JURIST Guest Columnist Sarah Nouwen of the University of Cambridge Faculty of Law argues that the challenge facing both South Sudan and the international community is to ensure the South Sudanese right to decide on a future they want …

These days are crucial for South Sudan. The most immediate question is whether the agreement on a cessation of hostilities, signed on January 23 between the Government of the Republic of South Sudan (GoRSS) and the Sudan People’s Liberation Movement (SPLM/A) in Opposition, will bring an end to the fighting that has killed tens of thousands and has displaced hundreds of thousands of people since mid-December. But at least as important as the developments on the ground is the way that the conflict in South Sudan is analyzed, framed and acted upon by the South Sudanese themselves, foreign affairs policymakers, international activists, newspapers and the international public. That analysis, those frames and those actions will shape how the conflict is addressed, perpetuated or entrenched.

The civil war into which South Sudan has spiraled since December 15, 2013 was triggered by a political crisis, is fueled by a state-building crisis and deepens a societal crisis. At the heart of the political crisis is that the ruling party, the Sudan People’s Liberation Movement, has not been able to transform a politics of fighting against an external enemy—the Government of Sudan in Khartoum—into a politics of identifying and realizing a society’s common goods. Its politics has instead degraded into a politics of a struggle for power between various factions, based on rivalries that already existed during the several-decades-long war with Khartoum.

The civil war has also revealed a crisis in state building, most clearly manifested by the position of the national army. Rather than a united national army with soldiers loyal to the centralized command, the SPLM/A remains, as during the war with the Government of Sudan, a collection of armed groups whose loyalty is dependent on personal ties to commanders and pay-outs. The result is a fissiparous and unaccountable army over which the GoRSS has limited control.

The third crisis that the civil war has laid bare is a societal one. Despite the hard work of a relatively vibrant civil society, the fabric of South Sudanese society is still heavily damaged by years of south-south violence during the war with Khartoum. As a result, the present social fabric is too weak to resist political and institutional crises. When the elites’ disputes turn violent and the army begins to disintegrate, society also breaks up, with groups following those leaders and units that seem to offer most protection. In moments of existential threat, and in the absence of other forms of protection, ethnic ties easily become the organizing principle.

Confronted with this crisis, many international actors have called for action. The calls reverberate not just a desire to address the suffering of the South Sudanese, victims of yet another seemingly intractable crisis in Africa, but also a sense of disappointment. The independence of South Sudan was heavily supported by western actors who, perhaps too easily, constructed the civil war in Sudan as one of an evil government in Khartoum that suppressed innocent Southerners, thereby ignoring that the SPLM/A was deeply divided, had itself committed numerous brutalities, too, and was more about gaining territory than liberating people, its name notwithstanding. In this analysis, independence of South Sudan was an obvious solution. The fact that two years after its independence South Sudan is in arms again reveals the flaws of that paradigm. But the sense of failure of “our South Sudan project” has intensified calls for immediate action.

The core parts of the action called for are military (expand the number of peacekeepers), diplomatic (engage in peace talks) and, most relevant to this blog, legal (ensure accountability). On the one hand, this response is little surprising: these are today’s most common components of responses to crises: peacekeepers are supposed to protect civilians, talks are meant to make the fighters stop fighting and accountability involves punishing perpetrators (often it is suggested that those who started the fighting should be held to account, but beginning a civil war is as such not an international crime). Of all these responses, accountability is the most retrospective: while consequentalist reasoning counts on punishment for deterring future violations of international law, accountability’s dominant rationale is deontological, according to which crimes must be responded to for the sake of the response.

Undoubtedly, each of these responses could do some good. But before setting them, and particularly the accountability train, in motion, three warnings must be considered.

First, when proposing and deciding upon these responses we must ask whether they are actions based upon an analysis of the specifics of the South Sudan conflict or more reactions stemming from a desire on the part of the intervenor to at least do something. Peacekeepers, peace talks and accountability often fall in the latter category: they show involvement, compassion, and, in the case of accountability, a moral high ground—if we cannot prevent, then at least we should not condone. But these responses do not necessarily help address the crises that the civil war has laid bare.

Second, while these responses can be useful and indeed sometimes necessary as intermediate steps, experience has shown that there is a huge risk of path dependency: peacekeepers, peace talks and accountability turn from instruments into aims and the responses themselves, rather than an analysis of the conflict, begin to frame the conflict and its trajectory. For instance, as the situation in Darfur has painfully illustrated, a referral of a situation to the ICC means that, as of then, the conflict will at least partially be analyzed through a criminal lens; at times at the cost of a political lens. Applying the criminal lens would mean seeing the conflict in South Sudan as one of a combination of crimes, committed by people with a criminal mind-set. This perspective blinds us to the political, institutional and societal crises that have been set out above. Even if those other, more structural, perspectives are given attention, action upon them may be obstructed by earlier responses. For instance, as illustrated by the 2006-2008 Juba peace talks concerning the Lord’s Resistance Army, once an international criminal court is involved, it will impact on, and indeed claim legal primacy over, any political track.

Third, what will any of these responses mean for the one necessity that emerges from the three crises in South Sudan, namely the urgent need for a revitalization of South Sudanese politics? Many of the proposed responses risk displacing South Sudanese politics by seeking external solutions. Even any possible future peace talks between the GoRSS and SPLM/A in Opposition on substantive issues would not revive South Sudanese politics. While essential for reaching a ceasefire, these parties lack the legitimacy and unity to address the political, institutional and societal crises.

Such political revival is also essential for any possible future transitional justice effort. Transitional justice efforts require a high degree of domestic political consensus or the efforts themselves divide rather than unite. Establishing that domestic consensus through a national political process is thus a quintessential first step of any possible future transitional justice framework.

In sum, while immediate calls for seemingly forceful measures such as peacekeepers, peace talks and accountability are understandable, decisions on these measures should primarily be informed by how they would relate to addressing the crises that the South Sudanese civil war has exposed.

In designing responses, one useful guideline might be the same principle as the one that led to South Sudan’s independence: self-determination. In the 2011 referendum, the South Sudanese were given an opportunity to exercise the right to self-determination, but only negatively: they could decide who they did not want to be. The real challenge now is to ensure that the South Sudanese can themselves decide on the future that they do want. This requires a long-term and inclusive national process focused on identifying common objectives and developing a plan towards realizing these—politics in the positive sense of the word. For international actors this means creating an environment in which such a South Sudanese political process can take place, without taking decisions on fundamental issues such as the meaning of peace, justice and reconciliation for the South Sudanese.

Dr Sarah Nouwen is Lecturer in Law at the University of Cambridge Faculty of Law and Fellow of the Lauterpacht Centre for International Law and of Pembroke College. She is the author of the recently published book Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan. Sarah has also worked as consultant for the Netherlands Ministry of Foreign Affairs, the UK Department for International Development and African Union High-Level Implementation Panel for Sudan.

Suggested Citation: Sarah Nouwen, Protecting the South Sudanese Right to Self-Determination, JURIST – Forum, Feb. 3, 2014, http://jurist.org/forum/2014/02/sarah-nouwen-south-sudan.php