Preserving Self-Determination in the Search for Peace in South Sudan

By Guest Contributor:

Laura Nyantung Beny Professor of Law, University of Michigan Law School Co-editor of Sudan’s Killing Fields: Political Violence and Fragmentation

Following decades of civil war in Sudan, in 2011 South Sudan became an independent nation due to an internationally brokered peace agreement and referendum on secession. At independence, Southern Sudanese and many international supporters were jubilant and full of great hope for the new country, a region which had been in nearly perpetual conflict.

Early hopes and celebration gave way in December 2013 to an intractable conflict, now recognized as a civil war, between rival factions of the ruling Sudan People’s Liberation Movement/Army (the “SPLM/A”). The competing factions include forces loyal to President Salva Kiir, a Dinka, and former Vice President Riek Machar, a Nuer. The humanitarian situation is dire. The United Nations (UN) and other bodies have issued warnings about ethnic cleansing and impending genocide. Over 3 million people have been displaced, internally and in neighboring countries. The UN has declared famine status in several regions. Reports chronicle massive human rights abuses, including gender-based violations, such as rape and sexual harassment. Peace remains elusive.

The UN Security Council, governments, and civil society groups have put forth multiple proposals to end the conflict and restore peace to South Sudan. Proposed measures include: UN sanctions (general and targeted); criminal tribunals for culpable leaders; international peacekeeping forces (AU and UN); and national dialogue. Ironically, some have even proposed “neo-trusteeship” for South Sudan.

None of these preceding measures alone is sufficient to end the conflict. Some, like national dialogue, are necessary, while others, like criminal tribunals or sanctions, might be unnecessary for peace. This commentary gives an overview of several of the proposed measures and potential obstacles to their success. It concludes that the most promising, indeed indispensable, measure is an indigenous, all-inclusive peace process. Trusteeship is especially problematic, as it would entail a break from the foundational basis of South Sudan’s sovereignty – self-determination.

Chapter VII of the UN Charter authorizes the UN Security Council to undertake measures to keep or restore international peace and security. Article 41 gives the Security Council a broad range of non-force options, including general and targeted 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 to achieve peace. The Security Council has created twenty-six sanctions regimes since 1966.

In December 2016, under strong pressure from the U.S., the Security Council put forth 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 U.S., argued that an arms embargo would reduce the violence in the country and impede the proliferation of arms in South Sudan, 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.

UN arms embargoes have a troubled history. A 2006 Oxfam-commissioned study found that “every one of the 13 United Nations arms embargoes imposed in the last decade has been systematically violated”. Simply put, there are multiple illicit channels through which arms might enter a country subject to an arms embargo. Even if an arms embargo were to work, South Sudan would still be awash in arms. Stopping the violence would also require largescale disarmament of existing weaponry and other long-term measures, such as an inclusive national peace process, as discussed below. At any rate, the proposed arms embargo failed to pass in the face of objections from Security Council Members, such as China and Russia, which have intense geopolitical interests in the region.

In 2015, the Security Council adopted Resolution 2206. Resolution 2206 calls for targeted sanctions against specific individuals and entities deemed “responsible for or complicit in, or [as] having engaged in, directly or indirectly, actions or policies that threaten the peace, security or stability of South Sudan.” 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 of individuals and entities to engage in armed conflict. By the end of 2015, the Sanctions Committee had identified six individuals subject to targeted sanctions, half from the government and half from the opposition.

These sanctions have not stopped the conflict, in which armed groups continue to proliferate. In fact, existing evidence suggests that targeted sanctions generally don’t change their targets’ behavior. Resolution 2206 implicitly assumes that top commanders responsible for the conflict are readily identifiable. However, the centers of the South Sudanese conflict are diffuse, which renders it difficult to clearly identify responsible individuals. Therefore, targeted sanctions are bound to be under-inclusive. Another implicit assumption is that the 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 undermine the sanctions – e.g., by using false passports or hiding assets in complex ownership structures.

The failed December 2016 Security Council resolution also sought to impose targeted sanctions on three more government and opposition figures, including the former Vice President, Riek Machar. Indeed, political jostling by powerful Security Council members, like China, Russia, and the U.S. tends to preclude effective measures from that body.

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.

Nevertheless, criminal trials alone will not bring peace. They are insufficient and might be unnecessary for peace if the national peace process includes truth and reconciliation measures. The Wunlit Nuer-Dinka Reconciliation Process of 1999 (“Wunlit”) 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 widespread grassroots community-based peace and reconciliation processes modeled after Wunlit.

The most extreme proposal 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, rule of law, etc., before handing sovereignty back to the South Sudanese. The implicit assumption is that South Sudanese are incapable of governing themselves and thus require external guidance. Ironically, European colonialists made similar arguments in the 19th-century when they carved up Africa among themselves. The prevailing notion at the time was that Africans were incapable of sovereignty and thus outside the international legal order.

Contemporary research shows that trusteeships tend to fail without the government’s and citizens’ support. Without support, which does not exist in South Sudan, trusteeship might exacerbate violence, especially where it creates a power vacuum. Recent cases – Afghanistan, Bosnia, East Timor, and Iraq – offer cautionary tales regarding the potential pitfalls of “neo-trusteeship”.

The most problematic aspect of trusteeship is that it requires a break (even if temporary) from the foundational basis of South Sudan’s sovereignty – self-determination. Paradoxically, some proponents of neo-trusteeship were once strenuous defenders of the Southern Sudanese right to self-determination.

As I have argued elsewhere, an indigenous and all-inclusive national peace process is indispensable to permanent peace and stability in South Sudan. Indigeneity and representative-ness, 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 centers of conflict in the peripheries of South Sudan.

Peace must be indigenous, inclusive, and community based. Traditional authorities, who often have more influence on rural militias and youth than the state and the national army, should be included in the process. Wunlit provides a model of people-to-people peace that can be scaled nationwide to multiple centers of conflict, addressing local sources of conflict, facilitating truth and reconciliation, and fostering development cooperation.

For durable peace, community-centered peace processes must be pursued in parallel with the state-centered peace initiatives, thereby preserving the self-determination foundation of South Sudan.