The AU Commission of Inquiry on South Sudan: justice first or peace?
By Luka Biong Deng
With the eruption of conflict in December 2013 and the subsequent serious human rights violations committed, the AU Peace and Security Council in its meeting on 30th December 203 at the level of heads of state and government held in Banjul, the Gambia, resolved to establish a Commission to investigate these violated human rights and to make recommendations about the best ways to ensure accountability, reconciliation and healing. The Chairperson of the AU Commission and in consultation with other AU’s organs and structures established the Commission of Inquiry in April 2014. The establishment of the Commission was the first attempt by the AU to investigate by itself violations of its members to the African Charter on Human and People’s Rights. This came at the time when the AU becoming increasingly uncomfortable with ICC; particularly on cases related to the indictment of the sitting heads of state such as President Bashir of Sudan and lately President Uhuru of Kenya.
Although the Report was to be submitted to the Council in July 2014, it became ready only in October 2014. However, it was not presented to the Council partially because of delay in its translation but importantly because of the demand by IGAD to delay its release until the warring parties concluded the peace agreement. As the release of the Report was not conditional to the conclusion of peace agreement, the fear of IGAD was that the release of the Report will put justice ahead of peace and that might jeopardize the peace process.
With the delay of the Report, a member or a staff of the Commission leaked a document that seems to be an internal correspondence but meant to express a dissenting opinion. Besides the fact that the leaked document damaged the credibility of the Commission and the AU as well, the person who leaked the document seems to lack the minimum ethics of confidentiality and it raises a fundamental question about the process of appointing members and staff to such sensitive commissions.
Despite the fact that the Terms of Reference of the Commission provided clear provisions for the protection of witness and victim with members and staff of the Commission required to sign an undertaking in writing to respect confidentiality and not to disclose information, the leaked document discloses information and exposes as well the names of witnesses. Since it is a fact that a member or staff of the Commission leaked the document, the AU Commission will not find any justification to exonerate itself from this institutional blunder. The AU Commission should fully accept responsibility for the leaked document as well as taking concrete measures against such a person who causes such enormous damage and insecurity to the witnesses.
After more than one year, the Council in its meeting on 13th June at the level of heads of state and government, in Johannesburg, South Africa, resolved to consider the Report of the Commission in its next meeting on 15th July 2015 at the level of ministers. The Council took this decision about the Report after the impasse in peace talks and the increased violations of human rights in the war affected areas of South Sudan. The Council was extremely disappointed about the lack of progress in South Sudan and such frustration was well reflected in its strongly worded communiqué that was released after the meeting in South Africa. Also this decision came at the time when the Council adopted new mediation mechanism that includes IGAD plus other representatives of other sub-regions of the continent, AU, Troika, EU, UN and China.
As the Council has now decided to consider the Report, the question now is whether the Report should be considered if peace agreement is not concluded? This raises the debate about the interface between peace and justice. Although such debate has been settled, the case of South Sudan renewed such debate; particularly the sequencing rather than complementarity between peace and justice. Specifically, should the Council subscribe to the argument that justice can be achieved without peace agreement?
In its effort to have an informed debate about the interface between peace and justice, the Centre for Peace and Development Studies at University of Juba organized a public lecture in April 2015 under the theme “Dealing with atrocities of the past: Will AU Commission of Inquiry on South Sudan provide the answer?” The discussion concluded that peace and justice are not necessary mutually exclusive but they instead complement and mutually reinforcing each other. A lasting and sustainable peace in South Sudan can only be built on the secure foundations of justice.
Despite the apparent complementarity between peace and justice, there is unsettled debate and tensions between peace and justice; particularly which should come first? For example in a situation like the one of South Sudan where the warring parties are unable to reach agreement and human rights are increasingly violated, should justice be pursued first instead of peace? It is argued that pursuing criminal proceedings against warlords and rebels might hamper the conclusion of peace agreement as shown in the case of Darfur.
Apparently this debate about whether peace or justice should come first has almost been settled. Kofi Annan eloquently summarized this debate by saying “There can be no healing without peace; there can be no peace without justice; and there can be no justice without respect for human rights and the rule of law”. Also the international community has decided in the Rome Statute of ICC, July 2002 that justice would always be a component of any conflict-resolution process by holding to account all those who bear the greatest responsibility for serious crimes. Subsequently peace is a prerequisite for justice, healing and respect of human rights and rule of law.
If peace agreement is not concluded by 15th July, the Council in its next meeting may only receive the Report and to subject it to a thorough scrutiny of how and when to implement the recommendations of the Report. The suggested measures, sequencing and prioritization of the implementation of the recommendations of the Report would then be presented to the meeting of the Council at the level of heads of state and government. Institutionally, this may be the best and logical option as the resolution for the establishment of the Commission was taken by the Council at the level of heads of state and government.
The other scenario is that the next meeting of the Council may resolve to release the Report regardless of the outcome of peace talks and to task the AU Commission to implement its recommendations. If peace agreement is not concluded, then this scenario may pose enormous challenges to peace process as well as tainting the political legitimacy of the leadership of the warring parties. Another challenge is whether the Report will recommend the African Court for People’s and Human Rights or a hybrid court as suggested by IGAD for the prosecution of atrocities committed since December 2013.
Also if the Report is released before the conclusion of peace agreement, the individuals who are suspected to have committed violations of human rights as well as obstructing peace talks may become increasingly vulnerable to the UN targeted sanctions. This is apparent in the strongly worded statement from the last meeting of the Council that calls for urgent steps by the UN Sanctions Committee to designate individuals and entities subject to the sanctions. As such the AU and members of IGAD will be left with no other option except to implement the UN targeted sanctions. With UN targeted sanctions and criminal proceedings against some suspected individuals in the leadership of the warring parties, there will be no prospects for peace talks and the warring parties will be left to continue fighting with far reaching human suffering.
Although this option of pursuing justice before peace is unprecedented and very costly, it will certainly encourage the warring parties to take the peace talks seriously and to conclude peace agreement before 15th July. Despite the fact that the warring parties have shown reservations about the new proposed peace agreement by IGAD, it is within their best interest to seriously look for areas of compromise. Otherwise the risk of facing both sanctions and criminal prosecution is extremely high.
As the expected meeting of three factions of the SPLM is scheduled to take place in Arusha on 25th June 2015, the leadership of the three factions of the SPLM should take the necessary courage to resolve in the spirit of Arusha Agreement the pending issues in the IGAD proposed peace agreement. Instead of discussing the power sharing among the three factions of the SPLM, the SPLM should discuss instead of how to share powers with other political parties.
On the basis of its election programme in 2010, the SPLM promised the people of Southern Sudan to share power with other political parties by allocating them 30% of the cabinet and women to have a minimal representation of 30%. If SPLM is to have 70% of the cabinet, then a joint committee of the three factions of the SPLM should be agreed upon and to be tasked to making recommendations to the SPLM Political Bureau of the list of nominated cadres of the SPLM who will fill the ministerial portfolios allocated to the SPLM. The leadership of SPLM should not let down again the people of South Sudan and its next meeting provides a golden opportunity for resolving the pending issues in the peace talks and to restore hope by recommitting itself of taking the country into the new dawn of peace and stability.
The author is the Director of Centre for Peace and Development Studies, University of Juba, Global Fellow at Peace Research Institute Oslo and Associate Fellow at Carr Centre for Human Rights Policy at Harvard Kennedy School. He is reachable at [email protected] or [email protected]