Kampala, Uganda — Everyone agrees that South Sudan “stands on the brink of an all-out ethnic civil war,” as Yasmin Sooka, of the United Nations Human Rights Council, put it. But there is no consensus on how to move forward.
The debate in the Security Council mirrors an earlier one in the African Union’s five-person Commission of Inquiry set up after mass violence erupted in South Sudan in December 2013. Led by Olusegun Obasanjo, former president of Nigeria, commission members came from the African Court on Human and Peoples’ Rights, the Union’s office on Women, Peace and Security, and academia. I was one of the two academics. The commission spent over a year meeting diverse sectors of government and society, including President Salva Kiir, a Dinka, and his former vice president and rival, Riek Machar, a Nuer.
As in the African Union commission, the two sides in the Security Council disagreed on whether to take a judicial approach of sanctions and indictments or a political approach of power-sharing and reform. Favored by Western countries, the judicial approach presumes a victor or outside intervention as in the Nuremberg trials. Claiming that this would exacerbate the civil war, Russia and China call for a power-sharing arrangement. Neither the judicial nor the political alternative is without complications.
The Security Council discussion on accountability for violence in South Sudan was limited to South Sudanese involved in the killing, ignoring members of the United Nations Mission in the Republic of South Sudan (Unmiss) who were charged with “responsibility to protect” civilians but failed to prevent violence. Under pressure, the secretary general dismissed the Kenyan head of Unmiss forces but not the Norwegian head of the overall mission. The United Nations seemed to have learned little from thegenocide in Rwanda and the Srebrenica massacre during the Bosnian war.
The violence of 2013 evoked memories of mayhem in 1991, when nearly 2,000 mostly Dinka civilians were massacred by the same contending Sudan People’s Liberation Army (S.P.L.A.) factions who assumed control of the new state in 2011. Though Mr. Machar, the first vice president of South Sudan, repented publicly for his role in 1991, many see the violence in 2013, when government soldiers and policemen targeted people from the Nuer ethnic group, as payback for 1991.
By pinning responsibility for mass violence on individual perpetrators, the criminal approach obscures its political dimensions. Court cases focusing on guilt or innocence make for winner-take-all solutions and exclude those criminalized from the political process. The political approach seeks to include all sides in the political process. The focus on power sharing in the absence of political reform mirrors the focus on individual perpetrators in the criminal approach. I believe that judicial and political approaches are complementary: Rule of law needs a viable political order, but neither is possible without all-around reform.
When South Sudan got its independence in 2011, its army was an uneasy coalition of three factions. Mr. Kiir’s faction, Mr. Machar’s faction and a third faction trained by the Sudanese Army. Though they fought on opposite sides, all laid claim to the brand name S.P.L.A.
Militia leaders negotiated questions of rank and pay with the army command. A program meant to downsize the army let demobilized soldiers keep their guns. Small arms proliferated, and the society was further militarized.
The S.P.L.A., according to African Union data, was made up of 200,000soldiers and 45,000 veterans but lacked a roster of its men. With 700 generals, it had a higher ratio of generals to soldiers of any army in the world. These AK-47-toting soldiers and their commanders had not won the war, did not constitute a coherent force and had no more than a slim civilian base. Yet they took the driver’s seat at independence.
This outcome was backed by the United States, Britain and Norway, which organized themselves as Friends of IGAD (Inter-Governmental Authority on Development, the regional trade bloc). Convinced that the main threat to peace after independence would come from the north, the troika pushed for a hasty transition, bypassing democratic reform.
The 2005 Comprehensive Peace Agreement (C.P.A.) was premised on a militarist assumption that only those who waged war should determine the terms of the peace. The talks excluded political and civic groups, strengthening the armed dictatorship in the North, and introducing one in the South. In the absence of a functioning Civil Service, ministries were occupied rather than run by generals, and their friends and relatives.
The closest South Sudan came to initiating an inclusive political process was the October 2010 All South Sudanese Political Parties Conference. Its resolutions to create an all-party transitional government of national unity, to hold a Constitutional Conference and an election within two years were ignored after independence in 2011. South Sudan has never had an election. Mr. Kiir was elected vice president of Sudan, but never president of a state called South Sudan.
Assured unconditional international support, South Sudan’s rulers acted with impunity. Uninterested in reform, this political class remains incapable of reform on its own. The simple fact is that the very political and institutional foundation for the existence of a state — as a political process that legitimates a sovereign power, and the creation of an administrative, technical and legal infrastructure as the means for exercising that power — has yet to be forged.
South Sudan is not a failed state but a failed transition. It needs a second transition, this time under an authority other than the United States, Britain and Norway, whose project has failed, or IGAD, whose members have conflicting interests in South Sudan.
The one body with political credibility to take charge of a second transitional process is the African Union. Its credibility rides on its all-Africa composition and on the record of its High Level ImplementationPanel for Sudan and South Sudan. Led by the former South African president Thabo Mbeki, this panel has engaged different groups in North and South Sudan on questions of reform for over a decade. The United States, Britain and Norway should provide resources for it as admission of responsibility for their failed project in South Sudan. This second transition should include all sides to the conflict, but not fuel the conflict with a steady flow of arms to all sides.
The idea of an African Union trusteeship has three key elements. The three-person High Level Oversight Panel and its leader should be Africans appointed by the Peace and Security Council of the African Union and jointly mandated with the United Nations Security Council. The panel should oversee the appointment of a three-person Transitional Executive drawn from the Equatoria, Upper Nile and Bahr el Ghazal regions of South Sudan and chosen through broad consultation, vetted by an expanded all-South Sudan Political Parties Convention and ratified by Parliament.
Responsible for the violence that followed, all members of the South Sudan cabinet dissolved in July 2013 should be barred from participation in the Transitional Executive. And the Parliament, the one institution that reflects the full diversity of the country but was not directly involved in the extreme violence, should be revitalized.
While it will take a major shift in regional and international opinion — signified by a consensus in the Security Council and the African Union — to get contending factions in South Sudan to agree to such a proposal, an African Union trusteeship has become necessary as the crisis deepens.