Hybrid War Crimes Court Promises Justice But Political Rivalry May Impede Pursuit

The African Union’s call for a court in South Sudan to prosecute and punish individuals responsible for war crimes is a significant overture by the continental organisation. Trials in the aftermath of genocide in Rwanda and the International Criminal Court’s recent efforts demonstrate the benefits of such convictions, but the particular circumstances in South Sudan means prosecutors must remain cogniscent of the precarious political situation.

From Atrocity to Accountability

In December 2013, South Sudan descended into civil war, a conflict which displaced four million South Sudanese, and led to the deaths of almost 400,000 people. Reports published by both the United Nations Mission in South Sudan (UNMISS) and the African Union Commission of Inquiry on South Sudan (AUCISS) concluded that crimes against humanity had been perpetrated. Forces loyal to both President Salva Kiir, and his opponent Riek Machar were responsible. Amongst several recommendations for addressing such atrocities, the AUCISS advocated for:

 “an Africa-led, Africa-owned, Africa-resourced legal mechanism under the aegis of the African Union supported by the international community”.

Following the signing of a peace agreement in 2018, and two years of political wrangling to form a new unity government, the Government of South Sudan (GoSS) officially announced the establishment of a hybrid court. The court is to be operated in conjunction with the African Union – which welcomed the declaration – to investigate and pursue those individuals responsible for the commission of grave offences during the civil war. This will be the first such arrangement overseen by the African Union (AU), and as such is a significant milestone for the continental provision of accountability and restitution. Precedents set by the International Criminal Tribunal for Rwanda (ICTR) and more recent convictions by the International Criminal Court (ICC) may offer some lessons for the conduct of the South Sudan Hybrid Court. However, caution must be taken to note the distinctly different contexts in which the Southern Sudanese cases will be heard.

Lessons From Rwanda and the ICC

The ICTR sought to try those responsible for the worst crimes conducted during the Rwandan genocide in 1994. More than ninety leading figures were indicted. Through these cases, the ICTR heard from more than three thousand witnesses, and set global legal precedents in recognising rape as a method of perpetrating genocide. The establishment of the ICTR demonstrated that the prosecution of powerful figures responsible for atrocities was possible in Africa, and provided a platform for ordinary Rwandans to have their voices heard by the international community. Whilst enjoying similar levels of international support, the South Sudan Hybrid Court must aspire to grant those South Sudanese citizens subjected to violence a similar vehicle for having their voices heard, and their experiences recorded.

More recently, the ICC convicted Dominic Ongwen, a child-soldier turned leader of the Lord’s Resistance Army (LRA), of 61 offences including the first conviction for “forced pregnancy”. Whilst relying on the testimony of 109 witnesses, over four thousand were approached in the build-up to the trial. As with the ICTR, the ICC’s case against Ongwen provided an opportunity for thousands of victims to participate, and offered closure for those brutalised by the LRA troops under his command.  Ongwen’s case again demonstrated that the international justice system is prepared to dedicate the time and resources necessary to secure convictions.

The Limits of Precedents

Whilst the experience of both the ICTR and ICC may be exemplars, the unique circumstances of each must also be borne in mind. In the Rwandan case for instance, those being tried and prosecuted were from the deposed Hutu regime that was driven from power by the Rwandan Patriotic Front (RPF) as the RPF swept across the country, putting an end to the genocide. Thus, at the time of their appearance before the ICTR, the accused were without legitimate office, rank, or position. Likewise, Ongwen was a member of a stateless group, denounced by the international community. 

Yet under the auspices of the South Sudan Hybrid Court, the cases will concern individuals who may still be closely tied to the President, Salva Kiir, or the First Vice-President Riek Machar.  Supporters of both men are implicated in the conduct of atrocities, and so the hybrid court must resist becoming a politicised arena. After all, it was a deterioration in relations between both men which precipitated the initial conflict. This could prove extremely limiting. For example, taking pains to avoid disturbing the delicate peace process could result in a court where prosecutions are carried forward only with the consent of all parties. This would likely result in just the most minor offenders being prosecuted, with both leaders intervening to protect their closest lieutenants. 

Alternatively, either may demand that an individual of similar rank and status from the opposite camp be prosecuted as a prerequisite for their consenting to a member of their own appearing before the court. In either situation, the legitimacy of the court would be heavily undermined, both in the eyes of the international community, and especially in the eyes of the civil war’s victims.

No Swift Resolution

Only with a strong and independent prosecutor, and an impartial bench of judges, will the hybrid court be able to provide the sentences and closure expected of it. This will likely prove politically awkward in the personalised politics of South Sudan. Those seeking swift resolution to these matters must also revise their expectations. The sheer scale of devastation and violence unleashed during the civil war will make any prosecutions lengthy and convoluted affairs. Ongwen’s trial lasted a little over four years, having begun in December 2016. With political interference from the GoSS likely, as both parties seek to limit their culpability or gain an advantage over their rival-cum-ally, the hybrid court’s success will depend on the AU showing the same resolve and vision evidenced by the organisation’s initial championing for the court’s foundation.