Hope for accountability: the hybrid court of South Sudan

• Author: Shelby McGuire-Smith
• Position: LL.M., Georgetown University Law Center, expected 2023; J.D., Georgetown University Law Center, 2021; B.A., Rollins College, 2015
• Pages: 277-309

NOTES

HOPE FOR ACCOUNTABILITY: THE HYBRID COURT

OF SOUTH SUDAN

SHELBY MCGUIRE-SMITH*

ABSTRACT

In January of 2021, the government of South Sudan indicated its intent to

establish a hybrid war crimes tribunal, the Hybrid Court of South Sudan

(“HCSS”), to prosecute human rights violations that occurred during the civil

war that began in 2013. With this announcement came a renewed hope of jus-

tice, accountability, and peace for the South Sudanese people. However, given

the government’s previous hostility toward the HCSS, prior efforts to delay its

establishment, and the fact that it may well be implicated in many of the

Court’s investigations and cases, there is also a justifiable skepticism surround-

ing the creation of the Court. Indeed, establishing and operationalizing the

HCSS is sure to present immense challenges, including the government’s lack of

political will to prosecute, difficulties surrounding victim participation and

protection, and funding. However, this Note argues that it is precisely because

of these challenges that a hybrid court is the mechanism most suited to this cir-

cumstance, and that the HCSS is South Sudan’s best hope for achieving justice

and accountability. This Note examines the many advantages of the hybrid

court paradigm, including its flexibility, increased legitimacy, capacity build-

ing, and norm diffusion, and analyzes how these benefits could be leveraged in

the South Sudanese context. This Note concludes by proposing several specific

recommendations for establishing an effective, independent hybrid court capable

of bringing justice and accountability to the people of South Sudan and ending

the cycle of violence and impunity.

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278

II. HISTORICAL CONTEXT TO PEACE AND CONFLICT IN SOUTH SUDAN . 280

A. Post-Colonialism & The North-South Struggle . . . . . . . . . . 281

B. Independence and Continued Conflict. . . . . . . . . . . . . . . . 283

* LL.M., Georgetown University Law Center, expected 2023; J.D., Georgetown University Law

Center, 2021; B.A., Rollins College, 2015. I would like to thank Professors Jane Stromseth for her

comments and guidance on earlier versions of this Note during her Spring 2020 Seminar

Justice and Accountability for International Atrocity Crimes. I also give my thanks to the editors

and staff of the Georgetown Journal of International Law for their hard work and helpful suggestions.

V

C 2022, Shelby McGuire-Smith

277

C. Atrocities Committed During The Conflict . . . . . . . . . . . . . 285

. . . . . . . . . . . . . . . . . . . . . . .

III. THEORETICAL BACKGROUND AND LEGAL FRAMEWORK OF THE

HYBRID COURT OF SOUTH SUDAN 286

. . . . . . . . . . . . . .

A. Theoretical Background of Hybrid Courts 287

. . . . . . . . . . . . . . . . . . .

B. Legal Framework of The R-ARCSS 289

. . . . . . . . . . . . . .

C. Relationship to Other Justice Mechanisms 291

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

IV. CHALLENGES OF OPERATIONALIZING THE HYBRID COURT OF SOUTH

SUDAN 292

. . . . . . . . . . . . . . . . . . .

A. Lack of Political Will to Prosecute 292

. . . . . . . . . . . . . . . . . .

B. Victim Participation and Protection 296

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

C. Funding 299

. . . . . . . . . . . . . . . . . . . . . . . . . . . .

V. HOPE FOR ACCOUNTABILITY? RECOMMENDATIONS FOR CREATING AN

EFFECTIVE HYBRID COURT 301

. . . . . . . . . . . . . . . . . . . . .

A. The Role of The African Union 301

. . . . . . . . . . . . . . .

B. The Role of The Office of The Prosecutor 303

. . . . . . . . . . . . . . . . . . . . .

C. Outreach & Capacity Building 305

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1. Outreach 306

. . . . . . . . . . . . . . . . . . . . . . . . .

2. Capacity Building 307

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

VI. CONCLUSION 309

I. INTRODUCTION

On January 29, 2021, the government of South Sudan finally signaled

its intent to establish a hybrid war crimes tribunal by directing the

Ministry of Justice to take the necessary steps to form the Court.

1

South Sudan: UN rights commission welcomes ‘first steps’ towards transitional justice institutions, UN

NEWS (Feb. 1, 2021),https://news.un.org/en/story/2021/02/1083492.

The

Hybrid Court for South Sudan (“HCSS”) was first conceived in 2015 as

part of the historic peace deal known as the Agreement on the

Resolution of the Conflict in the Republic of South Sudan (ARCSS).

2

The ARCSS provided for a range of ambitious transitional justice mech-

anisms, including the establishment of the HCSS, a truth and reconcili-

ation mechanism, and a reparations authority.

3

However, for the past

five and a half years, the HCSS has seemed a distant dream. Despite

agreeing to the HCSS, the government of South Sudan has made no

1.

2. Agreement on the Resolution of the Conflict in the Republic of South Sudan, Addis Ababa–

Eth., Ch. V, Aug. 17, 2015, IGAD [hereinafter ARCSS 2015]. In 2016, this agreement fell through

when fighting broke out between government factions. The peace agreement, including the

HCSS, was reaffirmed in the 2018 Revitalized Agreement on the Resolution of the Conflict in the

Republic of South Sudan (R-ARCSS).

3. Id.

278 [Vol. 53

secret of its contempt for the Court

4

Dimo Silva Aurelio, South Sudan Government Objects to War Crimes Court, VOICE OF AMERICA

(Oct. 3, 2018), https://www.voaafrica.com/a/south-sudan-government-objects-war-crimes-court/

4598220.html; Salva Kiir & Riek Machar, South Sudan Needs Truth, not Trials, N.Y. TIMES (June 7,

2016), www.nytimes.com/2016/06/08/opinion/south-sudan-needs-truth-not-trials.html.

and has made brazen attempts to

obstruct its establishment.

5

Robbie Gramer, Former U.S. Diplomats Lobby to Stop South Sudan War Crimes Court, FOREIGN

POL’Y (Apr. 19, 2019), https://foreignpolicy.com/2019/04/29/former-us-diplomats-lobby-to-

stop-south-sudan-war-crimes-court-salva-kiir-lobbying-contract-africa-peace-deal-riek-machar/.

Moreover, through its domestic judicial sys-

tem, the South Sudanese government has perpetuated a culture of im-

punity, failing to undertake serious investigations and prosecutions of

those involved in human rights abuses committed in the context of the

conflict.

6

Given the government’s reticence to hold perpetrators ac-

countable and its antipathy towards attempts to launch the HCSS,

many in the international community lost faith in the Sudanese govern-

ment and called on the African Union (“AU”) to unilaterally establish

a court to hear international crimes committed in South Sudan.

7

Hum. Rts. Watch [HRW], Webinar Report: The Establishment of the African Union Hybrid Court for

South Sudan (Aug. 25, 2020), https://www.hrw.org/sites/default/files/media_2020/10/Webinar

%20Report%20-%20Establishment%20of%20the%20AU%20Hybrid%20Court%20for%20South

%20Sudan.pdf.

Thus, the government’s recent actions have renewed hope for many

in the region who believe that fair, credible trials are necessary to

achieve lasting peace and healing for victims.

8

Nyagoah Tut Pur, A Glimmer of Hope for South Sudan’s Victims, HRW (Jan. 31, 2021), https://

www.hrw.org/news/2021/01/31/glimmer-hope-south-sudans-victims.

The Court will bring

South Sudanese nationals and African experts together to prosecute

individuals responsible for violations of both international law and

South Sudanese law.

9

The HCSS promises to provide many of the bene-

fits typical of hybrid courts, including increased flexibility, legitimacy,

capacity building, and norm diffusion.

10

Most importantly, the HCSS

represents an important opportunity to bring justice and accountability

to the people of South Sudan and advance peace and stability within

the country and region.

However, designing and implementing the HCSS will be no easy

task. With a government that has been openly hostile toward the HCSS,

has actively sought to delay its establishment, and may well be impli-

cated in many of the court’s investigations and cases, the way forward is

unclear and raises difficult questions. Does the government’s sudden

4.

5.

6. Amnesty Int’l, “Do You Think We Will Prosecute Ourselves?” No Prospects for Accountability in

South Sudan, AI Index AFR 65/1105/2019 13 (2019) [hereinafter Amnesty Report].

7.

8.

9. ARCSS 2015, supra note 2.

10. Laura Dickinson, The Promise of Hybrid Tribunals, 97 AM. J. INT’L L. 295 (2003).

THE HYBRID COURT OF SOUTH SUDAN

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