South Sudan, the youngest UN member state, has been in a state of civil war since 2013. This conflict between the government of President Salva Kiir and the opposition forces of former Vice President Riek Machar is characterized by grave abuses on both sides, including reports of indiscriminate shooting of civilians, mass rape, pillaging of villages, and ethnically-based killings. Just in one offensive campaign this past spring, 232 civilians were killed and over 100 women and girls were raped by soldiers, according to the United Nations. The UN-issued report further stated that about 132 women and girls were captured into sexual slavery. The conflict has also created a refugee outpour of more than two million people fleeing to neighbouring countries, and has made four million within the country internally displaced. The civil war has exasperated a famine that has left almost two-thirds of the country without proper access to food, with hostilities harming the ability of aid to reach people.
The conflict is ethnically-based as President Kiir’s forces consist mainly of Dinka and the opposition under Machar are mostly Nuer. A South Sudanese man accounts to when army soldiers knocked on the door of a hotel where 27 Nuer were seeking refuge and asked, “Why are you hiding Nuer!” After they refused to open the door, the government soldiers continuously fired their machine guns through the wall.
Despite a 2015 peace agreement, atrocities have continued to take place on both sides of the conflict. The agreement outlined a Hybrid Court to be setup in cooperation between the African Union and South Sudan. This court would prosecute violations of international law in the conflict, including war crimes and crimes against humanity, and compensate for the incapacity of the nascent South Sudanese judiciary. South Sudanese Justice Minister Paulino Wanawilla Unango has countered the claims of lack of justice, reporting to the African Union that 203 soldiers have already been tried for murder or rape within national courts. Although some steps towards the establishment of the Hybrid Court have taken place recently, it is still not operational.
The inaction of the international community in the face of atrocities against civilians brings up memories of the 1994 Rwandan genocide. Due to the lack of action or attention of the world, nothing was done to stop 800,000 people from being slaughtered in an ethnically-based conflict. Within the international human rights realm, there is repeated talk about ensuring that the global community does not fail innocent people again. The conflict in South Sudan has already seen numerous grave atrocities that have gone unreported and accountability for crimes has been very low. The quick establishment of the Hybrid Court can bring justice for the many victims in the country and show the international community’s commitment to working towards a solution to this conflict.
Beyond the numerous instances of human rights violations, the conflict itself is rooted in an ethnic dispute between the majority ethnic group of the Dinkas, which control the presidency, and the Nuers. President Kiir and opposition leader Machar recently signed another peace agreement in June mediated by Sudan and Uganda. The deal calls for a ceasefire and the building of security forces and national institutions “of an all-inclusive character that shall be free from tribalism and ethnic affiliations.” Despite this positive step towards reconciliation, many people in South Sudan are not confident it will last, as previous ceasefires were violated by both sides. There are concerns that this deal simplifies the war as a conflict between two elite figures and fails to address structural problems, such as inter-ethnic attacks and the commonality of rape. Furthermore, trying major political figures in court may be harmful for national stability, especially in a young country like South Sudan. Processes likes truth and reconciliation commissions and reparations can be more productive in achieving transitional justice for victims rather than solely relying on jail sentences for individual perpetrators.
The African Union should use its authority from past agreements to set up the Hybrid Court in South Sudan as soon as possible and push the South Sudanese government and opposition to comply. Using a Hybrid Court, consisting of South Sudanese and African staff is constructive as it will allow for local actors to have a say in their country’s future while also having the assistance and supervision of regional authorities. The Hybrid Court should be complemented with a truth commission to address structural problems within the country and assist victims, which can lead to a more just and united country. Enough time has been wasted in properly responding to the crisis in South Sudan, the African Union and South Sudanese government must urgently use the tools already available to them to apply international human rights law, as well as start actionable and real national reconciliation and conflict resolution.