In South Sudan, moderation in pursuit of justice can be a virtue

But the complete removal of accountability and justice from the agenda is not the answer.

by
    South Sudanese civilians celebrate the signing of a power sharing agreement between President Salva Kiir and rebel leader Riek Machar, in Juba, South Sudan, August 5, 2018 [Samir Bol/Reuters]
    South Sudanese civilians celebrate the signing of a power sharing agreement between President Salva Kiir and rebel leader Riek Machar, in Juba, South Sudan, August 5, 2018 [Samir Bol/Reuters]

    South Sudan's warring factions have finally agreed on a new power-sharing deal to end the brutal civil war that killed tens of thousands, displaced an estimated 3 million others and devastated the fragile economy of the new nation.

    President Salva Kiir, former vice president and rebel leader Riek Machar, and other factions signed the accord on August 5, in which they committed themselves to the cessation of hostilities, demilitarisation of civilian centres, the disengagement and cantoning of forces, and a 36-month transitional arrangement. Under the deal, Kiir will remain president while Machar will be reinstated as first vice president, one of five vice presidential positions. The accord also envisions a Council of Ministers which will have 35 ministers (20 from Kiir's party, 9 from Machar's, and 6 from other parties), and a transitional parliament which will have 550 seats (332 for Kiir's party, 128 for Machar's, and, the remaining 90 for other parties).

    Since the start of hostilities in 2013, two years after the country's independence, the two factions have agreed and violated several accords, sometimes within hours of signing. The government in South Sudan insists that the current deal is organic and will hold. President Salva Kiir contends that, unlike the 2015 peace deal, which was "forced" on them, the current deal is negotiated and agreed by all parties and that his government is committed to it.

    The 2015 agreement, which Kiir describes as an external imposition, was sponsored by the US and Britain and brokered by the Intergovernmental Authority on Development (IGAD). A central pillar of this peace deal was the establishment of two important institutions that would help South Sudan overcome the complex process of national reconciliation, healing, and nation-building: the Commission on Truth, Reconciliation and Healing, and the Hybrid Court for South Sudan.

    The US and Britain insisted that they would not "recognise any reservations or addendums" while Kiir and Machar saw some of the provisions, particularly the one on the establishment of the Hybrid Court, which had the aim of investigating, prosecuting and punishing those responsible for the atrocities, as unworkable and a serious obstacle to peace. Under the current accords, there is no mention of a court or accountability mechanism while a provision is made for a national process of healing and reconciliation.

    Peace and justice

    In an opinion piece published in the New York Times on 7 June 2016, Kiir and Machar renounced the justice and accountability element of the 2015 agreement. The two leaders wrote: "Disciplinary justice - even if delivered under international law - would destabilize efforts to unite our nation". Although the processes of reconciliation and accountability are not mutually incompatible imperatives, they argued, there are political, societal and institutional reasons which make the accountability approach destabilising. The interest of peace, the former arch-foes noted, outweighs the interest of justice, insisting that the cost of pursuing conventional criminal sanctions is far greater than its moral gains. They concluded that only a national truth and reconciliation process can offer a viable prospect of preparing South Sudan for the complex task of national reconciliation, healing, and nation-building.

    Riek Machar disavowed the contents of the article four days after its publication and was sacked from the government of national unity some time later, triggering yet another cycle of brutal violence in which soldiers raped girls, slaughtered boys and perpetrated chilling atrocities on civilian populations.

    As the current agreement clearly shows, the two sides were not prepared to subject themselves and their commanders, the same people responsible for implementing the accords, to scrutiny.

    Moderation towards justice can be a virtue

    The enduring prominence of retributive justice within the Anglo-American legal and political culture is very well known. Accountability, understood as individualised criminal prosecution and punishment, is seen as a moral imperative. Within these societies, which are sufficiently developed as to absorb social conflicts in terms of legal rules, it is believed that impunity, particularly for atrocity crimes, undermines the rule of law and weakens the authority of the law to deter proscribed conduct.

    In South Sudan, none of this can be taken for granted. In fact, there are genuine institutional and political reasons to believe that the pursuit of retributive justice would jeopardise what is surely one of the most precarious processes of transition ever. As the two leaders wrote in 2016: "It is easy to see how some people, having known nothing but war, may prefer to return to the battlefield than stand trial in a foreign country."

    The primary task of societies emerging from extreme violence is to prevent the recurrence of atrocities and repair the social fabric ripped apart by decades of violence. From Argentina and Brazil in Latin America to South Africa and Sierra Leone in Africa, from Yugoslavia and Poland in Europe to the Philippines and Cambodia in Asia, and several others in between, countries in transition confronted the intractable predicament and complex dilemma of how to come to terms with particularly divisive and tragic past. Like many others, South Sudan needs time to take stock of its history, to engage in a robust dialogue about who South Sudanese are as people, why they belong together and what kind of a country they want for themselves and their children. Only after answering these questions can they build an ethical consensus for a better future for all. One cannot engage in these processes of healing and repair while at the same time pursuing criminal prosecutions against powerful actors responsible for implementing the very same accords that would make healing possible. In South Sudan, moderation towards justice can be a virtue.

    However, reconciliation and healing are not exclusively forward-looking processes of restoration. Indeed, the complete abandonment of accountability and justice as an important pillar of the transition under the current accord seems to be predicated on the erroneous assumption that perpetrators would tell the truth in return for blanket amnesty and that the disclosure of truth would lead to reconciliation and healing. It does not. Decades of research on transitional justice show that there is no necessary link between truth and reconciliation. Even when the process is sufficiently robust and imaginative as to enable the full disclosure of the truth, which is rarely the case, the truth is not a sufficient condition for reconciliation and healing. The volatile relationship between truth and reconciliation, the seemingly inevitable trade-off between peace and justice, the illusive negotiation between remembering, forgetting and forgiving, are all processes that are multifaceted and unpredictable.

    Principled compromise

    In societies torn apart by decades of violence, accountability should not be seen as an exclusively backwards-looking exercise in retribution, but as part of a comprehensive package of measures designed to restore peace and confidence in the rule of law. Peaceful coexistence and national reconciliation in South Sudan demand a proper accounting of the past and a public knowledge and acknowledgment of injustices.

    However, a free-for-all blanket amnesty of the type agreed by Kiir, Machar and others is a mistake that will come back to haunt them all. We should lose no opportunity to remind them that the complete removal of accountability and justice from the agenda now does not mean that these issues will die away. They will not. Beneath the surface of peace and reconciliation, the demand for justice and reckoning will persist long into the future.

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


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