4 June 2016

South Sudan: Hissène Habré Conviction Shows an African Solution Can Work in South Sudan Too

Jacqueline Moudeina, a Chadian human-rights lawyer, still has shrapnel in her body from the time an assailant tried to kill her with a grenade during a peaceful protest in Chad.

Moudeina is among a small group of lawyers, activists and survivors who have struggled for the past 26 years to hold the former Chadian dictator, Hissène Habré, to account for crimes against humanity committed during his eight-year rule in Chad (1982-90).

This past Monday, to cries of joy and relief from the victims in the courtroom, an African Union-backed court sentenced Habré to life in prison for his crimes.

On the other side of the continent, in South Sudan, the search for justice and accountability is just beginning.

In a peace agreement signed in August 2015, the country's warring parties agreed to an African Union-established criminal court to try individuals responsible for the acts of mass murder, torture, rape and sexual slavery that have taken place during the conflict that erupted in December 2013.

Like the Senegalese court that convicted Habré, the South Sudan tribunal will be a "hybrid" court, in that it will be comprised of judges from South Sudan and other African countries.

Accountability mechanisms such as the hybrid court have been conspicuously absent from past peace processes in South Sudan. The region that would eventually become South Sudan has been at war for 40 of the 60 years since Sudan's Independence from Anglo-Egyptian colonial rule in 1956. Despite widespread human-rights abuses in these successive wars, no one has ever been held to account.

Instead, individuals who use violence to achieve their political (or personal) objectives are commonly rewarded for their crimes through blanket amnesties and political or military appointments granted in the context of peace processes. Not only does this generate resentment among the victims of their crimes, but it also creates a marketplace for insurrection by turning violence into a tool of political negotiation.

South Sudanese are waking up to the short-lived nature of solutions that focus exclusively on placating perpetrators of violence.

In a recent survey by the South Sudan Law Society, people across the country expressed overwhelming support for holding alleged perpetrators of human-rights abuses accountable through criminal justice processes and a sizeable majority opposed amnesties.

These attitudes reflect an increasingly common viewpoint in South Sudan that sustainable peace is not possible without holding perpetrators of international crimes accountable.

It is now up to the African Union and the recently established Transitional Government of National Unity (TGONU) in South Sudan to deliver on their promises.

The political obstacles to the establishment of the court should not be underestimated. Just days before the Habré verdict was announced, several senior representatives of the TGONU made a public appeal for a delay in the formation of the hybrid court.

The African Union too has yet to publicly communicate a timetable for the establishment of the court or to initiate a discussion with the TGONU on the way forward. Those who call for the court to be delayed typically justify their position with reference to the potentially destabilising impact of efforts to pursue justice in the fragile post-conflict setting of South Sudan.

But the conventional wisdom that sets justice against peace has repeatedly shown itself to be based on faulty assumptions.

In January 2015, for example, Ethiopia, Uganda and South Africa asked the African Union Peace and Security Council to defer consideration of a report by a commission of inquiry that investigated atrocities committed in South Sudan for fear of derailing the ongoing peace process.

Yet when the report was handed over to the warring parties a few months later, it did not impact the peace process in the slightest. To the contrary, the parties proceeded to commit to a comprehensive transitional justice programme in the August 2015 peace agreement, including the hybrid court, a truth and reconciliation commission and a reparations authority.

International justice takes time and the hybrid court will be a long-term endeavour. Once the African Union establishes the court, it will take several years for it to develop its internal rules of procedure, appoint judges, hire staff and begin investigations.

By the time the court gets around to issuing indictments, South Sudan will probably be approaching the end of the 30-month transitional period provided for in the peace agreement.

While results may take time, it is vital that the African Union and the TGONU move ahead with the establishment of the court now, to demonstrate to the people of South Sudan that they are committed to combating impunity and the stopping cycles of violence that reward perpetrators while leaving their victims to suffer in silence.

The Habré conviction provides a powerful illustration of what a committed group of victims and activists can achieve with hard work and determination.

It is an historic first for the African Union and a pioneering example of how there can indeed be African solutions to mass atrocities perpetrated by political and military leaders in Africa.

The African Union should take advantage of this moment in the evolution of international criminal justice in Africa, quickly establish the hybrid court, and spare South Sudanese the decades-long struggle for justice to which the Senegalese victims of Habré's crimes have been subjected.

David K. Deng is research director for the South Sudan Law Society, a civil society organisation based in Juba.

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