Salvaging South Sudan’s Sovereignty (and Ending its Civil War)

The following is a guest post by Kate Almquist Knopf, director of the Africa Center for Strategic Studies, and Payton Knopf, former coordinator of the UN Panel of Experts on South Sudan.

On Tuesday, the UN Security Council will convene to discuss the ongoing civil war in South Sudan. The meeting, chaired by Nikki Haley, the U.S. envoy to the United Nations, in her capacity as president of the council in April, comes at an inflection point for the world’s newest nation and for the global institutions, the United Nations (UN) and the African Union (AU) in particular, that are mandated to manage international crises of this magnitude and preserve the state system.

Absent a fundamental change in the current humanitarian and security trends in the next eight months, nearly half of South Sudan’s population will have died of starvation or fled the country by the war’s fourth anniversary in December. Such a rapid depopulation of a sovereign state is nearly unprecedented; Cambodia under the Khmer Rouge and Rwanda in the throes of genocide are the closest analogues for such a tragic record. Debates aside as to whether a full-scale genocide has yet begun in South Sudan, the level of trauma and psychological distress endured by South Sudanese citizens is on par with these cases. In a study conducted by the South Sudan Law Society using the Harvard Trauma Questionnaire, 41 percent of South Sudanese exhibited symptoms consistent with post-traumatic stress disorder, rates comparable to those of post–genocide Rwanda and post–genocide Cambodia. That was two years ago.

The magnitude of the war’s human cost has since continued to escalate and now dwarfs that of nearly every other global conflict, with the exception of Syria. In just three years, South Sudan has become the fastest growing refugee crisis in the world; the largest refugee crisis in Africa, and the third largest globally, after Afghanistan and Syria; and the largest cross-border exodus in Africa since the Rwandan genocide. Over 1.7 million South Sudanese have fled the country since 2013, and nearly 1.9 million are displaced internally. Of those that remain, at least one hundred thousand people are dying in a man-made famine, and a further one million people are on the precipice.

Fortunately, the United Nations and the African Union have the necessary legal authorities to salvage the sovereignty of one their own member states by establishing an international administration, with an executive mandate, in South Sudan to run the country for a finite period of time, as described in a Council on Foreign Relations (CFR) Council Special Report, Ending South Sudan’s Civil War, published by the Center for Preventive Action. Given the extreme degree of South Sudan’s state failure, such an administration is the only remaining path to protect the country’s sovereignty and territorial integrity, restore its legitimacy, and empower its citizens.

Though seemingly radical, international administrations have been previously employed to guide Cambodia, Kosovo, East Timor, and other countries out of conflict, without a greater financial investment from the United States and others than is currently being spent on the humanitarian operation and UN peacekeeping mission in South Sudan. Although each of these cases differ from one another and from South Sudan, the challenges to establishing a transitional administration can be managed through a combination of politics and force.

Article 4(h) of the AU Consultative Act permits “the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity,” a clause capturing the AU principle of “non-indifference” arising from the failure to prevent the Rwandan genocide. The AU Commission of Inquiry on South Sudan, led by former Nigerian President Olusegun Obasanjo, in fact concluded in 2014 that the killings in Juba in December 2013, which sparked the civil war, and subsequent acts, constituted war crimes and crimes against humanity. Numerous other independent, international investigations have since presented similar findings, most notably the UN Commission on Human Rights in South Sudan, which reported in March that “the targeting of civilians on the basis of their ethnic identity is unacceptable and amounts to ethnic cleansing.”

Although, as Paul Williams has noted, invocation of Article 4(h) might appear to be a direct challenge to the authority granted to the UN Security Council by the UN Charter, Article 4(h) has never been invoked, and it is likely that the African Union would not proceed with any such intervention without prior (or at least concurrent) authorization by the Security Council. Action by the Security Council and by the African Union to legally mandate the administrative and peacekeeping components of an international transitional administration in South Sudan could, however, be complementary rather than conflicting. The Security Council has long-since determined that the war in South Sudan constitutes a threat to international peace and security and has exercised Chapter VII of the UN Charter on multiple occasions in the last three years to authorize and sustain a sanctions regime as well as a peacekeeping mission.

Equally noteworthy is that the application of Article 4(h) in concert with a Security Council resolution would not require anything akin to the NATO operation for Libya authorized in 2011. Instead, the Security Council and the African Union—with leadership from key member states, including the United States—could orchestrate the establishment of a transitional administration through diplomacy, following the request of a configuration of South Sudanese religious, civil society, traditional, and political leaders, who retain more legitimacy across the population than the regime in the capital. The state’s sovereignty need no longer be held hostage—and squandered—by a morally bankrupt elite that continues to commit widespread atrocities against its own people and bears primary responsibility for the humanitarian and security crisis while exercising none of the responsibilities of a sovereign government, including preservation of the country’s territorial integrity.

When, as political scientists David Lake and Christopher Fariss have shown, the state exercises only “limited or abused sovereignty,” international trusteeship—used sparingly—can break a vicious circle in which narrow, extractive coalitions and competition for state control have led to a “vortex that pulls states down.” Lake and Fariss also conclude that in these instances, the objective is not capacity-building but limiting violence and shepherding a transition to a new, more legitimate governing order by leveling the playing field among belligerents. The effectiveness of trusteeship is, however, contingent on two factors. First, the trustee must have few, if any, interests beyond stability in the failed state. Second, the interests of the trustee and the average citizen must overlap.

It is hard to find a more clear-cut case of a predatory elite abusing a state’s sovereignty than that of South Sudan. However, formal UN trusteeship is neither applicable to UN member states, according to the UN Charter, nor necessary in this case. The Security Council and African Union have the legal authorities to authorize the components of a transitional administration, with an executive mandate, in South Sudan, and the conditions outlined by Lake and Fariss are present for such an administration with such a mandate to succeed.

The Security Council meeting on Tuesday presents an opportunity for Haley, who has already stressed the link between human rights abuses and insecurity in the council, to demonstrate U.S. resolve in confronting the crisis in South Sudan. The success of the proposal in the CFR Council Special Report will depend on getting the politics right both at the United Nations and the African Union of course. But both institutions must act quickly to end the war and salvage South Sudan’s sovereignty before there is nothing and no one left in the country to save.