In what is hoped to be a new dawn for South Sudan following a protracted and devastating civil war, President Salva Kiir and his rival Riek Machar last week formed a transitional coalition government. Coinciding with this was a new report by United Nations investigators into human rights atrocities in the country, which cautions that peace without accountability and justice is unlikely to last.
The three-member UN Commission on Human Rights in South Sudan publicised its findings on 20 February at a launch in Johannesburg. The report illustrates the magnitude of crimes and human rights violations against the South Sudanese population while political power struggles played out. Commission chair Yasmin Sooka said there was an increase of nearly 200 per cent in the number of civilian casualties in 2019 compared to 2018. Its findings, which can be viewed in an advanced edited version (accessible via the first link in this article), are damning:
- There is a lack of political will from the signatories to implement key provisions of the Revitalised Agreement on the Resolution of the Conflict in South Sudan;
- Government and opposition forces are forcibly recruiting men and children to fight
- Ethnically-based tensions have intensified;
- Sexual and gender-based violence, including rape and gang rape, sexual mutilation, forced marriage and sexualised torture, continued to be widespread;
- Deliberate starvation is occurring around political and ethnic lines, depriving hundreds of thousands of civilians of basic needs and exacerbating famine and displacement;
- There is massive corruption by senior government officials, with millions of dollars diverted from the National Revenue Authority; and
- Journalists, activists, human rights defenders and political dissidents faced clampdowns, censorships and arrest.
South Sudanese in camps for refugees and internally displaced people told the Commission that the crimes would not stop without consequences. Perpetrators have been getting away with severe violations since 2013, when fighting erupted between forces loyal to President Salva Kiir and troops supporting his then deputy turned opposition leader Riek Machar.
Sooka said that since 2017 the commission identified 112 military commanders responsible for war crimes and crimes against humanity whose names would be handed over to the relevant prosecutors when the accountability mechanisms are established.
One such mechanism is the long overdue Hybrid Court, which the government committed to in the 2015 peace agreement and the 2018 revitalised peace accord, but failed to establish.
The report blames “delay and obstruction” by the government for this, and added that domestic legislation to operationalise the court was never adopted. The Commission called on the African Union (AU) and the South Sudan government to establish the court without any further delay.
“We see a link between economic crimes and other issues, because the quest for power becomes a quest to control resources.”
The Hybrid Court is a key instrument for accountability and transitional justice in South Sudan, and experts say it is the only way of bringing an end to impunity for perpetrators. The court has broad jurisdiction over international crimes committed in South Sudan from 15 December 2013 to the end of the agreed transition period. It will hear cases related to genocide, war crimes, crimes against humanity, sexual crimes, gender-based crimes and other serious crimes under both international and South Sudanese laws.
Sooka said the commission has had to be “creative” in recommending a number of different ways to call the warring parties to account, one of which is through the International Criminal Court (ICC).
She said the commission wants to encourage other states that have domesticated the Rome Statute, such as South Africa, Uganda, Kenya, to assist with bringing cases to the ICC. Those with dual membership of countries that are members of the ICC could possibly also be charged in the Hague for war crimes in those countries, she said.
Corruption fuelling instability
The report says entrenched and systemic corruption is the greatest hindrance to peace and stability in the country. Since independence in 2011 there has been no investment in state-building and infrastructural development in the country. The prioritising of state finance for military and security apparatus for state finance over investment in public service, infrastructure and livelihoods was also a problem, the report notes.
Commission member Barney Afako said South Sudan became independent without having governance and financial accountability systems, so the country continued being run like a liberation movement.
At the same time half of the money for the oil produced here was injected into “an economy that had no systems, an economy where the leaders felt because of their contribution to the struggle [they were] entitled to spend the resources as they saw fit”. The alliances they made extended to businesses and governments who are taking advantage of the situation in the country.
“We see a link between economic crimes and other issues, because the quest for power becomes a quest to control resources,” he said. Much of the drawn-out contestation in negotiations about the number of states was about oil resources in particular, he said, “so there is a lot of work to be done in setting up [accountability] systems”.
Andrews Atta-Asamoah from the Institute for Security Studies said the siphoning of funds was difficult to address. “The idea of not getting oil money directly to the government was considered in the past, but it was a problem because of sovereignty questions,” he told the Africa Portal. So far the most effective way to address economic crimes has been through sanctioning and blocking the assets of those implicated for siphoning the funds, he said. The United States has been strong on this issue, imposing sanctions on South Sudanese businessmen and companies for corruption.
Atta-Asamoah said there had been conversations around international justice options such as the ICC before. “There is a role for the ICC to play, but it’s really about the how and the when,” he said. Getting the AU to back it could be a little difficult, as the continental body has been questioning the legitimacy and fairness of this court. Ultimately the most important thing is action “so that the actors realise that you can run, but you can’t hide,” he said. “Omar Al-Bashir’s situation is a warning that the international hand of justice may roll slowly, but it will catch up with them.”
The Commission will submit its full report to the UN Human Rights Council in March. It has recommended that the government:
- Ensures that senior officials make written declarations regarding their assets before taking up government posts;
- Work with other states to recover and repatriate proceeds from corrupt activities;
- Realign spending priorities and commit resources towards fulfilling citizens’ needs;
- Strengthen independence and capacity of the judiciary and national justice institutions;
- Comply with all obligations around international human rights law and under international humanitarian law;
- Sign, accede and ratify the relevant international treaties and instruments;
- Become a party to the Rome Statute;
- Take steps to break cycles of localised conflicts;
- Establish special courts and conduct impartial investigations to hold perpetrators to account, and compensate victims and their families;
- Promote effective disarmament, demobilisation and reintegration;
- Ensure justice for victims of gender-based violence is addressed;
- Establish a commission for truth, reconciliation and healing;
- Other countries should implement the arms embargo linked to the current conflict and exercise their jurisdiction to hold perpetrators of human rights violations to account;
- The AU and UN should encourage South Sudanese parties to resolve outstanding differences and establish the Revitalised Transitional Government of National Unity;
- The AU should make contingency preparations for establishing a hybrid court.
(Main image: Women from more than forty South Sudanese womens organisations carry placards as they march through the city to express the frustration and suffering that women and children face in Juba, South Sudan on 9 December. – Stefanie Glinski/AFP via Getty Images)
The opinions expressed in this article are those of the author(s) and do not necessarily reflect the views of SAIIA or CIGI.
