12 March 2019
Mr. President, Members of the Council, I have the pleasure of presenting the report of the Commission on Human Rights. I am joined by my colleagues Andrew Clapham and Barney Afako.
The Commission’s report provides an overview of the human rights situation in South Sudan in 2018, and investigated the facts and circumstances of incidents occurring between May to June 2018 in Unity State, Western Bahr el Ghazal, and Central Equatoria. In the course of its investigations, the Commission identified 23 individuals bearing command and superior responsibility under international criminal law for serious crimes. These names have been compiled in a list to be handed over by the Commission to the Office of the High Commissioner for Human Rights for the purpose of future prosecutions.
The signing of the Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan six months ago, has led to an overall improvement in terms of security and peace, bringing hope to the citizens of South Sudan. This despite the volatile situation in the Equatorias where there has been ongoing fighting in the Yei River state in Central Equatoria between forces of the government and the National Salvation Front (NAS) which has resulted in thousands of civilians being forcibly displaced. This is a significant setback for peace in South Sudan. The Commission met with many families in August 2018 who had returned to Yei hopeful that peace was coming given the negotiations taking place in Khartoum at the time. While humanitarian actors have provided aid, including food support, the violence has rendered such support utterly inadequate, given the current and expected numbers. Humanitarian access outside of Yei is severely restricted due to the ongoing fighting and constraints imposed by the warring parties.
Mr. President, the protracted conflict in South Sudan has had the most profound impact on women and girls, who have suffered sexual violence, including multiple rapes, at the hands of both government forces and opposition forces. The Commission has documented countless incidents of brutal rapes including multiple gang rapes, sexual slavery, abductions, forced marriage, forced pregnancy, forced abortion, and mutilation of sexual organs as well as killing, in South Sudan. The Commission was outraged by the testimony of many South Sudanese women who said that the risk of rape is so high in going out of the Protection of Civilians sites to forage for food and collect wood that they have had to teach their daughters how to respond to their rapists, when they are raped so as to minimize the violence.
25% of all reported cased of conflict-related sexual violence involve children according to UNICEF. In Southern Unity, between April and June 2018, girls as young as seven were raped by forces belonging to the SPLA and SPLA-IO (TD) and their associated militias. The Commission also confirmed that more than 8,000 youth were recruited by commanders who promised them that in lieu of payment, they could attack villages, loot property, including cattle, and rape and seize women and girls as sexual slaves with complete impunity. In Central Equatoria in May last year, in an attack on Emmanuel Christian College by SPLA forces of the Presidential Guard Tiger Division, several young women were gang raped and a boy of 12 was sexually assaulted before being killed.
Renewed fighting in the in the areas around Northern Liech state, has also seen a surge in rape and sexual violence between November and December 2018. In November 2018, in the Bentiu area, MSF reported that more than 125 women were deliberately targeted as they travelled to Bentiu to collect their rations and many of them suffered multiple incidents of gang rape over a 10-day period.
Mr. President, these are not random incidents of sexual violence but a systematic widespread pattern and characteristic of the conflict in South Sudan, where rape and sexual violence are used as a tactic of warfare against women and girls by all of the warring parties to sow terror and fear amongst the civilian population. No one is safe – not young boys, the elderly or the disabled, as the belligerents break every societal norm that has long held the people of South Sudan together.
To address this issue, the Commission between 4 and 5 March 2019, hosted a workshop on promoting accountability for sexual and gender based violence which brought together representatives of the African Union, UNMISS, experts on the issue and representatives of the Government of South Sudan – including from the Ministries of Gender, Justice, Foreign Affairs and Interior. The workshop also included local lawyers and NGOs from South Sudan. The Special Envoy of the African Union for Women, Peace and Security, Ms. Bineta Diop in delivering the keynote address, reminded those present that already in 2013, the African Union Commission of Enquiry on South Sudan chaired by former President Obasanjo, had confirmed the high levels of conflict-related sexual violence. She reiterated that the only way to deal with the scourge of sexual violence was to ensure that the African Union establish the Hybrid Court for South Sudan speedily.
The increase in conflict-related sexual violence since 2013 is directly linked to impunity and the lack of accountability for these crimes. The Commission’s report serves to remind this Council and Member States of the African Union that there can be no lasting peace in South Sudan without justice and accountability for the victims of these crimes. The current stalemate in the establishment of the Hybrid Court for South Sudan, and the absence of real measures taken at a national level to prosecute these crimes, is an incentive as the perpetrators know that little will be done to hold those responsible accountable.
Mr. President, the Commission notes with deep concern, the role of the National Security Agency and Military Intelligence in censoring freedom of speech and movement in South Sudan. South Sudan has become increasingly securitized resulting in an increase in arbitrary detentions, ongoing torture, executions, enforced disappearances and the refoulement of South Sudanese citizens from countries in the region. This has generated paranoia and fear in South Sudan amongst civil society who are terrified that speaking out may result in their detention, torture, or ultimately their enforced disappearance. An insider witness told the Commission about the Gorum SPLA detention facility located 15 to 20 kilometers southwest of Juba, operated mainly by the SPLA Military Intelligence Directorate. The detention facility consists of four shipping containers measuring approximately five feet by 10 feet, surrounded by a fence. The witness described being held in one of these containers for a prolonged period, during which time he witnessed many detainees die from starvation and illness for which they were not treated. Between 18 and 20 detainees were held in these containers with no access to fresh air and toilets in the cruelest and most inhumane manner. Imagine, if you can, detainees locked up throughout the day and forced to defecate into pieces of plastic or cloth that have to be hung up in the container so the prisoners can avoid sleeping with it. If this was not enough, the Commission learnt of at least two mass graves at the Gorum detention facility holding not only those who died at the facility, but also some whose bodies were transported from Juba. A former SPLA Military Intelligence officer described “Gorum is the worst detention site of military intelligence.”
Detainees spoke to the Commission about how their torture which included beatings and whippings, having one’s toe nails removed, ears cut off with scissors, incisions made with knives, razors and nails, and being burnt with plastic or wire. Torture by electrocution is routine for detainees at the NSS Blue House and Giada SPLA barracks. Electrical wires are connected to detainees’ nipples, arms and legs, shocking them until they are unable to walk and lose total control of their bodily functions including being unable to urinate, and when they did, urinating blood and also vomiting blood. The impact of the prolonged and arbitrary detention on detainees and their families has been profound as one witness told the commission:
“You can walk out of detention and find that your family is not where you left them, you no longer have a house and you don’t know how to re-start your life... your life can end up in a total mess… My life has been brought to zero. All of the resources I had accumulated are now gone… I am completely starting over with nothing. My children are not being educated...”
South Sudan is blessed with natural resources, including oil and which tragically has become a key driver of the ongoing conflict. The oil producing areas of the country in the Upper Nile region, is central to where the conflict is being waged and is increasingly militarized by Government forces. The National Security Services have expanded their stranglehold over the state-owned Nilepet oil company. There is a distinct lack of transparency in reporting on the oil dividends, which have not contributed to the GDP or the funding of any social welfare and development programmes in South Sudan. Nilepet’s operations have been characterized by a total lack of transparency and independent oversight, with oil revenues diverted into the coffers of elites without sharing any revenue with the oil producing states. It is hardly surprising that the Revitalized Peace Agreement (R-ARCSS) has called for strict adherence to transparency and accountability standards in the oil sector. Furthermore, oil revenues, and income from other natural resources such as illegal teak logging, have continued to fund the war, enabling its continuation and the resulting human rights violations. The Commission has noted in its report that those responsible for pillage and economic crimes should be held responsible for war crimes and crimes against humanity. South Sudanese activists have also urged the Commission and the AU to ensure that the Hybrid Court for South Sudan addresses such crimes.
The ongoing conflict in South Sudan has left 60 percent of the South Sudanese population severely food insecure. Statistics indicate that there are 2.2 million refugees and 1.9 million internally displaced persons. The humanitarian situation continues to be precarious and is exacerbated by the deliberate obstruction of the work of humanitarian actors. South Sudan has been ranked the most dangerous place in the world for humanitarian workers for the third consecutive year.
The Commission has reviewed the allegations of sexual exploitation and abuse by peacekeepers of the United Nations Mission in South Sudan (UNMISS). From January 2018 to 2019, seven such cases involving 18 alleged UNMISS perpetrators were registered in the UN Sexual Exploitation and Abuse Database. These cases were swiftly investigated by the UN mission, resulting in the repatriation of peacekeepers implicated in sexual activity with women in one of the Protection of Civilians sites. The Commission has nevertheless recommended that the current database, which only reflects incidents involving UN Peacekeepers, should be expanded to include personnel of implementing partners.
The Commission remains deeply concerned at the lack of progress in establishing the transitional justice mechanisms, particularly the Hybrid Court for South Sudan, the Commission for Truth, Reconciliation and Healing, and the Compensation and Reparation Authority, which were adopted in the 2015 Peace Agreement. These mechanisms are essential for dealing with the past, preventing fresh violations, ensuring accountability and constructing a cohesive society. Recognizing that the Revitalized Agreement of September 2018 has re-confirmed the commitment of the parties to the transitional justice provisions of the 2015 agreement, the Commission expects that the Revitalized Government, when established, will in partnership with the African Union and IGAD, establish these mechanisms so that the transitional justice framework can begin to contribute towards the consolidation of peace in South Sudan.
We must also underscore that victims and vulnerable communities, especially women and the internally displaced and refugees are the core stakeholders of the transitional Justice processes and must accordingly be included in the design and implementation of transitional justice mechanisms. This calls for effective and broad consultations with these key stakeholders.
In this regard, the Commission welcomes the provision in the Revitalized Peace Agreement that women must make up 35 per cent of participants at all levels in the transitional government institutions, including the transitional justice mechanisms. We urge all parties to respect and implement this important provision.
We would like to call upon the region and the wider international community to invest politically and materially in the transitional justice mechanisms in South Sudan; these are essential for building sustainable peace, as well as supporting the people of South Sudan in rebuilding all aspects of national life, especially the rule of law.
The Commission is alarmed at the number of executions that have taken place in South Sudan. In the last four weeks alone, there have been at least seven executions. There are currently 185 persons on death row in Juba alone – of whom two are juveniles. Across the country in January 2019 there were 387 people on death row. The Commission remains alarmed at the use of the death penalty by the Government of South Sudan and calls for the Government to return to its commitment from 2012 and 2014 to have a moratorium on executions.
The commission has concluded that there have been violations of human rights and international humanitarian law, including South Sudanese law, as well as violations of the African Charter on Human and Peoples’ Rights, the Convention against Torture, the Convention on the Elimination of All Forms of Discrimination against Women, and the Convention on the Rights of the Child. We welcome the Government’s commitment to become a party to the Convention on Persons with Disabilities, and on becoming a party to the Maputo protocol of the African Union on the rights of women in Africa.
The Commission also has reasonable grounds to believe that serious crimes have been committed by certain individuals. Some of the acts constitute war crimes as they are violations of international humanitarian law with a nexus to the armed conflict, some are violations of the Geneva Conventions which have been incorporated into South Sudan’s domestic law through the Geneva Conventions Act. They can be prosecuted under South Sudanese law. Those crimes may also amount to war crimes under Articles 4 and 5 of the Draft Statute of the Hybrid Court for South Sudan.
The Commission also finds reasonable grounds to believe that, in those instances, where attacks occurred as part of widespread or systematic attacks directed against the civilian population, they may amount to crimes against humanity. Where the Commission found information linking individual alleged perpetrators to specific violations or to patterns of violations that was sufficient to warrant criminal investigations or prosecutions, such information has been preserved and remains confidential in order in many cases to protect witnesses. The Commission has this year identified 23 individuals with for whom prosecutions for command or superior responsibility under international criminal law could be considered; there are a number of accompanying dossiers that link to the confidential evidence that the Commission has preserved. The list and the accompanying dossiers are preserved for the purpose of future prosecutions.
Mr. President, as you know, the Commission has not placed all of its eggs in one basket and has framed these crimes in multiple ways to allow future prosecutions to take place in jurisdictions inside and outside South Sudan that allow for the prosecution of war crimes and crimes against humanity, as well as in those states parties to the relevant treaties on torture, enforced disappearance and attacks on UN personnel, which have created jurisdiction to prosecute extraterritorial crimes. Furthermore, a number of individuals hold dual citizenship and could be prosecuted either in their state of nationality or possibly in the International Criminal Court where their other nationality is that of a state party to the Rome Statute of the International Criminal Court. Those identified may also one day be prosecuted by national authorities in South Sudan. As we report this year some prosecutions have indeed taken place. The Commission in its report has called upon the President of South Sudan and his future Vice President Dr. Riek Machar to exercise their joint obligations in ensuring that those responsible for such heinous crimes are prosecuted.
Mr. President we would like to express our appreciation to the Government of South Sudan for the cooperation and support they have extended to the Commission. The Commission was able to travel the length and breadth of South Sudan without any hindrance. The Commission would also like to thank the Governments in the East African region, Sudan, Uganda, Kenya and Ethiopia for the support given to the commission including access to South Sudanese refugees.
Mr. President, South Sudan’s challenges are immense given the protracted conflict, its ethnic dimensions and deep divisions; the inability of the population to access the economy; the lack of financial capacity and capable organizational and human resources; and what is perceived by many as a dysfunctional and predatory elite system of government; amongst others. This conflict continues to target the civilian population, including women and girls. We believe that stopping this conflict and building sustainable peace requires sustained political will and effective leadership on the part of the government, the African Union and IGAD. The implementation of the transitional justice framework set out in Chapter V of the 2015 Agreement on the Resolution of Conflict in South Sudan and reaffirmed in the Revitalized Peace Agreement, and the establishment of the Hybrid Court for South Sudan is critical in ensuring that South Sudan is enabled to deal with its past and secure long term stability and prosperity. For this it needs the support of the international community.
I thank you.
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