Why South Sudan must embrace justice mechanisms for peace

By Denis Birungi

Countries in an attempt to overcome a civil war will often face a conflict of choice between accountability and peace.

Amnesty is often (falsely) associated with peace. As efforts to bring about the South Sudan conflict to an end intensifies, the international community should insist that South Sudan adopts a model that achieves both objectives: peace and accountability. The two objectives are inextricably linked and mutually supportive.

There cannot be lasting peace without accountability. To the victims and families of atrocities committed by both sides to the conflict, a blanket amnesty as granted by President Salvar Kir is indeed an insult.

To those who committed atrocities, blanket amnesty breeds impunity for future repetition and to the general public, it defeats a core objective of criminal justice: general deterrence.

The international community is not without precedent on post war- mechanisms that may be suitable to unique circumstances of a country.

From the Rwandan Genocide to the conflicts in former Yugoslavia, to Apartheid South Africa and recently to Colombia, lessons have been learnt and should be put to the best use in dealing with the South Sudan situation.

In South Africa's situation, while the apartheid regime was able to negotiate greater amnesty for its agents, the circumstances of the case demanded so because the regime was still stronger and had control of the army.

Insisting on strict accountability would have prolonged the apartheid situation.

All that was necessary for apartheid South Africa was to get power away from the oppressor and dismantle the structures of oppression.

To the ANC, amnesty was acceptable for strategic reasons. First, the oppressive government would not be granting amnesty to itself.

Second, amnesty was granted on the condition of truth telling and acknowledgment that the crimes were politically motivated.

By accepting these terms, the apartheid government lost legitimacy and the ANC stood on a higher moral ground.

For South Sudan both sides to the conflict are culpable and government lacks the moral authority to forgive.

A grant of amnesty to both sides to the conflict is not done in good faith and cannot be viewed as so, but is solely intended to shield mainly perpetrators on the side of the government from accountability.

To the victims, it's a mockery, an insult and doesn't offer any justice.

For amnesty to be legitimate, it must meet the United Nations criteria. The United Nations Policy on amnesties is grounded in the core principles that ensure that those responsible for serious violations of human rights and humanitarian law are brought to justice and assure victims an effective right to a remedy, including reparation.

Any amnesty that waives those requirements is null and void and should be unacceptable to the international community.

Under the UN criteria, amnesty is available only to those who took part in the conflict but did not commit any serious atrocities.

The Ugandan Supreme Court in the case of Uganda v Thomas Kwoyelo constitutional appeal no 1 of 2013 is instructive on this.

The Court held that amnesty is not available for grave breaches of the Geneva Conventions.

That the United States has joined the international community in calling for the setting of hybrid court to try perpetrators is commendable but, given the nature and extent of the conflict in South Sudan, a hybrid court alone is not sufficient.

The South Sudan situation requires a wide range of transitional justice mechanisms in order to achieve lasting peace.

The international community should insist that South Sudan adopts the Rwandan model, which better suits the unique circumstances of the situation.

During the 1994 genocide in Rwanda, like South Sudan, both sides to the conflict had committed atrocities and as such government had no moral authority to forgive.

Secondly, like the Rwandan genocide, the conflict in South Sudan is due to ethnic differences between two major tribes, the Dinka and the Nuer.

To reconcile tribe differences, traditional justice mechanisms like the Gacaca courts used in post-genocide Rwanda should be embraced.

The Gacaca courts, a form of traditional conflict resolution which was aimed at truth telling, reconciliation and fostering unity was more effective in restoring Rwanda and healing the country from the horrors of genocide than the International Tribunal For Rwanda(ICTY).

Of course, like in Rwanda the biggest challenge for this is going to be government interference but the overall effect is better.

To achieve lasting peace, the transition to peace should embrace a myriad of alternatives. Besides setting a hybrid court, traditional justice mechanisms, guarantees for non-repetition, reparation for victims and truth telling should be embraced for national reconciliation and healing.

Safeguards to ensure transparency in the process are crucial to achieve this.

The writer is a lawyer.