GENEVA, Switzerland, March 14, 2018/ — The Human Rights Council on March 13, 2018 held an interactive dialogue with the Commission on Human Rights in South Sudan.
Presenting the report, Yasmin Sooka, Chair of the Commission on Human Rights in South Sudan, drew the Council’s attention to a staggering 2.4 million children who were displaced from their homes in South Sudan. The conflict had spread to almost all of South Sudan. Ms. Sooka noted that the Peace Agreement had stipulated the need for the establishment of a Hybrid Court for South Sudan straight away by the Government through the signing of a Memorandum of Understanding with the African Union. If that did not happen, the African Union had the authority to set up a Hybrid Court, outside the country if necessary, to try alleged perpetrators for South Sudan. However, the Commission was acutely aware that a Hybrid Court could not deal with the staggering number of violations in South Sudan, and that the impunity gap should be filled by the Truth Commission which should have already been established.
Paulino Wanawilla Unango, Minister of Justice and Constitutional Affairs of South Sudan, said the report was full of repetitions and flaws. There was an improvement in the human rights situation, through national dialogue, the Technical Committee for the Establishment of Truth and Healing, and the reformation and training of officers in human rights and international and domestic law. Since 2011, over 2,000 children had been identified, screened and released from armed groups. It was not true that there was impunity – over 200 cases had already been examined for violations while on duty.
In the ensuing discussion, speakers strongly condemned the widespread violence which continued in total impunity in the last few months, which violated international humanitarian law, and which could constitute war crimes, crimes against humanity and genocide. They said the downward spiral must halt and urged the Government to establish a Truth and Reparations Commission, to speed up the other transitional justice mechanisms, and to ensure that perpetrators of crimes were brought to justice. The culture of impunity among political and military leaders could no longer be tolerated, they said. While some called on the African Union to establish the Hybrid Court outside of the territory of South Sudan, others called upon the Government of South Sudan to sign the Memorandum of Understanding on the Establishment of a Hybrid Court within South Sudan. Speakers called on the Government to ensure continued and unhindered access to humanitarian aid. Others believed that a political solution was the only way out of the South Sudan problem, and encouraged the international community to sustain its synergies in this direction and to assist with the economic and humanitarian situation in the country. They called upon all parties to genuinely implement the peace agreement.
Speaking were European Union, Germany, Denmark, Spain, Switzerland, United States, Australia, France, China, Albania, Netherlands, New Zealand, Botswana, Sudan, Eritrea, United Kingdom, Ireland, Kenya, Norway, Mozambique and Algeria.
The following civil society organizations also spoke: Human Rights Watch, Amnesty International, Article 19 – The International Centre against Censorship, East and Horn of Africa Human Rights Defenders Project, International Organization for the Elimination of All Forms of Discrimination, and Rencontre Africaine pour la defense des droits de l’homme.
The Council will next hold an interactive dialogue with the Commission of Inquiry on Burundi.
Presentation by the Chair of the Commission on Human Rights in South Sudan
YASMIN SOOKA, Chair of the Commission on Human Rights in South Sudan, drew attention to a staggering 2.4 million children who were displaced from their homes in South Sudan. They lived in makeshift settlements on empty land with grossly inadequate support. In some cases, if there was a school, 400 children could sit in a class. Overall, two million South Sudanese children were reported to be out of school, which was 72 per cent, the highest proportion anywhere in the world. If the conflict continued, only one in 13 would even finish primary school. The conflict had spread to almost all of South Sudan. As the country fractured along multiple fault lines, ethnic and political, millions had fled. They urgently needed the fighting to stop and the armed actors to abide by the Cessation of Hostilities Agreement so that they were able to go back to their ancestral villages, reclaim their homes, grow their crops and tend their cattle.
The longer communities remained dispersed, the more their traditional structures died out, their culture crumbled and the economy disintegrated. Ms. Sooka reminded that in March 2017, the Council had given the Commission an enhanced mandate – to collect and preserve evidence – with a view to sharing it with the Hybrid Court, a Truth Commission, and a reparations body agreed under the peace agreement for South Sudan. Her team had been able to visit most of the conflict-affected areas in South Sudan, as well as to see towns like Malakal, Yei, Torit and Wau, which had been emptied of their populations, and had then seen those people in refugee camps on the other side of the border. Ms. Sooka thanked the Government of South Sudan for making the visit possible and for the constructive engagement with many Government representatives, all over the country.
The Commission had collected thousands of documents and taken statements from hundreds of witnesses. That material would be invaluable to a prosecutor one day in proving command responsibility. The continuous collection and analysis of that evidence was critical to the accountability process. The Commission’s report focused on five recent emblematic incidents, established a victims’ evidence base and collected linkage evidence in what had been ground breaking work. The Commission used a “reasonable grounds” standard of proof. It had focused not only on establishing the occurrence of violations but also on identifying those bearing command and superior responsibility for them. And the opposition should note that command responsibility was not restricted to State actors alone. The Commission had identified several South Sudanese officials who might bear individual responsibility for serious violations of human rights and international crimes committed since 2013. As it was customary with United Nations reports, the Commission did not name those individuals, not least because it did not want to jeopardize any future judicial proceedings.
Part of the Commission’s mandate involved providing guidance on transitional justice. Ms. Sooka noted that the Hybrid Court for South Sudan that was stipulated in the peace agreement should be set up straight away. All that was necessary was for the Government to sign the Memorandum of Understanding. If that did not happen, the African Union had the authority to set up a Hybrid Court, outside the country if necessary, to try alleged perpetrators for South Sudan. However, the Commission was acutely aware that a Hybrid Court could not deal with the staggering number of violations in South Sudan; and that the impunity gap should be filled by the Truth Commission, which should have already been established by now. Ms. Sooka called on the Government to demonstrate its intent regarding reparations by making budgetary provisions for a Victims’ Trust Fund immediately. The timing of the Government’s National Dialogue process had been criticized by most South Sudanese who argued that any dialogue process had to be carried out in terms of Chapter V of the Peace Agreement to be credible but more than anything, the Government had to create a conducive environment for consultations, where independent journalists and critics did not have to fear for their lives if they offered a dissenting view. Criminal accountability through the hybrid court needed political will. The mandate and work of the Commission had raised the expectations of victims – they were not walking through the night to document their suffering on the off chance that there might one day be justice. They wanted the world to act now to ensure their children had a chance to be doctors, engineers and pilots.
European Union was appalled by reports of sexual violence, particularly against women and girls. South Sudan bore immediate responsibility to bring perpetrators of such crimes to justice. The European Union called for the signing with the African Union of the Memorandum of Understanding on the establishment of a Hybrid Court to deal with serious human rights violations. Germany noted South Sudan’s cooperation with the Commission. Germany called for all perpetrators of human rights violations to be held accountable and asked what judicial follow-up processes existed in South Sudan. Denmark said the scale of human suffering in South Sudan was almost beyond description. All parties to the conflict continued to undertake attacks and crimes were committed against populations that the Government claimed to protect. Access to humanitarian assistance remained restricted.
Spain condemned violations of the Cessation of Hostilities Agreement and arbitrary detentions. Spain reiterated past recommendations for Sudan to take action to ensure the protection of children in armed conflict. Nearly half of the population was in need of humanitarian assistance. Switzerland was alarmed at the serious rights violations in South Sudan that could constitute crimes against humanity. All parties to the conflict were asked to cooperate with United Nations entities to help bring an end to the crisis. United States commended the Commission’s preservation of documents that could help hold perpetrators of crimes accountable. The level of brutality documented by the Commission was appalling. The United States asked if a United Nations arms embargo could help address the crisis.
Australia expressed deep concern about the gross human rights situation in South Sudan, some of which constituted war crimes and crimes against humanity. It added that sanctions were a legitimate means of effecting change in the absence of real progress towards peace. France hailed the cooperation of the Government of South Sudan with the Commission, but voiced concern about continued human rights violations, especially those targeting children. It noted that the Government was primarily responsible for the protection of its civilians. China noted that Africans should address their own issues in the African way. A political solution was the only way to solve the crisis in South Sudan, and China called on the international community to pay special attention to the refugee problem in that country. Albania welcomed the continued cooperation of South Sudan with the United Nations human rights mechanisms, but it remained concerned about the growing number of violations in the country, some of which could amount to war crimes, crimes against humanity, and genocide.
Statement by the Concerned Country
PAULINO WANAWILLA UNANGO, Minister of Justice and Constitutional Affairs of South Sudan, noted that the report was generalized, and was full of repetitions and flaws. Two examples of those flaws were identifying the Former Detainees and the People Democratic Movement as part of non-State armed groups, and describing Mathiang Anyoor as militia. The reality was that the Former Detainees and the People Democratic Movement were political bodies without armed forces, while Mathiang Anyoor was part of the Sudan People’s Liberation Army (SPLA) and not militia. Since the last update to the Council in September 2017, the security situation in the country had continued to improve due to the engagement with communities in the peace process through the national dialogue, and the Technical Committee for the Establishment of the Commission for Truth, Reconciliation and Healing. Since the beginning of the crisis in 2013, the SPLA Child Protection Unit and the Disarmament, Demobilization and Reintegration Commission, with the support of the United Nations Children’s Fund, and the United Nations Mission in South Sudan, had identified, screened and released 2,211 children. The children recruited by different armed groups had been released after each group had reached an agreement with the Government. Mr. Unango also reminded that the SPLA Court Martial had tried 203 cases related to various offences committed by SPLA personnel, whereas SPLA senior officers had been trained in the six grave violations of child’s rights and child protection.
Netherlands was appalled by the report’s findings of gross human rights violations, some of which could amount to war crimes and crimes against humanity. The Government of South Sudan and the African Union were called on to urgently take definite steps towards the establishment of the Hybrid Court as well as to speed up the implementation of the other transitional justice elements. New Zealand said that the report highlighted the deliberate targeting of civilians based on ethnic identity, including killings, abductions, rape and sexual violence. The signing of the Cessation of Hostilities Agreement in December 2017 was welcomed, although the violations of the agreement continued. Botswana was concerned about the worsening humanitarian crisis caused by the conflict and stressed the importance of unhindered humanitarian access. The signing of the Memorandum of Understanding on the establishment of a Hybrid Court would demonstrate South Sudan’s and the African Union’s commitment to finding a lasting solution to the plight of the people.
Sudan welcomed the cooperation of South Sudan with the international community. The resolution of the conflict was encouraged through national dialogue and regional mechanisms, including the African Union and the Intergovernmental Authority on Development. United Kingdom reminded that last year the Council had struggled to comprehend the extraordinary levels of violence inflicted on civilians throughout South Sudan, and now it had worsened. South Sudan’s leaders were called on to work towards peace through the High-Level Revitalization Forum. Ireland echoed calls for the Government of South Sudan and all parties to the conflict to abide by the recent Cessation of Hostilities Agreement. What could be done to integrate psycho-social support into the design of justice and conflict resolution mechanisms and how could the international community better address that need?
Kenya commended the Government of South Sudan for facilitating the work of the Commission in its missions, stating that South Sudan presented one of the most complex environments for ensuring accountability and promoting transitional justice. The peace agreement provided for the establishment of a Hybrid Court, a Truth Commission, and a Reparations Authority, and in this direction, Kenya urged the Government to speed up the establishment of these bodies. Norway condemned the crimes and violations in South Sudan in the strongest terms, stating that the primary responsibility to protect the population lay with the Government. It encouraged the African Union to establish as soon as possible the Hybrid Court, and encouraged South Sudan to press charges through the civil court system and not through the military court alone. Mozambique called upon the international community to support the implementation of transitional justice and accountability, including setting up of an Independent Hybrid Court with the cooperation of the African Union, the United Nations and the Intergovernmental Authority on Development, as well as other measures contained in the report of the Commission on Human Rights in South Sudan. Algeria commended the cooperation of the Government of South Sudan with human rights mechanisms. It had conducted prosecutions against war crimes, genocide and crimes against humanity, through the Hybrid Court that the African Union had established. All stakeholders were called on to implement the United Nations resolutions and appealed to all parties to work together for a lasting solution to the conflict.
Human Rights Watch said its research echoed the deeply disturbing findings in the Commission’s new report. South Sudan’s civil war, now in its fifth year, had shattered the new country. Parties to the conflict had engaged in deliberate killings of civilians, destruction of civilian property, arbitrary detentions, enforced disappearances as well as widespread rape and sexual violence. Amnesty International shared the Commission’s shock and outrage over the killing, rape, abduction, detention and other human rights violations against South Sudanese civilians committed by both government and opposition forces, often based on ethnicity. It had documented numerous war crimes by all sides. The National Security Services and Military Intelligence Directorate had continued to arbitrarily arrest and detain perceived government opponents.
Article 19 – The International Centre against Censorship voiced concern about the violations of freedom of expression which had contributed to the cycle of violence in South Sudan. Impunity for attacks and murder of journalists had to be addressed. The Government had failed to provide any information about such incidents. East and Horn of Africa Human Rights Defenders Project noted that human rights defenders in South Sudan, who were struggling to document the ongoing violations, were faced with harassment, threats against their life, and reprisals. There was no mechanism to ensure accountability for what could amount to crimes against humanity; no senior officials were on trial. Without accountability there could be no lasting peace and reconciliation. International Organization for the Elimination of All Forms of Racial Discrimination stressed that the situation in South Sudan was deeply alarming, while the scale and severity of atrocities committed against civilians amounted to crimes against humanity. External influences, such as transnational oil companies, and internal factors, such as corruption in the Government, had to be seriously investigated. Rencontre Africaine pour la defense des droits de l’homme stated that the grotesque nature of widespread sexual violence against civilians and the total disregard for human life along ethnic lines in South Sudan was extremely alarming. It was evident that the South Sudanese parties did not intend to comply even with their own agreements.
ANDREW CLAPHAM, Member of the Commission on Human Rights in South Sudan, thanked the political parties which had become part of the Cessation of Hostilities Agreement. Concerning the immediate priorities of the Government of South Sudan, these were the establishment of the Hybrid Court and the prosecution of perpetrators of crimes or those who failed to prevent crimes, as well as regulating criminalization within the national legislation system of South Sudan. Member States of the United Nations and the African Union could support the Hybrid Court, and continue humanitarian assistance, while help could be provided for the Victims’ Fund. The report took into account that proceedings for crimes against humanity did not necessarily have to take place in South Sudan but could be prosecuted in countries that were signatories of the Convention against Torture. To further facilitate the work of the Commission, the right resources were needed to assist in analyzing the documents obtained. The Commission was tasked by the Council to identify crimes committed in South Sudan and it had identified crimes under South Sudanese laws, war crimes, particularly rape and pillage, and crimes against humanity, particularly rape and persecution on ethnic grounds. The question asked by South Sudanese was reiterated to the Council – what would the international community do about the suffering of the people in South Sudan?
YASMIN SOOKA, Chair of the Commission on Human Rights in South Sudan, said that concerning the matter of 72 per cent of the child population which was out of school, this was a consequence of the conflict, including displacement of teachers, destruction of schools and recruitment of children into conflict. Thus, the recruitment of children had to stop and the education system had to be rebuilt, requiring enormous resources. Additionally, interim reparations mechanisms needed to be established, reallocating funds from military spending to alleviate the consequences of conflict. The Government had established a Working Group which had not been able to do a lot, due to the national dialogue process. Many argued that national dialogue should only occur within the framework of Chapter V of the Peace Agreement and that safety and security as well as stopping of surveillance by the security services were priority issues. Research showed that the majority of people did not know what chapter V was about and were unaware of many of the transitional justice institutions. The Hybrid Court set out in Chapter V of the Peace Agreement was an African solution to an African problem, it was only missing one signature to become operational.