Opinion

The Hybrid Court for South Sudan (HCSS)

By Noel Wani Legge

This article aims to shed some light on chapter five (5) of the Revitalized Agreement on the Resolution of the Conflict in South Sudan, an Arabic version of this article was published in Almaugif Daily newspaper on 16th March 2020, issue number (1293).

After the eruption of fighting in December 2013, violence spread fast, resulting in several atrocities committed. In his report to the United Nations Security Council (UNSC), the Secretary General of the UN reported killing of civilians, perpetration of conflict-related sexual violence, arbitrary detention and ill treatment between February and April 2014. Worth mentioning, as part of its response to the crisis in South Sudan, the Peace and Security Council of the African Union (AU) at its 411th meeting held on 30 December 2013 at the level of Heads of State and Government, in Banjul, The Gambia, mandated the establishment of the Commission of Inquiry on South Sudan (AUCISS) which was an unprecedented step. For the first time in the history of the regional organization or its predecessor, the African Union, the Peace and Security Council established a Commission of Inquiry. As mandated, the AUCISS is to investigate human rights violations and other abuses committed during the armed conflict in South Sudan, the African Union’s newest member and the world’s newest nation.

Concerted efforts led by the Intergovernmental Authority on Development (IGAD) and supported by the African Union (AU) and other stakeholders resulted in the Agreement on the Resolution of the Conflict in the Republic of South Sudan (ARCSS) on 17 August 2015. The ARCSS, as later revitalized in 12th September 2018 provides for the establishment of the Hybrid Court for South Sudan (HCSS), as one among other transitional justice mechanisms, and envisions a major role for the AU in its establishment.

Hybrid courts are defined as courts of mixed composition and jurisdiction, encompassing both national and international aspects, usually operating within the jurisdiction where the crimes occurred.  Hybrid courts are thought to avoid the drawbacks of purely domestic trials and proceedings by purely international courts, such as the International Criminal Tribunals for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR). The model of hybrid courts ‘endeavors to combine the strengths of the ad hoc tribunals with the benefits of local prosecutions.

According to the R-ARCSS, upon establishment, the revitalized transitional government of national unity (R-TGoNU) shall initiate legislation for the establishment of an independent hybrid judicial body to be known as the Hybrid Court for South Sudan (HCSS) and that the said legislation shall clearly define the HCSS  mandate, jurisdiction,  enforcement of international criminal law within the domestic legal system and its further requested the RTGoNU to fully support and facilitate its operation and cooperate with the HCSS. Additionally the R-ARCSS requested the African Union Commission (AUC) to establish the court to investigate, and where necessary, to prosecute individuals bearing responsibility for violations of international law and/ or applicable South Sudanese laws, committed since 15th December 2013 through the end of the transitional period. In this regard, the AUC is required to sign a Memorandum of Understanding (MoU) with the RTGoNU to establish the court. The AUC has the mandate of determining key aspects of the court such as location, funding, infrastructure, enforcement mechanism, number and composition of judges, privileges and immunities of the court personnel as per article (5.3.1.2). This design gives the AU a pivotal role.

The HCSS has broad temporal jurisdiction over international crimes committed from 15 December 2013 to the end of the transition period vide article (5.3.1.1). The court’s subject matter jurisdiction encompasses genocide, war crimes under articles 4 and 5 of the draft statute of the hybrid court for South Sudan, crimes against humanity, sexual crimes, gender-based crimes and other serious crimes under both international law and South Sudanese law. The court is empowered to order forfeiture of property or proceeds of crime to the state or restoration to the rightful owners. This is in addition to the court’s power to order reparations. Related to the jurisdiction of the court’s mandate is to leave a ‘permanent legacy’ in South Sudan (see article (5.3.5.6), consistent with the position of the UN that the establishment of a hybrid court must consider what legacy it will leave in the country. Legacy in this context is the enduring impact the court has on improving the rule of law in the country.

The hybrid court is expected to strengthen and complement the national justice system. Given its focus on prosecutions for the most serious crimes, the impunity gap is expected to be addressed by the national courts. Prosecutions will require a strengthened and independent judiciary and independent prosecutors and investigators capable of operating without political interference.

The R-ARCSS is providing for a majority of foreign judges from other African nations and a minority of South Sudanese judges in the composition of the HCSS. All prosecutors, the registrar and other staff, on the other hand, shall be foreign nationals from other African states. OWIS says as I quote “The ARCSS seems to have adopted a UN recommendation that hybrid courts for divided societies such as South Sudan should ideally be comprised of a majority of international judges in order to guarantee fairness, impartiality and objectivity. While the South Sudanese judges bring deep understanding of the specific cultural and historical context, the other non-national African judges bring a general understanding of the African context and valuable experience”. However, South Sudanese being excluded from the prosecution team is a matter of national concern as the need for South Sudan to own the process for which the HCSS ought to leave a legacy. In addition, the agreement is silent about the appointment of support staff and as I argue above it is where I disagree with OWIS. The government should take the lead when negotiating the MOU to appoint the staff without compromising the process or doing it at the expense of real justice that the court is expected to deliver to the victims of the crimes being committed.

Last thing to be noted that both of the HCSS and the Commission for Truth, Reconciliation and Healing CTRH have concurrent jurisdiction over violations committed since 15 December 2013 as per article (5.2.2.1), the first is a judicial institution offering legal solutions and the later is a political institution offering political solutions; and in presence of a well-defined framework the two mechanisms can complementarily work together.

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