Why the Seat of Hybrid Court for South Sudan should be situated within South Sudan
By Tong Kot Kuocnin, Nairobi, Kenya
January 5, 2017 (SSB) — This article explores fears of the two principal leaders who are opposed to the establishment of the hybrid court for South Sudan and argue clearly, in an attempt to dispel their negative perceptions with regards to the court’s establishment. Our leaders are obliged to honor the terms of the agreement they have both signed in letter and spirit and any attempt to sidestep any provision of the agreement amounts to its breach which invites some international consequences on either side.
The reason as to why a court which like hybrid court for South Sudan was needed to try crimes committed during the conflict is two folds; (1) the opposition trust not any longer the judiciary of South Sudan due to its subservience to the regime they are fighting because the opposition question whether the legal regime in South Sudan has the ability to address such crimes and (2) because the crimes committed during the conflict are international in character (war crimes and crimes against humanity excluding genocide which is not agreed upon as per the findings of the African union Commission of Inquiry on the conflict in South Sudan).
This shows that the status of South Sudanese laws creates a ‘climate of impunity’ and makes accountability for serious crimes committed in various conflicts unachievable. So, the question is, why would FVP Dr. Machar adds his voice to the opposition of the hybrid court for South Sudan when they were the proponents of an independent, neutral and impartial tribunal apart and/or alongside the existing judicial courts in the country in parallel. Before and after the war, serious obstacles confront the Judiciary of South Sudan, making it unable to try powerful individuals for human rights violations, particularly grave violations committed by high-ranking members of the government and the opposition.
Taking into consideration the gravity of the violations that have been committed and the challenges of the National Courts system, an urgent substitute mechanism for a neutral and an independent tribunal was needed and that’s what gave birth to hybrid court for South Sudan that is being opposed blindly by our leaders today. The ICC was not a prepared optional court to try crimes committed in South Sudan by both parties to the agreement and hence they both opted for a tribunal that is African in character and that is the hybrid court for South Sudan. Then why opposing it again? Even Dr. Riek who once said that he hasn’t kill even a fly in Bor leave alone a human being turns against it also. The implementation of the peace agreement has been very slow even before the establishment of hybrid court for South Sudan.
In fact neither any establishment of the hybrid court for South Sudan nor any indictment of the would-be perpetrators of war crimes would have any connection with the failure of the implementation of peace agreement as well as its maintenance. Conversely, the establishment of the hybrid court for South Sudan and its involvement in the prosecution of the alleged war criminals will probably play a significant distinguished role in providing incentives to the parties to the agreement to work hard towards achieving a lasting and durable peace in the country. Because investigating, indicting and prosecuting war criminals represent a huge step towards realizing human dignity, democracy and peace in South Sudan.
It would demonstrate to all warlords in South Sudan that not only the international community that is fighting for human rights of victims, even our leadership is committed to bringing to justice whoever is responsible for human rights violations and that there is no more room for impunity in South Sudan even for head of state and his deputies. One of the important impacts for establishing hybrid court for South Sudan is that threats of prosecution can have a deterrent effect helping to save many lives and preventing many South Sudanese from losing their homes and livelihoods. History shows that many hybrid courts or independent international tribunals exercise effective pressure over governments to promote peace as a priority and do not necessarily sabotage peace.
Contrary to fears of our leaders that activities of the hybrid court if established, would worsen the situation on the ground that South Sudan needs peace and reconciliation and not trial is baseless and its looks like an argument of a culprit not an innocent. In conclusion, the establishment for hybrid court for South Sudan is not a threat to peace as claimed by our leaders but it operationalization solidifies the foundation for a durable and long lasting peace in South Sudan.
Successive crisis have beset the Republic of South Sudan since its independence from Sudan marked by rising militias and warlords fighting for petty interests and demands. The most recent and more devastating one is the conflict which erupted on 15th of December 2013, due to failure of the SPLM leadership to amicably settled the procedures and mechanisms of voting within the SPLM primaries if need be, causing untold suffering and unspeakable human and material destructions. While the virulence of the violence which shook the country transcended into unprecedented scale in particular, its tribal dimension around which it crystallized the events constituted just one episode in a thorny political and security crisis resulting into the signing of the Compromise Agreement on the Resolution of the Conflict in South Sudan in August 2015.
In the Agreement, chapter V, article 3 ushered in the establishment of an independent Hybrid Judicial Court for South Sudan thus far known as “The Hybrid Court for South Sudan”. The court shall inter alia be established by the African Union Commission to investigate and prosecute those bearing the greatest responsibility for the violations of international law and/or applicable South Sudanese law committed from 15th December 2013 through the end of the Transitional Period. The terms of the HCSS shall therefore conform to the terms of the Agreement and AUC shall provide guidelines relating to and including the location of the HCSS, its applicable jurisprudence, infrastructure, funding and enforcement mechanisms, number and composition of judges, privileges and immunities of the court personnel and other related matters thereto.
This is however, the theme of this article, ‘why the seat of the Hybrid Court for South Sudan should be located in South Sudan’s territory’. It is apparent that hybrid courts are set up in transitional states, following a time in which serious crimes have been committed on large scales during the armed conflict and where the national justice system is unavailable or incapable of conducting trials adequately, neutrally, impartially and independently. Moreover, since hybrid courts can be given under both crimes under international law and domestic crimes, they may cover a more extensive catalogue of crimes than purely international or purely domestic courts.
Hence, to have the seat of the hybrid court for South Sudan situated in the country’s territory has a lot of jurisprudential benefits because working alongside international judges, prosecutors or lawyers, national jurists are likely to gain valuable legal expertise and experiences because trials taking place before international court removed from the state concern cannot promote local capacity building which is particularly desirable in post-conflict states like South Sudan. Similarly, the prosecutions of crimes under international law with help of international community and international experts are instrumental in the promotion of the norms of international law on the national level.
This not only includes norms of substantive international criminal law, but also fair trial standards but it points to the fact that hybrid courts established in the state concerned is moreover a practical advantage. Unlike international courts that are far removed from the commission state such as the ICTY, ICTR or the ICC, the hybrid courts have more direct access to local witnesses and other evidences. With hybrid court located in the commission state, there are fewer logical obstacles involved, which in turn results to low costs and speedier proceedings. Moreover, the applicability of national law and the involvement of national personnel can ensure that domestic legal culture and corresponding expertise are represented.
At the same time, the involvement of the international community counteracts perceptions of bias and lack of impartiality that may be associated with trials carried out by judges and prosecutors who had worked under a prior repressive regime. Thus, the combined national and international elements can be instrumental in ensuring that the proceedings are perceived as legitimate and impartial. Equally, criminal trials within the commission state can constitute opportunities for a society to come to terms with atrocities committed in its past. The society’s interest in conducting trials through its own criminal justice system, the involvement of national personnel, and the local exposure of the perpetrators of these crimes can best be described as ‘ownership’ of such criminal proceedings.
Therefore, hybrid court provide a very best avenue and conducive atmosphere for potential national reconciliation and provides a unique avenue for the society’s attempts to come to terms with atrocities committed in its past. Therefore, having the hybrid court for South Sudan situated or located in its territory provides not only jurisprudential outputs but it equally presents a rear opportunity for infrastructural development for the country. It also provides economic opportunity for such foreign members of the court will equally contribute to the development of economy of the country.
The court will equally leave behind a judicial legacy which will further develop and strengthen the capacity of the local or domestic judicial system. This is why the African Union Commission should consider locating the seat of the Hybrid Court for South Sudan in any part of the country. This is to ensure a long lasting legacy for the rule of law and human rights and equally contribute to ending a culture of impunity by ensuring the prosecution of particular serious crimes committed during and throughout the period of the conflict.
The writer is a Master of Laws (LLM) Candidate at the School of Law, University of Nairobi specializing in Law, Governance & Democracy. He can be reached via: firstname.lastname@example.org
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