what does a cessation of hostilities agreement entail, in this current context?

Now that a cessation of hostilities is imminent (we assume), perhaps we as Junubin need to understand what a ceasefire negotiation process entails- if we are to be able participants and not mere observers in this process. Many of us have demands that we would like to see represented at the negotiating table and any future agreements.

In addition, we need to understand how the strengths of the parties at the negotiating table at the time of negotiation, will affect the overall process and success of the agreement reached, as pertains to reduction in violence.

As things stand, it appears that the G.O.S.S is waiting until it is assured of having the upper hand before signing any ceasefire agreement. (It is notable that the G.O.S.S committed to signing the cessation of hostilities agreement, after the recapture of Bor, and the imminent recapture of Malakal. This leaves the (other) negotiating party holding fewer cards with which to bargain with. Regardless of what side we stand on, assuming that we care about the greater majority of South Sudanese who are impacted by this conflict, there are a few concerns...

http://www.hdcentre.org/uploads/tx_news/36Negotiatingceasefires-MPS.pdf

1. The signing of this agreement might not necessary lead to complete cessation of hostilities or reduction in violence– this will depend mainly on the ability of those on the negotiating table to control the actors on the ground- and this will include the SPLA if we consider extra-judicial killings. There are many questions about how much control the rebel leaders have over their forces- signing the cessation of hostilities agreement will prove to us their strength vis a vis the forces on the ground.  For me, it might also be a very scary revelation of the anarchy that has been unleashed in the country.  I refuse to believe that any sane leader, regardless of their overall intentions, would knowingly unleash the widespread lootings, killings, pillaging and plundering that we have seen- including the burning down of Bentiu, Bor and Malakal towns. But perhaps I give them too much credit?

“Negotiating ceasefires does not imply that armed groups no longer see their military capability as a core source of leverage with the state”

Given that the G.O.S.S has recaptured the strategic towns of Bor, Bentiu, and Malakal, what leverage remains for the negotiating teams?  To be honest, I am still waiting to see what the key demands of the negotiators (outside of the unconditional release of the 11) will be. At this point in time, will this be a negotiation for clemency and power sharing?

Or will this be an opportunity for this….

“They may need time, for example to re-supply weapons and ammunition, re-deploy military personnel, hire and train new recruits or gather intelligence on the enemy’s forces.”

Signifying the beginning of a protracted conflict, and widespread insecurity? This is not what we signed up for.

I found these points in the article, interesting.

What goes into a ceasefire agreement?

·      De-escalation measures. These disengage forces and minimize contact between armed forces.

·      Definition of what constitutes a ceasefire violation.

·      Monitoring, incident verification and dispute settlement mechanisms.

·      The geographic coverage of the ceasefire as well as a specific timeframe for implementation.

·      Specific concerns for the protection of civilians.

·      Bans on verbal attacks. [including] “use civilised and dignified language”  and avoid[ance of] “hostile propaganda and incitement to military action”

·      How the ceasefire is linked to the rest of the peace process. This may include

·      political and security transformation processes (e.g. disarmament and security sector reform).

·      Additional clauses most often make provision for unhindered access for humanitarian assistance and stipulate modalities for the release, or exchange, of prisoners.

Reading the many demands made by civil society groups, and addressed to the negotiating teams and mediators, it is clear that these are things we are already beginning to think about. Specifically monitoring the implementation of any agreement coming out of Addis, overall reform of the SPLA – and in this I refer to the recent request by Equatorians for a more inclusive and representative national army and government- which is long overdue, the formation of humanitarian corridors, so that those who are currently living in abominable conditions have access to basic human needs, and the protection of civilians- something that has been completely lacking from both sides of the conflict. However, again the question of what leverage the (other) negotiating team currently has to offer, remains critical. While they might make demands, why should the government team listen, given that they control a significant part of what was rebel strongholds? Will this be an incentive for a return to violence in order to obtain a bargaining chip? Will this mean that any investigation that occurs to determine the scale and level of violence will be biased and therefore completely unacceptable to most of us. Or will this mean that things will return to business as usual, once we stop paying attention? (Something that I feel might be the outcome of this- and that in a few months we will be asking ourselves, now what was that about? I don’t believe we can afford this level of apathy)

One thing not mentioned in this, and something that I think about constantly is this; what happens to the youth who were mobilized and convinced to take up arms?  Or those who acted on orders that resulted in breaking the law of the land? What happens to soldiers who deserted? How will we address this?

This is also tied in to the question of accountability; which affects both the government troops and the rebel troops. Many of us believe that any and all atrocities committed during this month of anarchy, have to be accounted for. This includes any extra-judicial killings, burning and looting of private and public property, ambushes of civilians by armed groups, etc. However, we do need an environment that allows for the investigation of crimes allegedly committed. But, after this, does accountability mean that those held responsible are jailed? Because we do not have the capacity to jail all these people, and there are valid concerns about judicial due process. Does this mean that those found responsible will compensate (in so far as they can) those affected?  Because, given the scale of destruction, this might not be feasible (even though I believe they need to pay for the reconstruction of the towns destroyed- this should not be from public coffers). Or does this mean that we have to think about community-level mediation and compensation efforts? And how do we set these up so they are credible and acceptable?

What happens when it becomes impossible to actually implement a cessation of hostilities agreement? What this article calls the ‘Blind Spots”

In some cases, governments and third parties fail to grasp that an armed group’s inability to comply with some of the requirements of a ceasefire does not necessarily mean that it rejects the ceasefire itself. It could be that its own characteristics impede implementation.

This may be because combatants will not accept/ comply with what is demanded of them, or because the group’s organisational structure renders implementation impossible.

In any context in which an armed group or groups are composed of a network of tactically independent formations, groups or cells (or simply amorphous entities with loose command and control), some standard ceasefire mechanisms become extremely difficult to implement

Ceasefires pose practical difficulties for conflict parties. Their implementation requires efficient communication to the rank and file in sometimes difficult terrain.

I fear that this might be the case in this situation. Who actually controls the ‘White Army’?  And in my ignorance, who exactly is the White Army? If, as is rumoured, the White Army is controlled by a spiritual leader (who is not represented at the negotiating table), how do we engage with this spiritual leader? And how much authority does he yield over the mobilized youths? What are his demands? If it is true that the White Army mobilized to avenge deaths in Juba, at what point/ or what number of vengeful deaths constitute restitution?

Ceasefire monitoring arrangements

Another question I have: how will this cessation of hostilities agreement be implemented and who will monitor it? How will violations be reported (given the communication challenges existent in South Sudan?)? And more importantly, what constitutes a violation? Does it involve only violations by the actors who sign the agreement (and therefore groups not represented in Addis can continue without repercussions?), or is this any and all reported acts of violence. An example is the cattle rustling that has happened in Lakes and Warrap (I believe) states. These have not really been in support of this political crisis. How do we define what is what?

We all agree that local monitoring teams must include civil society, traditional leaders, community groups and any other key stakeholders, but whom exactly will we identify to sit on this team, and how will they ensure that peace is maintained?  What resources will the monitoring team require and who will ultimately pay for this?   And the even bigger question, given the bargaining power that the government currently holds, are these questions even relevant today? Can we talk of ‘cessation of hostilities’ given today’s rapidly changing context, or are we talking about conditions of surrender?

Ceasefires and disarmament

Planning for disarmament as part of the ceasefire negotiation in effect amounts to modifying the balance of power between the conflict parties.

“Militants fear that if they agree to a ceasefire first and, more, lay down arms, they would lose all leverage against the government in the negotiations that follow and would be in a hopeless situation if it reneged on its assurances”

Again I ask, what leverage does [each] negotiating team currently have? The balance of power has shifted significantly in the past two days, with the government seemingly left holding all the cards.

I believe that disarmament is necessary and has been for a long time- and today especially given the numerous credible stories of lootings and thefts conducted by groups taking advantage of the current chaos.  But we also have seen the failures of previous disarmament efforts… In some places, disarmament actually led to an increase in levels of aggression and hostilities (Jonglei State being a key example)

This article talks about the Mitchell principles, as being mechanism to resolve this.

Introduce the Mitchell principles

They entail i) resolving political issues by democratic and exclusively peaceful means;

This is all well and good, but do they apply in this context? Resolving political issues democratically – this was a political crisis gone awry. Mechanisms to resolve political disputes (both within SPLM and the parliament) were ignored. Not only that, it is unclear whether the decision to lead a rebellion was endorsed in a democratic process (ok, i believe that this was a case of the personal ambitions of a few superseding the needs and wants of the majority). 

ii) disarming all paramilitary organisations

what does this actually mean? And who are the current paramilitary groups?

iii) submitting such disarmament to verification by an independent body ;

disarmament- almost impossible in the south sudan context. Previous disamarment of groups actually led to increase in hostilities by other groups who were not disarmed and who took advantage of the situation to begin cattle rustling (our national hobby). 

iv) renouncing and opposing efforts to use force or threaten to use force to influence the course or the outcome of all-party negotiations ;

Agreed. In this case, are we talking about the government negotiating team?

v) abiding by the terms of any agreement reached in all-party negotiations and resorting only to democratic and peaceful means to try and alter aspects they may disagree with ; vi) urging that “punishment” killings and violence stop and taking effective steps to prevent such actions.

 How do we even begin to define this?

I have more questions than answers, I guess. I am curious to see what happens over the next few weeks. The context is much changed from what it was last week. Who knows what next week will bring?

http://www.gurtong.net/ECM/Editorial/tabid/124/ID/14463/Default.aspx

Integrated Response To Justice And Reconciliation

"These public statements are a welcome first step, but specific and binding commitments to accountability must be detailed in any negotiated settlement in order to ensure that investigations and prosecutions actually take place."

08 January 2014

 An Integrated Response to Justice and Reconciliation in South Sudan

David Deng and Elizabeth Deng*

January 8, 2014

As representatives of Salva Kiir and Riek Machar meet in Addis Ababa to negotiate a ceasefire to the conflict that has engulfed South Sudan in past weeks, the question of what a mediated outcome might look like is at the forefront of everyone’s mind. Judging from public statements made by the two sides, there does not appear to be much common ground between them. Kiir maintains that Machar has tried to claim power through violence and as such cannot be rewarded with a power-sharing arrangement. Machar asserts that Kiir is responsible for the mass killings that took place in Juba in mid-December 2013 and is no longer fit to lead the country.

In the face of increasingly vocal calls for accountability from international leaders and South Sudanese civil society, the two parties have begun to acknowledge the need to investigate crimes committed in Juba and elsewhere in the country. Taban Deng Gai, head of Machar’s delegation in the Addis talks, has called for free access for humanitarian organizations and United Nations Human Rights Council to investigate atrocities and human rights abuses. On its part, the Government has announced the creation of two committees: one to investigate the killing of innocent civilians and the other to examine the causes of the divisions within the presidential guard. These public statements are a welcome first step, but specific and binding commitments to accountability must be detailed in any negotiated settlement in order to ensure that investigations and prosecutions actually take place.

Peace processes in South Sudan have a long track record of prioritizing reconciliation at all costs and failing to secure remedies for people affected by conflict. The 2005 Comprehensive Peace Agreement (CPA), which brought an end to the 22-year north-south civil war in Sudan, included only a vague reference to national reconciliation and neglected to mention the issue of accountability for past human rights violations. The ongoing efforts of the church-led Committee for National Healing, Peace and Reconciliation, established by presidential decree in April 2013, has so far been silent on the question of accountability. Past efforts to neutralize rebel groups in Jonglei, Unity and Upper Nile states have been initiated with offers of blanket amnesties and attractive political and military appointments; truth and justice have never figured in to the negotiations.

Sidelining justice in peace negotiations may help to expedite political settlements in the short-term, but it fails to adequately address the question of impunity that lies at the heart of internal conflicts in South Sudan. Attempts to bury the past also give rise to contested and obscured histories, sowing the seeds for continued abuses by political and military actors in the years to come.

To avoid repeating past mistakes, an integrated process of truth-telling, justice and reconciliation should be included in any mediated agreement between Kiir and Machar. The two parties should be compelled to submit themselves and their supporters to an independent investigation into the crimes committed. Those that are found to be responsible should be punished through fair and public judicial mechanisms. Handshakes, smiles and a mere political settlement between the two parties will not set South Sudan on a path towards truth, sustainable peace, democracy and rule of law.

The Need for a Hybrid Court

If the parties can agree to the principle of justice, the next question is how best to provide it in the context of South Sudan’s weak justice system. Past efforts to secure justice for crimes committed in the course of large-scale violence have all been hampered by the poor investigation capacity of police and prosecutors and the limited geographical reach of civilian courts. In Jonglei state, for example, thousands of people, including women and children, have been killed, tortured or abducted in the context of inter-communal violence, forced disarmament programs and government counter-insurgency campaigns in recent years. Yet, those responsible for the crimes, be they civilians, soldiers or politicians, have enjoyed almost total impunity.

Given the lack of capacity, credibility and independence of the justice system, it is clear that without international support, impartial investigations and prosecutions cannot take place. Such international support could best be provided within the framework of a hybrid court established within South Sudan’s judiciary. Hybrid courts have been deployed to address the legacy of large-scale conflict in countries such as Sierra Leone, East Timor, Kosovo and Cambodia. Senegal recently established a hybrid court to prepare a case against former Chadian president Hissène Habré. The defining feature of a hybrid court is that it is administered by a combination of national and international staff. By recruiting highly qualified judges, investigators, prosecutors and defense attorneys to work alongside their South Sudanese counterparts, a hybrid court can provide the support that is necessary for the fair adjudication of serious crimes, while helping to strengthen national accountability mechanisms and rule of law in the longer-term.

Due to the high cost of hybrid courts, the court’s focus would be limited to those who bear primary responsibility for planning, organizing or carrying out the most egregious crimes. In order to extend justice beyond cases tried by the hybrid court, prosecutions should also be brought before other South Sudanese courts. The judiciary could consider using its power to establish special courts with limited temporal and thematic jurisdiction to try crimes that have occurred since December 2013. In order to adequately address the crimes that have been committed, South Sudan must also ensure that its legal framework provides for the punishment of international crimes, including genocide, war crimes and crimes against humanity. As the penal code does not define these crimes, new legislation would be necessary.

Prosecutions in the hybrid court and formal judiciary could be linked to the customary court system to extend truth, justice and reconciliation processes to the grassroots level. South Sudan’s customary court system has a strong emphasis on restorative justice, in that chiefs and traditional authorities encourage disputing parties to talk through their differences and finding a solution that is acceptable to both parties. While customary courts are not legally empowered to adjudicate criminal responsibility, they are well positioned to promote reconciliation in circumstances where the line between perpetrator and victim is blurred. Customary courts could also play an important role in negotiating compensation awards and other civil remedies.

An Integrated Response to Truth, Justice and Reconciliation

Justice is only one part of a solution to the conflict in South Sudan. In order to heal the wounds caused by the recent violence, South Sudan must adopt an integrated response that incorporates truth-telling and meaningful reconciliation and ultimately seeks to transform South Sudan’s abusive and corrupt governance systems.

In 2013, the Government began trying to address South Sudan’s history of conflict through the establishment of a Committee for National Healing, Peace and Reconciliation. The Committee could make a valuable contribution to an integrated approach to truth, justice and reconciliation, but to do so, it would need to expand its mandate to include a truth-telling component. By providing a public platform for victims to tell their stories and perpetrators to confess to their wrongs and seek forgiveness, the Committee could help South Sudanese to build a national narrative of their troubled past.

There are other actions that the Government could take to build a culture of human rights in South Sudan. South Sudan has not yet ratified the core human rights treaties that prescribe the minimum standards by which a state must treat its citizens. The Government has acceded to the 1949 Geneva Conventions and their Additional Protocols and has ratified the Convention Against Torture, the Convention on the Rights of the Child and the Convention Governing Specific Aspects of Refugee Problems in Africa, but it has not ratified the other core treaties, such as the International Covenant on Civil and Political Rights or African Charter on Human and People’s Rights. In order to make clear the Government’s commitment to human rights and give victims and their representatives recourse to regional and international treaty monitoring bodies and complaint mechanisms, the Government should immediately ratify these treaties and domesticate them into national law. It should also sign on to the Rome Statute as a demonstration of its commitment to justice for international crimes.

Conclusion

South Sudan stands on a precipice. Viewing the crisis as a problem that can be solved by political and military class alone would repeat the same mistake that has been made in past negotiations. Hybrid courts require a great deal of political will, diplomatic effort and material resources to establish. Even if the parties were to agree, it would take many months to establish a hybrid court in South Sudan. Nonetheless, if South Sudan is to come to terms with the violent events of the past few weeks, it is vitally important that the issue of accountability be addressed in any negotiated agreement between Kiir and Machar. If the parties fail to agree on or to implement a mechanism for holding perpetrators of the violence accountable, the Security Council could consider referring the matter to the International Criminal Court (ICC).

Until South Sudan’s leaders are made accountable to the people they serve and punished for the wrongs they commit, South Sudan will continue to experience violence like what we have seen in the past weeks and the dream of a peaceful and prosperous nation will never be realized.

*David Deng is the Research Director for the South Sudan Law Society (SSLS), a civil society organization based in South Sudan. Elizabeth Deng is a human rights lawyer based in Nairobi.

lets get serious

To tie in the issue of the political detainees - an issue of due process of law- to what is happening in the country (unnecessary deaths, widespread displacement, lootings, burning of public and private property…basically anarchy) is irresponsible and dishonest. These are two separate issues, regardless of whether or not one preceded the other. Instead this makes it seem as though the rest of the country has to pay a steep price because of the house arrest of the 11, whereas none of us were privy to the decision-making process that led to their detention. I would hope that the detainees themselves separate themselves from the violence currently happening in their name. It is okay to support a political cause while at the same time decrying the means to achieving it.

To state that the end objective of this rebellion is to grant us a more peaceful and democratic state makes absolutely no sense and is not in keeping with the wants of the majority. None of us were consulted.  This does not bode well for those who state that they are fighting for democracy when this has not been a democratic process. Lets us rethink our objectives.