AI Index: AFR 65/1367/2019
08 November 2019
Following a decision by President Salva Kiir and opposition leader Riek Machar to postpone the formation of the long-awaited revitalized transitional government of national unity for 100 days beyond the 12 November deadline, Amnesty International calls on the authorities in South Sudan to sign the proposed Memorandum of Understanding (MoU) with the African Union (AU) and adopt the necessary legislation that will enable the establishment of the Hybrid Court for South Sudan (HCSS). These are initial but critical measures necessary to achieve sustainable peace and meaningful accountability for international crimes committed in South Sudan.
Justice must not be held at ransom by the politics of the day.
There will be no sustainable peace in South Sudan without justice. The brutal and cyclical violence that the people in South Sudan have endured is a result of the flourishing impunity. Yet, recent research by Amnesty International reveals a disturbing lack of prospects for accountability for crimes committed in relation to the conflict that broke out in December 2013. For many victims, the HCSS is the most immediate and viable avenue for justice.
The Government of South Sudan has dragged its feet for years on the establishment of the HCSS and was ready to pay money to a US-based lobby firm to delay and ultimately block the court from coming into existence.
Amnesty International therefore calls on the Inter-Governmental Authority on Development (IGAD), the AU and the United Nations Security Council to ensure that the proposed 100-day extension has clear benchmarks, including a deadline for the South Sudanese authorities to sign the proposed MoU with the AU and adopt the necessary domestic legislation necessary to establish the court, preferably within the 100-day extension period, but not exceeding six months.
Amnesty International further urges the AU to adopt a clear timeline and roadmap for the establishment of the HCSS. This roadmap should include measures that the AU will take should the government of South Sudan fails to meet the deadline to take the necessary initial steps for the establishment of the HCSS. Specifically, the AU should consider, should the deadline set for the government of South Sudan is not met, unilaterally establishing an ad hoc tribunal for South Sudan in order to create an impartial mechanism that will deliver justice to the countless victims of crimes committed during the on-going conflict. The AU has the mandate and the responsibility to do so.
Amnesty International’s research establishes that South Sudanese authorities have failed to provide justice to victims of the conflict because domestic justice systems are crippled by a severe lack of independence and the government has no political will to address accountability for the crimes suffered by its people.
The 2015 and the 2018 (revitalized) peace agreements task the AU Commission (AUC) with establishing the HCSS intended to try those responsible for serious violations of international human rights and humanitarian law and South Sudanese law since the start of the conflict on 15 December 2013. They also require the government of South Sudan to adopt enabling legislation, making the court a joint endeavour. In October 2016, the African Union Office of the Legal Counsel (OLC) estimated it would take three years to be operational by now, the last quarter of 2019.