South Sudanese leaders should not undermine their efforts to bring an end to the country's devastating conflict with an amnesty for war crimes and crimes against humanity, Human Rights Watch said.
The parties to the conflict signed a peace agreement on August 5, 2018, in Khartoum, agreeing to new power sharing arrangements and a timetable for further talks. On August 8, President Salva Kiir offered a "general amnesty" to heads of armed groups involved in the nation's five-year civil war as part of the agreement to end the fighting.
"Amnesty for atrocities not only conflicts with South Sudan's international obligations, but experience shows it is no way to build a lasting peace," said Elise Keppler, associate international justice director at Human Rights Watch. "While South Sudan's leaders may aim to provide assurances to opponents, they should make clear that the amnesty does not cover grave crimes by all parties since the conflict began."
International law requires prosecuting those responsible for serious crimes, such as crimes against humanity and war crimes, to ensure victims' rights to truth, justice, and an effective remedy, along with combating impunity. South Sudan has also ratified treaties such as the Convention against Torture, which provide for prosecution of people allegedly responsible for serious crimes. Because the United Nations takes the position that amnesties cannot be granted for serious crimes under international law, it will not endorse peace agreements that provide for such amnesties. The African Commission on Human and People's Rights has also rejected amnesty for serious crimes.
South Sudan's leaders have a history of providing de facto blanket amnesty to opponents as part of peace deals, even prior to the country's independence in 2011. The resulting lack of justice has contributed to the country's deepening social and ethnic divisions, and fueled violence and abuses. Human Rights Watch has previously urged mediators and South Sudanese leaders to ensure that peace deals did not include any amnesty for serious crimes.
Since the new conflict started in December 2013, continued fighting and abuses by government and opposition forces, and their aligned militias have forced more than 2 million people to flee the country. The fighting has displaced more than another 2 million people within the country, with more than 200,000 still in UN sites established to protect civilians.
Despite provisions in the August 2015 Agreement on the Resolution of Conflict in South Sudan (ARCSS) that envision a hybrid court to prosecute international crimes, South Sudan's transitional government has not made genuine progress toward setting up the court. A memorandum of understanding on the court with the African Union (AU) has yet to be signed, and domestic legislation is yet to be adopted.
Under that agreement, the AU Commission has the authority to establish the hybrid court with or without the engagement of the South Sudanese government. The AU should proceed with creating the court on its own, unless the memorandum of understanding is immediately signed, Human Rights Watch said.
"The lack of accountability for serious crimes is a cause of South Sudan's crisis, not a solution," Keppler said. "Survivors of atrocities in South Sudan are strongly demanding justice. Their leaders should take urgent steps to make the hybrid court a reality as efforts to end the conflict continue."