Nairobi — Work with African Union to Establish Hybrid Court
South Sudan's parliament has approved two laws on transitional justice that advance accountability and justice for victims of abuses committed since the start of the country's armed conflict which broke out in December 2013, Human Rights Watch said today. The bills, adopted on September 3, 2024, were sent to parliamentary committees that will address outstanding issues and make final changes before forwarding them to the president for signing.
The 2015 and 2018 agreements to end the conflict in South Sudan set out to create three bodies to address past abuses. The bills would establish two of them--a Commission for Truth, Reconciliation, and Healing and a Compensation and Reparations Authority--but not the third body, a hybrid court for crimes committed during the war. The court would be established in partnership with the African Union under the 2015 Agreement on the Resolution of the Conflict in the Republic of South Sudan and the 2018 Revitalized Agreement.
"South Sudan's approval of these long overdue transitional justice bills is the result of sustained pressure from victims of atrocities, their families, and civil society groups," said Nyagoah Tut Pur, South Sudan researcher at Human Rights Watch. "But much more remains to be done to ensure credible processes to advance justice and uphold victims' rights, notably setting up a hybrid court."
Under the current bill, the truth commission is mandated to "inquire into all aspects of human rights violations and abuses, breaches of the rule of law and excessive abuses of power" committed by all state and non-state actors. The commission is further mandated to "investigate, document, and report on the course and causes of conflict" and "recommend processes for the full enjoyment by victims of the right to remedy, including by suggesting measures for reparations and compensation."
The specialized parliamentary committees should address several key shortcomings in the bills before sending them to the president, Human Rights Watch said. Clarity is needed on the period covered by the truth commission, on which the bill is silent. The 2018 peace deal had proposed the commission's mandate to begin with the signing of the 2005 Comprehensive Peace Agreement that ended Sudan's long war and paved the way for South Sudan's independence through to the 2018 peace agreement.
Under the truth commission bill, those who disclose and inform the commission of crimes for which they are responsible are excluded from amnesty if they committed serious crimes under South Sudanese law or the international crimes of genocide, war crimes, and crimes against humanity. This exclusion should also include "gross violations of human rights," Human Rights Watch said.
The provisions on selection, nomination, and vetting of the chairperson and commissioners of the truth commission as well as the executive director of the reparations authority should also be spelled out more clearly to ensure that competent, impartial, and highly qualified candidates are appointed and to ensure the independence of the bodies. Under the truth commission bill, the African Union (AU) nominates three of the seven commissioners, who are not South Sudanese nationals. The AU should engage early in this process to ensure that the design and implementation of this body is safeguarded against political and other unwarranted interference, Human Rights Watch said.
The 2018 peace agreement provides for creating a compensation and reparations fund and authority, given the destructive impact of the conflict on South Sudan's citizens. The aim of the authority is to "provide material and financial support to citizens whose property was destroyed by the conflict and help them to rebuild their livelihoods."
The reparations authority bill addresses the relationship between the authority and the truth commission. Transitional justice mechanisms function better when there is advance consideration of how they will work together. The truth commission bill provides that in exercising its powers and functions, the reparations authority will "receive applications from victims ... referred by the truth commission and make the necessary compensation and reparation."
The reparations authority bill only provides symbolic reparation measures and collective reparation after completion of its mandate. The reparations authority can recommend "personal reparation" to the truth commission "only where it is not possible to provide collective measures." The specialized parliamentary committees should change this to ensure that personal reparations are not a last resort, Human Rights Watch said.
The UN Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims states that reparations should be adequate, effective, and prompt. To meet this requirement, a robust reparations framework should be developed. If the parliamentary committees do not address this, the mechanisms, once established, should develop a reparations framework and rules of procedure. These should expand on the linkages between the two mechanisms and ensure their design and operations are victim-centered, responsive, and compliant with international reparations standards, Human Rights Watch said.
These two transitional justice bills envisage a major role for government and donor funding to implement the truth and reparations process. Once finally adopted and promulgated as law, the UN, donors, and the South Sudanese authorities should develop a strong fundraising model and undertake a system for oversight of the management of funds to support transitional justice.
While moving ahead on the truth commission and a reparations process, South Sudan and the AU should urgently revisit the call to establish the hybrid court. Such a court is critical for there to be genuine justice for victims of past atrocities and their families, Human Rights Watch said.
The envisioned AU-backed hybrid court would bring together judges and prosecutors from South Sudan and across Africa, as the country's domestic court system is not prepared to handle such sensitive and complex cases. The AU prepared a draft statute for the court in 2016 and developed a memorandum of understanding for the court's establishment with the government in 2017. Experts reviewed these documents in 2019, but progress on the court's establishment stalled due to South Sudan's deliberate moves to block the court and a lack of communication and shared understanding between South Sudan and the AU of the steps involved. Human Rights Watch, alongside South Sudanese, regional and other international groups has repeatedly raised concerns that the AU's apparent half-hearted approach to the court raises doubts over its genuine commitment to its establishment.
Governments have a duty under international law to investigate and prosecute serious crimes, such as crimes against humanity and war crimes. This helps to ensure individual victims' rights to truth, justice, and an effective remedy, along with combating impunity. Major international treaties that South Sudan has ratified, the Convention against Torture and the Geneva Conventions of 1949, provide for fairly prosecuting those responsible for serious crimes.
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The failure to hold to account those responsible for serious crimes under international law has contributed to ongoing rights violations and a wider crisis of impunity. Criminal prosecutions before the proposed hybrid court's establishment can complement the work of the truth commission and reparations authority, strengthening prospects in South Sudan for achieving justice and accountability and avoiding new violations.
As the transitional justice bills progress, the AU and South Sudan should publicly underscore that the hybrid court is a priority and take advantage of the momentum around the new laws to move the process forward and maximize the chances for truth, justice, and reparations for all victims. The African Union has the authority to establish the court even without the South Sudanese government's involvement and should move to finalize, adopt and publicize the court's legal instruments, Human Rights Watch said.
"South Sudan's regional and international partners should ensure a comprehensive truth and justice process that would address systemic and entrenched impunity," Pur said. "The real test of South Sudan's willingness to confront its abusive past and the African Union's commitment to support victims still lies in how they pursue the creation of a hybrid court."
