The Urgent Need for Justice in South Sudan
“South Sudan artillery in military procession at independence commemoration”, Juba, South Sudan, 9 July 2012, Amanda Hsiao, Enough Project, Creative Commons.
In an address on 28 March 2022, President Salva Kiir of South Sudan reiterated his opposition to the Hybrid Court for South Sudan (HCSS)—a judicial body which, if established, would have jurisdiction to prosecute those responsible for serious international crimes that have occurred in South Sudan since war broke out in December 2013.
Despite having committed to establish the HCSS under two separate peace agreements, President Kiir expressed his strong belief that “punitive justice [would] take away from the goal of reconciliation,” a goal which he stated is “needed the most in our country.” President Kiir went on to grant a presidential pardon to those responsible for starting the country’s brutal war; a war in which almost 380,000 people have died, 4 million people have been displaced, and sexual violence, torture, and many other horrific crimes have been commonplace.
President Kiir’s remarks came just six weeks after we at the Simon-Skjodt Center for the Prevention of Genocide released a report warning that South Sudanese civilians face an immediate risk of experiencing mass atrocities yet again. In that report, we identified the firmly entrenched culture of impunity in South Sudan as a key factor driving ongoing mass atrocities and urged the US Government and other actors to take steps to promote accountability for past crimes.
Despite President Kiir’s assertion that criminal prosecutions would undermine reconciliation, the events in the months since our report came out further underline the need to hold perpetrators at all levels accountable.
What has happened in South Sudan since the release of our report?
In the first four months of 2022, armed forces allied to President Kiir and to Vice President Riek Machar killed and raped dozens of civilians throughout the country, particularly in Leer (Unity State) and Maiwut County (Upper Nile). According to the United Nations Mission in South Sudan (UNMISS), over 70 civilians were killed and over 60 women were raped in Leer between mid-February and early April 2022. The same report also asserts that civilians were beheaded and burnt alive and that civilian property was looted and destroyed. The commissioner of Leer county has stated that over 14,000 civilians have fled the violence.
Meanwhile, UNMISS reported that between January and March 2022 over 750 civilians were victims of conflict-related sexual violence. UNMISS attributed over a third of these attacks to conventional parties to the conflict. Brutal attacks and acts of violence such as these, which likely amount to war crimes, have come to characterize the conflict in South Sudan, further underlining the need to heed victims’ persistent calls for justice and accountability.
This conflict has fomented divisions at the national level between President Kiir and Vice President Machar—both of whom lead armed forces that have perpetrated mass atrocities against civilians with complete impunity. As explained in our February 2022 report, the issues of unification of government and opposition forces and the 2023 elections have exacerbated divisions.
These divisions undermine the already tenuous stability of the Revitalized Transitional Government of National Unity (R-TGONU), a temporary coalition government that is responsible for ushering the country through its transitional period. It has also resulted in threats of violence and military activity. In late March, South Sudanese security forces surrounded Vice President Machar’s residence in Juba. This was accompanied by heavy military buildup in Juba near the airport and presidential palace. The following week, a spokesperson for Vice President Machar’s opposition group warned that bloodshed would occur to bring peace.
These events are an ominous reminder of similar events that led to a resumption of hostilities in Juba in 2016. They also underline the need to break the cycle of impunity to demonstrate that perpetrators of atrocity crimes will no longer evade justice.
What justice options might be available? How effective could they be?
In a country where for generations civilians have endured war without a shred of recognition and where perpetrators have committed horrific crimes with complete impunity, justice is sorely needed. This begs the following questions: first, what options for pursuing justice might be available; and second, how effective could they be in breaking the cycle of impunity?
The International Criminal Court (ICC), which was established as a court of last resort to investigate and prosecute cases of war crimes, crimes against humanity, and genocide in situations where the country in question is unable or unwilling to do so, is one possible avenue. However, South Sudan is not a State party to the Rome Statute of the ICC and it therefore does not currently have jurisdiction over the situation.
There are only two ways that the ICC could gain such jurisdiction. First, the UN Security Council could refer the situation to the Court (although it is worth noting that this avenue has been blocked in other situations such as Syria and Myanmar for years). Second, the government of South Sudan could request the Court’s assistance. This is unlikely to occur given that senior members of the government of South Sudan may bear responsibility for serious crimes.
“In a country where for generations civilians have endured war without a shred of recognition and where perpetrators have committed horrific crimes with complete impunity, justice is sorely needed.”
That said, if the ICC were to gain jurisdiction, it would likely strive to investigate and prosecute those most responsible for crimes within the Court’s jurisdiction. If such an endeavor were successful, this could—at a minimum—serve to discredit and marginalize perpetrators which could help to break the cycle of impunity.
The Revitalized Agreement to the Resolution of the Conflict in South Sudan (R-ARCSS), which the parties to the conflict signed in 2018, envisages another avenue for pursuing justice and accountability. The peace agreement includes an holistic transitional justice framework including the HCSS (the aforementioned criminal accountability mechanism) as well as the Compensation and Reparations Authority (CRA) and the recently-launched Commission for Truth Reconciliation and Healing (CTRH).
Ostensibly, these institutions each have the potential to address core transitional justice goals of holding those responsible to account, telling the truth about what happened, and repairing the harm done. Together, these institutions could indirectly serve another goal of transitional justice—taking steps to prevent the past from repeating—if they ensure the past is not forgotten, provide victims and survivors with appropriate and adequate remedies, and put perpetrators behind bars. However, as noted at the outset, South Sudanese leaders have walked back their commitments to pursuing criminal accountability and progress on establishing the HCSS has been stalled for years; this could undermine the ability of these measures to truly break the cycle of impunity.
Justice and accountability for atrocities could also be pursued at the national and sub-national levels within existing systems in South Sudan. In January 2021, the Transitional Justice Working Group for South Sudan published a report authored by human rights lawyer David Deng, which assesses the capacity for existing domestic mechanisms to provide justice and redress to victims.
The paper discusses mobile courts, the recently established Sexual and Gender-Based Violence court, military courts, and customary courts. It argues that contrary to conventional wisdom, accountability is not entirely absent in South Sudan and that there are “fledgling efforts to rein in abuses by the military that are happening at the margins of the justice sector.” The potential for such efforts to break the cycle of impunity by removing bad actors from positions of power and holding them to account should therefore not be underestimated.
Contrary to what South Sudanese leaders on all sides have publicly asserted, justice must go hand in hand with peace. While the South Sudanese government’s decision to launch the CTRH is a step in the right direction, it must also be accompanied by measures that hold individuals criminally responsible for their actions.
