Contributor's Opinion

Whether Washington’s application of “The Global Magnitsky Act” to senior government officials could jeopardize the current fragile peace process with respect to the State of South Sudan?


By Benty Kumbogbia Paulino,

President Salva Kiir and his FVP, Taban Deng Gai having good moments before the sanctions kick in(Photo: supplied)
President Salva Kiir and his FVP, Taban Deng Gai having good moments before the sanctions kick in(Photo: supplied)

January 14, 2020(Nyamilepedia) — Sanctions under international law generally connotes to coercive measures, taken by one State or in concert by several States, which are intended to convince or compel another State to desist from engaging in acts violating international law (Joyner 1995).

Sanctions are also legitimate tools which are always applied as a way of punishing an individual or a State who or which is identified to have breached or contributed to the breach of internationally recognized rights or obligations. 

The UN Charter in pursuance to Article 41 provides that; “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations”

However, the United Nations Security Council can only take such measures if it has determined the existence of any threat to the peace, breach of the peace, or act of aggression.

Much as the Charter does not preclude any State from taking any unilateral action to enforce peace and security, this would therefore lead us to assess the legality and impact of the Global Magnitsky Act that Washington has severally invoked with respect to the State of South Sudan.

Any State as its laws would provide possess all rights to take necessary measures which compromises either its sovereignty or national security and so does the United States and South Sudan respectively. Any of the two may unilaterally take any forms of sanctions inter alia travel ban, assets freeze, economic and arms embargo with respect to another if the situation warrants, albeit South Sudan as a new State lacks the capacity to reciprocate in case it is hit by sanctions by a powerful State.

However, with the fragility of the State of South Sudan which would metaphorically be perceived as a  premature born baby whom any attempt to starve the mother would make her more careless hence leading to the loss of the baby, so does the imposition of sanctions against senior government officials of South Sudan appear, as these are the very individuals who have the pass code to sustainable peace in the Country. Should these individuals continue to be hit hard at such critical juncture when the Country is desperate for peace, it is more likely that they may work hard to impede the implementation of very crucial provisions of the peace agreement. 

Just about four months from the start of the conflict is South Sudan, the Former U.S President Barack Obama declared an emergency and issued Executive Order 13664 of April 3, 2014, “Blocking Property of Certain Persons With Respect to South Sudan” where according to this decree, the situation in South Sudan at that time was said to have posed an unusual and extraordinary threat to the national security and foreign policy of the United States, that it was marked by activities that threaten the peace, security, or stability of South Sudan and the surrounding region, including widespread violence and atrocities, human rights abuses, recruitment and use of child soldiers, attacks on peacekeepers, and obstruction of humanitarian operations.

This order blocked properties, travels and prohibited dealings with certain persons designated there under. 

One would have expected the conflict to come to an end much more earlier due to such sanctions and international pressure however, even individuals designated would still be accused later as major protagonists in the exacerbation of the conflict in South Sudan despite them being sanctioned.

Similarly, taking a closer look at the Global Magnitsky Act (signed into law in 2016) unlike other Executive Orders which would require a declaration of national emergency, President Trump’s administration built on the Magnitsky Act to launch a new sanctions regime targeting human rights abusers and corrupt actors globally through Executive Order 13818, the Order does not require the declaration of a national emergency with respect to a specific country but  instead it authorizes the US Treasury Department’s Office of Foreign Assets Control (OFAC) to block the Property of designated Persons Involved in Serious Human Rights Abuse or Corruption.

Although relying on sanctions instead of alternative means of coercion may raise hopes that international military conflicts can be avoided, majority have enormously criticized sanctions nowadays for the “side effects” they have on the civil population. I am inclined to subscribe to the school of thought that the unilateral sanctions imposed by Washington on major actors of the peace process may more likely act as an impediment to the attainment of long lasting peace and prosperity in South Sudan. By this analysis, the author is not attempting to say that the sanctions have no impact but rather unlike in Countries with clear systems and nascent democracies of which the State of South Sudan is so far away from achieving that, unilaterally sanctioning some senior government officials who still have access to more state resources is seen as a futile attempt. Some of these officials as they wish, may still have the capacity to divert more State resources and reinvest them in safe havens for their own gains in Countries with good bilateral relations with South Sudan as a way of compensation for whichever of their assets that might have been affected by sanctions. By this, innocent civilians will remain to suffocate in poverty due to absence of services since the resources which could have been used for service delivery would be looted as a way of compensation for their sanctioned and frozen assets.

There are also reports that some of the sanctioned individuals could still innocent  since no fair hearing is done prior to their designation under the said sanction laws. Therefore, in lieu of rushing with the invocation of either Executive Order 13664 or the Global Magnitsky Act by the United States without compliance with the principles of natural justice “audi alteram partem”,  it would make more sense if the owners of the alleged corrupt frozen assets are summoned and accorded a fair hearing before competent courts of law so that they defend themselves on how they might have amassed such wealth and failure to produce satisfactory defense of their wealth would lead to confiscation and auctioning of such assets and all proceeds repatriated for infrastructural development in war torn South Sudan. 

 The author is a Lawyer with proficiencies in International Law, Criminal and Constitutional Laws. He can be reached at kumbogbiabenty@gmail.com  

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