The Need for a Hybrid Court
If the parties can agree to the principle of justice, the next question is how best to provide it in the context of South Sudan's weak justice system.
Past efforts to secure justice for crimes committed in the course of large-scale violence have all been hampered by the poor investigative capacity of police and prosecutors and the limited geographical reach of civilian courts.
In Jonglei state, for example, thousands of people, including women and children, have been killed, tortured or abducted in the context of inter-communal violence, forced disarmament programs and government counter-insurgency campaigns in recent years. Yet, those responsible for the crimes, be they civilians, soldiers or politicians, have enjoyed almost total impunity.
Given the lack of capacity, credibility and independence of the justice system, it is clear that without international support, impartial investigations and prosecutions cannot take place.
Such international support could best be provided within the framework of a hybrid court established within South Sudan's judiciary.
Hybrid courts have been deployed to address the legacy of large-scale conflict in countries such as Sierra Leone, East Timor, Kosovo and Cambodia. Senegal recently established a hybrid court to prepare a case against former Chadian president Hissène Habré.
The defining feature of a hybrid court is that it is administered by a combination of national and international staff. By recruiting highly qualified judges, investigators, prosecutors and defense attorneys to work alongside their South Sudanese counterparts, a hybrid court can provide the support that is necessary for the fair adjudication of serious crimes, while helping to strengthen national accountability mechanisms and rule of law in the longer-term.
Due to the high cost of hybrid courts, the focus would be limited to those who bear primary responsibility for planning, organizing or carrying out the most egregious crimes.
In order to extend justice beyond cases tried by the hybrid court, prosecutions should also be brought before other South Sudanese courts.
The judiciary could consider using its power to establish special courts with limited temporal and thematic jurisdiction to try crimes that have occurred since December 2013.
In order to adequately address the crimes that have been committed, South Sudan must also ensure that its legal framework provides for the punishment of international crimes, including genocide, war crimes and crimes against humanity. As the penal code does not define these crimes, new legislation would be necessary.
Prosecutions in the hybrid court and formal judiciary could be linked to the customary court system to extend truth, justice and reconciliation processes to the grassroots level.
South Sudan's customary court system has a strong emphasis on restorative justice, in that chiefs and traditional authorities encourage disputing parties to talk through their differences and finding a solution that is acceptable to both parties.
While customary courts are not legally empowered to adjudicate criminal responsibility, they are well positioned to promote reconciliation in circumstances where the line between perpetrator and victim is blurred. Customary courts could also play an important role in negotiating compensation awards and other civil remedies.