What's In Blue

Posted Tue 12 May 2015

South Sudan Consultations: Options for Accountability

This afternoon (12 May), Council members are expected to hold consultations on options for criminal accountability and transitional justice in South Sudan at the request of the US. Under-Secretary-General for Legal Affairs and UN Legal Counsel Miguel de Serpa Soares and Assistant Secretary-General for Human Rights Ivan Šiminović are expected to brief.

Council members have highlighted the importance of accountability in several outcomes on South Sudan since the outbreak of the country’s civil war in mid-December 2013. The importance of accountability in South Sudan was reiterated by a number of members during the 2 May 2014 briefing to the Council by then-High Commissioner for Human Rights Navi Pillay and Special Adviser on the Prevention of Genocide Adama Dieng. It has also been consistently raised by several members during consultations since late 2013, and was an important focus of the Council’s message to the leaders of South Sudan when they visited the country in August 2014.

The US requested a meeting on this topic in early May. While members support the pursuit of accountability and transitional justice in South Sudan, there have been differences over the timing of prospective accountability measures. Some believe that accountability should be pursued in tandem with the search for peace, as a tool to fight impunity and modify behavior for the better in the midst of the conflict. Others appear to hold the view that such efforts during the fighting could be counter-productive and may actually create disincentives for key actors to pursue peace. For example, during the negotiations on resolution 2187, which renewed the mandate of the UN Mission in South Sudan in November 2014, one version of the draft resolution called on the Secretariat to provide the Council with recommendations on next steps regarding accountability in South Sudan. However, apparently as a concession to Russia, a weaker formulation was agreed on in the final version indicating that the Secretary-General’s upcoming UNMISS reports “could include” accountability issues.

In his 28 April UNMISS report, the Secretary-General stated that the Secretariat “is finalizing a report outlining options for criminal and transitional justice processes in South Sudan… [that] should help the parties determine the precise course of action to be followed to ensure accountability.” He expressed his intention to “bring this report to the attention of the IGAD Mediation and the parties and…share it with the Security Council.” It seems that in preparation for today’s meeting a document was shared with Council members, discussing options for accountability and transitional justice in South Sudan.

This afternoon’s meeting will provide an opportunity for the Secretariat to share its thinking on these options, which are a collaborative effort of the Office of Legal Affairs, the Department of Peacekeeping Operations, the Office of the High Commissioner for Human Rights, and the Office of the Special Advisor on the Prevention of Genocide. It seems that a hybrid tribunal and a truth and reconciliation mechanism might be among the options discussed. The parties themselves have already committed to a hybrid tribunal and transitional justice processes in the 1 February Addis Ababa agreement, a fact noted by Simonovic during his 24 February briefing to the Council. Other potential options that might be discussed include an ICC referral and a national judicial process. A number of members have floated the possibility of an ICC referral in the past, but it is unlikely that this could be pursued successfully, considering that five Council members (including some of the permanent members) are not state parties to the ICC and given the AU’s ambivalence toward the court. There are also concerns about whether South Sudan has the ability to undertake a national judicial process under current conditions, with active conflict ongoing.

Another matter that may be raised tomorrow is the work of the AU Commission of Inquiry. In early May, the US requested that the commission’s chair, Olusegun Obasanjo, brief Council members. However, there may be political obstacles to holding such a meeting, even in an informal format, since the Commission’s report has not been publicly released and there are concerns among some AU member states that its publication could undermine the peace process in South Sudan.

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