South Sudan: Reinstating Human Rights?

While the world's eyes are glued on the rapidly escalating outbreak of internecine fighting between two Generals in Sudan (the Army and the Rapid Support Forces), few are aware of the distressing human rights situation in the nascent nation of South Sudan (independence 2011 under the aegis of the UN). In an armed struggle that commenced in the 1950s, the non-Arab population of the South is estimated to have lost nearly 2 million dead due to brutal fighting, conflict-induced famine and poor healthcare. In addition, repeatedly, over four million were displaced and forced to flee into neighbouring Uganda and Congo.

However, independence did not spell out peace and harmony for the blighted people of South Sudan. Since 2018, the newly born nation was plunged into a brutal civil war, which like the current power struggle in Khartoum, was to defend the interests of two principal protagonists-the reigning president Salva Kiir Mayardit and his former deputy in the coalition government, Riek Machar. Nearly half a million South Sudanese are reported to have perished in this civil war, which continues to plague this poor but resource-rich country despite many attempts.

In a report released on South Sudan by the UN Commission on Human Rights UNHCR on April 4^th, the continued saga of heinous human rights violations-extrajudicial killings, sexual violence and child recruitment- has been documented for a global community that has little time or inclination to read it. Most worryingly, the Report cites a culture of impunity in South Sudan, identifies specific perpetrators, and calls for prosecutions. The Commission has investigated 142 individuals for crimes, including massacres, torture, abductions, detentions, plundering, burning of villages, forced displacement, and rape and sexual violence. As per the Report, each party in the civil war in South Sudan has committed "extraordinary acts of cruelty" that constitute war crimes.

Background

South Sudan has been in a state of conflict since it became an independent nation in 2011, with numerous parties to the conflict committing pervasive atrocities. Atrocities include ethnic cleansing, rape, torture, and extrajudicial executions. The human rights situation in the country has deteriorated substantially over the years, and the lack of accountability for perpetrators has exacerbated the situation. In December of 2013, South Sudanese President Salva Kiir accused his former Vice President Riek Machar of attempting a coup. The conflict escalated rapidly, resulting in pervasive violence and the displacement of millions of individuals. Government and opposition forces are accused of atrocities against civilians during the conflict.

Human Rights Watch has warned that South Sudan will remain a prisoner of its bloody past unless efforts are made to end such abuses, assure accountability and justice, and promote reconciliation. The Simon-Skjodt Centre for the Prevention of Genocide of the United States Holocaust Memorial Museum strives to advance justice and accountability in South Sudan and prevent future mass atrocities.

The 2016 massacre in the South Sudanese town of Yei, in which government soldiers purportedly murdered at least 114 civilians, including women and children, was one of the most heinous crimes committed there. The soldiers were accused of travelling door-to-door and murdering anyone they encountered, sometimes with machetes. The assault was allegedly perpetrated in retaliation for opposition attacks in the region.

Another prevalent war crime in South Sudan is rape, frequently employed as a weapon. Government and opposition forces have engaged in sexual violence against women and girls. According to a 2018 report by the United Nations Mission in South Sudan (UNMISS), sexual violence against women and girls increased dramatically during the conflict, with more than 70 per cent of women in some regions reporting sexual violence.

In South Sudan, torture and extrajudicial murders are also prevalent. Internal security is the responsibility of the National Security Service (NSS), which has been accused of arbitrarily arresting, detaining, and torturing civilians suspected of supporting the opposition. Additionally, the NSS has been accused of extrajudicial murders, including the murder of political activists and journalists.

Despite the extensive atrocities committed in South Sudan, perpetrators have not been held accountable. There is a culture of impunity for perpetrators, and the government has been accused of neglecting to investigate and prosecute those responsible for human rights violations.

Analysis

Since 2014, ICC has been investigating atrocities in South Sudan. In 2018, the International Criminal Court issued arrest warrants for former South Sudanese military leaders accused of atrocities such as rape and murder. However, the International Criminal Court's capacity to prosecute perpetrators in South Sudan is limited because the country is not a signatory to the Rome Statute, which established the court.

In addition to the ICC, there have been demands for establishing a hybrid court to try those responsible for atrocities in South Sudan. The African Union (AU) has proposed the establishment of a hybrid court with both national and international judges in South Sudan to try those culpable for war crimes and crimes against humanity. However, the establishment of such a court has been delayed as a result of disagreements between the government and the opposition regarding its mandate and jurisdiction.

In the past year, the Commission on Human Rights in South Sudan has identified 23 individuals who, under international criminal law, bear command or superior responsibility for severe crimes related to the conflict in South Sudan. Given that South Sudan is not a member of the ICC, what alternatives exist for bringing justice to South Sudan for the human rights violations documented in the UN report?

The ICC could only investigate crimes committed in South Sudan if referred by the United Nations Security Council or if South Sudan ratifies the Rome Statute. However, other mechanisms exist in South Sudan to hold perpetrators of violence accountable. In order for justice to be served in South Sudan, the country could recognize the jurisdiction of the ICC despite not being a member. However, this is unlikely given that several government members are allegedly culpable for some of the worst atrocities, and this would necessitate examining their own actions, not just those of the rebels.

The UN Security Council could also refer South Sudan's situation to the International Criminal Court, but this has historically only occurred in a handful of cases, and the United States could use its veto power to prevent this from occurring. As evidenced by the International Criminal Court's indictment of Russia, rival great powers, such as Russia, may adopt opposing positions in debates over international accountability.

Already, a third prospective route to ICC jurisdiction over South Sudan is under consideration. According to the legal theory, refugee flows from one of the court's non-member states into its member states may comprise a crime on the territory of those member states, thereby triggering the ICC's jurisdiction. This was the basis for the International Criminal Court's investigation into atrocities perpetrated in Myanmar against the Rohingya ethnic group. Similarly, attorneys for Syrian refugees in Jordan who were forced to flee the Syrian civil war are pursuing justice at the ICC.

In the South Sudan case, an international law firm and the non-profit organization Global Rights Compliance have lodged a complaint with the International Criminal Court's office of the prosecutor against seven high-ranking members of the South Sudanese government for acts of violence against civilians. Numerous contiguous African countries, including Congo, Central African Republic, Uganda, and Kenya, are members of the ICC, and because of the nature of the crime and the mass displacement of South Sudanese into Uganda, it is argued that the ICC has jurisdiction.

The ICC has not yet decided whether to accept the case. First, the prosecutor's office must determine if sufficient evidence of offences within the court's jurisdiction warrants an investigation. If the prosecutor decides to investigate, it could result in the filing of charges against those named in the Report, leading to ICC trials. It should be noted, however, that the ICC is frequently criticized for being slow and ineffectual, and even if the court were to accept the South Sudan case, it could be years before any trials occur.

In the meantime, human rights groups continue to demand accountability for the atrocities committed in South Sudan. The International Truth and Justice Project has launched a campaign urging the United States to impose targeted sanctions on those named in the UN report, including travel bans and asset freezes. The group contends that such measures could help hold individuals accountable for their actions and convey that human rights violations will not be tolerated.