After constituting the Transitional Government of National Unity, South Sudan is facing a delicate balance between national reconciliation and the need to bring those who committed war crimes to book.

A tour of the capital Juba reveals that while the Dinka and the Nuer communities — the antagonists in the civil war — have now decides to co-exist for the sake of peace, they still eye each other with suspicion and continue to blame each other over who caused the war.

Despite the lingering bitterness and political differences, both supporters of President Salva Kiir and Vice-President Dr Riek Machar agree that it is better to pursue national reconciliation first rather than pursue those who committed war crimes which could scuttle the implementation of  the peace agreement.

However, both local and human-rights groups maintain that those who committed crimes against humanity and war crimes must be brought to book to avoid a repeat in future.

Dr Machar’s Sudan People’s Liberation Movement in Opposition (SPLM-IO) had accused government forces of slaughtering members of the Nuer ethnic group in Juba soon after the outbreak of war in December 2013, while the Dinka also lost hundreds of their members in Bor in 2014 when rebels targeted them for revenge attacks. 

Dr Barnabas Marial Benjamin, the former minister for foreign affairs, said that it is better to emphasise national healing and reconciliation before the country can think of accountability.

“Once society is reconciled and the people accept their mistakes, then it is possible to bring about the process of accountability. Otherwise to place accountability before reconciliation is likely to be divisive at this delicate moment,” said Dr Benjamin. 

In an interview with The EastAfrican in Nairobi, Dr Machar maintained that those who committed human rights violations will have to carry their own cross, but added that priority should be given to national healing and reconciliation.

Various UN reports and the African Union Commission of Inquiry on South Sudan that was led by former Nigerian president Olusegun Obasanjo, had accused both sides of targeted mass killings, rape and other atrocities against civilians. Senior commanders in the government and former rebels were listed as having committed atrocities during the war.

Alfred Taban, a veteran journalist with the Juba Monitor, said that despite the agreement that national reconciliation is more important than accountability, people who lost their family members in both Juba and Bor want justice.

Mr Taban argued that both the AU and the Intergovernmental Authority on Development (Igad) are more concerned with achieving peace for the sake of their reputations and have pushed the issue of justice to the back burner.

The August 2015 peace agreement had provided that the AU Commission establish a hybrid court for South Sudan to investigate and prosecute individuals bearing the responsibility for violations of international law committed from December 15, 2013 through the end of the transitional period in 30 months.

“A person who planned, instigated, ordered, committed, aided and abetted, conspired or participated in a joint criminal enterprise in the planning, preparation or execution of a crime shall be individually responsible for the crime,” states Chapter 5 of the peace agreement that deals with  transitional justice.

The chapter also empowers the hybrid court (to be formed) to order the forfeiture of the property, proceeds and any assets acquired unlawfully or by criminal conduct, and their return to their rightful owners or to the state of South Sudan.

It also provides for Compensation and Reparations Fund (CRF) to provide material and financial support to citizens whose property was destroyed by the conflict to help them to rebuild their livelihoods according to the criteria that will be established by the transitional government.

Edmond Yakani, executive director of the South Sudan Community Empowerment for Progress Organisation (CEPO), told The EastAfrican that the hybrid court is non-negotiable because it is the only tool that will ensure lasting reconciliation among the South Sudanese communities.

“The demand for accountability and justice among South Sudanese is high. Downplaying the importance of the hybrid court is a big mistake that can promote revenge attacks. It will enable the common citizens to benefit from compensation, reparation and healing, as well as creating a precedent that future atrocities will be punished,” said Mr Yakani.

Elizabeth Deng, a South Sudan researcher with Amnesty International, is also of the view that both sides had signed the peace agreement well aware of the hybrid court and it is the only mechanism that will deal with impunity.