Accountability in S.Sudan cannot wait for peace – but could foster it

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BY KEN SCOTT

Today, South Sudan observes its fourth anniversary as a State. I say “observe” because there is nothing to celebrate. Since conflict broke out in mid-December 2013, South Sudan has become one of the neediest, most tragic places on earth.

Tens of thousands of people have been killed, in schools and hospitals, churches and mosques, even in guarded UN camps for already displaced persons. On June 30, the UN reported grave acts of brutality against civilians by government forces in Unity State, including burning people alive in their houses. UNICEF recently concluded that “violence against children in South Sudan has reached new levels of brutality”, citing the gang rape and the murder of girls as young as eight and the castration of boys left to die.

Although the UN and international community have repeatedly voiced “outrage” and called for an end to the conflict, peace efforts to date, led by the Intergovernmental Authority on Development, have failed. Recent talks sponsored by the President of Kenya also showed no tangible progress.

Among the root causes of the South Sudan conflict are an unfortunate culture of impunity and a historical absence of accountability. The Comprehensive Peace Agreement of 2005 failed to address gaps in accountability resulting from decades of civil war with the North. After 18 months of killing, mayhem and rape, the South Sudan government has done nothing of significance to hold any of its own officials and forces accountable for violations committed and in fact obstructs international efforts to monitor human rights abuses and investigate probable war crimes.

There has been no shortage of speeches calling for accountability, but a tragic shortage of real action. A year ago, there was already consensus among South Sudanese civil society and international actors including UN Secretary General Ban Ki-Moon for some type of hybrid court, but no such mechanism has yet been established. The principal reasons given by the international community for not taking more action over the past year are the desire to give peace efforts a maximum chance of success by not naming persons allegedly responsible for the violence, and to show deference to the African Union in the hope for a genuine African accountability solution.

All of us hope that genuine peace can be established in South Sudan – a peace that is more than a cease-fire between rival elites, a peace that will addresses the country’s real issues and needs. However, accountability cannot wait any longer. While some have expressed the view that the violence against civilians will only stop when such a peace is established, the prohibition of crimes against humanity and the rules of international humanitarian law are meant to prevent and stop such violence even while an armed conflict continues. It may not be possible to achieve a complete peace in the short-term, but that does not and cannot mean that mass violence against civilians must, in the meantime, simply be accepted as “just the way it is.”

It is not true that justice and accountability can only be addressed once peace has been established. An investigative Commission of Experts was established for the Balkan wars in the 1990s three years before the Dayton peace accords were signed. The International Criminal Tribunal for the former Yugoslavia was established two years before the accords. International investigators were on the ground and evidence was being collected while the fighting continued.

The International Independent Investigation Commission to investigate the murder of former Prime Minister Rafic Hariri and twenty-one others was established by Security Council resolution in April 2005, four years before the Special Tribunal for Lebanon was created in 2009.

The conflict in South Sudan must be addressed in a similar fashion. There is no need to wait for a fully-developed peace or until a full-blown court or tribunal is established. Indeed, the people of South Sudan cannot wait.

There is ample authority in the UN Charter, Chapter VII, for the creation of a hybrid accountability mechanism for South Sudan, and, since 2011 and as recently as 28 May, the UN Security Council has made at least eight Chapter VII findings that the situation in South Sudan constitutes a threat to international peace and security.

Adequately resourced criminal investigators must get on the ground in South Sudan as soon as possible before more evidence is destroyed, concealed or otherwise lost.

The US Secretary of State John Kerry said almost a year ago, “We’re well past the point where enough is enough”. If that was true a year ago, it must be doubly true now. How many more South Sudanese civilians must be murdered and young women sexually assaulted before real, concrete actions are taken to obtain sustained security for all?

In early May, the United States pledged $5 million to help set up an accountability mechanism for South Sudan. This pledge must lead to concrete action now. A strong and sustainable international mandate can lead to justice and perhaps real steps toward justice can lead to peace.

Maybe the warring parties in South Sudan will cease or at least reduce their attacks on civilians, churches and schools when they see serious international criminal investigators on the ground with a robust protection force and every intention to indict and bring to justice those responsible for so much human misery. The time to act decisively, to stop the violence is now!

(Scott is Amnesty International’s Research Consultant for South Sudan. He is a former senior prosecutor at the International Criminal Tribunal for the former Yugoslavia and currently a special prosecutor at the Special Tribunal for Lebanon).

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