(written by Carola Lingaas, Jeremy Sarkin and Jessica Jonsson)

Following a referendum in 2011, South Sudan became independent from Sudan after decades of protracted armed conflict. The optimism for a peaceful future of the world’s newest nation state quickly evaporated when internal power struggles between the President and Vice-President arose. These political tensions reignited violence and led to the outbreak of an internal armed conflict along ethnic lines. Political actors instrumentalised ethnic identity, transforming elite rivalry into widespread violence against civilian populations.

In 2015, an Agreement for the Resolution of the Crisis in South Sudan (ARCISS) was brokered with the aim of dealing with past human rights violations. As part of this framework, a range of transitional justice laws, policies, and institutions were envisaged, including the establishment of a Commission for Truth, Reconciliation and Healing (CTRH). The CTRH is mandated to establish an authoritative account of atrocities, promote national reconciliation, and provide recommendations for justice and reparations. Despite its central role, the Commission has faced major obstacles due to its slow operationalisation. Meanwhile, the conflict is far from resolved, and the country’s security situation is highly volatile. Human rights abuses have become endemic.

South Sudan constitutes a significant case for transitional justice scholarship because these mechanisms were initiated amid an ongoing armed conflict. As such, it challenges the classical paradigm of transitional justice as a post-conflict process in which a society gradually moves from violence to post-conflict stability, peace, and – hopefully – democratic consolidation. Transitional justice is commonly understood as a toolbox of different mechanisms designed to confront past harms and create a more just future for victims and society as a whole. Generally, these mechanisms consist of five recognised pillars: legal accountability (often in the form of criminal trials), truth seeking mechanisms, reparations, reconciliation and guarantees of non-repetition. In recent years, scholars and practitioners have emphasised the importance of memorialisation as an additional pillar, reflecting the importance of collective memory and public acknowledgment.

Establishing a comprehensive account of the past is increasingly seen as vital when a society has experienced massive human rights violations. As a result, over the last three or so decades, transitional justice processes have become the norm for states emerging from conflict, instability, or authoritarian rule. Critically, the manner in which a nation deals with its past reverberates throughout its present and has a huge impact on its political legitimacy, social cohesion, and institutional trust. Both domestic and international actors often measure the success of transitions by examining a nation’s treatment of the past, including how victims and perpetrators are treated and recognised.

Historically, early transitional justice mechanisms in the 1980s and 1990s evolved where authoritarian regimes collapsed and more stable contexts enabled democratic transitions. In the last decades, several cases have emerged, in which societies have not transitioned from authoritarian, violent conflicts into democracies, but have nonetheless applied transitional justice tools. Such aparadigmatic cases have occurred, among others, in Canada, Norway, Sweden, and Finland, all stable democracies that established Truth and Reconciliation Commissions (TRCs) to address colonial and historical injustices. These cases have contributed to the broadening of the analytical scope of transitional justice as an academic field and area of practice. Yet other cases of transitional justice do neither confirm to the classic paradigm nor the aparadigmatic cases: in South Sudan transitional justice is pursued within an ongoing armed conflict.

Crucially, South Sudan has experienced prolonged periods of armed conflict even prior to achieving independence. Roughly fifty years of internal armed conflict (between the Sudanese government and several rebel groups from the southern regions) within the borders of Sudan has now transitioned into a new phase, involving different armed groups vying for control within the newly delineated borders of South Sudan. Some initiatives aimed at achieving legal accountability for serious violations of human rights and international humanitarian law have been undertaken. In addition to the customary legal and the domestic justice system, efforts have been made to create a hybrid criminal court. Yet, the implementation has largely stalled. The hybrid court, for instance, remains unrealised, primarily because the government has yet to pass enabling legislation for the court’s establishment. Others blame the African Union for inaction.

However, it could be argued that the delays are strategic. South Sudan is one of several cases, where transitional justice becomes instrumentalised by political elites. Rather than functioning as a genuine mechanism for accountability, transitional justice thus risks becoming a quasi-process—half-heartedly and rhetorically endorsed to satisfy donors or external pressure. Comparative experience illustrates this risk: in the Balkans, for example, the UN Security Council mandated the creation of the ad hoc International Criminal Tribunal for the former Yugoslavia (ICTY) and, as such, kicked off the transitional justice process within...

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