S. Sudan pledged to investigate crimes committed during the civil conflict. Why hasn’t this happened?

Is South Sudan now coming to grips with a five-year civil conflict that claimed the lives of 400,000 people and uprooted millions?

By 2018, a peace agreement had recommitted both parties to creating a South Sudanese Hybrid Court, as well as a truth-telling mechanism and reparations.

Peace talks between supporters and opponents of President Salva Kiir are currently on a knife’s edge.

So far, none of the transitional justice procedures outlined in the peace accord have been implemented.

In an apparent defeat, the US withdrew financing for the court, a decision that some experts see as a tacit admission that US authorities have given up on the court.

Why did parties agree to create this court rather than pursuing matters via South Sudan’s local legal system or the International Criminal Court from the outset? What will happen to the hybrid court now?

According to research, war crimes tribunals arise when there is a strong desire for criminal responsibility and minimal opposition to prosecutions.

While the desire for criminal accountability in the form of a hybrid court has remained strong among South Sudanese nonprofit organizations, the court’s support from the US and the African Union seems to be waning.

Meanwhile, the groups most likely to oppose such a court — the government and rebel leaders whose troops are accused of crimes — have strengthened their positions.

Biden revoked Trump’s sanctions on officials of the International Criminal Court. So, what’s next?

During the civil conflict, there were many reports of human rights violations.

A political dispute between Kiir, Vice President Riek Machar, and other politicians sparked the 2013 war. Machar was dismissed by Kiir, who accused him of plotting a coup. The violent battle that followed took on racial overtones, with militants from the Dinka ethnic group siding with Kiir and Nuer forces siding with Machar.

The African Union established a Commission of Inquiry on South Sudan in response to reports of terrible acts of violence on both sides. Its mission was to look into human rights breaches and other forms of abuse during the war, as well as to provide recommendations for ensuring accountability, reconciliation, and healing among all South Sudanese groups.

In its final report from 2014, the panel recommended a hybrid court as well as other transitional justice initiatives. The study found evidence of severe brutality, including murders, torture, mutilation, rape, and even forced cannibalism, committed by both government and rebel troops, mainly against civilians.

It also concluded that the current courts would be unable to provide accountability due to the poor capability of South Sudan’s national criminal justice system, especially in instances involving senior political and military figures.

As a result, the committee proposed establishing “an Africa-led, Africa-owned, and African-resourced legal system under the auspices of the African Union,” which would be backed by the international community and include South Sudanese judges and attorneys, among other things.

This “legal mechanism” combines international and local legal procedures and people, owing to the court’s “hybrid” character.

International, regional, and local leaders rallied around the concept of forming a hybrid court, which academics refer to as the “justice cascade” or “revolution in accountability.”

Various organizations, including the United Nations, the governments of the United States and the United Kingdom, and South Sudanese nongovernmental organizations, pressed recalcitrant government and rebel officials to commit to the establishment of the hybrid court and other transitional justice mechanisms, first in 2015 and then again in 2018. The US committed $5 million in 2015 to help kick-start the establishment of the hybrid court.

Why not utilize the International Criminal Court, or ICC, which already exists? Hybrid tribunals dealt with suspected atrocity crimes in Kosovo, East Timor, Sierra Leone, Cambodia, Bosnia and Herzegovina, Iraq, and Lebanon before the ICC was established in 1998. The ICC was intended to be a permanent court for global accountability, replacing the patchwork approach to international criminal justice.

Non-members, such as South Sudan, are not covered by the ICC’s jurisdiction. This implies that the ICC may only start an inquiry if the United Nations Security Council recommends it or if South Sudan’s government asks it. So yet, neither possibility has come to fruition.

Furthermore, a lot of African governments believe that the ICC is political and prejudiced, especially against their people, who have largely landed in its dock thus far. While other commentators disagree with the ICC’s claimed anti-African bias, the focus on establishing a “African” hybrid tribunal may be seen as a response to the ICC’s purported prejudices.

South Sudanese authorities have gone to great lengths to resist the hybrid court, including employing a US lobbying company to assist them to stop it from being established. People charged or convicted by the court are unable to participate in the government for “a length of time specified by the law,” according to the 2015 and 2018 accords.

Both Kiir and Machar have spoken out against the hybrid court, pushing instead for a “national truth and reconciliation commission,” a strategy that may protect them from criminal punishment and therefore let them to stay in power. Various legislative documents required to officially create the court have yet to be completely approved by the government.

The United States has been a driving force for the establishment of hybrid courts in other countries, while the African Union has the power to officially create this court under the 2018 peace deal. South Sudan’s neighbors have been accused by activists of creating a “climate of silence,” which has hampered attempts to establish the court.

To overcome the resistance of national authorities and get the hybrid court up and operating, it may require constant pressure from international, regional, and domestic constituents.

However, both inside and outside of South Sudan, nongovernmental organizations continue to press for justice for atrocities committed during the civil conflict.