8 January 2014

South Sudan Talks Must Make Provision for Justice and Reconciliation

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opinion

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.

An Integrated Response to Truth, Justice and Reconciliation

Justice is only one part of a solution to the conflict in South Sudan. In order to heal the wounds caused by the recent violence, South Sudan must adopt an integrated response that incorporates truth-telling and meaningful reconciliation and ultimately seeks to transform South Sudan's abusive and corrupt governance systems.

In 2013, the Government began trying to address South Sudan's history of conflict through the establishment of a Committee for National Healing, Peace and Reconciliation.

The Committee could make a valuable contribution to an integrated approach to truth, justice and reconciliation, but to do so, it would need to expand its mandate to include a truth-telling component.

By providing a public platform for victims to tell their stories and perpetrators to confess to their wrongs and seek forgiveness, the Committee could help South Sudanese to build a national narrative of their troubled past.

There are other actions that the Government could take to build a culture of human rights in South Sudan. South Sudan has not yet ratified the core human rights treaties that prescribe the minimum standards by which a state must treat its citizens.

The Government has acceded to the 1949 Geneva Conventions and their Additional Protocols and has ratified the Convention Against Torture, the Convention on the Rights of the Child and the Convention Governing Specific Aspects of Refugee Problems in Africa, but it has not ratified the other core treaties, such as the International Covenant on Civil and Political Rights or African Charter on Human and People's Rights.

In order to make clear the Government's commitment to human rights and give victims and their representatives recourse to regional and international treaty monitoring bodies and complaint mechanisms, the Government should immediately ratify these treaties and domesticate them into national law. It should also sign on to the Rome Statute as a demonstration of its commitment to justice for international crimes.

Conclusion

South Sudan stands on a precipice. Viewing the crisis as a problem that can be solved by the political and military class alone would repeat the same mistake that has been made in past negotiations. Hybrid courts require a great deal of political will, diplomatic effort and material resources to establish.

Even if the parties were to agree, it would take many months to establish a hybrid court in South Sudan. Nonetheless, if South Sudan is to come to terms with the violent events of the past few weeks, it is vitally important that the issue of accountability be addressed in any negotiated agreement between Kiir and Machar.

If the parties fail to agree on or to implement a mechanism for holding perpetrators of the violence accountable, the Security Council could consider referring the matter to the International Criminal Court (ICC).

Until South Sudan's leaders are made accountable to the people they serve and punished for the wrongs they commit, the country will continue to experience violence like what we have seen in the past weeks and the dream of a peaceful and prosperous nation will never be realized.

David Deng is the Research Director for the South Sudan Law Society (SSLS), a civil society organization based in South Sudan. Elizabeth Deng is a human rights lawyer based in Nairobi.

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