Addressing the human rights situation and the need for accountability for past atrocities and on-going violations in South Sudan

To Permanent Representatives of member and observer States of the United Nations Human Rights Council

Geneva, 26 February 2016

Your Excellencies,

We, the undersigned South Sudanese and international non-governmental organisations, write to urge your delegation to address the lack of accountability for severe, widespread and ongoing violations and abuses of international human rights and humanitarian law committed in South Sudan, many of which amount to war crimes and possibly crimes against humanity, during the upcoming 31st session of the UN Human Rights Council.

The final report of the African Union Commission of Inquiry on South Sudan (AUCISS) established to investigate human rights abuses committed during South Sudan’s internal armed conflict, found that parties in the conflict had murdered, tortured, inflicted cruel, inhumane and other degrading treatment, raped and committed other sexual and gender-based crimes against civilians. It also found that parties to the conflict had forcibly conscripted children, and looted and destroyed civilian property. The report emphasised that accountability is central to building sustainable peace in South Sudan and recommended the establishment of a hybrid judicial mechanism to bring those responsible to account, among other transitional justice processes.

In August 2015, parties to the conflict signed an Agreement on the Resolution of Conflict in South Sudan (ARCSS).

The agreement provides for the formation of a Transitional Government of National Unity (TGoNU) and for national elections after three years. It also envisages broad security sector reform, the establishment of a Hybrid Court for South Sudan (HCSS) by the African Union Commission to provide accountability for crimes under international law, a Commission on Truth, Reconciliation and Healing (CTRH), a Compensation and Reparations Authority (CRA), and for a permanent constitutional development process In January 2016, the UN Mission in South Sudan Human Rights Division released a report which found that despite the August 2015 peace agreement, “[t]he scale, intensity and severity of human rights violations and abuses have increased with the continuation of the hostilities, particularly during spikes in fighting in the middle and latter part of 2015.” It also found that conflict had spread to the Equatoria region of the country, which had previously been relatively unaffected by violence. UNMISS noted the absence of any tangible domestic accountability despite the rhetoric of the main belligerents, thus reinforcing the need for international accountability measures.

The AU Commission has not yet taken any specific steps towards the creation of a hybrid court.
The government of South Sudan and the Sudan Peoples’ Liberation Movement/Army-in Opposition (SPLM/A-IO) should swiftly implement the transitional justice and accountability provisions of the August 2015 peace agreement.

The AU, UN, and partner countries should ensure swift action particularly on the envisioned hybrid court. A credible, independent hybrid court to try crimes under international law committed during the conflict and that meets internationally accepted standards of fairness and impartiality has the potential to make a critical contribution to the achievement of sustainable peace.

In June 2015, the Human Rights Council adopted resolution A/HRC/RES/29/13 calling for the deployment of an OHCHR mission to monitor and report on the situation of human rights, and setting forth indicators for the mission to assess the effectiveness of steps taken by the government, including to ensure accountability for human rights violations and abuses, inter alia by working to establish appropriate criminal justice mechanisms.
Given the still limited progress towards accountability, our organisations believe that the Human Rights Council should take meaningful action at the 31st Session to follow-up on the Office of the High Commissioner’s expert mission report, in order to contribute to providing justice to the victims of the grave human rights situation in South Sudan.
The Human Rights Council should adopt a resolution during its up-coming 31st session to:

• Condemn in the strongest terms the continuation of violations of international humanitarian law, crimes under international law which may amount to war crimes and crimes against humanity, and other serious violations and abuses of international human rights law;

• Welcome the UNMISS Human Rights Division report and encourage continued and regular public reporting;

• Establish a Special Rapporteur on South Sudan with a mandate to investigate and publicly report on violations and abuses of international human rights and humanitarian law; make recommendations for achieving effective accountability for past and on-going crimes, including through the establishment of transitional justice mechanisms; provide technical assistance for the development of transitional justice mechanisms; and work in close cooperation with other international stakeholders, including the AU, the Intergovernmental Authority of Development (IGAD), and UNMISS as well as with national and international non-governmental organizations to promote human rights and accountability;

• Request the High Commissioner for Human Rights to urgently appoint a group of experts on international justice and accountability for international crimes to coordinate and complement efforts towards accountability for human rights violations and abuses with efforts of the AU, IGAD, the UN and other actors, drawing on the work done by the AU, IGAD and UNMISS; to provide technical support for the operationalization of the Hybrid Court for South Sudan, the Commission on Truth, Reconciliation and Healing, and the Compensation and Reparations Authority; to provide technical support to domestic courts, prosecuting authorities and police to build domestic capacity for effective investigations and prosecutions; and to brief the Council orally about its preliminary findings in an interactive dialogue at its 33rd session, and to present a written report in an interactive dialogue at the Council's 34th session;

• Calls on South Sudan and other UN Member States to use the upcoming Universal Periodic Review, in November 2016, to consolidate and commit to further action to address violations and abuses of international human rights and humanitarian law, including through a robust national process involving key national stakeholders as well as other Member States.

• Call for the AU, the UN, and South Sudan to ensure concrete steps towards the establishment of a hybrid court and other transitional justice mechanisms included in the August 2015 peace agreement; and for South Sudan to ratify the Rome Statute and make an Article 12(3) declaration accepting the ICC’s retroactive jurisdiction.

• Background:

Since the beginning of South Sudan’s civil war in mid-December 2013, tens of thousands of civilians have been killed in horrific attacks, often targeted because of their ethnicity or perceived allegiances. Large parts of towns and cities, including civilian infrastructure such as clinics, hospitals, and schools, have been looted and destroyed.

According to the UN Office for the Coordination of Humanitarian Affairs (OCHA), there are over 2.3 million civilians displaced internally or to neighbouring countries as of February 2016