Fast-tracking the Establishment of Hybrid Court to End Impunity in South Sudan
By Tong Kot Kuocnin, Juba, South Sudan
January 19, 2018 (SSB) — 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 the 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.
This was followed in July 2016 by another deadly dogfight which suddenly erupted in and around J1 which is the presidential palace. While the virulence of the violence which shook the country transcended into the 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 Peace Agreement on the Resolution of the Conflict in South Sudan in August 2015.
In this article hitherto, I intend to dissect, interrogate and endeavor to shed light on the crux of impunity which has become a norm and just means to ascend to power in South Sudan. On the same vein, I concomitantly intend to bring to forefront why it is important to fast-track the establishment of the hybrid court for South Sudan in order to hold to account those who have blatantly committed these heinous crimes in a broad daylight.
As I have incessantly and extensively written quite a lot on this subject-matter since the advent of the signing of the Agreement on the Resolution of the Conflict in South Sudan in August, 2015 (herein referred to as “The ARCSS-2015”), it is to be essentially made clear that fast-tracking the establishment of the hybrid court for South Sudan to try those who have committed international crimes during and after the conflict provides a rear window of opportunity in bring justice to the victims of the conflict.
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 establishment of the hybrid court, although it may not end the fastest growing magnitude of impunity in South Sudan, will sends a very strong signal to the perpetrators and the would-be perpetrators that their actions aren’t condonable and that their conducts may have grave consequences and that hiding from accountability either under the cover of the state or abroad is no longer an option where there is a coordinated will to stamp out impunity.
As per the stipulations of the Agreement, 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, ‘ending impunity in South Sudan: the need to Fast-track the establishment of the Hybrid Court’. Although the government of South Sudan reached a memorandum of understanding the AUC as was tabled before the council of ministers of the TGoNU last year and still lying before table of the TNLA for an adoption, the AUC has to exert more effort to mount unshakable pressure on the government to give way for the immediate establishment of the hybrid court for South Sudan.
On this token, and on the face of the records, it is apparent that hybrid courts are set up in transitional states like South Sudan, following a time in which serious crimes have been committed on a large scale during the armed conflict and where the national justice system is unavailable or incapable of conducting trials adequately, neutrally, impartially and independently.
However, since hybrid courts can be constituted and given both crimes under international law and domestic crimes, they may cover a more extensive catalog of crimes than purely international or purely domestic courts.
Thus, to have the establishment of the hybrid court for South Sudan as enunciated in the agreement for the resolution of the conflict in South Sudan fast-tracked will send a very strong signal to those who always shed blood to climb to power and it will deter who have and are embarking on the same journey.
It is to be made succinctly clear that the culture of tolerating impunity for crimes committed against innocent civilians and against non-nationals in this country is coming to an end as those on the onslaught, attack, barrage, and onrush to commit more atrocities and inhumane acts against the innocent civilians must be brought to the book of justice.
As perpetrators of the most serious and heinous international crimes regularly find refuge in other countries, in particular in the aftermath of an armed conflict and a change of government in their respective countries, the experiences of the European countries provide for good lessons and best practices to be adopted if the hybrid court is fully established.
Equally put, suspects of such crimes who benefited from impunity in South Sudan do travel abroad to receive medical treatment, attend conferences and thereby provides an opportunity for their apprehension and investigation into their alleged conduct during the war and subsequent crimes alleged to have been committed under their watch.
On the same note, however, the prosecutions of crimes under international law with help of international community and international experts will be instrumental in the promotion of the norms of international law in South Sudan.
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.
This is why the African Union Commission should consider fast-tracking the establishment of the Hybrid Court for South Sudan to deter potential perpetrators who are embarking on the business of lynching the most innocent people. They have been on the onslaught, barrage, and attack innocent population and it is high time that the court is established to bring to the book of justice the leaders of these criminals.
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 particularly serious crimes committed during and throughout the period of the conflict.
The cost of impunity has been very high on innocent South Sudanese and it is high time to end that culture. Establishing hybrid court for South Sudan to try those who bear the greatest responsibility for grave and serious international crimes committed during the armed conflict appears to be an effective response to address the myriad challenges of handling serious international crimes at the national level.
The establishment of the hybrid court for South Sudan sends a strong signal to perpetrators that their actions may have serious consequences and that the culture of evading and subverting justice is coming to an end. They must be held accountable for any crimes meted on any innocent South Sudanese whether during or after the war.
The author holds a Bachelor of Laws (LLB) degree from the University of Juba; a Master of Laws degree (LLM) in Law, Governance & Democracy from the University of Nairobi; and a Second Master of Laws (LLM) Candidate at the College of Law of the University of Juba. He is an Advocate before all courts in South Sudan. He has extensively been writing on the independence of the Judiciary, judicial reforms, human rights, and comparative constitutional law, Peace & Justice, Good Governance and international criminal law. His areas of Research interests are in human rights, good governance, rule of law and access to Justice. He be reached at tongbullen@gmail.com
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