The promise of a Hybrid Court for South Sudan

By Taban Romano

Civil society members were outraged by an op-ed in the New York Times, reportedly by the president and first vice president of South Sudan, which suggests that the country does not need a hybrid court. But, would a hybrid court be yet another raw deal for the world’s youngest country?

The civil war in South Sudan that began in December 2013 has resulted in massive violations of human rights and unlawful killings.  Some people have fled to neighbouring countries, while others remain in zones known as ‘protection of civilians’ sites. There were several reasons why the war broke out, most notably the political differences among the politicians in the country. Regional neighbours and the international community got involved to force the parties to the conflict to sign peace agreements. The result: the August 2015 Peace Accord signed in Addis Ababa.

Yet, in defiance of the peace agreement, fighting continued in South Sudan. Riek Machar himself, the rebel leader and now newly sworn in vice president of South Sudan, only recently returned to the country in April in 2016 after a period of self-imposed exile. “Our people are tired of war and they need peace, now,” President Salvar Kiir said after Machar’s return. “Together we can accomplish far more than when we are divided. Our strength lies only our unity,” he added.

And so today, almost nine months after the peace deal was signed, the transitional government of national unity has finally been formed. Yet instead of glee, most people in South Sudan are filled with disappointment, hopelessness and despair – despite the end of the war, many are living in destitution.

The promises of a mixed court

Chapter 5 of the 2015 peace deal has specific provisions for the establishment of a hybrid court for South Sudan. It’s intended to address past human rights violations – and there’s more proposed, including a variety of judicial and non-judicial mechanisms.

A hybrid court may be described as having some mixture of national and international elements. Some are established as international courts but given national elements, while others are established as ‘internationalised’ national courts.  In theory, this could bring the best of both systems to the South Sudanese people: the neutrality, objectivity and expertise of an international tribunal coupled with the legitimacy, ease of access to witnesses and evidence and, greater impact on local reconciliation and politics of a national tribunal.

Of course, one of the main purposes of any criminal justice system is to punish offenders. When the guilty are punished and the innocent set free, justice is seen to have been done. But, even when the guilty are punished and even if the sentence is proportional to the crime, justice is not complete without the notion of fairness. The South Sudanese people are deeply wounded, bitter and in dire need of justice to prevail.

Why do we need justice through a hybrid court?

• Bringing Justice to Victims. The African Union Commission of Inquiry report on South Sudan was published on 27 October 2015. Citizens are clearly calling for suspects of mass rape, murder and forcible transfer to be tried before a court.
• Holding all leaders accountable. I believe many of the heads of different South Sudanese institutions, including legal and governmental bodies, all could face potential indictments.
• Giving the victims a voice. A tribunal will give thousands of South Sudanese the opportunity to be heard.
• Establishing the facts. Many facts related to the 2013 December atrocities will be made public. This will help in the creation of historical records, combating denial and preventing revisionism.
• Strengthening the rule of law. A tribunal will encourage the judiciary in its works and help establish a better justice system in the process.
• Developing international law. It will show that effective and transparent international justice is viable.

A hybrid court’s big challenge: jurisdiction

The concept of jurisdiction* in relation to an international criminal tribunal refers to several types of limits on the cases that that tribunal may hear. It is helpful to think of such adjudicative jurisdiction in terms of the competence of a court to hear a case. To proceed to try a case, an international court or tribunal must have:

1. Jurisdiction over the offence charged (subject matter jurisdiction or jurisdiction ratione materiae);
2. Jurisdiction either over the place where the crime was committed (spatial/territorial jurisdiction or jurisdiction ratione loci) or over the person charged (personal jurisdiction or jurisdiction ratione personae); and
3. Both 1 and 2 at the time of the offence (temporal jurisdiction or jurisdiction ratione temporis).

In addition, there is the question of how the jurisdiction of a given international criminal tribunal relates to the national jurisdiction of the state. Broadly, the question will be whether the proposed hybrid court will have primary jurisdiction, where: it can require a state to ‘defer’ its own prosecution to the international criminal tribunal or complementary jurisdiction; the primary criminal jurisdiction rests with national courts yet the international criminal tribunal may assume jurisdiction over a case if national authorities are unable or unwilling genuinely to investigate or prosecute a case.

These issues along with fair trial rights, appeals, revision and enforcement of sentences, witnesses protection, funding, state cooperation in terms of investigations, arrest, extradition all have to be decided.

Without the means to enforce the proposed hybrid court, the peace accord becomes an empty promise and a meaningless declaration. Let’s not glorify the system for itself. Moreover, in light of some of the comments made in the recent joint NYT-op-ed by Machar and Kiir (now disowned by Machar), it’s clear that there is also lack of political will from the key principals to adhere to the spirit and provisions of the 2015 agreement when it comes to the issue of criminal responsibility. Unfortunately, this fiasco seems like yet another raw deal for South Sudan.

* The jurisdiction of a court (‘adjudicative jurisdiction’) refers to the limits of a court’s power or ability to hear a given case. While adjudicative jurisdiction has some relationship with prescriptive and enforcement jurisdiction, for present purposes it is best thought of as a separate concept.

Taban Romano is a holder of LLM (international criminal law, natural resources, taxation and Jurisprudence) from University of London, LLB (Hons) LLP. He is a private legal practitioner and a legal consultant in South Sudan.

Lead image: First Vice President of South Sudan and former rebel leader Riek Machar, South Sudan President Salva Kiir and Second Vice President of South Sudan James Wani Igga (Photo: Charles Lomodong/AFP)

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