"Proposed justice measures in South Sudan including the Hybrid Court can be pursued despite disruptions in the implementation of the peace agreement".

July 1, 2017

The lack of political will by South Sudanese leaders to implement the ARCSS, however, has left the transition process in shambles. Fighting continues and has spread to every region of the country, humanitarian access remains severely obstructed despite an estimated 4 million refugees and displaced South Sudanese since 2013, famine has taken hold, and most of the genuine opposition has had to flee the country due to the governments oppression of civil society, journalists, and any form of dissent. Despite these conditions, the lack of an alternative peacebuilding framework perpetuates the commonly held notion that ARCSS continues to provide the only path for moving forward in South Sudan.

The element of ARCSS that many South Sudanese are most reluctant to lose is Chapter Von transitional justice, accountability, reconciliation, and healingand with it the institution of a hybrid court that offers some hope for justice and an end to impunity in the country. Often overlooked in this supposed tradeoff is that the key accountability measures negotiated into the ARCSS can be retained even outside the Agreement.

The State of the ARCSS

Almost since the moment the ARCSS was adopted in August 2015, the parties have refused to honor ceasefire commitments. South Sudans president, Salva Kiir, famously signed the ARCSS with reservations detailed in a list of complaints and qualifications. While rejected by the ARCSSs international signatories from the Intergovernmental Authority on Development (IGAD), the African Union (AU), and the troika (the United States, Norway, and the United Kingdom), the regime nonetheless proceeded to implement many of these reservations, without meaningful international reaction. These and other measures undertaken by the regime have consequently rendered the ARCSS, the term of which was to extend to May 2018, inoperable. Among others, these include:

The failure to demilitarize Juba or pursue any meaningful reform of the security sector

The unilateral replacement of opposition leader and First Vice-President of the TGoNU, Riek Machar

Harassment and obstruction of ceasefire monitors

Interference with the activities of the Joint Monitoring and Evaluation Commission established to monitor the implementation of ARCSS

Despite these and many other violations, the GOSS regularly affirms the ARCSS as the blueprint for finding lasting peace, even as it continues to prosecute and expand the war.

From a political perspective, it is difficult to see how a national dialogue that excludes the main opposition and rebel movement opposed to the government and conducted in an environment of severe insecurity and humanitarian crisis can deliberate and prescribe how the conflict should be resolved.

The Fate of Accountability Institutions

What implications do these actions have for accountability for crimes and human rights violations committed since December 2013 that were to be addressed under ARCSS? In fact, the survival of the hybrid court, the Commission on Truth, Reconciliation, and Healing, and the Reparations Authority are not contingent upon the ARCSS but have a basis of their own outside the peace agreement.

Final Report of the AU Commission of Inquiry (COI) on South Sudan:

Second, while negotiating the ARCSS, IGAD mediators were fully aware of the COIs work on accountability and essentially aligned its recommendations with the COIs findings on the subject. Indeed, the ARCSS process was guided by the understanding that individuals found responsible for human rights violations in the COI would be prohibited from participating in the Transitional Government of National Unity (TGoNU). This guidance was contained in the signed (protocol?) by IGAD heads of state and governments (including Salva Kiir) on August 25, 2014. That part of the protocol was never applied, however, in part because Sudan Peoples Liberation Movement-in-Opposition (SPLM-IO) did not sign the protocol.

However, Article 4(h) also provides a legal anchor for a wider range of interventions, including the creation of a judicial body to prosecute those that commit these crimes.

The legal reasoning applies with equal force to the AUs role under Article 4(h) of the Constitutive Act of the AU. In the case of Hissne Habr, the AU requested that Senegal prosecute the former Chadian dictator for torture and crimes against humanity because the AU lacked the means to do so, although it had the authority. Nonetheless, the AU subsequently played a critical role in staging the trial that culminated in a conviction.

The ARCSS process was guided by the understanding that individuals found responsible for human rights violations in the COI would be prohibited from participating in the Transitional Government of National Unity.

Having delegated the peacebuilding responsibilities to IGAD, the AU is well within its authority to take up the entire process itself, if it deems warranted. This includes elements of accountability, transitional justice, and reconciliation as articulated in the ARCSS.

In sum, while much remains to be done to get the political process in South Sudan back on track, the ARCSSs Chapter V institutions on transitional justice, accountability, and reconciliationincluding the hybrid courthave a firm legal grounding outside the ARCSS should the AU wish to pursue them.

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A Path To Justice In South Sudan - gurtong