Prevent and punish in South Sudan

The atrocities consuming South Sudan tell a horrid and intolerable story. Many tens of thousands of innocent civilians have perished. Armed groups, including government soldiers, murder, loot, and rape as tactics of war. Trapped in a conflict where all sides have engaged in scorched earth warfare, men, women, and children have seen their villages attacked and means of survival destroyed. Those civilians unable to flee have been burned alive in their homes or chased into swamps to starve. Rape has been used to instill terror, punish populations, and as a form of payment for soldiers. Women and girls who survive gang rape are shot or burned to death. Boys are tied together and their throats slashed.

All of this should not be happening. South Sudan came into being with high hopes and great support from the U.S. and the international community in 2011. But a conflict between two leaders erupted in December 2013, characterized by atrocities directed against innocent civilians of their respective ethnic groups – the Nuer and Dinka. An August 2015 peace agreement promised power-sharing and justice for the victims of the atrocities in an African Union-run “hybrid court,” with investigators, prosecutors, and judges from South Sudan and its African neighbors.  But power was not shared, and with no progress on justice, violence against the innocent once again escalated after the two sides battled in Juba in July 2016.

Genocide is imminent as ethnically-charged atrocities spread to Equatoria in the previously peaceful southern part of the country. More than a million people have fled South Sudan since 2013, with 600,000 refugees camped in Uganda and nearly 340,000 others taking refuge in Ethiopia. These refugees often cite the total lack of accountability and the ensuing impunity among war criminals as key drivers in forcing them out of South Sudan at enormous cost to neighboring states and the international community.

As former U.S. Ambassadors-at-Large for War Crimes Issues in the Bill Clinton, George W. Bush and Barack Obama administrations, we believe this is the critical moment to follow through on both atrocity prevention and justice.  Two of us joined State Department officials on a mission into South Sudan’s capital, Juba, on Jan. 3 and 4 to meet with senior government ministers, the First Vice President, and key civil society groups.

The leaders who have the power to end the atrocities demonstrate an appalling failure of political will, making it even more difficult to prevent crimes against civilians. They are ambivalent about the importance of ending such assaults, with government ministers frequently downplaying or worse denying the widespread incidence of rape in the country. One official, offended by American-led efforts in the UN Security Council to impose an arms embargo and sanctions on the warring parties, dismissed the urgency of doing anything constructive. Our reminders that leaders can avoid prosecution if they take steps to prevent atrocities by their soldiers and punish those who commit such crimes seemed to fall on deaf ears.

In contrast, from civil society we heard pleas for immediate action. Activists are deeply concerned about the revival of tribalism and how revenge among tribes is taking hold.  One civil society member said, “The problem here is a failure of governance. There is no revenue and no law. We have not built a single school. Our hearts are broken. We no longer have the dream of democracy.”

Preventing civil war and atrocities in South Sudan from spiraling completely out of control will require far more pressure from major powers and regional neighbors as well as sustained UN and African Union (AU) engagement. Fresh ideas about a UN or AU trusteeship merit serious review, while proposals that accountability mechanisms take a backseat to a “National Dialogue,” touted by President Salva Kiir, remain surreal as ethnic cleansing and rapes continue.

Likewise, government ministers fearful for their own fates before a criminal tribunal advocate “peace before justice” but this has not worked; the absence of accountability has not stemmed the violence but fueled its continuation. The only viable course forward is to implement the 2015 peace agreement between the warring parties and allow the AU to create a hybrid court. This must come with real reforms that combat corruption, create a functioning judiciary that renders credible justice, and engender confidence in a government that cares for all ethnic groups. Otherwise, atrocity crimes will continue unabated and graduate, perhaps tomorrow, to full-scale genocide.

While we were encouraged after our meetings in Juba with the Minister of Justice’s call for the AU to present the government with a draft statute for the hybrid court and to negotiate its text, a promised AU mission to Juba for that purpose was canceled shortly thereafter. The AU summit taking place later this month, however, affords another opportunity to get the hybrid court speedily established. We urge the AU Commission and Member States to press for this and to prioritize justice as an integral part of a lasting peace.

The AU, which has complained about the International Criminal Court’s docket of African cases and argued that Africa can address such atrocities, has an opportunity to demonstrate its capability of achieving international justice on its own terms. If the hybrid court for South Sudan is not created soon, the credibility of the AU’s commitment to the rule of law will be shattered. No one then should be surprised if calls intensify for a UN Security Council referral of South Sudan to the Hague court.

Some South Sudanese leaders seem to be clinging to the hope that arrival of the Trump administration will allow them to continue to escape acting responsibly. President Trump and the Congress should send a powerful signal that atrocities must end and that justice will prevail in South Sudan.

Stephen Rapp is Distinguished Fellow at The Hague Institute for Global Justice and at the Simon-Skjodt Center for the Prevention of Genocide, U.S. Holocaust Museum.  David Scheffer is the Mayer Brown/Robert A. Helman Professor of Law at Northwestern University Pritzker School of Law.  Clint Williamson is Senior Director for Global Rule of Law, Governance and Security at the McCain Institute and Distinguished Professor of Practice at Arizona State University's O'Connor College of Law. The views expressed in this essay are solely those of the co-authors and not necessarily of any institution to which they are affiliated.

The views expressed by this author are their own and are not the views of The Hill.