BY KOKA LO’LADO
It is now clear that left to Gen. Salva Kiir, Dr. Riek Machar, and their respective cronies in the Transitional Government of National Unity-really a loose clique that has now coalesced and quietly agreed to stay in power- justice and accountability for war crimes, crimes against humanity, pogroms and or planned genocide and other vile crimes, will come to naught. The collective desire to line their pockets and shield themselves from accountability and retribution spurred their impetus to hang on to power. Already, the top leaders in the government, many of them perpetrators of heinous crimes, have unobtrusively mutually agreed to frustrate the establishment of the Hybrid Court for South Sudan (HCSS) which is stipulated in the 2018 revitalized peace agreement.
However, without justice and accountability, cyclic revenge killings, rebellion, deadly rustling, and conflicts will only continue and become endemic. Now that we know there will be no genuine peace in South Sudan without justice and accountability, I am therefore advocating that we embrace Universal Jurisdiction to bring the criminals trying to circumvent the legal process to book. This means any country can try perpetrators of abhorrent crimes committed in South Sudan under their jurisdiction. We shall come back to that later.
Background
For the purposes of this epistle, I will reference the Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCSS) of 18 September 2018 because Kiir scuttled the August 2015 Agreement on the Resolution of the Conflict in the Republic of South Sudan in July 2016. However, the two agreements have similar chapters on Transitional Justice, Accountability, Reconciliation, and Healing.
The issue of accountability came up due to the severe crimes committed when a power dispute flared up within the SPLM Party and culminated in a massacre of Nuer tribesmen starting on 15 December 2013 in Juba and instantaneously morphed into a fully-fledged war that has since brought the country to its knees. The chapter on justice and accountability in the peace agreement however only tackles crimes and violations post-December 2013 crisis and leaves out those committed during the liberation struggle and the six-year interim period of the Comprehensive Peace Agreement between 2005 and 2011.
Conservative estimates put the number of those killed since the eruption of war in December 2013 at 400,000 and millions were internally and externally displaced. Entire communities were and continue to be displaced, albeit at a smaller scale lately, by the use of scorched earth operations by the army to drive them off their lands.
The African Union report is clear on the horrific atrocities that were committed and even documents some of the leading perpetrators of these gruesome crimes against the long-suffering people of South Sudan. Also, in their report, the UN Panel of Experts categorically stated that Kiir bears “command responsibility” for forces that attacked civilians in Juba, Unity State, and elsewhere. Similarly, the African Union Commission of Inquiry concluded that killings of unarmed Nuer civilians in Juba in December 2013 were carried out “under or in furtherance of a State policy.”
Interestingly, Dr. Machar gave the Foreign Policy Magazine an interview at his base in Juba in May 2016 in which he admitted that war crimes and crimes against humanity were committed during the two years after the war erupted. He acknowledged that his forces also carried out war crimes and that he was willing to cooperate with the International Criminal Court (ICC) at The Hague or any other Court charged with trying war crimes in South Sudan. Naturally, he blamed most of the war crimes on Kiir.
Verified reports by the African Union, the United Nations, Human Rights Watch, Amnesty International, and other organizations all accused both sides of committing atrocities, ranging from ethnically targeted murders to mass rape. These should be the starting point for bringing the perpetrators to book so that what happened in South Sudan is never repeated anywhere else on earth.
Following these atrocities, both peace agreements to end the conflict in South Sudan recommended Transitional Justice, Accountability, Reconciliation, and Healing under which, among other things, a Hybrid Court for South Sudan (HCSS) was to be formed to try Genocide, Crimes Against Humanity, War Crimes and Other serious crimes under international law and relevant laws of the Republic of South Sudan including gender-based crimes and sexual violence.
Article 5.3.5.1. of the R-ARCSS states: “A person who planned, instigated, ordered, committed, aided and abetted, conspired or participated in a joint criminal enterprise in the planning, preparation or execution of a crime referred to in Chapter V of this Agreement shall be individually responsible for the crime.”
5.3.5.5. No one shall be exempted from criminal responsibility on account of their official capacity as a government official, an elected official, or claiming the defense of superior orders.
5.5.1. States that Individuals indicted or convicted by the HCSS shall not be eligible for participation in the RTGoNU, or in its successor government(s) for a period of time determined by law, or, if already participating in the RTGoNU, or in its successor government(s), they shall lose their position in government. If proven innocent, individuals indicted shall be entitled to compensation as shall be determined by law.
The above unambiguous clauses shocked the leaders and their cronies who committed vile crimes and when the agreement was signed and eventually implementation commenced, they immediately started devising ways of ensuring that the Hybrid Court was scuttled even before its formation.
Attempts to circumvent justice and accountability
Seeing that they are explicitly culpable for the various heinous crimes committed after the eruption of war, the leaders started working in cahoots to evade justice and accountability for their actions. This, and power sharing and remaining in power, are perhaps the only thing they agree on.
South Sudanese and observers were dumbstruck to read an Op-Ed jointly penned by Kiir and Machar titled ‘South Sudan Needs Truth, Not Trials’ in the 7 June 2016 issue of The New York Times. The duo argued in the article that they have, as the principals in the South Sudan peace agreement, announced their disapproval of the implementation of Chapter 5, Article 3 of the Agreement on the Resolution of the Conflict in South Sudan, which mandates the establishment of a Hybrid Court to try war criminals and instead prefer a truth and reconciliation approach. Four days after the publication of the article, Machar repudiated its contents, saying that he had not been consulted about the piece, which was submitted by Kiir’s representatives. The president’s spokesman at the time, Ateny Wek Ateny, remained steadfast that Machar had been consulted before the article was penned.
In 2021, the United States championed the establishment of a criminal court in South Sudan to hold war criminals accountable for atrocities committed against civilians during the country’s devastating 2013 civil war. However, Foreign Policy Magazine reported in its 20 July 2021 issue that, “The Biden administration appears to be giving up on the court in the face of South Sudan’s persistent refusal to set up a tribunal that could potentially uncover serious war crimes. In recent weeks, the U.S. State Department has signaled it is planning to reallocate most of the $5 million in funding it had earmarked for the court, sending some back to the U.S. Treasury and another portion to other programs in South Sudan.”
The decision to take back the money was informed by mounting frustration with Kiir and Machar, who at the time claimed the court was unnecessary.
“But it also reflects a certain exasperation with the African Union (AU), which played a critical role in advocating for a regional tribunal to be staffed by AU and South Sudanese lawyers and judges,” Foreign Policy reported. “The AU—which has the authority to set up the court—has been reluctant to move ahead without buy-in from South Sudanese parties.”
After the signing of the 2018 revitalized peace agreement, there continued to be feet dragging on the issue of accountability and it was decidedly shelved by all parties. Recently, under pressure, the government tabled bills related to Transitional Justice, Accountability, Reconciliation and Healing as prescribed in the agreement and after they were passed by parliament, that was the end of that and they have been shelved. The perpetrators who are all powerful and lead the country, and their functionaries, are resolute in making sure they are not arraigned in court for war crimes or lose their positions which they use as effective shields from prosecution.
The way forward: the urgent need for Universal Jurisdiction
According to the UN Office of the High Commissioner for Human Rights (OHCHR), Universal Jurisdiction is a specific form of extraterritorial jurisdiction. It is based on the idea that some crimes are so serious that all states must prosecute offenders, even if the offender is not a national of that state and even if the crime was committed elsewhere.
Correspondingly, the International Committee of the Red Cross (ICRC) Advisory Service on International Humanitarian law says: “Universal jurisdiction refers to the assertion of jurisdiction over offenses regardless of the place where they were committed and the nationality of the perpetrator or the victim. It is held to apply to a range of offenses the repression of which by all States is justified, or required, as a matter of international public policy due to the gravity of the crimes, and the importance of their repression in the eyes of the international community.”
The concept of universal jurisdiction became more developed after the trials at the end of World War II of German Nazi leaders in Nuremberg and of Japanese military leaders in Tokyo. These tribunals prosecuted crimes against peace, war crimes, and crimes against humanity, which had not been specifically prosecuted before. While these tribunals had other bases for their jurisdiction, it is now generally accepted that they were applying a form of universal jurisdiction.
After the war, the Geneva Conventions were adopted in 1949 to clarify the laws of war and the definitions of war crimes. The Geneva Conventions specify that all state parties to the Conventions must prosecute perpetrators of war crimes in their courts or hand them over to another state that will prosecute them.
“Today, many states have adopted laws to allow their courts to prosecute international crimes including war crimes, crimes against humanity, torture, and genocide whenever a perpetrator is found in that state’s territory. For example, in 2022 a German court convicted a Syrian national of crimes against humanity, including torture, that were committed in Syria,” the ICRC advisory reads in part. “The perpetrator was a former intelligence official who was accused of overseeing torture, murder, rapes, and sexual assaults in a detention facility in Damascus, Syria. He later came to Germany from Syria and was granted asylum. He was sentenced to life in prison, subject to appeal.”
Amnesty International reported in 2012 that 163 states could exercise universal jurisdiction over one or more crimes. It was reported that in 2021 globally, 125 international criminal charges were brought under universal jurisdiction, including 34 charges for war crimes, 66 for crimes against humanity, 25 for genocide, and 17 for conflict-related sexual violence. These cases covered 22 countries of commission and 16 countries of prosecution.
The main advantage of using universal jurisdiction to prosecute serious human rights violations, including crimes against humanity, is that it promotes accountability where it might otherwise be absent, like in the case of South Sudan. This might happen where the relevant state is not a party to the Rome Statute of the International Criminal Court and a referral of the situation by the Security Council is unlikely, or where there is little possibility of a specialized tribunal or domestic judicial process in the state where the crimes occurred.
Universal jurisdiction can also be used to seek justice where states, like South Sudan, do not have the political will to investigate and prosecute serious human rights violations or are unable to prosecute crimes, for example, due to instability or a lack of resources or the absence of an independent judiciary that upholds the rule of law.
OHCHR and other human rights actors have repeatedly called on UN Member States to exercise their jurisdiction to bring to justice perpetrators of serious human rights violations, including crimes against humanity, by applying accepted principles of extraterritorial or universal jurisdiction.
Some of the successful examples of universal jurisdiction are when Israel prosecuted Adolf Eichmann for his role in the Holocaust, the United Kingdom considered extraditing Augusto Pinochet, the former Chilean dictator, Australia has the authority to try individuals suspected of war crimes, crimes against humanity, and genocide, Belgium passed a “law of universal jurisdiction” in 1993 that allows it to judge people accused of war crimes, crimes against humanity, or genocide, Finland sentenced François Bazaramba to life imprisonment in 2010 for participation in the Rwandan genocide of 1994, France and Germany joined forces to enhance their capacity to investigate crimes committed in Syria.
Nearer home in Africa, in June 2013, police in Senegal arrested Chad’s former dictator Hissene Habre, who was wanted for alleged atrocities during his eight-year rule during which he killed and tortured tens of thousands of his opponents. On 30 May 2016, Habré was convicted of crimes against humanity, war crimes, and torture, including sexual violence and rape, by the Extraordinary African Chambers in the Senegalese court system and sentenced to life in prison.
On 29 March 2006, Nigerian authorities arrested Taylor near the Cameroonian border as he attempted to flee the country. He was flown to Liberia, where he was formally arrested by the UN Mission and transferred by helicopter to the Special Court in Freetown. He was then re-arrested by the Prosecution. Taylor was convicted in April 2012 on 11 counts of crimes against humanity, including rape, murder, sexual slavery, and “other inhumane acts”; violations of the Geneva Conventions, and conscripting children to fight as soldiers. Taylor, the court ruled, had aided, abetted, and planned “heinous and brutal crimes” in a conflict that left tens of thousands dead.
In November 2019, Bosco Ntaganda, 46, a warlord responsible for mass murder, rape, and abduction in the Democratic Republic of the Congo was sent to prison for 30 years, the longest sentence the International Criminal Court has ever given out.
In neighboring Uganda, a former warlord, Dominic Ongwen, whose forces attacked camps for the internally displaced across the country, was found guilty of war crimes and crimes against humanity at the International Criminal Court in May 2021.
The above and several other cases are just a few examples to draw inspiration from where perpetrators of monstrous crimes against humanity have been brought to justice, so, South Sudanese should not give up but diligently document the crimes and provide solid evidence to relevant bodies for use in prosecution shortly.
A group of astute and indefatigable South Sudanese and friends of South Sudan, operating informally as RSS Observatory, are documenting war crimes, crimes against humanity, murder, torture, sexual violence, enslavement, persecution, enforced disappearance, etc. for use in prosecuting war criminal using universal jurisdiction shortly. South Sudanese and other people with information and evidence of crimes are encouraged to and must send them in confidence via email to reportsswarcrimes@proton.me.
The United Nations, United States, European Union, and individual Western countries have severally imposed sanctions and arms embargoes that have failed and fallen flat without the desired results. The sanctioned South Sudanese officials, military officers, and rebel commanders have often publicly rubbished the sanctions and travel bans and haughtily laughed them off while continuing to perpetuate crimes as usual and unbothered.
It is therefore prudent to propose that countries in the region like Kenya, Ethiopia, and Uganda, among others and countries globally where there is a large South Sudanese diaspora are visited by the perpetrators of war crimes and countries where they stow away looted public funds and own luxurious homes, businesses and go for holiday and medical tourism be put on notice to arrest and prosecute them under Universal Jurisdiction.
The onus is on countries that neighbor South Sudan to apprehend and prosecute these criminals because their actions lead to the influx of refugees, small and other illegal arms, other illegal paraphernalia, and crime to their countries and the region.
The Troika, UN, and other global powers must take the lead on this by prosecuting these war criminals when they visit their countries and cajole, even pressure, countries around the world, especially in the East African region to do the same for a semblance of order and eventually democracy to prevail in South Sudan.
It is imprudent for the leaders to expect the people and nation of South Sudan to forgive them and forget the man-made disasters that have been visited upon innocent citizens by their fellow countrymen who swore to uphold the constitution and protect them. That people should look the other side and sit down and make peace with the person who raped their mother and sister, killed their father and brothers? This is in a land where revenge killings are the order of the day in this age due to the lack of recourse to justice, even before the war in 2013. A land where cyclic murders happen to avenge the death of a family at the hands of another clan and where pubescent girls are given as compensation, against their will, to the family or clan of a deceased by the family or clan of the killer? Now put into perspective the tens of thousands who have been killed and an equal number of their relatives contending to avenge their deaths. Scary! Right? Their thirst for revenge might just be quenched and the upset people, placated if justice through the hybrid court is carried out as stipulated in the agreement.
Ultimately, justice should not be skirted and the world, in its entirety, must ensure that justice is done if they want South Sudan and her citizens to stop being a burden on the rest of the creation in terms of high costs in humanitarian aid, relief, refugees and regional instability, etc. Without justice first and fast, South Sudan will be condemned to perpetual tumult of an even greater scale and magnitude than has ever been imagined.
The author, Koka Lo’Lado, is a journalist and can be reached via kokalolado@gmail.com
The views expressed in ‘opinion’ articles published by Radio Tamazuj are solely those of the writer. The veracity of any claims made is the author’s responsibility, not Radio Tamazuj’s.