East African heads of state and foreign ministers gathered in Ethiopia on June 12 to address the ongoing humanitarian and security crisis in South Sudan. While the discussion centered on reaching a ceasefire and improving humanitarian assistance, political leaders missed an important opportunity to support the establishment of a Hybrid Court for South Sudan, as required by the 2015 peace agreement. The Hybrid Court will combine elements of South Sudanese and international law and will include South Sudanese and international personnel. The call for the court came as a response to atrocities committed by both parties to the country’s civil war. Although a cessation of hostilities and improved humanitarian assistance are needed most urgently, regional leaders must also prioritize accountability for South Sudan so that it can achieve lasting peace and avoid another cycle of destabilizing violence.

The Intergovernmental Authority on Development (IGAD) hosted an Extra-Ordinary Summit in Addis Ababa to address the situation in South Sudan. Ethiopian Prime Minister Hailemariam Dessalegn, Chair of the IGAD Assembly of Heads of State and Government, called the summit between the eight East African member states. Although several regional heads of state attended, South Sudan President Salva Kiir declined, instead sending First Vice President Taban Deng. Kiir’s absence was notable. Several analysts criticized this decision and although officially mum, regional leaders were reportedly displeased by Kiir’s no show.

Following the summit, IGAD released a communiqué reaffirming that the 2015 peace agreement remained the only viable way forward for securing peace and stability. The communiqué did not mention the Hybrid Court, even though the negotiated peace agreement required the establishment of the court by April 2017. The 2015 agreement was brokered to end the fighting between government forces (the Sudan People’s Liberation Army or SPLA) and the armed opposition (the Sudan People’s Liberation Army-in Opposition or SPLA-IO). Signed by President Kiir and opposition leader Riek Machar, it provided for a cessation hostilities and the establishment of a Transitional Government of National Unity (TGoNU). Although nominally still in effect, neither party has implemented the agreement and fighting has spread throughout much of the country as the humanitarian situation continues to worsen. 

Spreading Violence and a Deteriorating Humanitarian Situation

The strongest indicator of the spreading violence is documented in a U.N. report published in May, which found that armed forces supporting the government killed 114 citizens in Yei, a medium-sized city about 100 miles from Juba, South Sudan’s capital. These killings occurred over six months between July 2016 and January 2017. Keeping with the brutality of the conflict, the report concluded that many acts could amount to war crimes, including indiscriminate attacks on civilians, the looting and burning of civilian property, rape, and torture. The South Sudan government rejected the report’s findings.

Until last summer, people living in Yei had largely escaped the violence that had devastated communities in Juba and other areas of the country. But, last July, after government and opposition forces engaged in four days of intense fighting in the capital, violence moved throughout South Sudan as Machar and his forces fled Juba. Machar eventually reached the Democratic Republic of the Congo and now lives in South Africa, where he is unofficially under house arrest. Machar recently petitioned the United Nations to return to South Sudan and reengage in peace negotiations, but there is little indication that IGAD leaders or the United States supports this plan. The South Sudanese government insists that Machar can only return to South Sudan as a private citizen after he denounces violence.

As the fighting has spread, the humanitarian situation has deteriorated. According to the Fund for Peace (FFP), South Sudan is once again the most fragile country in the world. After falling to second on FFP’s Fragile States Index in 2016, the country has reclaimed the top spot that it previously held in 2015 and 2014. In February, the U.N. declared a famine in parts of the country, concluding that 5 million people, or about 40 percent of the population, require urgent humanitarian assistance. South Sudan is also experiencing a cholera outbreak, killing 248 people since June 2016. U.N. officials have recorded 8,160 cholera cases during this period, but fear the figure may represent as few as 10 percent of all cases.

Refugee flows are also a serious concern. In 2017, 137,000 South Sudanese refugees have arrived in Sudan, already eclipsing the 2016 total. Uganda has absorbed the greatest number of refugees, as more than 900,000 South Sudanese have fled there since fighting began in late 2013. This displacement has led to the world’s largest refugee settlement, known as Bidi Bidi, springing up in just eight months, according to the Financial Times. Further, a staggering 86 percent of South Sudan refugees in Uganda are women and children and more than 60 percent of South Sudan’s 1.8 million refugees are children.

Uganda has an incredibly progressive refugee policy, however, tensions are rising between refugees and local citizens over scarce resources and overcrowding. Despite obvious need, financial support has proved illusive, as the U.N. High Commissioner of Refugees reported that 84 percent of the South Sudan appeal remains unfunded. Earlier this year, the South Sudan government demonstrated its callousness towards the situation by increasing the registration fee for domestic and international humanitarian groups working in the country. While the domestic increase was relatively modest, the international registration fee was nearly a six-fold increase.

Addressing Impunity

The United Nations, African Union, United States, and others have repeatedly called on government and opposition forces to abandon fighting and for the South Sudan government to investigate serious human rights abuses and to prosecute those responsible. Thus far, the government has shown almost no willingness to do so. Moreover, a high-profile trial involving Sudan Sudanese soldiers involved in last summer’s violence has raised serious questions over fairness with one human rights group calling the trial “a sham.”

The continued conflict, along with the absence of rule of law and the lack of accountability for crimes and human rights abuses, has resulted in widespread impunity. As much as any other factor, this near total impunity continues to drive the conflict. On May 25, African Union Chairperson Moussa Faki Mahamat condemned both parties to the conflict for “massive crimes.” Pointedly, Mahamat made these comments on Africa Day, calling for South Sudan leaders to stop the “unspeakable suffering” that civilians are enduring. Likewise, Ken Scott, a war crimes prosecutor and member of the U.N. Commission on Human Rights in South Sudan, notes the culture of impunity that marks South Sudan’s history, both during its struggle for liberation from Sudan, and since 2011 as an independent state. Given the lack of past accountability, political elites and direct perpetrators simply do not fear consequences for their actions. Until this mindset changes, it is unrealistic to expect an end to conflict or lasting peace.

Accordingly, any serious effort to implement the 2015 peace agreement must address impunity and include clear direction for establishing the Hybrid Court. In addition to combining domestic and international law, the Hybrid Court also aligns with the African Union’s “African solutions to African problems” ideal. Numerous human rights groups, such as Amnesty International and International Federation for Human Rights, have stressed the importance of establishing the court, even as the conflict continues. Likewise, Human Rights Watch and a large coalition of local and international NGOs have urged the African Union Commission to move forward on the establishment of the court.

Human rights groups are not the only champions of the court. The U.N., A.U., European Union, U.S. and United Kingdom, all have publicly supported establishing the court. U.S. support has been particularly strong. In May 2015, then U.S. Secretary of State John Kerry pledged $5 million towards the establishment of the court. While many expected U.S. support for the court to dim after Donald Trump was elected president, thus far, U.S. support remains robust, including a U.S. Resolution put forth at the U.N. Human Rights Commission in March, which called for an enhancement of the Commission’s mandate to “clarify responsibility for alleged gross violations and abuses of human rights and related crimes.” The resolution also provides for the collection and preservation of evidence. This is a key point, as the death of witnesses and the loss of evidence is likely the most significant barrier to effective adjudication should the Court be established. For this reason, it is imperative that efforts to collect and preserve evidence remain strong.

U.S. Foreign Policy

Thus far, support for establishing the Hybrid Court in South Sudan has been the rarest of things: a serious foreign policy objective supported by both the Obama and Trump Administrations. There is good reason for this continuity. In addition to supporting U.S. foreign policy towards ending impunity, designed and implemented correctly, the court could help bring peace and stability to South Sudan, an important, if not critical U.S. foreign policy objective.

Indeed, while seemingly a peripheral conflict with limited strategic importance to the U.S., ending this conflict is more important to U.S. interests than commonly assumed. Payton Knopf, formerly a member of the U.N. Panel of Experts on South Sudan argues that there is a real risk that the conflict will spread into a destabilizing regional war involving Egypt, Ethiopia, Uganda, and Sudan. Further, Knopf notes that increasing competition in South Sudan between these states will compromise a regional counterterrorism architecture that the U.S. has already invested heavily in creating.

Unlike other conflicts and humanitarian crises, the U.S., working with IGAD and the AU, has the leverage to pressure regional states to engage with South Sudan in a constructive manner to end the conflict. Building on the IGAD Summit, including prioritizing the establishment of the Hybrid Court, provides the best path towards ending the conflict. Finally, while courts alone may not end civil wars, courts in combination with political reform and transitional justice efforts—such as a recently proposed women-led Truth and Reconciliation Commission in South Sudan—can help ensure that when the guns finally do fall silent, those most responsible cannot escape accountability or again push the country into violence.

Image: Getty/Dan Kitwood