Will the Report of AU Commission of Inquiry on South Sudan be Released?
By Luka Biong Deng
When the AU Peace and Security Council resolved in its meeting on 30th December 2013 to establish a Commission to investigate atrocities committed since the eruption of conflict in December 2013, the people of South Sudan were so happy that AU is now up to the challenge of putting behind the culture of impunity. These high hopes were shattered not only by the leaked document but also the delay in the release of the Report of the Commission. The discussion of the Report of the Commission, which was to be presented to the AU Council in July 2014, has been postponed many times. There is now a genuine concern whether the report will at all be released, particularly when 15th July was set by the AU Council as a date to consider the report. The AU Council decided to defer the discussion of the report to 24th July without providing reasons for such decision.
The question is why the AU Council is unable to release the report? In answering this question, there are three possibilities. The first possibility is that the Council may want to give peace a chance after the new modality for mediating peace talks. The second possibility is that the leaked report may be stronger than the actual Report and that may weaken the credibility of the actual report and may necessitate a fresh process of investigation. Also the delay in the release of the report may make the report outdated, as more and serious atrocities have been committed since July 2014. Given the lukewarm and growing discontent of African leaders towards transitional justice as well reflected in the recent escape of President Bashir from being apprehended in South Africa, some African leaders may see the Report to set a precedence that may have far reaching consequences.
As the first possibility of giving peace a chance before the release of the report is the most likely reason, the question is what are the prospects for peace in South Sudan? The IGAD Plus has come with a new timetable for peace talks with clear target of having a final and comprehensive peace deal to be concluded and signed by 17th August 2015. The IGAD Plus-led peace negotiations may start with an internal thorough study of a draft peace agreement that will be shared with the warring parties, probably on 5th August. The parties will immediately resume negotiations on the basis of the draft peace agreement for one week and then the leaders of the warring parties will be called to Addis Ababa to finalize negotiations by 15th August. Then IGAD Plus may call a summit to witness the signing of the final agreement by 17 August.
Unlike the previous process, the IGAD Plus-led process seems to be more serious and better informed by the achievements and mistakes of IGAD-led peace negotiations and may likely produce peace in August 2015. Despite this optimism, there seems to be a looming conflict on the leadership of the IGAD Plus-led peace negotiations. Although the IGAD Plus was established to bring the much-needed credibility to the IGAD-led peace negotiations, there is a strong feeling among some members of IGAD that IGAD Plus will remain an IGAD-led process and subsequently under its leadership.
There is also a growing feeling in AU to play a leading role in the IGAD Plus-led process. This is clearly manifested in the appointment of the former President of Mali, Mr Alpha Oumar Konaré as AU High Special Representative for South Sudan. The dismay of AU to the IGAD-led process was also reflected when it established in December 2014 the AU High-Level Committee for South Sudan that comprises of the Heads of State and Government of Algeria, Nigeria, Chad, Rwanda and South Africa to support IGAD-led mediation efforts. These countries are now members of IGAD Plus. With the appointment of Mr Konare, AU will play a significant role through his direct contact with the warring parties and other stakeholders and to interact with IGAD leaders and the heads of government and state of the AU High-level Committee for South Sudan. This will put Mr Konare in a higher and strategic diplomatic position than IGAD envoys who are diplomatically limited to the leaders of IGAD.
The other members of IGAD Plus such as the EU, Troika, UN and China are likely to play a limited role in the peace negotiations. Despite the inclusion of China in the IGAD Plus, China will be reluctant to take an active role in the peace process. Even the members of Troika may differ of how actively they will be engaged in the peace process with exception of US that may be keen to be more involved. There are signs that EU will be less willing to be actively engaged in the peace process. Certainly, the active involvement of UN at a high level in peace process will extremely be important. The current UN arrangements for South Sudan may not be sufficient for UN to assume the new role in the peace process and this may necessitate appointment of a special envoy for peace negotiations.
With such positive and reassuring efforts with clear timetable for concluding peace deal by 17th August, one suspects that the decision of the AU Peace and Security Council to suspend the release of the report on 14th July was largely influenced by the plans of the IGAD Plus. In particular, the possibility that the draft peace agreement to be prepared by IGAD Plus may include a truth and reconciliation commission and a hybrid court might have convinced the AU Council to give peace a chance. As such one would expect the AU Report may only be considered on 24th July but not to be released until the conclusion of peace agreement.
While the AU Council may delay justice and to give peace a chance, the UN Security Council (UNSC) is very unease and it continues to urge the AU Council to release the Report. With recent report by UNICEF about the serious sexual violence against children and the recent human rights report by UNMISS that highlights more atrocities being committed including horrific acts such as burning people alive inside their homes, the UNSC may explore a possibility of establishing its own commission of inquiry on South Sudan since the AU report is limited in time and many atrocities have been committed since its term concluded in July 2014.
If peace agreement is not finalized by 17th August, the AU Council will be forced to release the Report. Also the AU may directly intervene and takeover the South Sudan peace process from IGAD. The UNSC may also take serious steps including the imposition of UN targeted sanctions on some key political leaders as well as establishing its own commission of inquiry to either cover the period since December 2013 or to build on the Report and to cover the period not covered by AU Commission of Inquiry. During his visit to the region during the month of July, President Obama will certainly raise the issue of the Report and he may urge the leaders of the region to support the release of the report. Also, with no peace concluded in August and the expected escalation of fighting with more atrocities, the UNSC may consider the arms embargo despite the fact that Russia and probably USA may be reluctant to pursue such path.
Given the far-reaching consequences for not concluding peace agreement in August, the warring parties are expected to make more compromises for the sake of peace as the most popular demand by the people of South Sudan. The role played by the former SPLM-FD and Madam Rebecca has greatly contributed to narrowing the areas of difference and the observed softening position of the SPLM-IG. Also the former SPLM-FD and Madam Rebecca are expected to exert more efforts not only to convince SPLM-IO to soften their position but also to consolidate their unity with the aim of reaching an acceptable peace agreement.
As the Report will eventually be released, the government should not wait for external mechanisms for achieving accountability and justice but it should embark on homegrown accountability efforts. The government should explore possibilities for acting on the findings of various investigation committees formed immediately after the eruption of conflict in December 2013 by various institutions. These institutions include SPLA (five-member committee on 2nd January 2014), South Sudan Police Service (five-member committee on 27th January 2014), Ministry of Justice (ex-officio investigation in February 2014) and Office of the President (eight-person committee on 11th January 2014). These various committees have gathered valuable information that may probably provide more powerful evidences than those to be provided by the AU Commission of Inquiry. The findings of these various investigation committees resulted in the arrest of approximately 100 individuals in connection with the targeted killings that occurred in Juba, yet escaped on 5th March 2014. In particular, the report of the Eight-Person Human Rights Abuses Investigation Committee led by Justice John Wol, the former President of the Supreme Court, is credible and should be released and acted upon to provide basis for homegrown transitional justice.
The author is the Director of the Centre for Peace and Development Studies, University of Juba, Global Fellow at the Peace Research Institute Oslo and Associate Fellow at the Carr Centre for Human Rights Policy at Harvard Kennedy School. He is reachable at luka_kuol@hks.harvard.edu or lukabiongdeng@gmail.com
When the AU Peace and Security Council resolved in its meeting on 30th December 2013 to establish a Commission to investigate atrocities committed since the eruption of conflict in December 2013, the people of South Sudan were so happy that AU is now up to the challenge of putting behind the culture of impunity. These high hopes were shattered not only by the leaked document but also the delay in the release of the Report of the Commission. The discussion of the Report of the Commission, which was to be presented to the AU Council in July 2014, has been postponed many times. There is now a genuine concern whether the report will at all be released, particularly when 15th July was set by the AU Council as a date to consider the report. The AU Council decided to defer the discussion of the report to 24th July without providing reasons for such decision.
The question is why the AU Council is unable to release the report? In answering this question, there are three possibilities. The first possibility is that the Council may want to give peace a chance after the new modality for mediating peace talks. The second possibility is that the leaked report may be stronger than the actual Report and that may weaken the credibility of the actual report and may necessitate a fresh process of investigation. Also the delay in the release of the report may make the report outdated, as more and serious atrocities have been committed since July 2014. Given the lukewarm and growing discontent of African leaders towards transitional justice as well reflected in the recent escape of President Bashir from being apprehended in South Africa, some African leaders may see the Report to set a precedence that may have far reaching consequences.
As the first possibility of giving peace a chance before the release of the report is the most likely reason, the question is what are the prospects for peace in South Sudan? The IGAD Plus has come with a new timetable for peace talks with clear target of having a final and comprehensive peace deal to be concluded and signed by 17th August 2015. The IGAD Plus-led peace negotiations may start with an internal thorough study of a draft peace agreement that will be shared with the warring parties, probably on 5th August. The parties will immediately resume negotiations on the basis of the draft peace agreement for one week and then the leaders of the warring parties will be called to Addis Ababa to finalize negotiations by 15th August. Then IGAD Plus may call a summit to witness the signing of the final agreement by 17 August.
Unlike the previous process, the IGAD Plus-led process seems to be more serious and better informed by the achievements and mistakes of IGAD-led peace negotiations and may likely produce peace in August 2015. Despite this optimism, there seems to be a looming conflict on the leadership of the IGAD Plus-led peace negotiations. Although the IGAD Plus was established to bring the much-needed credibility to the IGAD-led peace negotiations, there is a strong feeling among some members of IGAD that IGAD Plus will remain an IGAD-led process and subsequently under its leadership.
There is also a growing feeling in AU to play a leading role in the IGAD Plus-led process. This is clearly manifested in the appointment of the former President of Mali, Mr Alpha Oumar Konaré as AU High Special Representative for South Sudan. The dismay of AU to the IGAD-led process was also reflected when it established in December 2014 the AU High-Level Committee for South Sudan that comprises of the Heads of State and Government of Algeria, Nigeria, Chad, Rwanda and South Africa to support IGAD-led mediation efforts. These countries are now members of IGAD Plus. With the appointment of Mr Konare, AU will play a significant role through his direct contact with the warring parties and other stakeholders and to interact with IGAD leaders and the heads of government and state of the AU High-level Committee for South Sudan. This will put Mr Konare in a higher and strategic diplomatic position than IGAD envoys who are diplomatically limited to the leaders of IGAD.
The other members of IGAD Plus such as the EU, Troika, UN and China are likely to play a limited role in the peace negotiations. Despite the inclusion of China in the IGAD Plus, China will be reluctant to take an active role in the peace process. Even the members of Troika may differ of how actively they will be engaged in the peace process with exception of US that may be keen to be more involved. There are signs that EU will be less willing to be actively engaged in the peace process. Certainly, the active involvement of UN at a high level in peace process will extremely be important. The current UN arrangements for South Sudan may not be sufficient for UN to assume the new role in the peace process and this may necessitate appointment of a special envoy for peace negotiations.
With such positive and reassuring efforts with clear timetable for concluding peace deal by 17th August, one suspects that the decision of the AU Peace and Security Council to suspend the release of the report on 14th July was largely influenced by the plans of the IGAD Plus. In particular, the possibility that the draft peace agreement to be prepared by IGAD Plus may include a truth and reconciliation commission and a hybrid court might have convinced the AU Council to give peace a chance. As such one would expect the AU Report may only be considered on 24th July but not to be released until the conclusion of peace agreement.
While the AU Council may delay justice and to give peace a chance, the UN Security Council (UNSC) is very unease and it continues to urge the AU Council to release the Report. With recent report by UNICEF about the serious sexual violence against children and the recent human rights report by UNMISS that highlights more atrocities being committed including horrific acts such as burning people alive inside their homes, the UNSC may explore a possibility of establishing its own commission of inquiry on South Sudan since the AU report is limited in time and many atrocities have been committed since its term concluded in July 2014.
If peace agreement is not finalized by 17th August, the AU Council will be forced to release the Report. Also the AU may directly intervene and takeover the South Sudan peace process from IGAD. The UNSC may also take serious steps including the imposition of UN targeted sanctions on some key political leaders as well as establishing its own commission of inquiry to either cover the period since December 2013 or to build on the Report and to cover the period not covered by AU Commission of Inquiry. During his visit to the region during the month of July, President Obama will certainly raise the issue of the Report and he may urge the leaders of the region to support the release of the report. Also, with no peace concluded in August and the expected escalation of fighting with more atrocities, the UNSC may consider the arms embargo despite the fact that Russia and probably USA may be reluctant to pursue such path.
Given the far-reaching consequences for not concluding peace agreement in August, the warring parties are expected to make more compromises for the sake of peace as the most popular demand by the people of South Sudan. The role played by the former SPLM-FD and Madam Rebecca has greatly contributed to narrowing the areas of difference and the observed softening position of the SPLM-IG. Also the former SPLM-FD and Madam Rebecca are expected to exert more efforts not only to convince SPLM-IO to soften their position but also to consolidate their unity with the aim of reaching an acceptable peace agreement.
As the Report will eventually be released, the government should not wait for external mechanisms for achieving accountability and justice but it should embark on homegrown accountability efforts. The government should explore possibilities for acting on the findings of various investigation committees formed immediately after the eruption of conflict in December 2013 by various institutions. These institutions include SPLA (five-member committee on 2nd January 2014), South Sudan Police Service (five-member committee on 27th January 2014), Ministry of Justice (ex-officio investigation in February 2014) and Office of the President (eight-person committee on 11th January 2014). These various committees have gathered valuable information that may probably provide more powerful evidences than those to be provided by the AU Commission of Inquiry. The findings of these various investigation committees resulted in the arrest of approximately 100 individuals in connection with the targeted killings that occurred in Juba, yet escaped on 5th March 2014. In particular, the report of the Eight-Person Human Rights Abuses Investigation Committee led by Justice John Wol, the former President of the Supreme Court, is credible and should be released and acted upon to provide basis for homegrown transitional justice.
The author is the Director of the Centre for Peace and Development Studies, University of Juba, Global Fellow at the Peace Research Institute Oslo and Associate Fellow at the Carr Centre for Human Rights Policy at Harvard Kennedy School. He is reachable at luka_kuol@hks.harvard.edu or lukabiongdeng@gmail.com
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