Prosecuting sexual and gender-based crimes in South Sudan challenging but is essential for peace

Addis Ababa (5 March) – Ending impunity for conflict-related sexual and gender-based violence is the only way to end its widespread practice in South Sudan, concluded participants today at a workshop in Addis Ababa on prosecuting sexual and gender-based crimes in the country, organized by the Commission on Human Rights in South Sudan (CHRSS).

“You cannot have peace in South Sudan without justice,” said Bineta Diop, the African Union’s Special Envoy on Women, Peace and Security, at the opening session of the workshop, “Impunity remains rampant despite the signing of the Revitalized Peace Agreement. We have seen enough. We must restore the dignity of the women of South Sudan and we must stop the violence.”

“Deeply entrenched impunity is the driver for this pattern of violence in the conflict,” said Chair of the CHRSS Yasmin Sooka at the end of the two-day workshop. ”Sexual and gender-based violence is a central characteristic of the conflict in South Sudan, used on a massive scale as a tactic of warfare by all parties to sow terror.”

The Geneva-based United Nations Human Rights Council specifically mandated the CHRSS to collect evidence and investigate sexual and gender-based violence (SGBV). The CHRSS mandate is also unique in South Sudan in that it extends beyond traditional human rights fact-finding to include identifying alleged perpetrators and collecting and preserving evidence for future prosecutions, truth seeking, and reparations. The Commission’s third report to the Human Rights Council, released on February 20, 2019, concluded that the continuing levels of violence in South Sudan, including rape and other forms of sexual violence, may amount to war crimes and crimes against humanity.

Participants at the workshop in Addis Ababa, who included representatives of UN Agencies, the African Union, representatives of the Government of South Sudan and members of civil society, discussed the challenges of ensuring criminal accountability in the fragile political and security context, in particular in relation to collecting and preserving evidence for criminal prosecutions. Experts in the field outlined ways to enhance documentation and evidence collection, contributing towards the establishment of an effective prosecutorial system for future justice mechanisms, including criminal accountability for sexual and gender-based crimes.

The CHRSS has documented rapes and gang rapes, forced sexual acts, castration and mutilation of genitalia, perpetrated by all parties to the conflict.

Documenting cases for prosecution of SGBV can be particularly challenging. Many survivors do not even report their experiences because of the stigma associated with these crimes or fear of retaliation. Other difficulties in evidence-gathering include the limited police services and judicial system, a lack of systemic data collection on SGBV and an absence of support services for survivors.

Proper documentation and investigation of SGBV is critical for the success of any future criminal prosecutions and transitional justice mechanisms, at the national or international level. International tribunals have on many occasions pointed to insufficiency or inadmissibility of evidence coming from third parties, or dismissed the prosecution’s arguments intending to establish criminal responsibility for SGBV.
“While we use the same methodology and principles when collecting evidence for criminal prosecution and human rights documentation, the focus of the inquiry is narrower when collecting evidence for criminal prosecutions,” said International Crimes Prosecutor and Investigator Maxine Marcus. She told workshop participants that while human rights documentation focuses on specific violations committed by states and is concerned with attributing responsibility to states, gathering evidence for prosecutions needs a “deeper dive” to prove individual criminal responsibility. “Witnesses are the heart of the evidence in criminal prosecution for international crimes and interviews must be extensive so that witnesses can corroborate each other’s testimonies,” she added. Most of the time, when prosecuting individuals for international crimes there is little or no physical evidence, and therefore a case must often stand on witness testimonies.
Participants also noted that survivors and witnesses should be treated with utmost care – particularly in the case of SGBV – and that when expecting victims to come forward to give evidence, they must be provided with medical and psychosocial support, and that all interactions with victims should be based on the fundamental principle of “do no harm.”  Best practices are being adopted in the field, participants noted, where investigators from different organizations coordinate their work, so that victims are not interviewed multiple times, which can result in ‘interview fatigue.’

Danae van der Straten Ponthoz, a member of the Preventing Sexual Violence Initiative Team of Experts, pointed out that specialist expertise is needed to interview children. “25 per cent of the victims of sexual and gender-based violence in the South Sudan conflict are children,” she said, “The expertise needed to interact with children is different and more specific than for adults. If people do not have that expertise they must recognise their limitations in order to do no harm.”

Underlining principles of International Law, Special Advisor to the Prosecutor of the International Criminal Court, Patricia Viseur Sellers stressed that “War crimes and crimes against humanity are an attack against a civilian population. We have to understand we are talking about civilians, who are South Sudanese citizens, being attacked,” she said. “Sexual and gender-based war crimes and crimes against humanity are more than just a crime against individuals.”

Participants also discussed the context in which sexual and gender-based violence takes place in South Sudan, even when it is unrelated to the conflict, noting the prevalent inequalities in power relations and access to resources and quality education between men and women. There are also harmful traditional practices deeply rooted in some parts of South Sudan, where early child marriage is common and where practices of forced marriage and sexual slavery are common. Although such practices are unlawful under South Sudan’s law, these cases are usually referred by the Judiciary  to the traditional courts, where gender biases persist and where women are unable to access justice for the crimes perpetrated against them.

“Who is going to take rape seriously if the woman is handed over to her rapist for marriage?” queried Yasmin Sooka during the workshop. “The Government of South Sudan is a signatory to CEDAW [the Convention on the Elimination of All Forms of Discrimination against Women], which makes it very clear that such cases must not be transferred to traditional courts that apply patriarchal norms,” she added. She stressed that the Transitional Constitution of South Sudan, in particular the equality principle, overrides any custom that would violate the rights of women. Participants agreed that custom and tradition are not static and that there is a need to bring custom and tradition in line with the constitution as too often customary practices are used as a defence for crimes. The CHRSS has noted that the status of women in South Sudan and such customary practices are linked directly to the high levels of SGBV during the conflict.

South Sudanese participants expressed shock at the massive increase in SGBV since the outbreak of the conflict. While there were certainly rapes, several frustrated participants noted, that the scale of such crimes now is unimaginable. “Women used to be able to walk far into the bush to collect firewood and return home after dark without fear of rape,” noted a participant from South Sudan, “That is no longer the case.”

The overall status of women in South Sudan, agreed all participants, must be improved and they welcomed the provision of the Revitalized Peace Agreement on the Resolution of the Conflict in South Sudan, signed last September, that 35 per cent of officials within public institutions, including in the transitional justice mechanisms, must be women.

“Women need to be included in, or even leading the process of reconciliation,” said Bineta Diop, “But support for women’s groups is not there. They must be supported. Women will be an army without guns and we must invest in them for the future.”

Participants also discussed command responsibility for sexual and gender-based crimes. Proving direct perpetration is difficult in the case of international crimes, so international law gives an opportunity to hold a person in effective control of an organization liable for crimes committed by their subordinates, if they knew or had a reason to know about the violations by those subordinates and failed to prevent them. “If you do not take responsibility for the actions of those under your command,” noted Ambassador Rapp, “You are just as guilty, even if you have not touched anybody.”

The Commission has documented violations, built dossiers on perpetrators, collected evidence and is preserving it for future accountability processes. In its most recent report, the Commission has detailed three cases studies in which the incidents and events have been extensively documented taking account of those who allegedly have command responsibility for the crimes.

The names of those alleged perpetrators are contained in a confidential dossier that will be handed over to the UN High Commissioner for Human Rights in Geneva. Many of the acts identified by the Commission as war crimes or crimes against humanity, can also qualify as separate international crimes of torture under the Torture Convention–monitored by treaty bodies in Geneva. All states parties to those instruments are obliged to prosecute or extradite persons found on their territory suspected of such crimes. 

“Our activities are not about shaming any one country,” noted Yasmin Sooka. “There is no country in the world that does not experience sexual and gender-based violence. But the scale of such violence in South Sudan including conflict-related sexual violence is massive and we are here together to search for a way forward, bearing in mind that just as commanders must be held accountable for the actions of their forces, the Government of South Sudan must also take steps to end impunity for such crimes. As with commanders in the field, not doing anything means you must be held responsible.”
ENDS

The Commission on Human Rights in South Sudan was established by the Human Rights Council in March 2016 and extended in March 2017 and for a further year in March 2018, with a mandate to determine and report the facts and circumstances of, collect and preserve evidence of, and clarify responsibility for alleged gross violations and abuses of human rights and related crimes, including sexual and gender-based violence and ethnic violence, with a view to ending impunity and providing accountability.

For media queries, please contact Doune Porter, Media Advisor, at +41 79 752 0486 /chrssmedia@ohchr.org and +44 7523 832 904 or Rolando Gómez on rgomez@ohchr.org or +41 79 477 4411.

Additional information:  Joël Mermet (in Juba) + 211 (0)912 170 655 / jmermet@ohchr.org or Joseph Bonsu (in Addis Ababa) +251 984 875 005 / jbonsu@ohchr.org 

More information about the UN Commission on Human Rights in South Sudan.