By:- Dr Kenneth Wyne Mutuma
Despite its domestication of all the major IHL treaties, South Sudan has, for some time now, been embroiled in conflict. First, it was involved in a Civil War to secede from Sudan and later on, there was the war between the government and different armed groups. These wars have resulted in gross human rights violations committed by the government as well as the armed groups. The warring parties in South Sudan have demonstrated an abrogation of the IHL obligations and thus, there is a pressing need to examine how the legal obligations of State Parties to IHL treaties can be better respected and enforced. CA1 is a distinct mechanism through which Kenya and Uganda can help in ensuring respect for IHL obligations by South Sudan. CA1 imposes positive obligations on State Parties mandating them to take some action to stop the violations of IHL. In this way, it uniquely places a duty, and not simply a right, to take action to ensure respect for IHL.
Kenya, Uganda and the Conflict in South Sudan
Both Kenya and Uganda are State Parties to the IHL treaties, just like South Sudan. They have ratified the Geneva Conventions and are accordingly bound by the obligations therein. The two have also enacted laws to punish certain international crimes; Kenya with its International Crimes Act 2008, and Uganda with its International Crimes Act 2010. The geographical position of Kenya and Uganda has significantly contributed to their successful strong economic relations with South Sudan. Both countries are major import partners for South Sudan.
On its part, Kenya has professed neutrality in the ongoing conflict in South Sudan. Nonetheless, Kenya has built close political and economic ties with the government of South Sudan; an interaction that may give rise to obligations incumbent on Third States, including those under CA1. On the other hand, Uganda has in the past participated as a party to the conflict in South Sudan by providing military support and facilitating the supply of military arms and equipment. The involvement of Uganda in the conflict gives it leverage in terms of the influence it can bring to bear the South Sudan government for purposes of CA1. The unique relationship as a partner to a conflict provides an opportunity for Uganda to encourage respect for IHL by South Sudan.
In line with their obligations under CA1, Kenya and Uganda may explore some of the measures discussed below:
- Preventing South Sudanese From Profiting From IHL Violations
Kenya and Uganda have been strategic partners with South Sudan in economic relations owing to their geographical proximity. Consequently, Kenya and Uganda have been conduits of majority of the imports into South Sudan. These imports are mainly commercial goods, including arms and military hardware. Kenya has further been economically relating with South Sudan through its banking system and real estate sector. Since it has the most developed financial sector in the region, Kenya’s banking system serves as a center and conduit for the region’s financial transactions. Most of the South Sudan financial transactions are conducted through Kenyan owned banks. It has been alleged that South Sudan leaders use Kenyan banks for alleged illicit financial transactions. Moreover, the profitable real estate sector in Kenya has become convenient for South Sudan leaders trying to launder their proceeds of illicit wealth acquired during the armed conflict. The intimate socio-economic and political interaction between Kenyan, Ugandan and South Sudanese leaders provide ample leverage for employing forms of punitive trade measures in order to pressure South Sudan to comply with the obligations of IHL.For instance, Kenya can apply such pressure by freezing the funds and property that South Sudanese leaders have invested through Kenya’s banking and real estate industry.
- Peace Building
Kenya and Uganda can fulfill their duty under CA1 by exerting meaningful diplomatic pressure upon the government of South Sudan. Given Kenya’s neutrality and past involvement as a mediator and peacebuilder, there is a plausible chance for exerting pressure upon the warring factions in South Sudan in line with their responsibilities to respect IHL. Uganda’s past participation as party to the conflict elevates its position to engage in discreet communication urging the South Sudanese government forces to refrain from IHL violations. The IHL mechanisms adopted by regional bodies like the East Africa Commission (EAC) and international organizations like the International Fact Finding Commission (IFFC) may also be embraced by Kenya and Uganda.
- Preventing and Punishing War Crimes
The War Crimes in South Sudan amount to a contravention of jus cogens and thus, they attract concern from all States. Based on the principle of universal jurisdiction, Kenya and Uganda have the right to exercise jurisdiction over violations committed by individuals linked to the South Sudanese government. In as much as the victims are not their nationals, Kenya and Uganda have a legal interest in ensuring the protection of their rights. Pursuant to their duty under CA1, Kenya and Uganda ought to take measures to prevent and punish the war crimes. In doing so, impartiality must be guaranteed. The respective judiciary should be independent while adjudicating over the violations of IHL in South Sudan. Failure to do so would undermine the prerequisite for neutrality embedded in the rule of law and the central premise that international justice is aimed at seeking justice for the whole international community. The punishment of the South Sudanese perpetrators will act as a deterrent to future violations of IHL because it will portray the ideal of law with “teeth”.
- Preventing Trade in Arms
Both Kenya and Uganda have served as channels for arms and ammunition flowing into South Sudan. Such support may arguably establish the necessary attributable nexus with IHL violations. Kenya and Uganda may therefore be indirectly responsible for the atrocities committed by the parties and can be construed as rendering aid to a party to a conflict. In this regard, the duty under CA1 is significant because it imposes positive obligations upon States like Kenya and Uganda. The provisions demand that Kenya and Uganda should undertake actions that ensure IHL is respected by the South Sudanese government and warring factions.
From the foregoing, it can be concluded that in as much as there is an adequate legal framework for IHL, there has still been numerous atrocities and violations as evidenced by South Sudan. Therefore, Third States like Kenya and Uganda play a significant role towards encouraging and promoting respect for IHL rules by South Sudan. The political and economic capacity and influence of Kenya and Uganda over South Sudan can help in achieving this. CA1 foresees a responsibility incumbent upon each State to take measures aimed at increasing the respect of IHL by warring parties.
Dr. Mutuma is a senior lecturer at the University of Nairobi, School of Law. Dr Mutuma holds a
PhD and LL.M degree from the University of Cape Town and an LL.B from the University of
Liverpool. He is also a partner at law firm in Nairobi and possesses 21 years’ experience in the
practice of law.