses, are afforded protection in accordance with applicable international law and practise; the second recognises that victims may be the recipients of reparations, compensation, and other remedies within the purview of the hybrid court.

One of the most challenging future strategic concerns to specify is the total number of defendants who must be tried in Court. There is a wide range of precedent in international justice; although the exceptional chambers in Senegal have only dealt with Hisséne Habré, the special Court in Sierra Leone has tried as many as 23 people. The ruling must consider real-world factors including available resources and the passage of time, both of which have historically been major roadblocks for international courts.


Conclusion

The government’s public pledge to create a hybrid court suggests significant changes are coming to investigating and prosecuting international crimes.


First, the African Union and its member states have a verified scepticism of the International Criminal Court, additionally South Sudan has chosen not to join the Rome Statute, instead advocating for “African solutions to African issues.” Second, this endeavour is a part of what is being called the “second generation of hybrid courts”; following the 2015 establishment of the Special Court for the Central African Republic, the Kosovo Specialist Chambers opened in The Hague that same year, and similar solutions have been proposed for Sri Lanka, Myanmar, and Ukraine. When this happens, we will have to look back at how prior mixed criminal courts have operated to see what strategies have been most successful in the past and implement them.

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