In November 2024, the President of South Sudan signed into law two important pieces of legislation establishing a Commission on Truth, Reconciliation and Healing (CTRH) and a Compensation and Reparations Authority (CRA). The legislation comes almost a decade after the government first committed to establish these two transitional justice mechanisms in an August 2015 peace agreement, as well as a third element, an international hybrid court. During this time, confidence in the government’s ability to secure peace and stability, and to establish a culture respecting respect for human rights and the rule of law, has waned among its international partners, including the United States. Aside from limited support provided for technical assistance on transitional justice, and for holding public consultations and supporting the legislative process, there are few firm commitments from donors to support the new institutions.
Recently announced freezes and reductions to global foreign assistance by key bilateral partners, including the United States, United Kingdom, Netherlands, and Germany further compound the situation. The cuts have already led to layoffs in the aid sector, the most robust employment sector in the country, and major impacts are anticipated in terms of food security in both South Sudan and Sudan. Shifting donor priorities and the broader decline in development assistance make it even more important that South Sudan take real ownership of the CTRH and CRA. If these institutions are to function as intended, they must be structured to operate within the existing realities – politically, financially and in terms of security. For the international partners that remain committed to South Sudan, investments in transitional justice offer a means of addressing the root causes of conflict and breaking the cycle of perpetual humanitarian crisis. The alternative is an ongoing large-scale humanitarian intervention that only treats symptoms and not the underlying disease of political violence and impunity.
Without external financial and political support, the government of South Sudan, which, as of February, had not paid civil servants for the past 14 months, will not be able to mount a serious effort to address the long legacies of sustained violence and impunity in the country and provide meaningful redress to survivors. While there is good reason to doubt the government’s commitment to justice and accountability, policymakers in the United States and elsewhere have indulged for too long in self-defeating narratives about the country. For more than a decade, the United States and other international partners have focused their efforts on addressing the humanitarian crises in South Sudan and avoided more ambitious programs that would tackle the underlying drivers of violence in the country, including deeply entrenched impunity. Yet, humanitarian indicators are as bad today as they have ever been, and South Sudan remains one of the world’s most fragile, under-developed countries.
Transitional justice initiatives, together with other efforts to promote the rule of law, justice and respect for human rights, provide a strategic entry point for bilateral partners to support some of the important state and nation-building efforts that were largely abandoned a decade ago, both by the government and its international partners. Again, the South Sudan government should not be let off the hook and should be held strictly to its commitment to establish and provide adequate funding and political support to the CTRH and CRA, but the international community too has a responsibility to help the South Sudanese build the nation to which they aspire. This cannot be achieved through an approach that merely seeks to alleviate suffering without addressing the legacies of the past and restoring the rights of the South Sudanese people.
Transitional Justice Mechanisms of Chapter V
The transitional justice mechanisms, first introduced in Chapter V of an August 2015 peace agreement, were the product of a concerted effort by South Sudanese civil society and the African Union. From the beginning, civil society coalitions advocated for a holistic approach that would address the “four pillars” of transitional justice – truth, justice, reparations, and guarantees of non-recurrence. They argued that the previous peace agreement that ended a twenty-two-year civil war (1983-2005) between north and south in Sudan failed to address these issues in a meaningful way and instead turned a blind eye to the many abuses that the South Sudanese committed against one another. Political accommodation was prioritized over accountability, and military commanders and rebel leaders who committed some of the worst atrocities were rewarded with high-ranking positions and access to state resources. The message to their victims was clear – the only way to protect yourselves and your communities is through doing to others what was done to you. The state is not going to defend you if you cannot defend yourselves, thus setting into motion the cycles of violence that continue to plague South Sudan to the present day.
Shortly after the war broke out in December 2013, the African Union Commission of Inquiry (AUCISS), under the leadership of former President of Nigeria, Olesegun Obasanjo, conducted its own investigation into human rights abuses committed during the first stage of the war in South Sudan. However, towards the end of 2014, when the AUCISS presented its report to the AU Commission (AUC), the chair elected to defer consideration of the report at the request of Ethiopia out of fear that it would disrupt the ongoing negotiations between the South Sudan government and the Sudan People’s Liberation Movement-in-Opposition (SPLM-IO). Mediators asked how the South Sudanese leadership could be expected to sign an agreement that includes provisions on justice and accountability that would punish them for the crimes they have committed? A draft of the AUCISS report that was leaked shortly thereafter included documented evidence that implicated several political and military leaders in atrocities. Nonetheless, the parties proceeded to sign the peace agreement in August 2015, in which they committed to establish a hybrid court, a truth and reconciliation commission and a compensation and reparation authority.
The formula that was adopted in the 2015 peace agreement and its successor, a revitalized peace agreement signed in September 2018 after several more years of war, largely followed the prescription of what had earlier been advised by civil society and the AUCISS. The parties committed to establish a hybrid court to hold persons criminally responsible, a CTRH to address the legacy of conflicts, promote peace, national reconciliation and healing, and the CRA to provide compensation and reparations to people who lost property or were victims of abuses. For many years, most of South Sudan’s political leaders studiously delayed and obstructed the implementation of Chapter V, along with many other reforms put forward in the peace agreement. While the government continues to resist efforts to establish the hybrid court, the enactment of the legislation establishing the CTRH and CRA is a key milestone in an effort that began more than a decade ago.
Design of the CTRH and CRA
In many ways, the CTRH and CRA reflect a conventional approach to transitional justice in the aftermath of a conflict. The CTRH is a hybrid body that would be overseen and implemented by seven commissioners – four South Sudanese and three non-South Sudanese. A selection panel comprised of various civic, non-political stakeholder groups would be responsible for identifying the South Sudanese commissioners and the Chairperson of the AU Commission is meant to establish a process for identifying the non-South Sudanese commissioners. The CTRH is expected to investigate, document and report on human rights violations, war crimes and abuses and recommend processes to ensure victims’ rights to a remedy, though the legislation is curiously silent on the time period that would be covered by these investigations. Assuming the terms of the 2018 peace agreement apply, the CTRH would focus on abuses committed from the establishment of the semi-autonomous Government of Southern Sudan in July 2005 to the signing of the peace agreement in September 2018.
The CTRH also has a rather unusually long operational mandate of six years, renewable for an additional six-year term, where most other truth commissions have tended to operate on a two- to three-year timeframe, which is often extended for anywhere from six months to a few years. This decision is said to stem from a recognition that many truth commissions fall short of expectations in part because they are expected to deliver on such complex and politically charged tasks in a short period of time. Nonetheless, the CTRH will have to consider how to maintain a level of commitment and the public’s interest over such a long time in a context where confidence in the state’s capacity to deliver is already exceedingly low.
Perhaps the most contentious aspect of the CTRH relates to its amnesty provisions. Unlike most other truth commissions, the CTRH can recommend amnesty to any person that fully and truthfully discloses crimes for which he or she was responsible. However, thanks in part to civil society advocacy in the latter stages of the legislative process, the scope of the amnesty provision was restricted, and amnesty cannot be given for instances of war crimes, crimes against humanity, genocide or serious crimes under South Sudanese law, such as murder or rape.
The CRA is meant to provide various forms of reparations – monetary, non-monetary, individual and collective – to survivors of violations and abuses committed during the conflict. The reparations program will be overseen by a board comprised of representatives of the parties in the transitional government and other civic stakeholder groups. Victims may apply directly to the CRA and can also be referred to the CRA by the CTRH. As with the CTRH, the legislation does not specify the eligible time period during which the harm must have been committed, but there is an implicit reference in the peace agreement to harms committed during the conflict, suggesting that reparations may only be provided to individuals harmed between December 2013 and September 2018.
The ambiguities about the temporal mandate of the CRA is problematic. Reparations are probably the most consequential form of tangible remedy for victims, and decisions about the applicable time period could potentially exclude large segments of the population who were victimized in previous, related conflicts. Given the politically charged atmosphere in which it is operating, the CRA should move quickly upon its establishment to clarify this and other key questions in its implementing regulations. Another controversial aspect of the CRA concerns its apparent preference for communal reparations, when it can only recommend individual reparations when communal reparations are inappropriate. Government representatives proposed such an approach during a May 2023 conference in which the transitional justice program was discussed, and the proposal was strongly opposed by many of the civil society actors and survivor groups in attendance. The position that the institution ultimately takes on some of these controversial design questions will likely shape how it is received by South Sudan’s stakeholder groups.
The Hybrid Court for South Sudan
The missing transitional justice element concerning South Sudan to date is a judicial mechanism for holding the worst actors and most responsible persons accountable. South Sudan has a deep culture of impunity, dating back to its civil wars as part of Sudan, and this history and culture are core reasons for, and contributors to the mass violence, armed conflict and insecurity in the country since December 2013. No one of any substance has ever been held accountable before, so why should anyone now?
To address this gap, international policymakers have long repeated civil society’s calls for accountability, including the establishment of an international hybrid court, since the early months of the conflict. In April 2014, fifty members of the U.S. Congress, including the co-chairs of the Congressional Caucus on Sudan and South Sudan, called for accountability concerning mass killings and human rights violations in South Sudan, including an international hybrid court. This was followed a month later, in May 2014, with UN Secretary-General Ban Ki Moon calling for a hybrid court for South Sudan. Then, the AUCISS recommended the establishment of a special hybrid court in its final report issued in October 2015. In May 2015, the U.S. State Department announced that it would provide approximately $5 million to assist in establishing the court. The funds were withdrawn, however, when the AU and South Sudan government failed to make meaningful progress towards its establishment.
Both the 2015 and 2018 peace agreements place the principal responsibility for establishing the court on the African Union. Despite some late efforts to engage the government of South Sudan in 2016, leading to the development of draft legal instruments for the court, the AU has been largely missing in action and has not been willing to push the government of South Sudan on the court’s establishment. In fact, the South Sudan government has steadfastly opposed the court, as perhaps best illustrated by its entry into a contact with a US-based lobbying firm in April 2019 for the purpose of delaying and ultimately blocking the court’s establishment. So, despite sporadic efforts by various actors, the HCSS is still nowhere to be seen, and conspicuously absent from the legislation adopted in late 2024, as discussed above.
Today, no less than ten years ago, real and meaningful justice in South Sudan requires a robust hybrid judicial mechanism to hold the worst actors and persons most responsible to account. While still awaiting the actual establishment of the CTHR and CRA, the HCSS remains the missing element.
Conclusion
A central dilemma for the field of transitional justice is how to deliver justice and accountability in the absence of a meaningful transition. Political transitions almost invariably entail a degree of continuity with past regimes. This is particularly true in the South Sudanese context where the political and military figures entrusted with the transition have been in power for two decades and were in charge of the government and rebel forces and allied militia that committed numerous atrocities during the war. The question that mediators posed in 2014 during the AUCISS process therefore remains equally valid today: how can we expect political and military leaders in South Sudan to commit to a genuine process of transitional justice that will expose and punish them for the harms they have done to their people?
There is no easy answer to this question. But a first step is to recognize that political leaders in South Sudan have repeatedly committed to a transitional justice process. Not just once, but in two different peace agreements and now in two pieces of legislation endorsed by South Sudan’s parliament and signed into law by the President. They must be taken and held to their word, so that the question becomes: how do we make transitional justice a success? The prevailing political instability, economic turmoil, climate crises, cuts to foreign assistance, and ongoing violence certainly present a challenging environment for a complex state intervention such as what is provided for in Chapter V, but the South Sudanese do not have the luxury of waiting for the perfect political moment to address wounds that have been festering far too long. Indeed, experience suggests that such moments rarely present themselves. Instead, they must be seized and acted upon, with robust international support.
The international community should recognize that its approach of providing palliative care (however important) in the form of the most basic humanitarian assistance without addressing the underlying drivers of violence is not only failing to deliver meaningful results but may be exacerbating the problem by entrenching the current political establishment and undermining any form of accountability between citizens and the state. With reductions in foreign aid already being felt, this approach is becoming even less sustainable. Donor states that remain engaged in South Sudan should commit to funding transitional justice initiatives such as the CTRH and CRA, which offer an opportunity to address systemic issues rather than merely responding to crises as they arise.
Meanwhile, South Sudanese authorities must acknowledge that the days of external financial reliance are waning, and they will need to commit real resources to ensuring the CTRH and CRA fulfill their mandates. A more strategic approach recognizes the opportunity that these mechanisms present, not just as technical institutions, but as potential catalysts for meaningful change. By taking ownership of these processes, South Sudan can begin to move away from perpetual dependency and toward a future where justice and accountability underpin a more stable and self-sufficient state.
Finally, the recently increasing larger-scale fighting, arrest of opposition leaders and other developments destabilizing South Sudan underline more than ever that a durable peace must be a just peace, in addressing and resolving, at least to some degree, both the causes and symptoms of South Sudan’s long history and continuing reality of impunity.
