---------- Forwarded message ---------- From: John Ashworth <[email protected]> Date: Thu, Feb 6, 2014 at 7:13 PM Subject: [sudans-john-ashworth] Protecting the South Sudanese Right to Self-Determination To: Group <[email protected]>
1. Protecting the South Sudanese Right to Self-Determination JURIST - Forum, Feb. 3, 2014 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. http://jurist.org/forum/2014/02/sarah-nouwen-south-sudan.php END1 2. South Sudan's Unfinished Business NYT Feb 6, 2014 Peter Biar Ajak CAMBRIDGE, England -- The government of South Sudan and rebels led by its former vice president, Riek Machar, are scheduled to begin a second round of negotiations on Friday. During the first round last month the parties agreed to a cease-fire, but the violence has not stopped and an agreement to end the rebellion has yet to be reached. Yet even peace would be a partial solution, because it cannot address the underlying cause of the strife: the lack of competent institutions of governance in the fledgling republic. The crisis began on Dec. 15, 2013, when fighting broke out within the Presidential Guards between forces loyal to the president, Salva Kiir, who belongs to the Dinka tribe, and supporters of Machar, a Nuer. Despite its ethnic facade, the struggle is a tussle over power, and it turned violent because South Sudan lacks robust institutions of mediation and governance. South Sudan gained independence from Sudan on July 9, 2011, when its inhabitants overwhelmingly voted in favor of statehood in a referendum. That vote was made possible by the Comprehensive Peace Agreement of 2005, which ended over two decades of civil war between the government of Sudan in Khartoum and rebels mainly from the south known as the Sudan People's Liberation Movement/Army (S.P.L.M./A). Under the terms of the peace deal, the S.P.L.M./A was supposed to be restructured into three distinct institutions -- a government, an army and a political party -- ahead of the 2011 referendum. The challenges were daunting. South Sudan, after decades of neglect under successive regimes in Khartoum, suffered widespread poverty and a dearth of both formal institutions and competent cadres to fill them. It had the highest maternal mortality rate in the world, a 15 percent adult literacy rate and no infrastructure to speak of. John Garang de Mabior, the founder of the S.P.L.M./A, was a proponent of transforming Sudan into a secular and democratic country, as a means of addressing the grievances of people in the periphery, particularly the south. He believed that a strong southern-led party of marginalized Sudanese, in the form of a demilitarized S.P.L.M., would be the best foil to the ruling National Congress Party in Khartoum. But Mr. Garang died soon after the 2005 peace deal was signed, thrusting his longtime deputy, Salva Kiir, to the helm. Mr. Kiir was a dedicated separatist, and he -- like Mr. Machar and myself -- was skeptical of Mr. Garang's New Sudan Vision, doubting that the Arabs of the north would ever respect other groups. And so the secessionists did little to build up the S.P.L.M., and by default tribal affiliation became the main means of political organization. With an eye on the 2011 referendum, the separatists were far more interested in turning the S.P.L.A. into a regular army and bringing about a functioning interim government for southern Sudan, with separate executive, legislative and judicial branches. An effective army would be a guarantee against aggression from the north. A competent government would be their new country's main instrument of governance. They also hoped it would appear to the population as an antidote to the years of neglect under Khartoum. Enormous amounts of money were spent. The budget of the government of southern Sudan averaged more than $2 billion a year in 2006-2011, thanks to a 50 percent share in southern Sudan's total oil revenues allocated by the 2005 peace deal; 40 percent of that was earmarked for turning the S.P.L.A. into a professional army. In addition, international donors gave southern Sudan an average of $1 billion a year in developmental aid during the interim period. Though these investments brought the region its first schools, clinics and paved roads, they did little for the effectiveness of the interim government or the new army. One culprit was the international donors' notion of "capacity building." When it became clear that their efforts were headed for failure because of the uniquely difficult context of South Sudan, they focused on performing discrete projects rather than improving good governance. They deployed legions of foreign technical assistants who, eager to showcase immediate results, ended up doing everything themselves, transferring little know-how to South Sudanese civil servants. A recent evaluation by the Office of the President (to which I contributed) found enormous capacity gaps in all institutions. The government cannot deliver basic services, including security, to most citizens. South Sudan is the third-most corrupt country in the world, and it ranks fourth, after Somalia, the Democratic Republic of Congo and Sudan, on the Fund for Peace's 2013 Failed States Index. The S.P.L.A. has yet to become a professional military. The 2005 peace agreement called on all rebel groups to integrate either into the S.P.L.A. or the armed forces of Sudan. But several warlords rebelled continually throughout the interim period, leaving and rejoining the S.P.L.A., which reinforced their own power with their loyalists, rather than the army's authority. With such poor institutions, the rivalry between Mr. Kiir and Mr. Machar quickly devolved a few weeks ago -- apparently into a sectarian conflict. In reality, the violence is about competition for control of the S.P.L.M., which is seen as a major asset for the next election in 2015; it is still a popular brand, thanks to its part in the liberation struggle. At meetings in mid-December to discuss a new constitution, manifesto and a code of conduct for the party, Mr. Kiir and Mr. Machar could not agree on rules for internal elections or the appointment of the party's chairman. Mr. Machar and his allies walked out in frustration; within a few hours, violence erupted among the Presidential Guards. The latest round of peace talks has raised hopes of ending the strife in South Sudan. But the negotiations are a stopgap measure at best: The institutional deficiencies that have brought about the violence remain. For both its sake and the sake of this young country, the political leadership of South Sudan must complete the task it aborted of building basic institutions of governance. Peter Biar Ajak, founder and director of the Center for Strategic Analysis and Research in Juba and a member of the National Security Policy Drafting Committee in the Office of the President of South Sudan since 2011, is a Ph.D candidate at Trinity College, University of Cambridge. http://www.nytimes.com/2014/02/07/opinion/south-sudans-unfinished-business.html?hpw&rref=opinion&_r=0 END2 ______________________ John Ashworth Sudan, South Sudan Advisor [email protected] +254 725 926 297 (Kenya mobile) +211 919 695 362 (South Sudan mobile) +27 79 832 8834 (South Africa mobile) +44 750 304 1790 (UK/international) +88 216 4334 0735 (Thuraya satphone) PO Box 52662 - 00100, Nairobi, Kenya This is a personal e-mail address and the contents do not necessarily reflect the views of any organisation -- -- The content of this message does not necessarily reflect John Ashworth's views. Unless explicitly stated otherwise, John Ashworth is not the author of the content and the source is always cited. 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