Opinion by: Remember Miamingi, SA.
Killing the past to give life to the future? Intergovernmental Authority on Development’s approach to accountability in South Sudan
Feb 28th, 2017 (WeAreSouthSudan)
The Government of the Republic of South Sudan (GRSS) and the Armed Opposition and the Former Detainees have signed a Compromise Peace Agreement (CPA2) aimed at ending the 20 months old civil war in the Republic of South Sudan. This agreement was concluded under the auspices of the Intergovernmental Authority on Development (IGAD).
The CPA2 provides for two accountability mechanisms. These are: A Commission for Truth, Reconciliation and Healing and a Hybrid Court for South Sudan (the Court). This opinion piece will deal only with the Court. According to the CPA2, the African Union Commission shall establish the Court. The Court’s mandates are to investigate and prosecute individuals bearing responsibility for crimes of genocide, crimes against humanity, war crimes and other serious crimes committed during the conflict and the transitional period. The Court shall be distinct from and enjoy primacy over national courts in South Sudan.
In addition, Judges of the Courts shall be selected from amongst South Sudanese nationals and other African nationals of high moral character, who manifest impartiality and have integrity. Such Judges must, also impartiality and integrity, and demonstrable expertise in applicable laws. Majority of the judges in all the chambers of the Court shall be non-South Sudanese nationals. In addition, the registrar, the prosecutor and defense counsels shall also be non-South Sudanese nationals. The Chairperson of the African Union Commission (AUC) shall select the judges and other personnel of the Court.
Furthermore, the Court will have powers to order forfeiture of property, proceeds and any assets acquired unlawfully or by criminal conduct; and the return of the same to their rightful owner(s). The Court can order remedies that include compensation and reparation. In addition, the ability of the Court to dispense justice is not impeded or constrained by any statutes of limitations or the granting of pardons, immunities or amnesties. Not even official capacity as a government or an elected official, or claiming the defense of superior orders can exempt anyone from criminal responsibility before this Court. Even though this last point is commendable, AU’s previous position with respect to the ICC that official position is a bar to prosecution for international crimes undermines the credibility of its position here. This is even more considering that the Malabo Protocol establishes exceptions to international criminal prosecution based official position.
Ordinarily, and on face value, it is easy to conclude that IGAD and, indeed, the African Union have demonstrated, to all observers, that African governments will no longer tolerate impunity, irrespective of who is alleged to have committed international crimes, on the African soil. A close look, however, reveals that this experimentation in justice delivery by Africans for Africans is fraught with serious challenges. These challenges include: The amorphous nature of international criminal law; the dubious institutions and track records of the African Union in confronting impunity on the African continent; the novel and experimental nature and scope of the Court as provided for in the CPA2; and the domestic political, legal and economic context of South Sudan. Let me examine some of these challenges, briefly:
Challenges inherent in the nature of international criminal law
Prosecuting heinous international crimes either before hybrid courts or international tribunals is increasingly becoming a common feature of international quest for justice for countries emerging from conflict. One reason is that international prosecution demonstrates that serious human rights violations will not be tolerated.
International efforts to prosecute heinous crimes are motivated by a commitment to respect the rule of law. There is also the desire to ensure individualization of criminality and guilt, thereby preventing a renewed cycle of vigilante justice, and to protect society from further harm by providing for custodial sentences. Where there is doubt about the capacity, credibility, integrity and independence of national justice mechanisms, international justice processes are expected to provide the highest standards of due process; provide justice and satisfaction for victims; and provide an effective deterrent against further human rights violations. Justice by the international community represents an official condemnation, by community of nations, of the violations by the state, and serves as an official acknowledgement of the victims’ suffering.
However, by their very nature, international criminal justice norms and institutions are mainly a symbolic manifestation of the collective anger and disgust of the members of the international community usually directed against selected few who bear the highest responsibility for crimes that threaten the very core of our shared humanity and shock our collective conscience. In addition, procedurally and substantively, international criminal justice is highly technical and depends, to a large extent, on the quality of norms, personnel and other resources available to the processes. Consequentially, international justice, on its own does not guarantee a justice that is effective, more visible and culturally appropriate. One dares to say that, in some cases, the small victories won by international criminal justice are more important to the credibility and survival of the international system than they are to the victims of mass atrocities such as crimes against humanity, war crimes and genocide. This is because more often than not, international criminal norms and institutions are relatively ineffectual players in the healing, reconciliation and meaningful closure processes in communities struggling with the legacy of mass violence.
In addition, international criminal prosecution brings with it higher political risks if powerful beneficiaries of the perpetrator(s) still hold positions of power in the new administration. This could happen, for example, if such trials result in serious resentment among perpetrators, leading to further violence and destabilization of the post-conflict regime. A failed or only partially successful criminal prosecution strategy can have a negative effect on the rule of law and the process of post-conflict recovery. The public may be disappointed with the outcome if either too few or only low-level perpetrators are tried or convicted; or few due process requirements are met. This can lead to the perception that the process is arbitrary or discriminatory, thereby generating further distrust in the judicial process. The process of appearing in court could cause psychological challenges to victims and witnesses. It could divert resources and attention away from measures more relevant to victims (e.g. reparations).
By and large, these inherent limitations of the international criminal justice system are even more pronounced in a context such as that of South Sudan. The rule of law concept is alien to the political and socio-economic fabric of our society. In fact, in some cases in South Sudan, individuals and communities break into prisons to take duly convicted inmates out to serve them with what they might consider appropriate justice. The high prevalence of illiteracy, the detached nature of international proceeding from the mentalities and vocabularies of national politics and meaning could be more evident and deleterious in South Sudan for reasons I will be turning to shortly. The multiple and interlocking interests of many state players in the conflict of South Sudan could further amplify local dissatisfactions and lead to some unintended consequences such as violent reaction. Furthermore, these challenges are amplified by the fact that a very inexperienced, inept and recalcitrant institution such as the AU is expected to initiative, nurture and oversee this experimentation with a form of international justice in South Sudan.
Challenges introduced by the participation of the AU
The CPA2 endows the AUC with the sole responsibility of establishing the Court, selecting its judges and formulating its rules and procedures. This is disturbing for a number of reasons:
First, the African Union, as an institution, does not have an enviable track record when it comes to international criminal justice. It was not long ago when the AU resolved not to cooperate with the International Criminal Court in cases involving individuals alleged to have committed international crimes in Africa. The AU postulated that when the interest of peace collides with justice, peace must prevail. I struggle to see how the AU will command moral standing to do differently in South Sudan without attracting a criticism of selective justice, and that the AU simply preys on its weaker members. While it is commendable that the AU is starting to take some form of action with respect to impunity in Africa, complete monopoly of a process it is new at is not the best way to proceed in this learning curve.
Second, African Union and many of its members are not believers in international justice. If charity must start at home, member states of the AU have dragged their feet when it comes to ratifying the Malabo Protocol that grants jurisdiction, over international crimes, to the African Court of Justice and Human Rights. In addition, the AU has very poor record in setting up, staffing and supporting its judicial and quasi-judicial institutions. The African Court on Human and Peoples’ Rights, the African Commission on Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child are poorly funded (although the funding of these treaty bodies is improving this is mainly funded through donation from western countries), poorly staffed and the compliance records of the AU member states with the decisions of their? Judicial institutions very wanting.
Third, the AU does not have the resources it will take to administer meaningful justice in South Sudan. The AU cannot fund its own basic programmatic operations. 98% of the AU’s programmatic budget comes from international partners. It is these same international partners that the CPA2 denies them meaningful roles in the setting up of the Court in South Sudan. International criminal justice is slow and costs fortunes. For examples, by the time the International Criminal Tribunals for Yugoslavia and Rwanda were ending their mandates, they had consumed little over 1 billion dollars each. Yet these institutions successfully tried only limited number of individuals who bear responsibility for international crimes. An example is the trail of Milosevic. In that one case alone, the Tribunal sat for 466 days, listened to 295 witnesses, saw about 5,000 exhibits, and generated a transcript of over forty-nine thousand pages all costing millions of dollars.
In the Case of South Sudan, the Court will have jurisdiction over individual who bears responsibility for international crimes. Before the war, South Sudan’s army was estimated to have about 745 generals. After the war, we should expect this number to increase dramatically. Trying a fraction of this number will engulf billion of dollars over many years, if not decades. Where will this money come from? Since international partners have been locked out of the process by IGAD, how will these partners put their money into a project they have no way of controlling or guaranteeing that such a process would meet international fair trial standards, in particular the need for impartiality and independence.
Fourth, assuming that the AU could pull through an effective and fully functional Court, it will still face the challenge of enforcing the decisions of the Court. The ICC, with its recourses and United Nations Security Council (UNSC) backing, is struggling to enforce its warrants, how much more an extremely resource-poor and dependent AU? Even though it is arguable that article 23(2) of the Constitutive Act grant in theory AU an exception to the principle of state consent that would allow it to peremptorily decide that all States shall cooperate fully with the Court and ensure enforcement of the decisions of the Court, in practice, this may still be a distant dream. Even if the AU member states were to comply with the decisions of the court, many of them do not have the capacity to manage and ensure international standards to implement their custodial sanctions especially if states are responsible for implementing the sanction and bearing its cost.
Fifth, the AU not only failed itself and the continent when it comes to dealing with impunity in the highest places; it has, so far, failed the people of South Sudan. To the delight of many South Sudanese and Africans, in general, the AU was the first institution to ring the bell of accountability in South Sudan through the constitution of its Commission of Inquiry. However, to the dismay of many, the AU’s handling of the Commission of Inquiry’s Report has further eroded any credibility and legitimacy left. The AU has kept the report of the commission shrouded in secrecy. There are allegations that the AU has continued to water down the content of the report. The reported reason for shelving the report, so far, is that releasing the report might jeopardize peace and stability in South Sudan. Why will the AU do differently with the Court? Instead of pushing for justice, it is the AU that is now being courted, cajoled and sung lullaby to by the victims and the international community to please release the report containing the findings of that Commission.
Challenges introduced by local context in South Sudan
Among decision makers in South Sudan there is no taste for, and genuine commitment to accountability. Often times, the parties to the conflict merely use accountability as a political tool to score some political points against the opponents. There is also a very serious resistance against the idea of other Africans, whose own houses are not in order, to be saddled with the responsibility of trying South Sudanese leaders. In addition, the limited mandate of the Court to adjudicate only crimes allegedly committed since December 2013, in a country with history of similar atrocities in the past could simply unearth memories associated with past atrocities such as those alleged to have taken place in Bor in 1991, and could polarize the country. This is even worse when the CPA2 completely removes the role of the Transitional Government of National Unity (TGoNU) from the setting up and the operationalizing of the Court. The draft of the CPA2 shared with the parties to the conflict in late July, provided that the AU and the UN will, through a MoU with the TGoNU, operationalize the Court. The signed version of the CPA has removed this reference. The only role for the TGoNU is initiating legislation that sets in motion the processes leading to the establishment of the Court.
The exclusion of the GRSS is without any precedent in criminal international law. The Special Court for Sierra Leone, the Special Panels for Serious Crimes in Timor Leste, the so-called ‘Regulation 64’ Panels in Kosovo, the War Crimes Chamber in Bosnia-Herzegovina, the Special Tribunal for Lebanon, the International Criminal Tribunals for Yugoslavia and Rwanda, Extraordinary African Chambers in the Senegalese Courts and the Extraordinary Chambers in the Courts of Cambodia all have different degrees of government participation in addition to the UNSC resolutions or AU Resolution in the case of Extraordinary African Chambers in the Senegalese Courts. The UN, with its vast resources, experience and expertise in international criminal justice has relied heavily on Government Support. How much more the AU? In fact, the only AU’s experience in international criminal justice, so far, is the trial of Hissène Habré is happening with the full support and cooperation of the Senegalese Government.
The second context-specific challenge introduced by the Court is the limited scope of the mandate of the Court to cover only international crimes alleged to have been committed since December 2013. Pragmatically, this approach might make sense; substantively, it might simply complicate the search for justice in South Sudan. The constraints of resources, time, promptness and finality of justice processes significantly impede the ability of international criminal law mechanisms to adequately consider the historiography, and inquire into the etiology of past crimes that might have resulted in crimes before the courts. Nonetheless, any effort aimed at retributive justice for wrongdoing in South Sudan, which does not include other calamitous events such as the 1991 alleged massacre of civilians, is likely to be very flawed, tainted by accusations of politically motivated selectivity, and suffers from the defect of morally disturbing double standards. Such selective justice will, at best, give raise to corrosive cynicism and, at worst, to reactionary violence amongst communities excluded from the reach of international justice.
The cursory review of the provisions of the CPA2 dealing with accountability reveals a number of challenges that could seriously militate against accountability in South Sudan. Firstly, international justice could be a hopelessly complex undertaking, especially when experimentation is involved, as it is the case being proposed in South Sudan. Secondly, the AU’s duplicitous approach to international criminal justice before the ICC as well as its manifested unwillingness and inability to stand with the victims of impunity on the African continent will further complicate the search for justice in South Sudan. Thirdly, the collective efforts by political leaders in South Sudan to frustrate accountability, in the absence of strong and credible intergovernmental oversight could effectively hinder the pursuit of accountability in that country. To minimize the possible impact of these challenges and ensure not only that justice be done, but that it must also be seen, I propose the following the following suggestions:
The accountability mechanisms should be justice-related. This point is important for at least two reasons. First, it is strange that the word justice is mentioned nowhere, in its substantive sense, with respect to the Court. The word is mentioned either in the name of the mechanism or with respect to access to it. Justice to the victims should take the center state of the process and should be conspicuously seen. Second, justice is not justice if it is meaningless to the victim(s). Even though the CPA2 makes arrangement for public participation in the accountability process, it is not clear how this is envisaged to happen, when the chairperson of the AUC does the selection of judges and personnel, while the TGoNU is locked out of the process.
The process of setting up the Court should not be left to the AUC alone. International criminal justice mechanisms struggle with legitimacy deficits even when these mechanisms are staffed by the best jurists and supported by very credible institutional base. The credibility of the Court will be further dented by the fact that AU has its own legitimacy deficits. In addition, the only AU experience in handling international crimes through judicial processes is still in the making: the Hissène Habré trial. Even then, it took years, and a lot of challenges had to be overcome in order to try one man. In the dispensation of international justice, the dispensing institution must not only have wings, but also sufficient strength to lift off. Further, that Court has the support and expertise of the Senegalese Government. This is not the case suggested for South Sudan. It is, therefore, suggested that the AU and other international actors should have a joint responsibility for ensuring accountability in South Sudan.
The TGoNU should not be left out of the Court’s process. If the mediators have some faith in the governance arrangements suggested for the transitional period, then treating that new entity through the lenses through which the GRSS has been treated, so far, contradicts such faith. The effectiveness of the Court will, to a large extent, depend on the cooperation of the TGoNU. The other reason for including the TGoNU, in some form or another, in the Court process is that the mandate of the Court is very likely going to continue into the next administration that will assume power through democratic and credible elections. With such a popular mandate, it will be very difficult for the AU to use the current brush to deal with a legitimate government of South Sudan. Thus, detaching the Court from the TGoNU and the people of South Sudan is counter- productive. This is even so when the Court is not established by a Security Council Resolution but by a national legislation.
The mandate of the Court should be limited by the degree of criminal responsibility but extend the temporal jurisdiction international crimes alleged to have been committed since 1983. The international community has the option of facilitating the establishment of another accountability mechanism to serve justice to communities who are victims of heinous crimes in South Sudan before 2013 or find a way to include these deeply seated grievances within the mandate of the Court. If those bearing the highest responsibility are up for trails before the Court, then an extraordinary chamber of either the highest Court in South Sudan with national and international judges or a special mandate granted to the African Court to try those with varying degrees of alleged culpability should be considered as options. Alternatively, a special arrangement should be made within the parameters of article 34(6) of the Protocol establishing the African Court on Human and Peoples’ Rights granting direct access to different communities and individuals from South Sudan to alleged violations of international criminal law.
South Sudanese nationals should be allowed, if they so wish, to seek employment with the Court. Even though it might make sense to exclude nationals from the role of a Prosecutor for the Court, it is difficult to justify why South Sudanese nationals are excluded from most of the positions and roles when they are not excluded from being judges. If the underlying assumption is to minimize conflict of interests or compromise, there is no reason why this will not apply to the judges or any other African nationals for that matter. Former ICC Prosecutor Luis Moreno Ocampo was not an African yet that did not insulate him from accusations, of political influence or personal biases, by many Africans. We have seen how even countries in the region have bluntly ignored the principles of conflict of interests, but also how many countries actually do have interests in South Sudan. Finally, a blanket exclusion of South Sudanese nationals suffers from stereotypes which depict them as biased, incompetent, easily manipulated etc. It robs the country from skills and expertise transfer that could further strengthen our national judicial system. It is important that, as the international community strives to ensure justice, it balances effectively the inherent tension between the Court’s needs to know and understand its local audience, on the one hand, and its institutional imperative to deliver justice in an objective and transparent manner, on the other hand.
In the quest for a culture of accountability, emphasis should be placed on the capacity of the local judiciary in South Sudan. There is also the temptation to put time and resources to set up an international criminal mechanism to try few big fishes at the expense of strengthening the capacity of local judiciary and other traditional mechanisms to try thousands who actually committed atrocities and known by the victims. This temptation should be avoided in South Sudan. More resources should be used to strengthen South Sudanese courts, train judges and institutionalize professionalism, ethics and impartiality in the system.
Dr. Remember Miamingi submitted this opinion piece. Dr. Miamingi is based at the Centre for Human Rights, Faculty of Law, University of Pretoria. He is also the Executive Director, Pan-African Centre for the Study and Support of Family. Dr. Miamingi holds a Doctor of Laws Degree from the University of Pretoria. He can be reach at: firstname.lastname@example.org