By Aly Verjee. December 23, 2017
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Later this evening, a cessation of hostilities agreement (CoHA) between the government of South Sudan and eight South Sudanese armed groups comes into effect. The agreement, signed in Addis Ababa and mediated by IGAD, was welcomed by many South Sudanese and the international community (see statements from the AU, Troika, and EU).
The African Union Chairperson called the CoHA a ‘critical first step in the efforts to end the senseless conflict and carnage that has been unfolding in South Sudan since December 2013.’ This CoHA, is, however, the eighth agreement since January 2014 to speak of ending hostilities.
While I’d like to be hopeful about this agreement and join in the optimism of these statements, this CoHA is entirely conventional. It is thus likely to be dogged by the same problems that have seen past agreements fail.
All cessation of hostilities and ceasefire agreements depend on three factors to succeed:
- the will to implement;
- the ability to investigate, verify and deter violations;
- and, the means to avoid escalating minor breaches of the ceasefire, so that, for example, one undisciplined soldier firing a rifle doesn’t cause a full scale battle.
This CoHA falls short on all three counts.
It doesn’t improve the ceasefire monitoring body’s ability to investigate violations, or how those investigations are acted on once complete. The ability to deter violations is therefore unchanged. There have been at least 50 documented violations of the earlier ‘permanent ceasefire’, with little to no follow-up or meaningful consequences.
This CoHA doesn’t specify how de-escalation and conflict mitigation could occur. Article 18 calls for disputes to be ‘resolved amicably’ by the combatants. If amicable resolution was that straightforward, South Sudan would not be in a multi-dimensional civil war.
And as far as the will to implement goes, the CoHA’s preamble itself acknowledges the problem: ‘having in mind the lack of genuine will and robust mechanisms to ensure enforcement and compliance with those commitments,’ it says, let’s try again. The test is in the days and weeks ahead. But, in addition to the seven earlier agreements and re-dedications, should be added the government’s declaration in May 2017 of a unilateral ceasefire, and renewed in November. Yet offensive action by government forces continued throughout this period: those actions loom ominously over any text.
Since the facilitators of the IGAD High Level Revitalization Forum (HLRF) offered a weak and ambiguous draft text at the outset, it’s no surprise that these three fundamental factors were insufficiently addressed, even if the final CoHA text has somewhat improved. The list of twenty concerns that follows is not aimed at disparaging the efforts of my former colleagues. It is, instead, intended to identify the weaknesses of the text and suggest what should be addressed in the next phase. While the road to peace is long, we make the journey harder by failing to address ambiguities and avoidable inconsistencies.
Weaknesses of the December 2017 CoHA:
- CoHA timelines are inconsistent. Art. 1(1) states the CoH comes in to effect from 0.01 hours on the morning of 24 December; Art. 1(2) speaks of an ‘immediate’ freeze of forces in their locations, although the implementation matrix (p. 21) defines immediate as from 0.01 hours on the morning of 24 December, and therefore, by definition, something that is not immediate. Art. 1(4) requires forces be notified of the terms of the CoHA ‘within 72 hours of the signing.’ Since the agreement was signed around 2000 hours on 21 December, notification could be given up to 2000 on 24 December, after the CoH has already come into effect, and therefore, its implementation is delayed from the outset.
- There is no prioritization of locations in the CoHA. As complicated as South Sudan’s conflict has become, violence is not evenly distributed. Some parts of the country face more intractable, multi-actor conflicts. The CoHA would contribute practically if it helped prioritize the most difficult areas for conflict resolution and areas of active hostilities. Without prioritization over a large and inaccessible geographic area, the investigation of violations and monitoring of the agreement becomes impractical.
- Provisions on the movement of forces are ambiguous. Art. 1(2) requires movements of forces be authorized, with exceptions for vaguely defined ‘logistical and administrative purposes,’, an exception open to abuse. More seriously, Art. 11(6) only requires ‘advance notification’ of the movement of forces, which conflicts with the earlier article and provides the combatants with a loophole that arguably allows force movement to be less constrained. There is no time period specified for ‘advance’ notification, which defeats the intent of the provision. The implementation matrix only notes notification should be in writing.
- Provisions for the disengagement of forces are unspecific. Art. 1(3) requires ‘where opposing forces are in close proximity they shall immediately disengage.’ Close proximity is left undefined. The firing range of small arms? The firing range of medium and/or heavy weapons? Forces that are within 1km of each other? 2km? What constitutes an adequate distance for the withdrawal of forces is also left open-ended.
- Accountability measures are unspecified. Art. 3(5) requires the parties ‘ensure accountability for breaches of the agreement,’ as does Art. 13. There is no indication as to how accountability should be pursued, or on what time frame: formal reprimand? The commanding officer being suspended or relieved of command? Court-martial? Within 72 hours? 7 days? A timeline determined by the offending party?
- Withdrawal from civilian installations is unspecific. Art. 4(2) does not specify what constitutes withdrawal from public institutions such as schools and hospitals, nor state what steps are can be taken in the event withdrawal is not completed by the implementation matrix deadline of 24 December.
- Opens the door to offensive action on the grounds of the protection of civilians. Art. 7(1) requires the parties ‘to protect civilians from any form of attacks by other armed actors not part of this agreement.’ How, in such circumstances, one protects civilians from attacks without resorting to offensive action is unclear. Ostensibly a provision that provides for the protection of civilians is an invitation to engage in further violence and commit further violations.
- Disclosure to CTSAMM is problematic. Arts. 2(2) and 11(8) require the disclosure of sensitive information to CTSAMM, without specifying to whom at CTSAMM disclosure should be made. In the absence of confidence building measures, it is unlikely accurate disclosures will be made openly to the entire CTSAMM board, which includes other combatant parties.
- Self-defence justification is unproscribed. Self-defence has been frequently invoked as justification for past ceasefire violations. This CoHA does not limit the right of self-defence in Art. 3(2), and leaves it to retrospective determination by CTSAMM as whether self-defence was validly invoked, in Art. 3(4).
- Reporting requirements are unchanged. Art. 14 maintains the current reporting chain in the event of violations: from CTSAMM to JMEC, and from JMEC to the TGoNU, IGAD, AU Peace and Security Council and UN Security Council. It is unclear how an identical reporting protocol will galvanize any new action to be taken in the event of a CoHA violation.
- Media restrictions remain. Art. 5(2)(d) requires the parties to ‘ensure protection of the media,’ and Art. 10(g) prohibits ‘all forms of harassment of the media’. Both are sound principles, but do not specifically remove restrictions on media in South Sudan, such as pre-publication censorship, onerous registration requirements, or freedom of movement, including the issuance of visas, to international correspondents.
- Political prisoners and prisoners of war (POWs) provisions are inadequate. Art. 9(3) obliges the parties to declare the political prisoners and POWs in their custody. This requirement is easily met by a declaration that the party holds no political prisoners or POWs and that any detainees held face criminal charges. Yet there is evidence that specific individuals are being held because of their political beliefs. The agreement could have specifically provided for these named individuals to be freed. As it stands, this provision will not cause the parties to change their positions.
- ‘International best practice’ on the cessation of hostilities and provision of humanitarian access is unspecified. Art. 2(4) requires parties to abide by international best practices, without specifying what such practices are or which are most critical for adherence.
- ‘Specific’ measures to protect civilians are unspecified. Art. 5(2) requires the parties to take ‘specific measures’ to protect vulnerable persons, support the reunion of families, facilitate the free movement of persons, etc., without any indication of what the appropriate and specific measures to achieve these goals should be.
- Proximity to protection of civilian (POC) sites, IDP and refugee settlements unspecified. Art. 6(h) requires the parties not to ‘incit[e] violence in or around’ POC, IDP and refugee sites, without specifying what constitutes such proximity.
- Hostile verbal attacks are not proscribed. ‘Unwarranted’ verbal attacks on the IGAD mediation, ceasefire monitors, JMEC, etc., are prohibited by Art. 4(1). So, are there such things as warranted verbal attacks? Minister of Information Michael Makuei will be delighted.
- Procedure for joining the CoHA is unclear. Art. 2(3) calls for other combatant groups to join this Agreement, without providing the modalities (timeframe, mechanics) for that to occur.
- Dispute settlement provisions are inadequate. As mentioned earlier, Art. 18(1) unrealistically calls for ‘amicable resolution’, of disputes in the implementation and interpretation of this Agreement. Art. 18(2) refers unresolved matters to the IGAD Council of Ministers, a problematic venue as the government of South Sudan, a combatant group which may be party to dispute about the CoHA, sits at the Council of Ministers’ table.
- Amending the CoH is possible without consensus. Although this agreement was reached by consensus, amendment of the agreement is possible by a majoritarian decision, as provided by Art. 17. This leaves the door open to unhelpful actions by a coalition of some combatant parties against others. Since non-combatant parties are also included as signatories to this agreement, it is also unclear which parties count for the purposes of amending the CoHA.
- Raises modification of JMEC’s composition prematurely. Art. 14(5) calls for the restructuring of JMEC. This is premature to address in a CoH agreement and gives parties an opening to argue that JMEC should not work pending its reconstitution, although the implementation matrix caveats this provision by stating that this will occur ‘as decided by the HLRF process’. It would have been better to omit this provision entirely.