Dr. Odora: Commison’s mandate was a tall order.
The crisis in South Sudan was avoidable and a self-inflicted disaster created by the political and military leadership of that country. There is no excuse or justification for the war that started on 13 December 2013. Most scholars, researchers and experts on South Sudan generally agree that the underpinning causes of the armed conflict in that country include weak governance, poor leadership, weak institutions, and conflation of personal, ethnic and national interests, including unchecked corruption, particularly at the leadership level. The civilian population, unfortunately, is left to fend for themselves with no functional schools, hospitals or public utilities.
However, the immediate cause of the armed conflict is believed to be President Salva Kiir’s irresponsible political decisions to sack his deputy, Dr Riek Machar, several cabinet ministers and other senior government and ruling party Sudan People’s Liberation Movement (SPLM) officials, including Mr Pagan Amum, the party Secretary-General. These political disagreements between top SPLM leadership very rapidly transformed into an ethnic conflict, a conflict between the Dinkas and the Nuers, each allied to their respective sub-ethnic groups. This ethnic division was replicated in the army, government and all public institutions. Soon after the armed conflict commenced in December 2013, the Uganda People’s Defence Force (UPDF) unilaterally entered Juba, the capital of South Sudan, and took a side in the internal armed conflict by supporting President Kiir, an ethnic Dinka, against the sacked Vice President Riek Machar, an ethnic Nuer.
The response of the African Union (AU) to the now political-cum-ethnic conflict between the Dinkas, the Nuers and their respective allies was slow in containing the violence at an early stage, deploying a neutral force to protect the civilian population, and failed to follow examples of the UN Humanitarian organizations in providing protection to civilians most vulnerable, particularly women and children. Later, indeed much later, the AU appointed a commission of inquiry to investigate the carnage unfolding in South Sudan (the Commission). As far as many AU analysts are concerned, the slow process adopted by the AU in the appointment of the Commission was an afterthought.
The Commission, chaired by Mr Olusegun Obasanjo, former President of Nigeria (the other members were Prof Mahmood Mamdani, Justice Sophia AB Akuffo, Ms Bineta Diop and Prof Pacifique Manirakiza), had the mandate to investigate human rights violations and other abuses committed during armed conflict in South Sudan and to make recommendations on the best ways and means to ensure accountability, reconciliation and healing among all South Sudanese communities.
To be fair to the Obasanjo Commission, its mandate is a tall order and was unlikely, in any event, to be concluded within the limited three-month period allotted to conclude investigations and submit its report to the AU, particularly as the Commission appears to have an open-ended mandate. Its temporal jurisdiction runs from 15 December 2013.
The Obasanjo Commission submitted its Interim Report to the AU at its 23rd Ordinary Session held on 26-27 June 2014 at Malabo, Equatorial Guinea. And, as expected, the Commission also requested for extension of time to finalize the report (Assembly/AU/19(XXIII)).
The Interim Report, as acknowledged by the Obasanjo Commission, is inconclusive and makes no specific recommendation save to request for extension of time for the purpose of writing a final report. The Commission sees its challenge in implementing its mandate as the exploration of relationship between reconciliation, truth, justice and healing. The Interim Report appears to relegate the issue of criminal accountability to the bottom of its priority list. In its work, the Commission adopted an expansive understanding of the concept of accountability and defined it as encompassing four aspects: criminal accountability, civil accountability (reparation), administrative accountability (lustration) and truth telling. Along the way, the principal objective of the Commission to seek justice—as well as to protect the civilians in an ongoing conflict, recommend for a functional ceasefire, impose sanctions on parties that are in breach of the ceasefire and name individuals responsible for violations of international humanitarian law—got lost in the process. The Obasanjo Commission spent an inordinate period of time travelling to neighbouring countries and interviewing some leaders who, for all practical purposes, are accomplices to crimes that have been or are still being committed in South Sudan. It is surprising that the entire Interim Report has just two paragraphs on accountability (para.84 and 85), comprising 13 lines in the 26-page report.
According to the Interim Report, the Obasanjo Commission recognizes that there is credible evidence of widespread and systematic attacks against the South Sudanese civilian population, rape and sexual attacks on women and girls and widespread destruction of public utilities, infrastructure, public and private buildings, particularly in Malakal, Bentiu and Bor. The Commission also confirmed the discovery of mass graves and interviewed witnesses to the commission about the crimes, including crimes of sexual and gender-based violence. These acts, as identified by the Obasanjo Commission, constitute serious violations of international humanitarian law and are also violations of Common Article 3 of the four 1949 Geneva Conventions and the Additional Protocol II of 1977. At this stage, the Interim Report ought to have made specific recommendations on how to address these violations of the laws of war and whether to investigate the perpetrators with an objective to prosecute them.
However, the Commission made no recommendations on what to do with the perpetrators of the crimes. The purported reason as articulated by the Commission is that it was: ‘still in the process of collecting information and investigating various allegations of human rights violations and violations of humanitarian law’. It then concluded that it was ‘not yet in a position to pronounce itself definitively on whether some of these acts [mass murders and sexual attacks] amount to international crimes…’ This conclusion contradicts the Commission’s findings, especially when there is credible evidence of the discovery of mass graves, widespread and systematic attacks including rape and sexual violence and destruction of infrastructure and of public and private property.
I submit that the Commission’s mandate is not to make a legal conclusion on whether serious international crimes were committed, or to identify all possible perpetrators before submitting a final report but rather, to report its findings and recommendations to the AU. It is for the AU to determine whether violations of international humanitarian law occurred by appointing a body of investigators and experts in the field to conduct further investigations and report their findings and recommendations to the AU for further actions.
The Obasanjo commission’s call to the warring factions to respect international humanitarian law without indicating any specific threat of sanctions is not a novel idea. It is, in fact, a standard practice to urge all parties to a conflict to cease violations of humanitarian law and to draw their attention to the fact that responsibility will attach to such actions. It is also common practice to urge individuals in positions of authority or command to take all measures to ensure that those under their command do not engage in violation of humanitarian law. What the Commission did, in urging the combatants to respect the law was, to that extent, not new. Urging combatants to respect rules of engagement is good practice. However, experience suggests that combatants often act when there is a credible threat of sanctions and criminal prosecution. Combatants do not respond to abstract threats.
To underscore the point, when the Commission obtained credible evidence that atrocity crimes were committed, it ought to have recommended to the AU that it appoint expert investigators to investigate alleged crimes with a view to prosecuting the perpetrators.
On healing and reconciliation, the Commission correctly noted that the war of liberation, the multiple conflicts that accompanied it, as well as the subsequent conflicts, have wrecked relations among South Sudanese communities. These factors underpinned the Commission’s conclusion of there being an urgent need to institute genuine national efforts at reconciliation to facilitate healing.
However, instead of making specific recommendations to address these acts of mischief, the Commission laments that ‘once it has engaged further with grassroots communities, and drawing on successful past experiences, [will] make comprehensive recommendations on reconciliation and healing’. There appears to be no sense of urgency on the part of the Commission, considering that various NGOs and UN humanitarian organizations have publicly expressed their concerns about the dire humanitarian situation in the country.
On the question of foreign troops, the Commission ‘[urged] an end to any form of military support to the belligerents that fuel and encourage hardening of positions and continuation of hostilities’. This vague statement alludes to the presence of the UPDF in South Sudan. The UPDF has taken a side in the conflict. Not being neutral, the UPDF has been asked by the international community, including the United Nations and the SPLM in Opposition, to withdraw. The Ugandan government has ignored those requests.
The bias of Uganda in favour of President Kiir’s SPLM faction is demonstrated by President Museveni’s lone presence at the 3rd Independence Day anniversary celebration of the Republic of South Sudan. All of the other leaders of IGAD, currently mediating the peace process between the two warring factions of the SPLM, though invited, declined to attend. On his part, President Museveni, when addressing the crowd in Juba, announced that Uganda lost ‘less than 10 soldiers’ but managed to destroy the rebels. This says a lot about Uganda’s neutrality.
The other armed force in South Sudan is the Ethiopian People’s Defence Force (EPDF). However, EPDF, to its credit, is in the country under the auspices of the IGAD.
The Commission made no findings or recommendations on the unilateral deployment of UPDF in South Sudan and on its refusal to withdraw. The Commission’s silence is significant since presence of the UPDF in the country is one of the reasons cited by SPLM in Opposition for the continuation of the armed conflict.
The Obasanjo Commission also made no recommendations on violations of ceasefire agreements. There have been two ceasefire agreements. The first was signed by the warring parties on 23 January 2014. It was largely ignored by both parties. The second was signed on 9 May 2014. The protagonists have not complied with the ceasefire and the many breaches are routinely recorded by the IGAD Monitoring and Verification Mission. The Obasanjo Commission, however, ‘welcomed the March 2014 decision of the IGAD Head of States to deploy a regional force…’ but did not expressly condemn the presence of foreign troops in South Sudan or the combatants’ failure to respect ceasefire agreements. Yet, the Commission, in calling for deployment of a regional force, must also be aware of IGAD’s financial constraints. In all its activities, but for donor funding, IGAD often does not meet its financial obligations. Waiting for foreign donors to fund IGAD’s regional force is not one of the best strategies for the AU or South Sudan to protect the civilian population in South Sudan during the present crisis.
Finally, there is the problem of the applicable law to regulate the armed conflict. South Sudan is yet to ratify any of the major international instruments, whether regional or international, that regulate the conduct of armed conflict. As a matter of international treaty law, instruments not ratified by a state-party do not constitute sources of binding obligation for South Sudan, save laws that are already part of customary international law such as the four 1949 Geneva Conventions and its Additional Protocol II of 1977. It would have been helpful for the Interim Report to make some form of recommendation on this point.
Overall, the Obasanjo Commission could do more and could do better to assist the AU in speedily bringing this conflict to realistic conclusion by putting in place structures that protect and defend the people of South Sudan from a political leadership that has gone rogue. The present Interim Report is too vague to provide a useful guide and falls short of expectation.
* Dr Obote-Odora is a Consultant in International Criminal Law and Policy.
First Published at Pambazuka here