The Hybrid Court for S. Sudan – an instrument of foreign political control

Tharcisse Gatarama questions the necessity and rationale for the establishment of a Hybrid Court for the war-torn country

Only weeks after the formation of a new unity government, South Sudan descended once again into conflict. Hundreds died in heavy fighting in the streets of Juba between the government forces of President Salva Kiir and a rebel group loyal to former vice-president Riek Machar who was recently replaced by republican decree. The country now finds itself under intense pressure from two western nations – Britain and America.

These Great Powers are co-signatories to the peace agreement that brought together the warring sides of South Sudan’s civil war – precisely to halt the return of violence such as that which returned this month.

Yet neither the US nor Britain are urging instantaneous action on demobilisation of the largest military by GDP in the world, or the immediate establishment of a fund for victims – both ways to reduce the potential for future conflict.  What they insist upon instead is for the immediate foundation of another requirement of the peace accord, a new international justice tribunal – to be called the Hybrid Court for South Sudan (HCSS) – and for it to be made operational without delay.

Just think for a minute of the plight of victims the civil war that has claimed the lives of tens of thousands and displaced some two million, and those victims from the return of fighting in recent weeks. What might they reasonably expect at this moment in time from both the international community and their own unity government?

First and foremost, the answer must be the certainty that peace will hold – and with it the chance to live without war that none of them wanted nor caused.

Next must be money, food and shelter. This would offer the chance to feed their families, put an end to their immediate suffering and then slowly – over time – have the chance to think about the future: how to find or create employment, irrigate land, and return to the normalcy enjoyed by millions of other Africans in neighbouring countries.

But, instead, the homeless and starving will be given justice. They will be given an international court, located in a faraway country that will deliver to them trials and convictions of those accused of crimes against them. And then, if they are literate, or miraculously have access to TV, Radio or the Internet, they will have the satisfaction of reading, listening to or watching the court’s proceedings as they unfold.

There is no doubt that victims of this terrible civil war deserve justice. However, the question remains: is the foundation of an international tribunal really the top priority for anyone in South Sudan at this time? And then there is another, equally important question: given their abysmal track record of dispensing justice, is the pursuit of justice for victims really the point of such courts at all?

From the International Criminal Court to the Special Court for Sierra Leone, to the International Criminal Tribunal for former Yugoslavia to the International Criminal Tribunal for Rwanda – all have been accused of being vehicles, not for justice, but for the extension of political influence over developing countries by their western funders.

This is fiercely debated. But in the case of the Hybrid Court for South Sudan there is no ground for debate at all. That it is intended to be a court that has powers of intervention and control over the political classes of a sovereign state is crystal clear: it’s even written into the small print. According to the stipulations of the peace agreement:

Individuals indicted or convicted by the HCSS shall not be eligible for participation in the TGoNU [Transitional Government of National Unity], or in its successor government(s) for a period of time determined by law, or, if already participating in the TGoNU, or in its successor government(s), they shall lose their position in government.

Put simply, if you are merely accused by the HCSS, you have to leave public office, even if later you are found to be innocent of those crimes of which you have been accused. Under British and American laws, a person is considered innocent until proven guilty. But under the HCSS – which they have both pledged to fund – those accused are guilty until proven innocent, a total reversal of the laws under which their own citizens are judged before their domestic courts.

For South Sudanese it means that any accusation, whether true or not, would provide the HCSS the power to remove individuals representing different ethnic groups in the unity government in a fragile balance, and place them under arrest.

The opportunity for abuse of this law for political purposes does not bear thinking about, not least when the ability of any authority to properly investigate allegations of criminality relating to the civil war – whether the South Sudanese government, or even western powers – is so weak. It is not hard to see how for instance a government minister, who does not agree to financial terms proposed by an international company, could find themselves removed from office on spurious charges that cannot be verified over crimes they did not commit, while someone more malleable is inserted in their place. That is the potential power of mere accusation, and the possibility for its abuse.

Could this happen? As an old proverb states, ‘he who pays the piper calls the tune’. And what we already know for certain is that when it comes to the planned Hybrid Court for South Sudan, it’s neither victims, nor South Sudanese government officials who are paying it.

Tharcisse Gatarama is a Rwandese International Criminal lawyer.  He holds a Masters in International Politics from CERIS in Brussels (European Centre for International and Strategic Research). He has practiced law at the International Criminal Court for Rwanda, the Special Court for Sierra Leone, and currently working with ICC in The Hague. He has carried out various fact-finding missions in various countries in particular those affected by the war.



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