South Sudanese President, Salva Kiir, may be a hero for leading his people to independence five years ago, but he is also the reason for one of South Sudan’s worst adversities since 2011. Regardless of the fact that South Sudan is a non-signatory state to the Rome Statute of the International Criminal Court (ICC), any hope that Kiir and others will get away with their crimes against humanity is far from reality. The serious concerns constantly expressed by the United Nations (UN) over the current situation in the Africa’s youngest country may be sufficient enough to drag Kiir and his cohorts to the Hague to face prosecution.
On Tuesday, the Secretary-General of the United Nations, Ban Ki-moon, appointed retired Dutch Major-General Patrick Cammaert from Netherlands to lead an independent special investigation on the violence in South Sudan’s capital, Juba, in July 2016, and the response of the UN mission in the country. The team will undertake a field visit to Juba to interview the relevant interlocutors, and a final report will be presented to the Secretary-General within a month. This report will be made public after.
“The investigation will review reports of incidents of attacks on civilians and cases of sexual violence that occurred within or in the vicinity of the UN House protection of civilian sites in Juba. It will also determine the actions of UNMISS and whether the Mission responded appropriately to prevent these incidents and protect civilians within its resources and capabilities at the time. In addition, the investigation will review the circumstances surrounding the attack on the Terrain Hotel and assess the Mission’s response,” a statement from the Ban Ki-moon’s office reads.
Before this time, a preliminary investigation by the United Nations already revealed that government security forces loyal to President Kiir had carried out killings and rapes, looted and destroyed properties. In July, the UN catalogued at least 73 civilian deaths in Juba alone, including four shot dead out of the eight Nuer civilians, whom soldiers reportedly arrested during house-to-house searches in Juba’s Munuki area. Also, between the 8th and 25th of July, there have been 217 documented cases of sexual violence, including over 100 women and girls who were reportedly raped or gang-raped on the road leading out of Juba towards Yei.
Several attempts aimed at stabilising South Sudan by several stakeholders have been blocked by President Kiir. This includes the UN Security Council’s approval for an additional protection force of 4,000 regional troops to be sent to South Sudan which was suspended by the South Sudanese president, stating that the newly constituted parliament will decide on the UN resolution. The UN’s threat of an arms embargo on the African country may not have succeeded, but there are other punitive measures it can employ if Kiir continues to prove difficult and also if the Cammaert-led investigation indicts him and his forces.
The Rome Statute of the International Criminal Court reserves a role for the United Nations Security Council (UNSC). The Council can refer situations in which one or more such crimes appear to have been committed in any state, regardless of whether it has ratified the Statute of the Court, under Chapter VII of the Charter of the United Nations. The UN Security Council has made use of this power to refer situations in non-party states to the ICC two times; in Sudan (Darfur) in 2005 and in Libya in 2011. This means the UN can still refer South Sudan’s Salva Kiir to the ICC for investigation and prosecution.
Obviously, Kiir and his war commanders are not completely immune to the ICC. Even though the trial of people from countries which are non-signatory to the ICC treaty comes with challenges, it does not translate to its feebleness or ineffectiveness, especially when some of the obstacles are reviewed. With this, the South Sudanese war instigators may be answering charges before the ICC soon.