Talk of tribunal for war crimes

The head of the United Nations and some South Sudanese civil society activists are suggesting that a “hybrid tribunal” be established to investigate crimes committed during the ongoing civil war in the country.

A recent report by the UN Mission in South Sudan (Unmiss) broached the idea of a joint national or international mechanism to ensure that impunity does not prevail.

“Should the government prove unwilling or unable to pursue genuine accountability, a special or hybrid tribunal with international involvement should be considered,” said the May 8 Unmiss report on human-rights violations committed since the conflict began in December.

That proposal was echoed last week by UN Secretary-General Ban Ki-moon while some members of the Security Council are believed to be in favour of such a body.

But the plan may also prompt opposition from the supporters of the International Criminal Court. The ICC was established 11 years ago to handle cases involving war crimes in countries where political authorities and judicial systems are seen as unwilling to, or incapable of, prosecuting powerful figures.

“One may argue that, now that we have the ICC, is it necessary to establish other tribunals?” said Adama Dieng, the Special UN Aisor for the Prevention of Genocide.

READ: South Sudan fighting creeps towards genocide

Court of last resort

Mr Dieng was speaking at a May 13 forum sponsored by the International Peace Institute, an NGO with offices a short distance from the UN. Concerns were also voiced about the time it may take to launch a special tribunal.

“Justice delayed is justice denied,” Mr Dieng said. But later in his remarks he said: “I would not exclude a hybrid tribunal for South Sudan.”

Fatou Bensouda, the ICC Prosecutor, has not objected to such a judicial instrument. At a May 13 press conference at UN headquarters, she observed that “the ICC is not meant to try each and every case everywhere.” In accordance with the principle of complementarity, the ICC is intended to be “a court of last resort,” Ms Bensouda said.

She was referring to the stipulation that prosecution of war crimes, genocide and crimes against humanity should be carried out at the national level whenever such proceedings are viewed as credible.

“If national efforts are being made to address those crimes [in South Sudan], the ICC will take a back seat,” she said. Ms Bensouda cautioned, however, that the worst eventuality is that “nothing is being done when these kinds of crimes are committed.”

The prospect of ICC involvement in South Sudan would also be likely to trigger political objections. African countries have strongly criticised the court’s intervention in Kenya and its record of prosecuting Africans exclusively.

And because South Sudan is not a party to the treaty that created the ICC, the court could initiate proceedings in that country only if the UN Security Council recommended such a recourse. One or more of the council’s five permanent members could well decide to veto that option.

Affirmative arguments in support of a hybrid tribunal were put forward by David Deng, research director of the South Sudan Law Society, at a May 12 forum also sponsored by the IPI.

Mr Deng emphasised that an “international component” is essential for holding accountable those South Sudanese responsible for the documented atrocities committed by both government forces and rebel troops.

“We have to acknowledge that the justice system in South Sudan is unable to deal with this situation,” he said.

SOURCE: The East African