About Transitional Justice
Transitional justice refers to the set of judicial and non-judicial measures undertaken to address the legacy of massive human rights abuses. This includes, amongst others, statutory and customary accountability mechanisms, truth-telling processes, memorialisation initiatives, compensation and reparation, and institutional reform.
Justice is at the heart of the reconciliation process as the key component of a transition from the violence of the past, to the peace of the future. Transitional justice is not a different kind of justice; it is justice exercised during a transitional period and in response to a delineated time period. Transitional justice operates in four dimensions:
- Retribution: punishment for past crimes and violations
- Reparation: the process of restoration, compensation for loss, hurt and suffering
- Accountability: holding offenders publicly responsible for their past criminal conduct
- Acknowledgement: formal recognition and sympathy for the injustices and hurts suffered by victims
An end to impunity, and a guarantee of non-recurrence are the foundation of the future after the transition. The justice carried out during the transition provides these by means of:
- Punishment and deterrence: justice for the past
- Legal, constitutional, and institutional reform: justice for the future
Successful transitional justice programs incorporate several mechanisms including:
- Prosecutions to hold perpetrators of human rights violations accountable;
- Truth Seeking and Reconciliation to establish the truth about what happened and why and repair relationships within communities;
- Reparations to compensate victims for past wrong;
- Institutional Reform to restructure institutions;
- Memorialization to remember the events that occurred and to honour victims of past violations
- Education to teach future generations about what occurred to ensure it never happens again.
Traditional and customary justice and reconciliation mechanisms will have a key role to play in the transitional justice process in South Sudan.
Transitional Justice in South Sudan
Chapter V of the ARCSS agreement establishes three mechanisms for transitional justice: (1) The Commission for Truth, Reconciliation and Healing (CTRH); (2) The Hybrid Court of South Sudan; and (3) Compensation and Reparations Authority (CRA). Additionally, the agreement calls for the reform of several institutions, including the Bank of South Sudan, the Anti-Corruption Commission, and the National Audit Chamber.
Transitional justice will help South Sudan heal from the atrocities committed during the conflict and move forward peacefully.
Hybrid Court for South Sudan (HCSS)
The African Union Commission will establish the Hybrid Court for South Sudan (HCSS), which will be an independent court to investigate and prosecute individuals responsible for violations of international law or South Sudanese law committed since the start of the conflict. The HCSS will be an independent judicial entity that is separate from the South Sudan judiciary.
The HCSS will have jurisdiction over genocide, crimes against humanity, war crimes, and other serious international and South Sudanese law violations. No one is exempt from criminal responsibility, which means that even those in power could be investigated and prosecuted by the HCSS. No one indicted or convicted by the HCSS shall be allowed to serve in the government.
Commission for Truth, Reconciliation and Healing (CTRH)
The TGoNU will establish the Commission for Truth, Reconciliation and Healing (CTRH) to address the legacy of conflict and violence in South Sudan by compiling an impartial historical record of human rights violations. The CTRH will investigate, document, and report the legacy of conflict in South Sudan, including impartial historical records, investigations on the current conflict, and human rights abuses occurring from 2005 to the date of the Agreement. The CTRH will make detailed remedy recommendations based on those investigations.
The functions of the CTRH also include supervising traditional dispute mechanisms, when appropriate, and establishing a secretariat to institute proper procedures.
Compensation and Reparations Authority (CRA)
The CRA will administer the Compensation and Reparations Fund (CRF), which will provide material and financial support to citizens whose property was destroyed by the conflict. Compensation and reparations are available to victims based on recommendations by the CTRH and decisions by the CRA.
The TGoNU will embark on judicial reform as well as reform of the security sector, including the Defence, Police, Prison Service, and National Security Service. Other South Sudanese institutions to be reformed include:
- Bank of South Sudan (BoSS)
- Human Rights Commission (HRC)
- Judicial Service Commission (JSC)
- Civil Service Commission (CSC)
- Land Commission (LC)
New institutions will also be established, including:
- National Revenue Authority
- Environmental Management Authority
- Economics and Financial Management Authority
The TGoNU will also implement, develop, and establish enterprises, associations, and funds for diverse populations, including Micro, Small and Medium Enterprises. Enterprise Development Funds will include: (1) Youth Enterprise Development Fund, (2) Women Enterprise Development Fund, and (3) Social Security Fund.
Community Involvement and Civil Society in Transitional Justice
The agreement includes several provisions for community involvement in the transitional justice mechanisms and processes. For instance, the TGoNU will hold community consultations to inform the design of the CTRH. Additionally, victims and witnesses will be able to appear before the HCSS, CTRH, and CRA.
The TJWG will work hard to ensure that South Sudanese can play an active role in the reconciliation and healing of the country. Transitional justice cannot succeed in South Sudan without the full commitment and involvement of everyone. Transitional justice needs to resonate beyond its judicial structures into the affected communities, and into the lives of individuals to generate buy-in and ownership from the wider society. Local ownership is an essential prerequisite for a successful transitional justice process. This requires a strong civil society engagement for several reasons including:
- (1) Civil society can play a significant role in making the voices of citizens audible in these processes.
- (2) The support of civil society will ensure that national processes trickle down to communities effectively.
- (3) Civil society is a unique resource for transitional justice, due to its mobility and political interaction.
- (4) Civil society can play a critical role in advocacy and demystifying the concepts of transitional justice, in an effort to promote the necessary political buy-in required
TJWG Response to the July 2016 Violence
Between July 7-11th, 2016, violent clashes occurred between the GRSS and the SPLM-IO in Juba. At least 300 civilians and soldiers were killed, and over 36,000 people were displaced in the city. While the fighting ended with a ceasefire between the two forces, tensions remain high in Juba. The humanitarian ramifications continue to be dire, with limited access to food, supplies, and medical care. These repeat clashes have put into question the status of the Peace Agreement.
Even though recent events are a major setback in the peace process, they have placed significant emphasis on the need for transitional justice in South Sudan. With increased violence, the voice of citizens is often lost, but it is these voices that are the hope for building a lasting peace. We must support these individuals in coming to terms with their past, and healing within their communities. Alongside community reconciliation, the transitional justice mechanisms provided for the ARCSS must be swiftly established. Without these, our communities will continue to be plagued by violence and tension. Let us all come together to achieve lasting peace in South Sudan.