The African Union has been urged by Amnesty International and the South Sudanese Transitional Justice Working Group (TJWG) to speed up the establishment of a hybrid court in South Sudan to help bring long-awaited justice and accountability for war crimes and crimes against humanity.
The conflict in South Sudan has resulted in over 400,000 deaths and the displacement of more than four million people since it began in December 2013. Despite multiple peace agreements, the fighting has continued.
The hybrid court would be a step towards justice for the victims of the conflict. It would also send a strong message that those who commit such atrocities will be held accountable.
The African Union Peace and Security Council (AUPSC) must call on the African Union Commission to ensure an effective legal mechanism exists to investigate and prosecute serious human right violations and abuses in South Sudan including the deliberate killing of civilians, rape and other sexual violence, forced recruitment of child soldiers and displacement.
The AU has a responsibility to ensure that justice is served for the victims of these atrocities, and to send a strong message that such crimes will not be tolerated. This legal mechanism will help to hold perpetrators accountable and deter others from committing similar abuses in the future.
The establishment of the African Union (AU) peace and security court is a unique opportunity for the AU to demonstrate African leadership and to offer an African-led solution for the most serious crimes on the continent. The court would demonstrate a real commitment to the organisation’s principles and show that the AU stands with survivors and victims of crimes for which impunity cannot be tolerated.
This would be a major step forward for the protection of human rights in Africa, and send a strong message that the AU is serious about holding perpetrators of serious crimes accountable. The court would also provide much needed justice for survivors and victims of crimes, who often have no other recourse.
This would be a unique opportunity for the African Union to show African leadership, according to Muleya Mwananyanda, Amnesty International’s Director for East and Southern Africa.
Mwananyanda noted that the African Union has a chance to set a precedent and show the world that Africa is capable of leading the way on important issues. He urged the African Union to take advantage of this opportunity and use it to show the world what African leadership looks like.
The African Union (AU) established the African Court on Human and Peoples’ Rights (the Court) in 2006. The Court is a unique opportunity for the AU to demonstrate African leadership and to offer an African-led solution for the most serious crimes on the continent. The Court has the mandate to protect and promote human and peoples’ rights in Africa, and to ensure accountability for those who violate these rights.
The Court’s jurisdiction is limited to cases brought by African states and regional organisations. Individuals and NGOs can also bring cases to the Court, but only if the state where the alleged violation took place has given its consent.
The briefing urges the African Union Commission to establish the long-awaited African Union Hybrid Court for South Sudan. The Court was first proposed as part of a peace agreement signed by the government and opponents in August 2015, and again in September 2018. However, despite repeated calls from Amnesty International and other human rights organisations, the Court has not yet been established.
The briefing highlights the importance of the Court in ensuring justice for the many victims of the conflict in South Sudan. It also urges the African Union Commission to take immediate steps to establish the Court, so that it can begin its crucial work as soon as possible.
The formation of the African Union’s long-awaited Hybrid Court for South Sudan should not have been delayed for so long, said Muleya Mwananyanda, Amnesty International’s Deputy Regional Director for East Africa, the Horn and the Great Lakes.
“The AU must take long awaited and bold action. The failure to establish the Hybrid Court reflects a lack of political will in South Sudan’s government to hold those most responsible for serious crimes, which are likely to include senior political and military officials, to account,” said Muleya Mwananyanda.
The failure by South Sudan’s government to establish the long-awaited Hybrid Court is a disappointing missed opportunity to bring those responsible for serious crimes to justice. The court, which was supposed to start operations in November 2015, would have had the mandate to try cases of war crimes, crimes against humanity, and other serious violations of international law.
It is widely believed that senior political and military officials are among those responsible for the most serious crimes committed in South Sudan since the outbreak of the conflict in 2013. The failure to hold these officials accountable is a travesty of justice and does not bode well for the future of the country.
The establishment of the Hybrid Court in South Sudan was mandated by the August 2015 Peace Agreement, which was broken in order to end the country’s two-year civil war. The Agreement called for the creation of the Court to try those responsible for war crimes and crimes against humanity during the conflict.
The Court is a hybrid tribunal, meaning that it is made up of national and international judges, as well as international and national prosecutors.The Court’s work is overseen by the African Union Commission. The United Nations Security Council has also called for the Court to be established, and has provided financial and technical assistance to help make it a reality.
The African Union (AU) should establish a Hybrid Court for South Sudan in order to bring justice to the victims of the country’s conflict, according to Amnesty International and the Transitional Justice Working Group.
The two organisations believe that the AU has both the mandate and the responsibility to set up the court, which would have a mix of international and national judges, and would try those suspected of the most serious crimes committed during the conflict.
We recommend that the African Union Commission move quickly to finalise the statute of the proposed hybrid court for South Sudan. The statute should confirm the court’s mandate to investigate and prosecute individuals suspected of crimes under international law, and ensure that the court’s jurisdiction has supremacy over national courts. The statute should also guarantee the independence of the court, and confirm that the court cannot be impeded or constrained by any statutes of limitations, pardons, immunities, or amnesties granted by South Sudanese authorities or any other authority.
It is essential that the statute of the hybrid court explicitly ensures the accessibility of the court for South Sudanese people, and includes plans to ensure a lasting legacy for the court in South Sudan.
The AU Commission should also re-start discussions with potential host states, in order to identify the location of the seat of the court. According to Amnesty International and the Transitional Justice Working Group, the Hybrid Court should not be located in South Sudan at this time, due to the unwillingness of the government to bring perpetrators to court, and the lack of victim and witness protection mechanisms. Instead, the Court should be located in another African state, with the option to hold hearings in South Sudan or relocate the Court to South Sudan in the future, as and when the situation on the ground becomes more conducive to doing so.
One of the key issues facing the African Union as it looks to establish the African Union Hybrid Court for South Sudan is finding an appropriate location for the Court. While the Court must be located in another African state, the statute for the Court should provide for the option to hold hearings in South Sudan or relocate the Court to South Sudan in the future as and when the situation on the ground becomes possible.
This is something that Amnesty International and the Transitional Justice Working Group have been advocating for, and they have also recommended that the African Union Commission identify and recruit key staff who can start working remotely before the Court is fully established. This is seen as a priority, as collection and preservation of evidence is seen as crucial in this process.
In a recent report, Amnesty International and the TJWG have recommended that the African Union Commission take steps to ensure that key personnel are in place to begin working on the Court’s establishment even before it is fully operational. This includes people who will be responsible for investigations, as collecting and preserving evidence is a priority. With the right staffing in place, the African Union Commission can ensure that the Court is able to effectively carry out its mandate and provide justice for victims of human rights abuses.
Background
The Hybrid Court for South Sudan is an African Union-led hybrid court which will have the mandate to investigate and prosecute individuals bearing the responsibility for the serious crimes committed since 15 December 2013 in South Sudan. These serious crimes include the deliberate killing of civilians, rape and other sexual violence, forced recruitment of children, forced displacements, and other crimes.
The decision to establish the Hybrid Court was taken through the 2015 peace agreement signed by the Government of South Sudan and the Sudan People’s Liberation Movement/Army-In Opposition (SPLM/A-IO) and reiterated through the revitalized peace agreement (R-ARCSS) in September 2018. This hybrid court represents a important step towards accountability and justice in South Sudan.
The conflict in South Sudan has resulted in immense suffering for the civilian population. Many have been killed, tortured or displaced, and there is little prospect of justice for the victims. The existing justice system is not independent or impartial, and lacks the necessary capacity to deal with the scale of the crimes. The International Criminal Court (ICC) is not competent to deal with the situation, as South Sudan has not ratified the Rome Statute. The only hope for the victims is the Hybrid Court for South Sudan (HCSS).