Transitional Justice Institutions and the Hybrid Court of South Sudan under the 2018 Revitalized Peace Agreement (R-ARCSS)

South Sudan Cabinet Approves Truth and Reparation Commissions 

By PaanLuel Wël, Juba, South Sudan

Saturday, 25 January 2025 (PW) — On Friday, January 24, 2025, South Sudan’s Council of Ministers approved a request from Minister of Justice Ruben Madol Arol to initiate the implementation of the Commission for Truth, Reconciliation, and Healing Act (2024) and the Compensation and Reparation Act (2024).

 Following the Cabinet meeting, Information Minister Michael Makwei Lueth explained that although both acts were passed last year, they had not been activated due to additional procedural requirements: “These two commissions require foreign representation, and there are various institutions and stakeholders that need to be involved. The minister presented his request to the Cabinet for approval to engage the relevant institutions, including the UN and the African Union. The Cabinet approved the minister’s request and directed him to proceed with the operationalization of these two acts.”

The timing of this announcement, however, adds a layer of irony. Just as South Sudan takes a major step toward justice, President Trump’s administration has frozen all U.S. foreign aid, including support for the peace process. It’s the kind of coincidence that almost feels scripted by a cosmic comedian.

Information Minister Michael Makwei Lueth further noted that the Cabinet granted the minister full authority to form a panel tasked with identifying board members and appointing other key personnel to ensure the effective implementation of these laws. He emphasized that these legislative measures align with the provisions of the Revitalized Agreement on the Resolution of the Conflict in South Sudan (R-ARCSS). The agreement mandates the establishment of transitional justice institutions to foster peace, promote security, and provide compensation and reparations for individuals affected by conflict. 

Transitional Justice Institutions and the Hybrid Court of South Sudan under the 2018 Revitalized Peace Agreement (R-ARCSS)

The Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCSS), signed in September 2018, provides a comprehensive framework for addressing the aftermath of years of conflict in South Sudan. A critical component of this framework is Chapter V, which is dedicated to transitional justice, accountability, reconciliation, and healing. This chapter outlines the establishment of key institutions designed to promote justice and reconciliation, as well as mechanisms for reparations and healing.

Under the agreement, the Revitalized Transitional Government of National Unity (RTGoNU) is mandated to enact legislation to establish three transitional justice institutions: the Commission for Truth, Reconciliation and Healing (CTRH), the Hybrid Court for South Sudan (HCSS), and the Compensation and Reparation Authority (CRA). These institutions are tasked with addressing the legacy of conflicts in the country, ensuring accountability, and fostering national healing.

The Commission for Truth, Reconciliation, and Healing (CTRH)

The CTRH serves as a cornerstone of peacebuilding efforts, charged with uncovering the truth about human rights violations, breaches of the rule of law, and abuses of power. It aims to establish an impartial historical record of events, identify victims and perpetrators, and recommend appropriate reparations and compensation measures. The CTRH also seeks to promote reconciliation through dialogue and traditional justice mechanisms while issuing periodic reports to inform the public about its progress. Importantly, its composition reflects inclusivity, requiring at least 35% women representation among its seven commissioners, four of whom must be South Sudanese nationals, including two women.

Public participation is integral to the CTRH’s establishment and functioning. The RTGoNU, in collaboration with civil society and other stakeholders, conducts consultations to incorporate the experiences of women, men, boys, and girls into the design of the institution. This approach ensures that the CTRH’s operations are inclusive and reflective of the diverse needs of South Sudanese society. Additionally, the CTRH is empowered to recommend legal and institutional reforms to prevent future violations and abuses, further solidifying its role as an agent of long-term change.

The Hybrid Court for South Sudan (HCSS)

The HCSS, an independent hybrid judicial body, is tasked with investigating and prosecuting individuals responsible for serious crimes, including genocide, crimes against humanity, war crimes, and gender-based violence. The court’s jurisdiction extends to violations committed between December 15, 2013, and the end of the transitional period. Established by the African Union Commission (AUC), the HCSS is intended to operate independently of South Sudan’s national judiciary and is guided by international legal standards. Judges, prosecutors, and other personnel are selected from South Sudan and other African states, ensuring both impartiality and adherence to the principles of justice.

The HCSS is authorized to use evidence from previous inquiries, such as the African Union Commission of Inquiry (COI) on South Sudan, and other relevant sources to build its cases. Its operations emphasize the protection of victims and witnesses, particularly vulnerable groups like women and children. The court also ensures the rights of the accused are respected, aligning with international standards. Notably, the HCSS has the power to order the forfeiture of unlawfully acquired assets and to allocate remedies to victims, including reparations and compensation. By addressing crimes without statute limitations or pardons, the HCSS reinforces the principle of accountability, aiming to leave a lasting legacy in South Sudan’s judicial system.

The Compensation and Reparation Authority (CRA)

The CRA is designed to address the economic and material consequences of the conflict by providing compensation and reparations to affected individuals and communities. Within six months of the transitional period, the RTGoNU is required to establish the CRA and its associated Compensation and Reparation Fund (CRF). The CRA’s executive body, which includes representatives from diverse groups such as civil society organizations, faith-based leaders, and traditional authorities, ensures transparency and inclusivity in the administration of the fund.

Victims, including natural and legal persons, can apply for compensation and reparations through the CRA, which works closely with the CTRH to identify eligible applicants. The CRA is also tasked with supporting citizens in rebuilding their livelihoods by utilizing resources from the CRF in a manner guided by laws enacted by the Transitional National Legislative Assembly (TNLA). Transparency mechanisms are established to ensure that funds are used appropriately and for their intended purposes.

Safeguards and Eligibility

The agreement emphasizes the importance of coordination and cooperation among the transitional justice institutions to achieve their shared goals of truth, accountability, and healing. It requires the RTGoNU to seek assistance from regional and international bodies, including the African Union, the United Nations, and the African Commission on Human and Peoples’ Rights, to support the design and implementation of these mechanisms.

Victims’ rights and protection are prioritized across all three institutions. Measures such as in-camera proceedings and confidentiality safeguards are implemented to ensure the safety and dignity of witnesses and victims. These provisions are particularly significant in addressing the experiences of women, children, and other vulnerable groups who have suffered disproportionately during the conflict.

Additionally, the agreement stipulates that individuals indicted or convicted by the HCSS will be ineligible to participate in the RTGoNU or its successor governments. This provision underscores the commitment to accountability and serves as a deterrent to future violations. However, individuals proven innocent are entitled to compensation as determined by law, balancing justice with fairness.

Conclusion

The transitional justice framework outlined in the R-ARCSS represents a critical step toward addressing South Sudan’s troubled past and building a foundation for a peaceful and inclusive future. Through the establishment of the CTRH, HCSS, and CRA, the agreement seeks to provide avenues for truth-telling, accountability, reparations, and reconciliation.

By involving diverse stakeholders, upholding international standards, and prioritizing the rights of victims, these institutions are designed to foster trust, healing, and sustainable peace in South Sudan. However, their success depends on effective implementation, adequate resources, and the political will of all parties involved.

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