More than 50 members of the US Congress including the co-chairs of the Congressional Caucus on Sudan and South Sudan are asking Secretary of State John Kerry for action in South Sudan. In March, they sent him a letter asking him to expand humanitarian programs and to help support some form of accountability to those behind mass killings and other human rights violations. One of their suggestions was a hybrid court, similar to those used in Sierra Leone, Kosovo, East Timor and Cambodia.
David Deng says the idea is gaining ground in the country’s intellectual circles and NGO’s and other international partners. Deng, who is the research director for the South Sudan Law Society based in Juba, said now’s the time to be talking about creating a special court– an acknowledgement of the scale of the crimes that have taken place since December. That’s when fighting broke out between armed supporters of President Salva Kiir and his former vice president, Riek Machar. The violence has displaced over 800 thousand people and forced to over 250 thousand to flee the country. Tens of thousands have been killed.
Weaknesses of domestic courts
A hybrid court would combine international and domestic law, with trained staff including investigators, lawyers and judges. Because of the expense, Deng said they would be limited to trying the top dozen or so leaders on both sides of the conflict involved in the killings. The court could also adjudicate crimes as defined by the national penal code, like those related to the destruction of property or murders which don’t rise to the level of international crimes.
Deng said there are many reasons for considering a hybrid court. He said the formal, or statutory, court system has serious weaknesses and is only accessible to populations in urban areas.
And, customary courts, which are far more accessible, do not have the capacity or jurisdiction to adjudicate serious criminal matters.
"When we talk about international crimes, ethnic cleansing, crimes against humanity, war crimes," said Deng, "these are clearly outside the scope of what the customary system can handle. Even the smaller scale conflicts between communities that have proliferated in many parts of South Sudan over the past 10 years are outside the scope of the customary system. "
He added that chiefs are lay people with little legal background training and little support from the state. Many counties have only one prison and incarceration facilities that fail to meet international standards.
Deng is also not confident the government would launch an independent and transparent investigation.
"There are numerous examples," he said, "of investigations that have happened since 2005 when the government was established, where either nothing was done, and the committee did not conduct an investigation, or reports were compiled and were never made public, or facts were skewed."
Advantages of hybrids
Hybrid tribunals can be established with UN assistance in a number of ways, including by a Security Council resolution, or by bilateral agreement between the UN and the host government . States may also try war crimes by incorporating international law into their domestic courts and inviting international personnel to oversee the trials.
There are several benefits of the special courts. Hybrids, unlike the International Criminal Court, can be located in the region – a factor that often increases its public legitimacy. They call also try a wider selection of perpetrators than the ICC. Domestic courts are also perceived as imposing “victor's justice” against the losing side. Hybrids can also improve national justice systems by providing training and experience for lawyers and staff.
Deng said South Sudan has not signed the Rome Statute authorizing the use of the International Criminal Court in The Hague. He said president Kiir has also not signed legislation ratifying the African Charter on Human and Peoples’ Rights.
Deng said the creation of a hybrid court should be considered at peace talks being held by regional mediators in Addis Ababa, Ethiopia.
"Each hybrid court," he said, " is different in terms of how it is introduced…In our context, I think it would definitely require buy-in from the partners of the negotiations -- the government, opposition parties…. "
"If the discussions and negotiations are brought in to include civil society or the former detainees," he continued, "support from these various actors would be crucial with a view of getting a commitment in a peace agreement to some sort of process that would lead to an accountability mechanism like a hybrid court. It can not be forced on people; it has to be something that’s accepted by the parties, which makes it somewhat difficult to introduce particularly at this stage when no one is sure what happens , and everyone is skittish about accountability."
Deng does not rule out involvement by the African Union. He said former South African president Thabo Mbeki suggested the idea five years ago at an AU panel looking into the atrocities in the western Sudanese region of Darfur.
More recently, the AU and the government of Senegal have set up a hybrid court to try the former president of Chad, Hissene Habre.
Deng notes that the AU already has named a Commission of Inquiry headed by former president of Nigeria, Olusegun Obansajo to look into the violence. Part of its mandate is to recommend how the country can hold accountable those who committed atrocities.
Human rights activists say some NGOs are documenting the violence now. Deng said many witnesses are afraid, and may need protection. But he said it’s not clear how quickly a hybrid court could start functioning: he says they can only operate in a stable environment.
And some critics ask how much cooperation the special court would enjoy from South Sudan’s leaders if the investigations move from lower level staff to the upper echelons of power..