Self-determination is the key for peace in South Sudan

In December 2013, less than three years after independence, South Sudan erupted into civil war. The ongoing conflict pits forces of President Salva Kiir, a Dinka, and those of former Vice President Riek Machar, a Nuer, against one another. The United Nations has issued genocide warnings and declared famine in several regions. Over 3 million people have been displaced from their homes. Reports chronicle massive human rights abuses.

The UN Security Council, governments, and civil society groups have put forth multiple proposals to end the conflict and restore peace to South Sudan. The most promising, indeed indispensable, measure is an indigenous, all-inclusive peace process. On the other hand, another proposed measure, trusteeship, is especially problematic, as it would entail a break from the foundational basis of South Sudan’s sovereignty – self-determination.

Arms embargo

Chapter VII of the UN Charter authorises the UN Security Council to undertake measures to keep or restore peace and security. Article 41of the chapter gives the Security Council a broad range of non-force options, including sanctions. General sanctions apply to an entire country, while targeted sanctions apply to specific individuals or entities therein. Both are intended to bring pressure to bear on warring parties in order to achieve peace.

In December 2016, under strong pressure from the US, the Security Council put forward a resolution for a general arms embargo against South Sudan and targeted sanctions. The resolution, which failed to garner the required support among Security Council Members, would have prohibited UN Member States from selling arms to South Sudan.

Security Council members that supported the resolution, including the US, argued that an arms embargo would reduce violence and impede the proliferation of arms, thereby creating conditions conducive to dialogue among the warring parties. Countries that opposed the arms embargo argued that it would undermine South Sudan’s progress toward national dialogue and its cooperation with UN peacekeeping operations.

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Arms embargoes have a troubled history. A 2006 Oxfam-commissioned study found that “every one of the 13 [UN] arms embargoes imposed in the last decade has been systematically violated”.

There are multiple illicit channels through which arms might enter a country subject to an arms embargo. Even if an arms embargo was to work, South Sudan would still be awash in arms. Stopping the violence would also require the large-scale disarmament of existing weaponry and other long-term measures, such as an inclusive national peace process.

Targeted sanctions

In 2015, before attempting to put forward an arms embargo, the Security Council adopted Resolution 2206, which calls for targeted sanctions against specific individuals and entities deemed “responsible for or complicit in” the conflict. The targeted sanctions include a travel ban and asset freeze for culpable individuals and entities. The idea is that targeted sanctions, as personal penalties, reduce incentives for individuals and entities to engage in armed conflict. By the end of 2015, the Sanctions Committee had identified six individuals from government and the opposition subject to targeted sanctions.

Many communities and groups are excluded from high-brow, top-down approaches to peace promulgated by cadres of briefcase expats and experts far removed from centres of conflict on the peripheries of South Sudan.

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Still, the conflict rages on, as armed groups proliferate. Indeed, evidence suggests that targeted sanctions generally don’t change their targets’ behaviour. Resolution 2206 implicitly assumes that top commanders responsible for the conflict are readily identifiable, but the centres of the South Sudanese conflict are diffuse, which renders it difficult to clearly identify responsible individuals. Therefore, targeted sanctions are bound to be insufficiently comprehensive.

Another implicit assumption is that culpable parties have assets abroad or travel frequently. Yet, many of the commanders do not have extensive foreign dealings. Furthermore, those who do travel abroad relatively frequently and/or have assets abroad can relatively easily evade the sanctions by using false passports or hiding assets in complex ownership structures.

A failed December 2016 Security Council resolution sought to impose targeted sanctions on three more government and opposition figures, including former Vice President, Riek Machar. The failure of the resolution was not surprising given that political jostling by powerful Security Council members, like China, Russia, and the US tends to preclude effective measures from that body.

Trying to end impunity 

In November 2016, South Sudanese and international civil society groups urged the African Union to establish a hybrid court to try those responsible for war crimes in the conflict. Ending impunity for massive human rights violations in South Sudan is an attractive goal and would be welcomed by many South Sudanese. However, some have argued that criminal tribunals cannot bring peace to South Sudan and might make matters worse by alienating the leadership. By contrast, recent scholarship suggests that individual criminal accountability for human rights violations can have positive impacts. Also, criminal prosecutions would provide an important forum for South Sudanese victims to air their grievances.

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Nevertheless, criminal trials alone will not bring peace. They are insufficient and may be unnecessary for peace if the national peace process includes truth and reconciliation measures. The Wunlit Nuer-Dinka Reconciliation Process of 1999 provides a successful prior model of extra-legal reconciliation between Dinka and Nuer rival factions. Furthermore, war crimes trials are extremely expensive and very few perpetrators are convicted per dollar invested in such trials. The billions of dollars required to run a criminal tribunal would probably be better spent on rehabilitation of devastated local economies and livelihoods, education, public health, youth- and gender-focused programs, widespread disarmament, and a widespread grassroots community-based peace and reconciliation processes modelled after Wunlit.

Neo-trusteeship

The most extreme proposal put forward to end the conflict in South Sudan is a “neo-trusteeship”: a governing arrangement that involves the transfer of some or all sovereign powers to a trustee. The length of the trusteeship, the identity of the trustee, and the extent of sovereignty transferred would have to be worked out in the legal instruments creating the trusteeship. The purported goal is to create political stability and functioning institutions, such as rule of law, before handing sovereignty back to the South Sudanese. But the the implicit assumption in this proposal is that South Sudanese are incapable of governing themselves and thus require external guidance. Ironically, European colonialists made similar arguments in the 19th century. The prevailing notion then was that Africans were incapable of sovereignty and thus outside the international legal order.

Contemporary research shows that trusteeships tend to fail without governments’ and citizens’ support, which does not exist in South Sudan. In such cases, trusteeship might exacerbate violence. Recent cases – Afghanistan, East Timor, and Iraq – offer cautionary tales regarding the potential pitfalls of “neo-trusteeship”. 

The most problematic aspect of trusteeship is that it breaks from the foundational basis of South Sudan’s sovereignty – self-determination. Paradoxically, some proponents of neo-trusteeship were once strenuous defenders of South Sudan’s right to self-determination.

Indigenity and representativeness

As I have argued elsewhere, an indigenous, all-inclusive national peace process is indispensable to permanent peace and stability in South Sudan. Indigenity and representativeness, however, are usually missing from the international fora where many of the existing proposals emerged. Many communities and groups are excluded from high-brow, top-down approaches to peace promulgated by cadres of briefcase expats and experts far removed from centres of conflict on the peripheries of South Sudan.

Peace must be indigenous, inclusive, and community based. Traditional authorities should be included in the process. The Wunlit Nuer-Dinka Reconciliation Process provides a model of people-to-people peace that can be scaled nationwide to multiple centres of conflict, facilitating truth and reconciliation, fostering development cooperation and thus preserving the self-determination foundation of South Sudan.

Laura Nyantung Beny is a professor of Law at the University of Michigan Law School. She is also the co-editor of Sudan’s Killing Fields: Political Violence and Fragmentation.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.