Preserving Self-Determination In The Search For Peace In South Sudan
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Elisabeth Janaina
May 16, 2017, 1:00:21 AM5/16/17
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Preserving Self-Determination In The Search For Peace In South Sudan
"For durable peace, community-centered peace processes must be pursued
in parallel with the state-centered peace initiatives, thereby
preserving the self-determination foundation of South Sudan."
15 May 2017
Preserving Self-Determination In The Search For Peace In South Sudan
By Professor Laura Nyantung Beny*
Following decades of civil war in Sudan, in 2011 South Sudan became an
independent nation due to an internationally brokered peace agreement
and referendum on secession. At independence, Southern Sudanese and
many international supporters were jubilant and full of great hope for
the new country, a region which had been in nearly perpetual conflict.
Early hopes and celebration gave way in December 2013 to an
intractable conflict, now recognized as a civil war, between rival
factions of the ruling Sudan People’s Liberation Movement/Army (the
“SPLM/A”). The competing factions include forces loyal to President
Salva Kiir, a Dinka, and former Vice President Riek Machar, a Nuer.
The humanitarian situation is dire. The United Nations (UN) and other
bodies have issued warnings about ethnic cleansing and impending
genocide. Over 3 million people have been displaced, internally and in
neighboring countries. The UN has declared famine status in several
regions. Reports chronicle massive human rights abuses, including
gender-based violations, such as rape and sexual harassment. Peace
remains elusive.
The UN Security Council, governments, and civil society groups have
put forth multiple proposals to end the conflict and restore peace to
South Sudan. Proposed measures include: UN sanctions (general and
targeted); criminal tribunals for culpable leaders; international
peacekeeping forces (AU and UN); and national dialogue. Ironically,
some have even proposed “neo-trusteeship” for South Sudan.
None of these preceding measures alone is sufficient to end the
conflict. Some, like national dialogue, are necessary, while others,
like criminal tribunals or sanctions, might be unnecessary for peace.
This commentary gives an overview of several of the proposed measures
and potential obstacles to their success. It concludes that the most
promising, indeed indispensable, measure is an indigenous,
all-inclusive peace process. Trusteeship is especially problematic, as
it would entail a break from the foundational basis of South Sudan’s
sovereignty – self-determination.
Chapter VII of the UN Charter authorizes the UN Security Council to
undertake measures to keep or restore international peace and
security. Article 41 gives the Security Council a broad range of
non-force options, including general and targeted sanctions. General
sanctions apply to an entire country, while targeted sanctions apply
to specific individuals or entities therein. Both are intended to
bring pressure to bear on warring parties to achieve peace. The
Security Council has created twenty-six sanctions regimes since 1966.
In December 2016, under strong pressure from the U.S., the Security
Council put forth a resolution for a general arms embargo against
South Sudan and targeted sanctions. The resolution, which failed to
garner the required support among Security Council Members, would have
prohibited UN Member States from selling arms to South Sudan.
Security Council members that supported the resolution, including the
U.S., argued that an arms embargo would reduce the violence in the
country and impede the proliferation of arms in South Sudan, thereby
creating conditions conducive to dialogue among the warring parties.
Countries that opposed the arms embargo argued that it would undermine
South Sudan’s progress toward national dialogue and its cooperation
with UN peacekeeping operations.
UN arms embargoes have a troubled history. A 2006 Oxfam-commissioned
study found that “every one of the 13 United Nations arms embargoes
imposed in the last decade has been systematically violated”. Simply
put, there are multiple illicit channels through which arms might
enter a country subject to an arms embargo. Even if an arms embargo
were to work, South Sudan would still be awash in arms.
Stopping the violence would also require largescale disarmament of
existing weaponry and other long-term measures, such as an inclusive
national peace process, as discussed below. At any rate, the proposed
arms embargo failed to pass in the face of objections from Security
Council Members, such as China and Russia, which have intense
geopolitical interests in the region.
In 2015, the Security Council adopted Resolution 2206. Resolution
2206calls for targeted sanctions against specific individuals and
entities deemed “responsible for or complicit in, or [as] having
engaged in, directly or indirectly, actions or policies that threaten
the peace, security or stability of South Sudan.” The targeted
sanctions include a travel ban and asset freeze for culpable
individuals and entities. The idea is that targeted sanctions, as
personal penalties, reduce incentives of individuals and entities to
engage in armed conflict. By the end of 2015, the Sanctions Committee
had identified six individuals subject to targeted sanctions, half
from the government and half from the opposition.
These sanctions have not stopped the conflict, in which armed groups
continue to proliferate. In fact, existing evidence suggests that
targeted sanctions generally don’t change their targets’ behavior.
Resolution 2206 implicitly assumes that top commanders responsible for
the conflict are readily identifiable. However, the centers of the
South Sudanese conflict are diffuse, which renders it difficult to
clearly identify responsible individuals. Therefore, targeted
sanctions are bound to be under-inclusive.
Another implicit assumption is that the culpable parties have assets
abroad or travel frequently. Yet, many of the commanders do not have
extensive foreign dealings. Furthermore, those who do travel abroad
relatively frequently and/or have assets abroad can relatively easily
undermine the sanctions – e.g., by using false passports or hiding
assets in complex ownership structures.
The failed December 2016 Security Council resolution also sought to
impose targeted sanctions on three more government and opposition
figures, including the former Vice President, Riek Machar. Indeed,
political jostling by powerful Security Council members, like China,
Russia, and the U.S. tends to preclude effective measures from that
body.
In November 2016, South Sudanese and international civil society
groups urged the African Union to establish a hybrid court to try
those responsible for war crimes in the conflict. Ending impunity for
massive human rights violations in South Sudan is an attractive goal
and would be welcomed by many South Sudanese. However, some have
argued that criminal tribunals cannot bring peace to South Sudan and
might make matters worse by alienating the leadership.
By contrast, recent scholarship suggests that individual criminal
accountability for human rights violations can have positive impacts.
Also, criminal prosecutions would provide an important forum for South
Sudanese victims to air their grievances.
Nevertheless, criminal trials alone will not bring peace. They are
insufficient and might be unnecessary for peace if the national peace
process includes truth and reconciliation measures. The Wunlit
Nuer-Dinka Reconciliation Process of 1999 (“Wunlit”) provides a
successful prior model of extra-legal reconciliation between Dinka and
Nuer rival factions.
Furthermore, war crimes trials are extremely expensive and very few
perpetrators are convicted per dollar invested in such trials. The
billions of dollars required to run a criminal tribunal would probably
be better spent on rehabilitation of devastated local economies and
livelihoods; education; public health; youth- and gender-focused
programs; widespread disarmament; and widespread grassroots
community-based peace and reconciliation processes modeled after
Wunlit.
The most extreme proposal is a “neo-trusteeship”: “a governing
arrangement that involves the transfer of some or all sovereign powers
to a trustee.” The length of the trusteeship, the identity of the
trustee, and the extent of sovereignty transferred would have to be
worked out in the legal instruments creating the trusteeship. The
purported goal is to create political stability and functioning
institutions, rule of law, etc., before handing sovereignty back to
the South Sudanese.
The implicit assumption is that South Sudanese are incapable of
governing themselves and thus require external guidance. Ironically,
European colonialists made similar arguments in the 19th-century when
they carved up Africa among themselves. The prevailing notion at the
time was that Africans were incapable of sovereignty and thus outside
the international legal order.
Contemporary research shows that trusteeships tend to fail without the
government’s and citizens’ support. Without support, which does not
exist in South Sudan, trusteeship might exacerbate violence,
especially where it creates a power vacuum. Recent cases –
Afghanistan, Bosnia, East Timor, and Iraq – offer cautionary tales
regarding the potential pitfalls of “neo-trusteeship”.
The most problematic aspect of trusteeship is that it requires a break
(even if temporary) from the foundational basis of South Sudan’s
sovereignty – self-determination. Paradoxically, some proponents of
neo-trusteeship were once strenuous defenders of the Southern Sudanese
right to self-determination.
As I have argued elsewhere, an indigenous and all-inclusive national
peace process is indispensable to permanent peace and stability in
South Sudan. Indigeneity and representative-ness, however, are usually
missing from the international fora where many of the existing
proposals emerged. Many communities and groups are excluded from
high-brow, top-down approaches to peace promulgated by cadres of
briefcase expats and experts far-removed from centers of conflict in
the peripheries of South Sudan.
Peace must be indigenous, inclusive, and community based. Traditional
authorities, who often have more influence on rural militias and youth
than the state and the national army, should be included in the
process. Wunlit provides a model of people-to-people peace that can be
scaled nationwide to multiple centers of conflict, addressing local
sources of conflict, facilitating truth and reconciliation, and
fostering development cooperation.
For durable peace, community-centered peace processes must be pursued
in parallel with the state-centered peace initiatives, thereby
preserving the self-determination foundation of South Sudan.
*Laura Nyantung Beny is Professor of Law, University of Michigan Law
School, Co-editor of Sudan’s Killing Fields: Political Violence and
Fragmentation
First published by Berkley Journal of International Law Blog
Posted in: Opinions
- See more at: http://www.gurtong.net/ECM/Editorial/tabid/124/ID/20459/Default.aspx#sthash.BpPvBEfZ.dpuf
"For durable peace, community-centered peace processes must be pursued
in parallel with the state-centered peace initiatives, thereby
preserving the self-determination foundation of South Sudan."
15 May 2017
Preserving Self-Determination In The Search For Peace In South Sudan
By Professor Laura Nyantung Beny*
Following decades of civil war in Sudan, in 2011 South Sudan became an
independent nation due to an internationally brokered peace agreement
and referendum on secession. At independence, Southern Sudanese and
many international supporters were jubilant and full of great hope for
the new country, a region which had been in nearly perpetual conflict.
Early hopes and celebration gave way in December 2013 to an
intractable conflict, now recognized as a civil war, between rival
factions of the ruling Sudan People’s Liberation Movement/Army (the
“SPLM/A”). The competing factions include forces loyal to President
Salva Kiir, a Dinka, and former Vice President Riek Machar, a Nuer.
The humanitarian situation is dire. The United Nations (UN) and other
bodies have issued warnings about ethnic cleansing and impending
genocide. Over 3 million people have been displaced, internally and in
neighboring countries. The UN has declared famine status in several
regions. Reports chronicle massive human rights abuses, including
gender-based violations, such as rape and sexual harassment. Peace
remains elusive.
The UN Security Council, governments, and civil society groups have
put forth multiple proposals to end the conflict and restore peace to
South Sudan. Proposed measures include: UN sanctions (general and
targeted); criminal tribunals for culpable leaders; international
peacekeeping forces (AU and UN); and national dialogue. Ironically,
some have even proposed “neo-trusteeship” for South Sudan.
None of these preceding measures alone is sufficient to end the
conflict. Some, like national dialogue, are necessary, while others,
like criminal tribunals or sanctions, might be unnecessary for peace.
This commentary gives an overview of several of the proposed measures
and potential obstacles to their success. It concludes that the most
promising, indeed indispensable, measure is an indigenous,
all-inclusive peace process. Trusteeship is especially problematic, as
it would entail a break from the foundational basis of South Sudan’s
sovereignty – self-determination.
Chapter VII of the UN Charter authorizes the UN Security Council to
undertake measures to keep or restore international peace and
security. Article 41 gives the Security Council a broad range of
non-force options, including general and targeted sanctions. General
sanctions apply to an entire country, while targeted sanctions apply
to specific individuals or entities therein. Both are intended to
bring pressure to bear on warring parties to achieve peace. The
Security Council has created twenty-six sanctions regimes since 1966.
In December 2016, under strong pressure from the U.S., the Security
Council put forth a resolution for a general arms embargo against
South Sudan and targeted sanctions. The resolution, which failed to
garner the required support among Security Council Members, would have
prohibited UN Member States from selling arms to South Sudan.
Security Council members that supported the resolution, including the
U.S., argued that an arms embargo would reduce the violence in the
country and impede the proliferation of arms in South Sudan, thereby
creating conditions conducive to dialogue among the warring parties.
Countries that opposed the arms embargo argued that it would undermine
South Sudan’s progress toward national dialogue and its cooperation
with UN peacekeeping operations.
UN arms embargoes have a troubled history. A 2006 Oxfam-commissioned
study found that “every one of the 13 United Nations arms embargoes
imposed in the last decade has been systematically violated”. Simply
put, there are multiple illicit channels through which arms might
enter a country subject to an arms embargo. Even if an arms embargo
were to work, South Sudan would still be awash in arms.
Stopping the violence would also require largescale disarmament of
existing weaponry and other long-term measures, such as an inclusive
national peace process, as discussed below. At any rate, the proposed
arms embargo failed to pass in the face of objections from Security
Council Members, such as China and Russia, which have intense
geopolitical interests in the region.
In 2015, the Security Council adopted Resolution 2206. Resolution
2206calls for targeted sanctions against specific individuals and
entities deemed “responsible for or complicit in, or [as] having
engaged in, directly or indirectly, actions or policies that threaten
the peace, security or stability of South Sudan.” The targeted
sanctions include a travel ban and asset freeze for culpable
individuals and entities. The idea is that targeted sanctions, as
personal penalties, reduce incentives of individuals and entities to
engage in armed conflict. By the end of 2015, the Sanctions Committee
had identified six individuals subject to targeted sanctions, half
from the government and half from the opposition.
These sanctions have not stopped the conflict, in which armed groups
continue to proliferate. In fact, existing evidence suggests that
targeted sanctions generally don’t change their targets’ behavior.
Resolution 2206 implicitly assumes that top commanders responsible for
the conflict are readily identifiable. However, the centers of the
South Sudanese conflict are diffuse, which renders it difficult to
clearly identify responsible individuals. Therefore, targeted
sanctions are bound to be under-inclusive.
Another implicit assumption is that the culpable parties have assets
abroad or travel frequently. Yet, many of the commanders do not have
extensive foreign dealings. Furthermore, those who do travel abroad
relatively frequently and/or have assets abroad can relatively easily
undermine the sanctions – e.g., by using false passports or hiding
assets in complex ownership structures.
The failed December 2016 Security Council resolution also sought to
impose targeted sanctions on three more government and opposition
figures, including the former Vice President, Riek Machar. Indeed,
political jostling by powerful Security Council members, like China,
Russia, and the U.S. tends to preclude effective measures from that
body.
In November 2016, South Sudanese and international civil society
groups urged the African Union to establish a hybrid court to try
those responsible for war crimes in the conflict. Ending impunity for
massive human rights violations in South Sudan is an attractive goal
and would be welcomed by many South Sudanese. However, some have
argued that criminal tribunals cannot bring peace to South Sudan and
might make matters worse by alienating the leadership.
By contrast, recent scholarship suggests that individual criminal
accountability for human rights violations can have positive impacts.
Also, criminal prosecutions would provide an important forum for South
Sudanese victims to air their grievances.
Nevertheless, criminal trials alone will not bring peace. They are
insufficient and might be unnecessary for peace if the national peace
process includes truth and reconciliation measures. The Wunlit
Nuer-Dinka Reconciliation Process of 1999 (“Wunlit”) provides a
successful prior model of extra-legal reconciliation between Dinka and
Nuer rival factions.
Furthermore, war crimes trials are extremely expensive and very few
perpetrators are convicted per dollar invested in such trials. The
billions of dollars required to run a criminal tribunal would probably
be better spent on rehabilitation of devastated local economies and
livelihoods; education; public health; youth- and gender-focused
programs; widespread disarmament; and widespread grassroots
community-based peace and reconciliation processes modeled after
Wunlit.
The most extreme proposal is a “neo-trusteeship”: “a governing
arrangement that involves the transfer of some or all sovereign powers
to a trustee.” The length of the trusteeship, the identity of the
trustee, and the extent of sovereignty transferred would have to be
worked out in the legal instruments creating the trusteeship. The
purported goal is to create political stability and functioning
institutions, rule of law, etc., before handing sovereignty back to
the South Sudanese.
The implicit assumption is that South Sudanese are incapable of
governing themselves and thus require external guidance. Ironically,
European colonialists made similar arguments in the 19th-century when
they carved up Africa among themselves. The prevailing notion at the
time was that Africans were incapable of sovereignty and thus outside
the international legal order.
Contemporary research shows that trusteeships tend to fail without the
government’s and citizens’ support. Without support, which does not
exist in South Sudan, trusteeship might exacerbate violence,
especially where it creates a power vacuum. Recent cases –
Afghanistan, Bosnia, East Timor, and Iraq – offer cautionary tales
regarding the potential pitfalls of “neo-trusteeship”.
The most problematic aspect of trusteeship is that it requires a break
(even if temporary) from the foundational basis of South Sudan’s
sovereignty – self-determination. Paradoxically, some proponents of
neo-trusteeship were once strenuous defenders of the Southern Sudanese
right to self-determination.
As I have argued elsewhere, an indigenous and all-inclusive national
peace process is indispensable to permanent peace and stability in
South Sudan. Indigeneity and representative-ness, however, are usually
missing from the international fora where many of the existing
proposals emerged. Many communities and groups are excluded from
high-brow, top-down approaches to peace promulgated by cadres of
briefcase expats and experts far-removed from centers of conflict in
the peripheries of South Sudan.
Peace must be indigenous, inclusive, and community based. Traditional
authorities, who often have more influence on rural militias and youth
than the state and the national army, should be included in the
process. Wunlit provides a model of people-to-people peace that can be
scaled nationwide to multiple centers of conflict, addressing local
sources of conflict, facilitating truth and reconciliation, and
fostering development cooperation.
For durable peace, community-centered peace processes must be pursued
in parallel with the state-centered peace initiatives, thereby
preserving the self-determination foundation of South Sudan.
*Laura Nyantung Beny is Professor of Law, University of Michigan Law
School, Co-editor of Sudan’s Killing Fields: Political Violence and
Fragmentation
First published by Berkley Journal of International Law Blog
Posted in: Opinions
- See more at: http://www.gurtong.net/ECM/Editorial/tabid/124/ID/20459/Default.aspx#sthash.BpPvBEfZ.dpuf
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