By John Hursh,
Director of Research at the Stockton Center for the Study of International Law,
October 4, 2018(Nyamilepedia)— There are some positive signs that South Sudan’s nearly five-year civil war is finally coming to an end. On September 12, South Sudan President Salva Kiir and opposition leader Riek Machar signed a revitalized peace agreement that, at least on paper, ends the violent conflict that has devastated the country. Kiir further bolstered hopes for lasting peace when he called for the immediate release of all opposition fighters and political prisoners last Friday. In contrast, a September 26 New York Times article disclosed the findings of a recent study estimating that 383,000 people have died as a result of the conflict since fighting began in 2013. Given this extraordinary level of suffering, the peace deal is a welcome development, however, a series of breaches to the agreement and numerous criticisms of the agreement’s structure and arrangements, contributed to a general pessimism that it might not last.
U.S. policymakers have also expressed skepticism that South Sudan’s leaders will implement the peace agreement in a meaningful way. U.S. policy towards South Sudan has shifted considerably from the George W. Bush and Obama administrations to the Trump administration, the latter showing less tolerance towards South Sudan leaders’ inability or unwillingness to end the conflict. One key commonality is that both the Obama and Trump administrations have pushed for the creation and implementation of a Hybrid Court, as required by the
2015 peace agreement , and which the latest peace deal seeks to revitalize. In addition to a continued cessation of hostilities and the unobstructed delivery of humanitarian assistance, U.S. policymakers are correct to prioritize the Hybrid Court, as it represents a critical first step in rebuilding a country betrayed by its political leaders and decimated by conflict.
Breaches since the Peace Agreement Was Signed
The durability of the peace agreement came under immediate strain, as the government’s main opposition, the Sudan People’s Liberation Movement-in-Opposition (SPLM-IO) claimed government soldiers attacked its forces in Yei River state the night before the deal was signed. A few days later, a government solider fired at a U.N. convoy and injured a U.N. peacekeeper . However, the most serious fighting took place on September 24, when government and opposition forces engaged in heavy fighting in Equatoria and Unity states. According to the SPLM-IO, government forces have violated the ceasefire five times since the September 12 signing. These incidents continue to raise concerns about whether South Sudan’s government can exercise command and control over its armed forces, despite orders from Kiir to fully observe the ceasefire .
The South Sudan government also garnered criticism when Kiir decided to appoint Gen. Malek Reuben Riak as deputy minister of defense. Riak remains the subject of U.S. and U.N. sanctions for his role in obstructing peace and blocking humanitarian assistance. A 2016 U.N. Panel of Experts report also found that Riak helped arm a militia that then committed war crimes and other serious violations of international law. Previously, Kiir drew criticism when he
appointed Gabriel Jok Riak as army chief of staff, despite U.N. sanctions placed on Jok Riak for obstructing peace and repeatedly violating the 2015 ceasefire .
Assessing the Revitalized Peace Agreement
There are plenty of reasons to be skeptical that the revitalized peace agreement will not hold. By some accounts, this is the twelfth such agreement. And no peace agreement in itself can address the gulf of distrust between Kiir and Machar. Indeed, most observers, including David Shearer, the head of the UN Mission in South Sudan,
conclude that the lack of trust between parties remains the greatest challenge to lasting peace. Likewise, this peace agreement could serve as a lull in fighting as government and opposition fighters have reached something of a stalemate, as neither side has shown itself capable of securing additional territory. Further, both sides are low on funds and regional African states, most notably Sudan and Uganda, have applied more pressure on Kiir and Machar to end the conflict, particularly as both countries currently host hundreds of thousands, if not millions of South Sudanese refugees.
Further complicating the issue is the reluctance of several smaller opposition groups to accept the peace agreement. Thomas Cirillo Swaka, leader of National Salvation Front, rejected the agreement for failing to address an “overconcentration of political and fiscal power” that allowed political elites to “capture the state hostage for criminal enterprises.” Following the signing of the peace agreement, Swaka traveled to the U.S. to meet with diaspora groups and explain his decision. Another opposition leader, Joseph Bakosoro, leader of the South Sudan National Movement for Change, also rejected the deal. However, the group’s secretary-general, Kawaje Lasu, endorsed the deal and claimed to have dismissed Bakosoro from his position. The group’s military commanders still support Bakosoro and do not accept Lasu’s acceptance of the deal or his attempt to remove Bakosoro. In addition, a handful of opposition groups, including the People’s Democratic Movement, the National Democratic Movement, and the United Democratic Republic Alliance, along with Pagan Amum, who served as a minister of peace in South Sudan between 2011 and 2015, issued a joint statement rejecting the deal. All of these groups remain part of the broader South Sudan Opposition Alliance, which supports the peace agreement. Whether these holdouts will break away from the umbrella alliance or continue negotiating over their specific grievances is unclear. It is also uncertain how much of a spoiler to peace these groups might pose.
Perhaps most troubling, the September agreement is hardly different than the 2015 agreement that broke down in spectacular fashion when fighting erupted in Juba in July 2016, leaving hundreds of people dead and forcing Machar to flee the country. Like the 2015 agreement, the most recent agreement is effectively a power-sharing deal between Kiir’s government and Machar’s opposition. Like the 2015 agreement, this peace deal forces Kiir and Machar to form a transitional government before later holding elections. One key difference is that four other vice presidents will join Machar, who was reinstated as vice president earlier this year, in an effort to provide national representation to a greater portion of South Sudan’s diverse population—or, to provide greater opportunities for patronage depending on one’s level of pessimism.
Whether this and other changes can provide a meaningful constraint on Kiir’s executive power or address the endemic corruption and looting of the state’s resources remains to be seen. And, unlike past instances, international donors
show little interest in funding this process until it includes a clear provision to ensure financial transparency and to address past financial malfeasance. For these and other reasons, most experts do not expect the peace agreement to last.
For example, Mahmood Mamdani, director of the Makerere Institute of Social Research in Uganda and a professor at Columbia University, argues that the agreement is best understood not as a deal between Kiir and Machar, but rather as an
agreement between Sudan President Omar al-Bashar and Ugandan President Yoweri Museveni , whose countries serve as the guarantors of the agreement. Mamdani makes this argument because the new agreement calls for an independent boundaries commission that will conduct a referendum on the number and states within South Sudan, after which, the Inter-Governmental Authority on Development (IGAD) will appoint a committee to demarcate tribal areas throughout South Sudan. Should there be any disagreements—and there almost certainly will be—Sudan and Uganda, as guarantors, will serve as mediators to resolve the dispute. Tribes dissatisfied with the boundary-drawing outcomes will also have the opportunity to bring their case to the Permanent Court of Arbitration at The Hague, although there is a two-year window for doing so. All of this leads Mamdani to conclude that South Sudan is “on its way to becoming an informal protectorate of Sudan and Uganda,” and that the peace agreement “does not envision South Sudan as a country, but as a coming together of tribes.”
Similarly, Luka Biong Deng , director of the Center for Peace and Development Studies at Juba University, finds the peace agreement overly ambitious and unrealistic , particularly regarding security arrangements that would see the cantonment of all forces within 30 days and the immediate commencement of disarmament, demobilization, and resettlement (DDR). Like Mamdani, Biong is also critical of the Technical Boundary Committee that will define tribal areas, calling it “a recipe for [a] new cycle of violence at community level.” Like Mamdani, Alex de Waal , a renowned Sudan expert at the Fletcher School of Law and Diplomacy at Tufts University, also argues that this peace deal is really
a bargain between political elites in South Sudan and neighboring states. Sudanese and Ugandan elites (as well as corporate oil executives) stand to gain the most from a stable South Sudan, through increased oil production for Sudan and through increased commercial activity in Juba and Equatoria for Uganda. While this arrangement could reduce, or even momentarily eliminate fighting, this deal will not transform South Sudanese politics or the country’s economy, says de Waal. Without addressing these structural issues, a return to violence is likely.
Changing U.S. Policy
For a variety of reasons, Sudan and South Sudan enjoyed significant attention as a high priority issue during both the Bush and Obama administrations. The Bush administration oversaw the Comprehensive Peace Agreement in 2005 that would lead to an independent South Sudan in 2011, while the Obama administration welcomed South Sudan’s independence and allocated a great amount of financial assistance to the new country. Both administrations, but especially the Obama administration, featured senior policy officials with considerable experience and familiarity working on Sudan and South Sudan.
However, as Jon Temin , director of the Africa Programs at Freedom House, argues, this familiarity did not always lead to positive outcomes , as individual relationships between senior U.S. policymakers and key political leaders in South Sudan resulted in less, not more, leverage to hold these leaders accountable. Perhaps the best example is the reluctance of the Obama administration to impose an arms embargo on South Sudan, even though it was clear that government forces, and to a lesser extent, opposition forces, were engaging in mass atrocities and ignoring even the most basic human rights. In contrast, the Trump administration imposed such an embargo in February. And although multilateral arms embargoes with robust enforcement are always a better option than unilateral ones, at the very least, this decision demonstrated that U.S. officials would take a tougher tact with South Sudan’s leadership. Likewise, the Trump administration’s outspoken support for a broader arms embargo at the U.N. arguably paved the way for the Security Council to pass a multilateral arms embargo in July.
The Trump administration also remains skeptical about the September 2018 peace agreement. In particular, it is leery of committing significant funding to key mechanisms of the peace process. Thus, in an interview days after the signing of the peace agreement, U.S. Ambassador to South Sudan Thomas Hushek stated that the Ceasefire Transitional Security Arrangement and Monitoring Mechanism (CTSAMM) and the Joint Monitoring and Evaluation Commission (JMEC), both of which the U.S. fund, “didn’t work so well.” Further, Hushek said that the U.S. would be more careful when providing financial assistance moving forward, as “We can’t just keep investing in broken agreements.”
Accountability and the Hybrid Court
On September 26, the New York Times published an article that estimated 383,000 people have died as a result of armed conflict in South Sudan. The article examined a recently published study on the mortality of the war completed by the London School of Hygiene and Tropical Medicine. This figure far exceeds U.N. estimates and the
number of “excess deaths” is likely to be even higher , topping 400,000 people. In addition to this staggering number of deaths, a
September report by Amnesty International examines just how brutal the violence in South Sudan has been. The report is based on the testimony of about 100 civilians who survived a brutal campaign from government forces and youth militia in Unity state last April, May, and June. It details systematic murder, gang rapes of girls as young as eight, and especially cruel tactics, such as burning children to death and killing two- and three-year olds by swinging them into trees.
These reports provide a stark reminder that along with an immediate end to the fighting and unobstructed humanitarian assistance, accountability must be the highest priority. Until the South Sudanese people see that there are consequences for these horrific crimes, impunity will continue and grievances will fester, likely leading to additional cycles of violence , whether immediately or sometime later.
The Hybrid Court, required by the 2015 peace agreement and the revitalized 2018 agreement, remains the best option for pursuing accountability. However, the South Sudan government has already
tried to back away from the Court , particularly through an amnesty statement that Kiir made in August. The United States and human rights organizations, most notably Human Rights Watch and Amnesty International, strongly support the formation of the Hybrid Court. The U.N. Human Rights Commission also called for the implementation of the Court , as the revitalized peace agreement cannot serve as substitute to pursuing accountability.
Whether the September peace agreement will hold remains uncertain, but the international obligations to investigate and prosecute those responsible for the multitude of atrocities committed during South Sudan’s armed conflict cannot be.
AP Photo/Stephen Wandera: Former Vice President of South Sudan Riek Machar, left, greets South Sudan President Salva Kiir as Uganda President Yoweri Museveni, center, looks on as they meet July 7 for a security meeting to find a lasting solution to insecurity in South Sudan.
Peace Talks , South Sudan, Sudan, Uganda
About the Author(s)
John Hursh is the Director of Research at the Stockton Center for the Study of International Law, Editor-in-Chief of International Law Studies at the U.S. Naval War College. Follow him on Twitter (@JohnHursh ).
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