South Sudan is the world’s newest nation, and one of its most troubled. Rich in oil reserves and with vast fertile lands it could—if peace is assured—feed itself and much of Africa. Instead, it has been racked by internal violence. Since its independence from northern Sudan in 2011, a devastating civil war has left tens of thousands dead and up to two million displaced.
There is little doubt both government and rebel forces were guilty of atrocities during that conflict, many of them ethnic crimes. It is because of the nature of these crimes that the international community must be careful about mechanisms for ensuring peace.
History teaches us that the birth pangs of new nations can be extremely painful, and that the likelihood of violent struggle over divisions of race can be high. Many newly independent nations have subsequently fallen into internal strife. It took the United States 200 years to reduce discrimination in the law, and the country descended into a civil war in the process. Less than a hundred years ago, southern Ireland gained independence from the United Kingdom after an internal armed conflict surrounding differences of religion and a desire for self-government.
In our own times, the Northern Ireland peace process finally brought to an end decades of armed struggle for control of a province that remains part of the United Kingdom even after the south exited. There, peace was secured through a truth and reconciliation process that brought both sides to the table, in part through a pledge that those accused of or known to have committed very serious crimes were granted full or partial immunity from prosecution. This encouraged former combatants to engage first in peace talks, and then to participate in the process of understanding and agreeing to a true account of what had occurred during the struggle. But, controversially, it also led to many of those individuals subsequently serving in the Northern Irish government—the regional administration founded after the peace agreement was signed.
The decision in Northern Ireland to focus on peace, truth, and unity over judicial measures has never precluded the possibility that trials may one day be brought against those accused of crimes. But the simple fact remains that in order to establish peace, and to do so with the intention of permanence, truth and reconciliation, not justice through courts, came first, and was how peace was achieved.
Some of that same approach is also planned in South Sudan through the establishment of a national truth and reconciliation commission, confirmed in the peace agreement signed between the government and rebels in 2015. Yet the international community, led by the United States and Great Britain—both cosignatories to the South Sudanese agreement—have urged that justice must also concurrently be applied through a purpose-built international tribunal, to be called the “Hybrid Court for South Sudan.” This comes despite some in the new South Sudanese unity government questioning whether new court cases held in a foreign country might act as a threat to the fragile peace. Because of this, it must be questioned whether the insistence for a truth and reconciliation process as well as the Hybrid Court is the right approach.
Where is the groundswell of support for an international tribunal coming from? Some of the calls for a tribunal come from civil society groups in South Sudan, such as the South Sudan Law Society (SSLS). Well quoted in the foreign media, groups such as this are often cited as “proof” of a public outpouring for the implementation of international justice.
But the existence of vocal civil society groups is not in itself proof of local backing. In former Yugoslavia—another region where Western powers rushed towards and funded an international tribunal after a severe conflict—such groups were widespread and quite often foreign funded, a fact that somewhat undermines the idea of a homemade groundswell in calls for global justice measures.
Regardless of whether this is the case in South Sudan, what is certain is that support for international tribunals is increasingly a mainstay of American and British foreign policy. Indeed, Britain is a global cheerleader for the application of international judicial measures after conflict, even when—in the case of Northern Ireland—the very opposite approach was taken at home.
The basis for this now widespread British and American support for international justice began in the 1990s, in the aftermath of the Rwandan Genocide and Yugoslav Wars. Under its self-proclaimed “Ethical Foreign Policy,” Britain promulgated a strategy of liberal interventionism—both militarily in conflicts that did not in any way effect the UK directly and judicially in post-conflict reconstruction.
The Clinton administration actively supported Britain’s push for intervention, particularly after the limited US response to the Rwandan Genocide, which Cinton himself subsequently described as his “biggest regret.”
Yet it is clear from the outset that international tribunals—or the world’s first permanent global court, the International Criminal Court (ICC)—were solely to put on trial local combatants and political leaders of conflicts, never to question the rights, wrongs, or even potential crimes committed during the course of Western interventionism. Indeed, Robin Cook, Britain’s Foreign Secretary in the late 1990s and architect of the “Ethical Foreign Policy,” described the ICC as “not a court set up to bring to book prime ministers of the United Kingdom or presidents of the United States.” Instead, many in the legal profession, including eminent British advocate Geoffrey Robinson QC, feared this would make international justice appear as a way for “the civilised nations of the world to teach savages how to behave.”
That concern indeed seems to have come to pass. The simple fact is that international courts founded and funded with Western backing can exert influence, even with the best intentions, over sovereign governments—and are able to do so even more powerfully when those countries have been weakened by conflict. But this capability, and clear Western support and funding for them, can also backfire.
In Britain’s case, resolute backing for the International Criminal Court over cases related to Kenya’s 2007-8 post-election violence led to a serious deterioration of relations between two of the accused, Uhuru Kenyatta and William Ruto (now respectively President and Vice President of Kenya) and the UK Government. During the 2012-13 Kenyan election, Britain was blamed for meddling in the country’s political affairs. The UK’s policy would be one of essential contact only with the two indictees were they elected—even when in the UK anyone accused before the courts remains innocent of all charges until guilt is proven.
Yet despite the Kenya experience, the UK and EU today pressure South Sudan to join the International Criminal Court. The South Sudanese are resisting, not least when the Kenyan experience has led to a common belief across much of Africa that the ICC is being leveraged to maintain European influence in African politics. This position is bolstered when throughout its 15 year existence, every one of the ICC cases brought to trial have been of black Africans.
Accusations of ethnic bias in prosecutions do not end with a perception of black vs. white. For the ICC, the criticism goes beyond the fact that only black Africans have found themselves in the dock: questions have rightly be raised that sitting African leaders that maintain the support of Western powers have used the ICC to remove opposition leaders representing different ethnicities. These concerns are most prominent in the cases against Jean-Pierre Bemba, the former Vice President of the Democratic Republic of the Congo, and against Laurent Gbagbo, the former President of Ivory Coast. Both stood against the leaders who extradited them to the ICC.
The United States has, for the most part, been shielded from criticism that the ICC is an instrument for Western geopolitical influence, for the US is not itself a signatory to the Rome Statute, the treaty that underpins the institution. But the United States remains a supporter of international justice, instead backing ad-hoc courts to address individual country situations, such as the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and now the proposed Hybrid Court for South Sudan.
But such “stand-alone” tribunals have been no less controversial than the ICC. The ICTR was accused of ethnic bias in its prosecutions, to the extent it was dubbed the “Le Tribunal Penal International pour les Hutus.” This was even when almost every trial for mass killings focused on those accused from the Hutu ethnic group, rather than including those of Tutsi ethnicity that dominated the rebel army accused of atrocities as it brought the Genocide to an end.
Similarly, the International Criminal Tribunal for the former Yugoslavia has been accused of over-focusing prosecutions on Serbians rather than Croatians and Bosnians, even when most commentators would agree that atrocities were widely committed by all sides of the conflict. More concerning is the accusation that the ICTY targeted indictments towards Serbian political leaders and, by putting them on trial, removed them from the political scene in Serbia for many years. Similarly, the Rwandan tribunal took a light touch to bringing cases against members of the Western-supported Tutsi-led government, drawing the understandable criticism that it was applying “victors’ justice.” The effect of such actions, whether intentional or not, was to make the ICTY a player within Serbian politics and the ICTR similarly in Rwanda, and to exercise judicial powers of intervention in the affairs of sovereign countries.
Such powers were not written into the ICTY’s or ICTR’s mandate—but they are explicitly written into the mandate of the Hybrid Court. There is no doubt that the Hybrid Court (HCSS) will hold direct powers over South Sudan’s politics. Indeed, the South Sudan peace agreement—countersigned by the US, UK, Norway, and other international parties—states openly that any South Sudanese “Individuals indicted or convicted by the HCSS shall not be eligible for participation in the TGoNU [Transitional Government of National Unity], or in its successor government(s) for a period of time determined by law, or, if already participating in the TGoNU, or in its successor government(s), they shall lose their position in government.” This means the HCSS will have direct powers to remove elected representatives from public office—an immense power to hold over a sovereign country.
It is fair to assume that when the South Sudanese won independence from the north that thought they were creating a sovereign nation, and would govern themselves without the intervention of others. However, when a foreign funded, international court is planned that will have the power to remove and bar elected leaders—not through guilt confirmed, but merely through accusation—then it is debatable whether this country is really independent at all.
Why then did the South Sudanese government and rebels sign up to this agreement? Perhaps they felt they had no choice, so weakened after a civil war, and under pressure from the powerful international community led by the US and Britain.
As for the Hybrid Court itself, if it is established, it is difficult to see how concerns over the exercise of interventions into the politics of a sovereign country and accusations of ethnic bias in prosecutions will not surface in South Sudan, just as they have in similar situations before.
Many human rights NGOs, and no doubt the British and American governments, would argue that while imperfect, international justice delivers one, critical benefit: justice for victims in countries where they might never expect redress through their own court systems.
Yet, surely the most important benefit that can be bestowed by the international community on South Sudan is peace, development, and the chance to live in the sovereign nation they fought so long to establish. What is certain is that if independence and peace are truly the key objectives for South Sudan, then the most certain way to achieve this must be through a truth and reconciliation process modeled on the experiences of South Africa and Northern Ireland—not international judicial methods.
We know for certain that these processes assured peace. We also know for certain that international tribunals lead to accusations of political meddling by the “Great Powers,” and concerns over ethnic and political bias in prosecutions. And, surely, for survivors and victims of South Sudan’s civil war what is better is to be fully assured of the permanence of peace, and the chance to prosper from a better life through the development that peace brings. Is that not, above all, the ultimate compensation for years of war, pain, and fear?