Earlier this month, South Sudan President Salva Kiir announced a wide-ranging deal to incorporate warring factions into the government, raising concerns over undermining efforts to present perpetrators and individuals accused of committing war crimes to justice.
The parties to the conflict signed a peace agreement on 5 August in Khartoum, agreeing to new power-sharing arrangements and a timetable for further talks. On 8 August, Kiir offered a “general amnesty” to heads of armed groups involved in the nation’s five-year civil war, as part of the agreement to end the fighting.
However, Kiir said, “I believe that this agreement will be implemented with the spirit of togetherness.”
“South Sudanese leaders should not undermine their efforts to bring an end to the country’s devastating conflict with an amnesty for war crimes and crimes against humanity,” Human Rights Watch said.
South Sudan declared independence in 2011, after 22 years of fighting between the rebels and the government in Khartoum. The breakaway region claimed three quarters of the Sudanese oil, estimated at 5bn barrels of proven reserves.
Two years later, the power struggle between Kiir and Riek Machar plunged the country into renewed fighting. The conflict between the two rivals is aggravated by tribal divisions—President Kiir belongs to the dominant Dinka tribe, and Machar is an ethnic Nuer.
“Whoever signed this agreement will remain committed to it so that we rescue our peoples from suffering,” he added.
Most notably, the deal would see rebel leader Machar reclaim the office of vice-president, which he lost after Kiir accused him of plotting a coup in 2013. However, Machar would be only the most senior of five vice-presidents under Kiir.
International law requires prosecuting those responsible for serious crimes, such as crimes against humanity and war crimes, to ensure victims’ rights to truth, justice, and an effective remedy, along with combating impunity.
In order to accommodate the demands of various factions, the new government will also be made up of 550 lawmakers and 35 ministers.
Foreign observers remain sceptical of the project, citing well-known animosity between Kiir and Machar, and a string of previous peace deals that failed soon after being signed.
“Amnesty for atrocities not only conflicts with South Sudan’s international obligations, but experience shows it is no way to build a lasting peace,” said Elise Keppler, associate international justice director at Human Rights Watch.
“While South Sudan’s leaders may aim to provide assurances to opponents, they should make clear that the amnesty does not cover grave crimes by all parties since the conflict began,” he added.
South Sudan has also ratified treaties such as the United Nations Convention against Torture, which provides for prosecution of people allegedly responsible for serious crimes. Because the United Nations takes the position that amnesties cannot be granted for serious crimes under international law, it will not endorse peace agreements that provide for such amnesties. The African Commission on Human and People’s Rights has also rejected amnesty for serious crimes.
South Sudan’s leaders have a history of providing de facto blanket amnesty to opponents as part of peace deals, even prior to the country’s independence in 2011.
The resulting lack of justice has contributed to the country’s deepening social and ethnic divisions, and fuelled violence and abuses. Human Rights Watch has previously urged mediators and South Sudanese leaders to ensure that peace deals did not include any amnesty for serious crimes.
Since the new conflict started in December 2013, continued fighting and abuses by government, opposition forces, and their aligned militias have forced more than 2 million people to flee the country. The fighting has displaced more than another 2 million people within the country, with more than 200,000 still in UN sites established to protect civilians.
Despite provisions in the August 2015 Agreement on the Resolution of Conflict in South Sudan (ARCSS) that envision a hybrid court to prosecute international crimes, South Sudan’s transitional government has not made genuine progress toward setting up the court. A memorandum of understanding on the court with the African Union (AU) has yet to be signed, and domestic legislation is yet to be adopted.
Under that agreement, the AU Commission has the authority to establish the hybrid court with or without the engagement of the South Sudanese government. The AU should proceed with creating the court on its own, unless the memorandum of understanding is immediately signed, Human Rights Watch said.
“The lack of accountability for serious crimes is a cause of South Sudan’s crisis, not a solution,” Keppler said, adding, “Survivors of atrocities in South Sudan are strongly demanding justice. Their leaders should take urgent steps to make the hybrid court a reality as efforts to end the conflict continue.”
The South Sudanese National Security Service (NSS) should immediately and unconditionally release peace activist and academic Peter BiarAjak or take him to court and charge him with a recognisable crime. The authorities should also end the arbitrary detention of many others held by the security service in violation of their rights.
“South Sudan’s security agents have long harassed and arbitrarily detained people, apparently to silence independent voices,” said Jehanne Henry, associate Africa director at Human Rights Watch, adding, “South Sudan desperately needs public dialogue and greater respect for human rights, not more repression and violations.”
Ajak’s detention is part of a deeply troubling pattern of increasing government repression against its critics since December 2013, when a political dispute between President Salva Kiir Mayardit and his then Vice President Riek Machar led to armed conflict. This latest arrest underlines the need for major reforms to the security service.