Reflections on the Establishment of a Hybrid Court in South Sudan

Hybrid courts have been regarded as compromise solutions for a lot of conflicts. Over the course of the last few decades some hybrid courts have been praised for their efforts not only to promote justice but to allow wider society to let go of the past. Notable examples include the Special Court for Sierra Leone which has contributed to our understanding the recruitment and use of child soldiers in an armed conflict. In a similar manner, the Special Tribunal for Lebanon has provided the world with a working definition on terrorism that is widely used by courts and scholars alike. Others have been prone to criticism such as the Extraordinary Chambers in the Courts of Cambodia, where the small number of cases and prolonged processes have eroded the trust not just of the local population but that of the international community as well.

These ‘blended’ constructions that lie somewhere between domestic and international courts possess significant advantages. They are close to the events which makes it easier to retain evidence and allows for victims and witnesses to appear in person. It also bestows legitimacy to the processes and brings expertise and cool-heads in the form of foreign, unbiased judges to the table. Such deliberations occurred in 2015, when two years after the civil war broke out, an African Union (AU) inquiry report signalled international crimes such as war crimes and possibly crimes against humanity were committed and stressed the need of international cooperation to achieve justice.

The conflict itself originated in 2013, when merely two years after the independence of South Sudan, the two most prominent politicians, president Salva Kiir and vice-president Riek Machar began vying for control of the armed forces (Sudanese People’s Liberation Movement/Army) and the highest office. Both accused the other of coup d’états, assassination attempts and power-grab manoeuvres. An estimated 400.000 people – mostly civilians – lost their lives in the conflict, while more than 2 million people have been forced to flee their homes to become refugees or internally displaced persons – almost a fifth of the country’s population. The most intense periods of fighting occurred between 2013-2015. Upon its conclusion, the international community has helped mediate between the opposing parties.

At this point, the role of the US must also be briefly mentioned. The US has helped create the state in 2011 and in 2015 Secretary of State Kerry has negotiated financial support for the establishment of the tribunal, but the leaders of South Sudan themselves were not interested in the process. Over the following almost 7 years, US interests in the peace process have waned and under the Trump and Biden administrations the focus of US foreign policy has shifted to other areas. Since 2015, the government of South Sudan has reiterated its commitment to the establishment of the hybrid court, specifically in 2017, in 2018 and also in 2021. The renewed commitments appear to be little more than lip service to the idea of the court since no concrete action has been taken. One of the main reasons is that both as president Salva Kiir and vice-president Riek Machar have been leading their respective armed groups, they themselves or their closest follower’s conduct would be scrutinized. Understandably, this is not a welcome prospect for any of the major powerbrokers.

It has also been proposed that should the South Sudanese government prove reluctant; the AU could unilaterally establish the court. So far, the AU has not been pushing this notion, partly because it might fall outside of its competences. Forcefully creating an international tribunal has only been done twice in the cases of Rwanda and the former Yugoslavia, both times by the United Nations Security Council in its role as the primary steward of international peace and security but the AU does not share this elevated role. Even though Article 4, Section h) of its Constitutive Act allows military intervention when international crimes are committed, it is doubtful these competences include the unilateral establishment of a court.

There are other avenues to be taken into account to achieve justice in South Sudan. The most serious violations of the laws of war and crimes against humanity could be brought before the International Criminal Court (ICC). Even though South Sudan is not a state party, the Security Council could refer the situation to the ICC. The Security Council has invoked these powers before in the case of Sudan when the events in Darfur and specifically the conduct of then-president Omar Al-Bashir were referred to the ICC. However, there are two problems with this approach. Firstly, referral and even issuing an arrest warrant is no guarantee to achieve justice, as it is seen in the case of Al-Bashir who still has not been transferred to the Court despite the change of regime and him being in custody by Sudanese authorities. Secondly, potentially indicting the two most powerful figures in South Sudan and their removal from power might create further uncertainty and jeopardize the fragile peace which the power-sharing agreement of 2020 has brought.

At this point we are back to the justice vs. peace dilemma which resurfaces time and time again regarding transitional justice. A hybrid court would mean an inclusive justice process where fair trial standards are met, the death penalty is ruled out and South Sudanese judges can get first-hand knowledge on how to handle high-profile cases where international crimes are committed. Based on interviews conducted locally, in Juba, Bor and other locations, sentiment towards the new hybrid court are mixed. There is tangible fear that the either the government would not allow the court to function or the court would not be able to bring the perpetrators to justice. Concerns over the courts activities and a new wave of ethnic conflict it can create are abundant. This sentiment is also shared by the government, which has proposed the creation of a Commission for Truth, Healing and Reconciliation, similarly to examples seen in Rwanda and South Africa.

In the end, hybrid tribunals cannot and should not be established without the consent of the state in question. When the dust settles and solid peace is achieved, then it will be time to create societal consensus on the type of justice suiting the needs of the situation. Whether is going to be key trials before the ICC, a truth and reconciliation commission or a hybrid court will have to be decided by the people of South Sudan. The role of the international community is to assist the process upon request and help facilitate the process. Should a hybrid court be the desired solution, the contribution of the international community could potentially be vast. After all, the greatest asset of hybrid courts lies in their flexibility and adaptability through which they can be tailored to the specific requirements of the state in which they are to be set up.

Originally published by the Association of Young International Lawyers in March 2022.

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