By Kenyi Modi
February 13, 2015 (SSNA) -- On December 15, 2013, a political dispute within the Sudan People’s Liberation Army (SPLM)-the ruling party, triggered a war in South Sudan and is ongoing to date. Since then, the human rights situation in South Sudan has been a subject of attention in the young nation. The situation has resulted to shocking brutality, including gruesome massacres of civilians and attacks on individuals in their homes, churches, schools, mosques and hospitals on the basis of ethnicity, belief and political opinion. Thousands have been forced to flee their homes and sought protection at UNMISS Protection of Civilians camps while others crossed international borders and became refugees in neighboring countries. Some were forced to fight to defend themselves and resist the repressive regime under Kiir and his group.
South Sudan Civil Society Groups in collaboration with partners in the region and around the globe should as an emergency organize a seminar possibly outside the country on human rights situation in South Sudan to find ways and means to rescue the deteriorating human rights situation in the young nation. The aim of the seminar should be to create awareness about the prevailing human rights situation in the young nation and discuss regional and international response. It should also address the root cause of the South Sudan problems rather than focusing solely on dealing with symptoms such as the refugee issues, ensure justice and accountability. This will stop the government from committing further atrocities worsening the current human rights situation. The young nation which had through the years evolved from efforts to liberate its people from oppression since 1820 to 2011 has descended into one of the most repressive states as far as human rights are concerned. The pictures below show gravity of human rights situation and brutality in the young nation:
You will agree with me that although some elements within the country caused the ongoing armed conflict, South Sudan alone is unable to end the current armed conflict which is entrenched along ethnic lines (Now Nuers and Equatorians are the target) unless with intervention from and by the African Union, United Nations and the international community.
The Failure of International Sanctions: A State’s obligation to respect and ensure human right is primarily inward directed, i.e., owed to its subjects. The international community gets involved only when a State’s conduct is so egregious as to threaten this fundamental interest of the international community (erga omnes). The UNSC is mandated to deal with threats to, or breaches of, international peace and security under Chapter VII of the UN Charter. The UNSC has, however, not been able to deal with the threats or breach of peace, e.g., Rwanda, former Yugoslavia including Kosovo and Sudan. Has it not learnt from past misjudgements? Will it do the same for South Sudan? A strong reaction by States to these breaches presupposes the existence of community interest to end gross violation of human rights and freedoms; breakdown in the rule of law and governance.
On 6 and 7 December 2012, at a conference convened by the Centre for Human Rights in collaboration with the Department of Political Sciences, University of Pretoria, a group of interdisciplinary academics, policymakers and practitioners in the areas of international peace and security with a special focus on Africa, considered and affirmed the Pretoria Principles on ending mass atrocities pursuant to Article 4(h) of the Constitutive Act of the African Union, set out below.
The Pretoria Principles are intended to provide greater clarity and inform action by the African Union, sub-regional actors, governments and practitioners on how to enhance their respective roles in ending mass atrocities in Africa pursuant to Article 4(h), which provides for ‘the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity’.
Since the Republic of South Sudan is a member, African Union has the right to intervene in South Sudan as a Member State to rescue it from further atrocities and disintegration into more than three states through armed conflicts. Currently, the population of the young nation is at risk and the warring parties particularly the Government of Republic of South Sudan seems unwilling and unable to end the ongoing armed conflict which killed thousands and displaced million of people and made others vulnerable to diseases, starvation, social breakdown, and psycho torture and homeless without basic necessity of live.
The Pretoria Principles require that every State has the primary responsibility to protect the fundamental rights of its citizens in accordance with domestic constitutional law, international human rights law, international humanitarian law and international criminal law. However, South Sudan warring parties’ actions and omissions have been and will be contrary to these legal requirements and obligations if the war does not end. But under Article 4(h), the African Union (AU) is accorded the right to intervene in a Member State pursuant to a decision of the AU Assembly of Heads of State and Government (‘AU Assembly’) in respect of grave circumstances, namely war crimes, genocide and crimes against humanity (mass atrocities).
Article 4(h) proceeds from the basis that there is a duty on Member States of the AU to protect their own populations from mass atrocities. This responsibility entails the prevention of mass atrocities through appropriate means such as the establishment and effective functioning of human rights protection mechanisms at the domestic level, and the acceptance of international human rights supervision. It requires Africa Union to intervene in the event of grave circumstances (intervention to protect populations from mass atrocities). There is South Sudan Human Rights Commission but institution is ineffective to protect human rights violation due to lack of independent from the Government and the ruling party or ruling tribe as some people called it.
Article 4(h) also empowers the AU to intervene in a Member State (South Sudan) under a limited set of stipulated ‘grave circumstances’. By consenting to Article 4(h), South Sudan and other member states of the AU have accepted that sovereignty is not a shield but rather a responsibility, particularly when populations are at risk of war crimes, genocide and crimes against humanity. Article 4(h) complements Article 4(g) of the AU Constitutive Act, which prohibits interference in the internal affairs of other States, if those mass atrocities are identified as legitimate concerns for the AU as a whole and may trigger intervention by the AU. However, South Sudan has not understood that sovereignty is not a cover but rather a responsibility to respect, protect and fulfill as well as promote human rights, rule of law and good governance. Nevertheless, coming to power through election is not a license to repress and deny citizens and peoples the enjoyment of human rights and fundamental freedoms in the young nation. The African Union should not allow the young nation to grow as ill and worst member state because it will not only negatively affect its neighbours but the whole region and the globe. The suitable example is the Human Rights Situation in Eritrea where its people have been suffering from repression since liberation and independence from Ethiopia. The people of South Sudan have been undergoing this repression before, during and after independence in silence without external intervention.
Lastly, Article 4(h) allows the AU to protect populations at risk of war crimes, genocide and crimes against humanity if the target State is unable or unwilling to discharge its primary responsibility to protect the fundamental rights of its citizens and peoples. According to the wording of Article 4(h), intervention on the basis of Article 4(h) requires a decision of the AU Assembly. Where diplomacy and other peaceful means have failed, the AU may use force to protect populations at risk of mass atrocities. The AU heads of states should save lives rather than concentrate on selfish politics. South Sudan is unwilling and unable to protect the fundamental rights of citizens and all people in the country. Those in power only concern themselves in power. For example, they are talking of conducting election contrary to the requirements of the Transitional Constitutional of South Sudan, 2011 that conduct of general election should be done after population census and drafting a permanent constitution subject to referendum. Now the Government of South Sudan has scheduled to conduct general elections by June 2015 while the young nation is bleeding. This seems that the population census and drafting permanent constitution subject to a referendum will be bypass or citizens denied this process.
On the responsibility to protect, the AU Constitutive Act codifies the right of intervention to protect populations against mass atrocities. The notion of ‘responsibility to protect’, as set out in the 2005 World Summit Outcome Document, has the same objective as the right of intervention in Article 4(h). However, there are also important differences. Article 4(h) intervention relates, in particular, to the third of the three foundational pillars of the ‘responsibility to protect’, namely the use of military intervention as a last resort. The wording of Article 4(h) suggests that intervention on the basis of Article 4(h) is an exceptional measure in the face of grave circumstances that are beyond non-coercive measures and so require military option as a last resort. The ‘right’ in Article 4(h) implies a legal entitlement or prerogative which is compatible with the notion of sovereignty as responsibility. This ‘right’ should as far as feasible be interpreted to imply a duty to intervene to prevent or halt mass atrocities in the form of war crimes, genocide and crimes against humanity.
On modalities of intervention, article 23(2) of the AU Constitutive Act provides for political and economic sanctions and denial of transport and communication against errant States, Article 4(h) recognizes that there are limits to non-violent means in stopping mass atrocities, and the only realistic means can be military intervention. The threshold for intervention pursuant to Article 4(h) is ‘grave circumstances’ that constitute serious violations of human rights and humanitarian law in the form of genocide, war crimes and crimes against humanity. These serious violations of human rights and humanitarian law are international crimes under international law that requires intervention to end the war, ensure justice for the victims and hold perpetrators accountable.
Threshold for intervention: mass atrocities, Under Article 4(h), the AU Assembly should consider the inability or unwillingness of the national government to protect its population from mass atrocities. It follows that one of the determining factors is the inability or culpability of the government concerned in causing, tolerating or failing to stop such atrocities. Therefore, where a State violates the fundamental rights of its own citizens and peoples, or tolerates or fails to stop mass atrocities within its territory, the AU is authorized by Article 4(h) to intervene to prevent or halt mass atrocities in order to protect populations and save lives. Why AU is folding its hands while stand and watch without intervention while the people of South Sudan kill each other? Considering the speed with which mass atrocities occur and that the threshold for Article 4(h) intervention is high, difficult to prove and amenable to political discretion, in deciding on Article 4(h) intervention, the AU must prioritize the imperative to save lives over technical or overly legalistic ascertainment of the commission of war crimes, genocide and crimes against humanity.
Authorization of the Security Council: As a matter of legal requirement, the AU requires the authorization of the UN Security Council for Article 4(h) intervention. The UN Security Council has the responsibility to authorize the use of force in the implementation of Article 4(h) intervention. Where the UN Security Council is unwilling or indecisive in authorizing intervention, the conferment of the right to intervene on the AU by Member States of the AU provides greater space for the AU to act in the face of war crimes, genocide and crimes against humanity on the continent.
The role of the African Union stakeholders in preventing mass atrocities: The AU should encourage States and sub-regional organizations in establishing prevention, early warning and early reaction capabilities to mass atrocities. South Sudan has not established preventive and early warning capabilities to mass atrocities. This mandates AU to fill the protection gap and enhance the protection of civilians in armed conflicts by strengthening the mechanism to oversee the compliance with international humanitarian law (IHL) in South Sudan, detect violations and put pressure on the recalcitrant parties in armed conflict to comply with IHL in order to prevent further war crimes, genocide and crimes against humanity.
The AU’s Continental Early Warning System should develop capacity to rapidly detect and react to any genocidal intent on the continent and there should be an effective interface between early warning systems at the continental and sub-regional levels in order to take concrete measures to eradicate the root causes of genocide. This has not been established in the young by AU. So, it is high time that AU establish this system in South Sudan as soon as possible to help AU detect and reach to international crimes in the young nation. The AU should also ensure that Members States respect their legal obligations to bring perpetrators of genocide to justice by making its presence through the technocrats in the country.
The AU should exert peer pressure on AU Member States to end violations where systematic patterns of human rights and humanitarian law violations are revealed, and encourage Member States to enact laws to prevent mass atrocity crimes and punish the perpetrators of these crimes in the domestic courts.
In the spirit of popular participation, the AU should develop strong links with civil society organizations at the national, sub-regional and continental levels to ensure that implementation of Article 4(h) intervention allows for meaningful contributions from the citizenry at the grass root level. Civil society organizations, States, regional economic communities (RECs), the AU Peace and Security Architecture including the African Commission of Human and Peoples’ Rights (‘the African Commission’), the African Court of Human and Peoples’ Rights (‘the African Court’), and other relevant international institutions all have a role to play in the implementation of Article 4(h). AU and its commissions and courts are yet to be known by the majority of the citizens of South Sudan leave alone the civil society groups, community based organizations and women groups.
Under Article 58 of the African Charter on Human and Peoples’ Rights, the African Commission should provide authoritative reports on the existence of a series of serious or massive violation that may trigger Article 4(h) intervention, not only to the AU Assembly but also to the Peace and Security Council (PSC), which can serve as the basis for deciding whether or not to intervene. The presence of African Commission is yet to be felt in the young nation to document and provide reports on serious or massive violations for intervention.
The African Commission should also, as a matter of principle, bring cases against a State Party of situations constituting mass atrocities to the African Court pursuant to Rule 118(3) of its Rules of Procedure, and should articulate criteria for doing so. The PSC should coordinate with the African Commission and the UN Special Procedures to prevent mass atrocities by detecting looming atrocities and intervening before atrocities are committed. The African Court should exercise its jurisdiction actively to prevent war crimes, genocide and crimes against humanity, including the use of provisional measures to compel repressive States to respect and protect the fundamental rights of their citizens.
The Continental Early Warning System must be actively involved in human rights and IHL monitoring and reporting. There should be strategic partnerships and collaboration among sub-regional early warning capacities, human rights and humanitarian law monitoring bodies with the Continental Early Warning System.
The Panel of the Wise should serve as an impartial mechanism for advising on a decision to intervene pursuant to Article 4(h).
The Pan-African Parliament should fully engage with other AU organs within the sphere of its responsibility to promote peace and security, human rights, democracy, good governance and accountability in order to eradicate the causes of mass atrocities on the continent.
The Economic Social and Cultural Council have unquestionable locus standi before the African Court that can be utilized for the enforcement of human rights in order to prevent mass atrocities.
As one of the systems for monitoring adherence to the rule of law in African States, the African Peer Review Mechanism should provide political pressure on governments that ignore or challenge the findings of relevant human rights institutions or special procedures.
The African Standby Force should have a capability to protect populations at risk of mass atrocities and to deter potential perpetrators of mass atrocities. The role of sub-regional organizations in preventing mass atrocities.
The proximity to the conflict provides sub-regional organizations with a better understanding of its dynamics, key players, and context-specific management and resolution options and makes them better placed to initiate rapid and less expensive responses to conflict than the AU and the UN. Regional organizations should further enhance regional cooperation among judicial authorities to support international justice mechanisms.
The role of African States in preventing mass atrocities: AU Member States should adopt legislative, administrative and other measures that will ensure that their national courts can exercise universal jurisdiction over war crimes, genocide and crimes against humanity. States should also make the declaration allowing for individual petitions pursuant to Article 34(6) of the Protocol on the Establishment of the African Court. AU Member States should address the root causes of mass atrocities within their jurisdiction. When implementing Article 4(h) intervention, the humanitarian motive to save lives and protect human dignity should override national or strategic interests. Furthermore, States should commit resources towards prevention of mass atrocities and should implement Article 4(h) where prevention fails.
However, South Sudan has not adopted legislative, administrative and other measures to ensure that national courts exercise universal jurisdiction over war crimes, genocide and crimes against humanity. Yet, it has not addressed the causes of the conflict and atrocities within its jurisdiction. Nevertheless, the young nation has not committed resources to prevent further mass atrocities. Instead it has committed itself to acquiring more deadly weapons which will result to grave violation of human rights.
The role of the international community in preventing mass atrocities: The international community, including the United Nations, regional and sub-regional organizations, and non-governmental organizations should help States to build capacity to protect their populations from mass atrocities and to assisting those which are under stress before crises and conflicts break out. Should peaceful means be inadequate and national authorities manifestly fail to protect their populations from mass atrocities, the international community should help the AU to intervene to stop the mass atrocities. The peaceful means is inadequate and South Sudan authorities are failing to protect its people from atrocities unless through African Union the international community intervenes to end the conflict.
The role of civil society in preventing mass atrocities: Given their influence and presence on the ground, civil society should contribute to the monitoring of implementation of human rights and humanitarian norms and build awareness of mass atrocity prevention. Where mass atrocities occur, the civil society should collect evidence of atrocities and identify perpetrators and also help the citizens to hold governments accountable. However, the South Sudanese civil society organizations lack resources, training, mobility and access to information from government institutions.