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Transitional Justice: The Hybrid Court for South Sudan (1-2)

The origin of Hybrid Courts:

Disseminator of knowledge website defines hybrid courts as: courts that usually apply a mix of national and international law (both procedural and substantial and feature a blend of international and national elements), in particular international and national judges and staff. In other words, hybrid courts are mixed criminal tribunals, which are half national, half international in nature.

These international courts are formed by treaties between nations or under the authority of an international organisation such as the United Nations and include ad hoc tribunals and permanent institutions, but exclude any courts arising purely under national authority, that is to say any court in the country of origin where the crimes being investigated were committed.

Early examples of international courts similar to the hybrid court which is the subject matter of our discussion include; the Nuremberg International Military Tribunal and Tokyo tribunals established in the aftermath of World War II. Three such courts are presently located at The Hague in the Netherlands: the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Court of Justice (ICJ), and the International Criminal Court (ICC).

Further international courts exist elsewhere, usually with their jurisdiction restricted to a particular country or issue, such as the one dealing with the genocide in Rwanda. In addition to international tribunals created to address crimes committed during genocides and civil war, ad hoc courts combining international and domestic strategies have also been established on a situational basis. Examples of these “hybrid tribunals” are found in Sierra Leone, Lebanon, East Timor, and Cambodia.

Origin of the Hybrid Court for South Sudan (HCSS):

According to article three of chapter five of the Agreement on the Resolution of the Conflict in the Republic of South Sudan (ARCSS), on transitional justice, a hybrid judicial court, to be known as the Hybrid Court for South Sudan (HCSS) shall be established and will be an independent court to be established by the African Union Commission(AUC) to investigate and prosecute individuals bearing the responsibility for violations of international law and/or applicable South Sudanese law, committed from 15th December 2013 through the end of the Transitional Period(2018).

The ARCSS stipulates that the terms establishing the HCSS shall conform to the terms of this Agreement (the ARCSS itself) and that AUC shall provide broad guidelines relating to and including the location of the HCSS, its infrastructure, funding mechanisms, enforcement mechanism, the applicable jurisprudence, number and composition of judges, privileges and immunities of Court personnel or any other related matters. Chapter five of the ARCSS provides explicit explanation that the Chairperson of the Commission of the AU shall decide the seat of the HCSS.

Jurisdiction Mandate and Supremacy:

In order to avoid any loophole, chapter five of the ARCSS stipulates that the HCSS shall have jurisdiction with respect to the following crimes; Genocide; crimes against Humanity; War Crimes, other serious crimes under international law and relevant laws of the Republic of South Sudan including gender based crimes and sexual violence.

The ARCSS further explains that the HCSS shall be independent and distinct from the national judiciary (Judiciary of South Sudan) in its operations, and shall carry out its own investigations: The HCSS shall have primacy over any national courts of the Republic of South Sudan. This means the Hybrid Court for South Sudan established under the terms of the peace agreement shall be superior to all the courts in South Sudan.

Personnel and Appointment Procedures:

With regards to the procedures for the appointment of personnel who would serve at the Hybrid Court for South Sudan, Article 3.3 of chapter five of ARCSS stipulates that; Judges, prosecutors, investigators and defence counsel and the registrar of the HCSS shall be persons of high moral character, impartiality and integrity, and should demonstrate expertise in criminal law and international law, including international humanitarian and human rights law.

The agreement states that a majority of judges on all panels, whether trial or appellate, shall be composed of judges from African states other than the Republic of South Sudan, meaning these judges will not be South Sudanese they will be foreigners.

The agreement further states that the judges of the HCSS shall elect a president of the court from amongst their members. Prosecutors and defence counsels of the HCSS shall be composed of personnel from African states other than the Republic of South Sudan, notwithstanding the right of defendants to select their own defence counsel in addition to, or in place of, the duty personnel of the HCSS.

The registrar of the HCSS shall be appointed from African states other than the Republic of South Sudan, and judges, prosecutors, defence counsel and the registrar shall be selected and appointed by the Chairperson of the African Union Commission. The agreement clarified that the same selection and appointment processes shall apply to South Sudanese judges and judges from other African states.

The prosecutors and defence counsel shall be assisted by such South Sudanese and

African staff of other nationalities as may be required to perform the functions assigned to them effectively and efficiently.

Rights of Victims and Witnesses:

After having understood the procedures for the appointment of personnel to the Hybrid Court for South Sudan under the terms of ARCSS, it is also explained that the HCSS shall implement measures to protect victims and witnesses in line with applicable international laws, standards and practices.

It added that the rights of the accused shall be respected in accordance to applicable laws, standards and practices. With regards to criminal responsibility, convictions and penalties, the agreement states that 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, Article 3.2.1, of this Agreement(ARCSS) shall be individually responsible for the crime.

The ARCSS further states that the HCSS has the authority and it may order the forfeiture of the property, proceeds and any assets acquired unlawfully or by criminal conduct, and their return to their rightful owner or to the state of South Sudan, while all judgments of the court shall be consistent with the accepted International Human Rights Law, International Humanitarian Law and International Criminal Law, the HCSS shall also award appropriate remedies to victims, including but not limited to reparations and compensation.

The HCSS shall not be impeded or constrained by any statutes of limitations or the granting of pardons, immunities or amnesties. This means no excuse whoever had played any role in committing atrocities or crimes during the 2013 violence or in the aftermath of the violence, will not escape justice.

The ARCSS further states that no one shall be exempted from criminal responsibility on account of their official capacity as a government official, an elected official or claiming the defence of superior orders. Here the peace agreement is trying to clarify that whoever, and whatever status having committed hideous crimes during the December 2013 violence or after, shall not be exempted or shall not escape justice for whatever violations they have committed. Even if they big shots in the government, they will have to face justice.

Some of the reasons why the negotiators during the peace talks in the Ethiopian capital Addis Ababa, agreed to include a chapter on the hybrid court was the HCSS shall leave a permanent legacy in the Republic of South Sudan upon completion of its HCSS Mandate.

Special Tribunal for Lebanon, file photo from Google

Next week we shall continue with Hybrid Court of South Sudan and other components of the transitional justice according to the Agreement on the Resolution of the Conflict in the Republic of South Sudan (ARCSS). Peace be with you all.

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