Pushing too hard for transitional justice? Lessons from South Sudan

Can transitional justice mechanisms help push a peaceful transition forward? Not necessarily. The case of South Sudan demonstrates possible risks and pitfalls by rushing the process.

When the Sudan and the Sudan People’s Liberation Movement (SPLM) signed the Comprehensive Peace Agreement (CPA)  in 2005  it was important in two ways: It ended a 21 year conflict in the Sudan and created a semi-autonomous region in the South. When it comes to transitional justice (TJ), the CPA alluded to a reconciliatory process to be undertaken by the parties to the agreement and did not attempt to address aspects of justice for human rights violations, nor did it touch on reparations. This blog discusses attempts by the brokers of peace agreements to include TJ, especially criminal accountability, through the Hybrid Court and evaluates the challenges of the context being a non-transition one and how it impacted on criminal accountability demands. The blog offers lessons for fragile states with similar situations by assessing some of the contradictions of the field and how problematic the assumptions made in the field of TJ have become in contexts like South Sudan.

The Comprehensive Peace Agreement’s blind spots
Ignoring TJ in the framework of the CPA, meant that grievances that occurred during and before the 21 years of conflict, were left unaddressed. Subsequently, during the implementation of the 2005 agreement both parties and guarantors to the agreement concentrated on implementing the peace and seeing South Sudan’s secession through. The CPA’s blind spot on TJ, especially criminal accountability, gave the parties to the agreement, especially the SPLM, the impression that they were absolved of all wrongs that were committed during these 21 years. It also gave the impression that, regardless of the wrongs committed against civilians, the SPLM would be in charge of the new state and that those with the capacity to wage war, e.g. the SPLM, with its military wing held absolute rights in determining the terms of the 2005 peace. The engagement between the SPLM and the Islamists in Khartoum left many other contenting parties with the option of joining the SPLM or being left out completely.

Ignoring TJ in the framework of the CPA, meant that grievances that occurred during and before the 21 years of conflict, were left unaddressed.

Underlying political tensions after decades of armed conflict were ignored as the political and military leadership in South Sudan forged unity to be able to achieve independence. The past was never discussed and the attempts towards reconciliation as laid down in the CPA were completely ignored.  When South Sudan attained independence in 2011, a civil war broke out in December 2013.To many, the 2013 conflict came as no surprise considering the growing political tensions  within the SPLM. The spark of a new civil war was ignited at the SPLM convention on December 15, 2013. The chairman of the SPLM, who is the president of the Republic and his close allies endeavored to bar all attempts to call for internal democratic changes within the SPLM and free and fair elections by 2015. All critical voices calling for reforms were stifled. These political tensions within SPLM eventually led to violent clashes. The pattern of the conflict was no different from the one waged by the SPLM against the regime in the Sudan at the time. The conflict immediately took an ethnic turn and was characterized by massive human rights violations. The parties agreed to a 2015 peace deal that was immediately crippled. But they returned to the negotiating table and in 2018 a revitalized agreement was signed. Both agreements embedded a TJ chapter to aid reconciliation, reparations and justice for victims.

Underlying political tensions after decades of armed conflict were ignored as the political and military leadership in South Sudan forged unity to be able to achieve independence.

The risk of loosing it all
For TJ processes to take place, especially for criminal accountability to be implemented, there needs to be a form of political and/or democratic transition.^[1] This assumption is driven by the wave of democratization that swept the Latin Americas in the 1980s and before that, the Tokyo and Nuremburg trials. As the field has progressed, scholars have claimed that in contexts where no form of political or democratic transitions have occurred, TJ mechanisms can be instrumental in stabilizing the context and moving it towards a form of transition and a peaceful state. Interestingly, the context of South Sudan has proven otherwise and shown that the incumbent, who are the political and military leadership, will do anything to subvert the good intentions of the TJ chapter in peace agreements, especially criminal accountability, because of the fear that they will be prosecuted.

Also, in the absence of transition both political and military leaders remain decision-makers in the transitional government and are likely to obstruct the progression of the court, or pretend to be implementing the TJ provisions, but for ulterior outcomes.^[2] Furthermore, the assumption that TJ itself can aid the transition in South Sudan has proven unrealistic in the current context. For instance, the context is plunged in recurrent violence.^[3] Considering that the country is full of powerful generals and political leaders, forcing the establishment of hybrid courts could derail the agreement and not forge a transition or peace as earlier assumed.^[4] So the argument that TJ could aid the transition and become instrumental in building peace is flawed. Forcing the hybrid court on the current political and military leadership could prove fatal. This also brings in the debate on whether to pursue peace or justice. To risk and loose it all would be catastrophic. This explains why the guarantors of the agreement are proceeding with caution.

Forcing the hybrid court on the current political and military leadership could prove fatal.

The way forward for South Sudan: What is possible?
An empirical assessment of the current situation in South Sudan shows that forcing transitional justice mechanisms on the country, especially establishing the court, could backfire.The challenges of criminal prosecution, in particular prosecuting a sitting head of state have been clear in the case of Darfur and Sudan. ^[5]. Even after the departure of Omar al Bashir, it is difficult for the Sudan to hold perpetrators of human rights violations to account because both military actors and former supporters of former President Omar al-Bashir constitute half of Sudan’s Sovereign Council which is the formal head of state. These military actors are not interested in a TJ process which will uncover all the human rights abuses they have instigated. Similarly, experiences from South Sudan show that both the political and military leadership are keen on implementing provisions on reconciliation and reparations, but not those on criminal accountability. So while the issues of the hybrid court are still being tussled out, it is imperative that the TJ mechanisms that have proved to be less controversial, such as reconciliation and reparations are implemented - to provide communities and their leaders with a form of resolution, compensation and stability. Implementing provisions on reconciliation and reparations can offer some form of relief and reconcile communities, the political and the military leadership. This approach can maintain the peace until South Sudanese are able to vote new leaders into office.^[6]

Similarly, experiences from South Sudan show that both the political and military leadership are keen on implementing provisions on reconciliation and reparations, but not those on criminal accountability.

In short, the South Sudan’s case shows that context specific knowledge, and an empirical assessment of a context are key to framing TJ mechanisms. The scenario in South Sudan shows that TJ conversations cannot happen in a void and without the inputs of the citizens and those concerned. Where negotiations are detached from the realities of the context, they are bound to be rejected and become unimplementable. Despite current difficulties, the silver lining lies in implementing TJ mechanisms that are acceptable to the current political and military leadership to keep the peace and allow for a period where free and fair elections can be held and a transition is achieved through that.

This Sudan blog post is written by Kuyang Logo. The views expressed in this post are those of the author, and do not necessarily reflect the opinions of the ARUS project or CMI.