Commission on Human Rights in South Sudan: Statement to the media, Nairobi / Geneva delivered by Commission Chair Yasmin Sooka in Nairobi and Commission Member Andrew Clapham in Geneva

20 February 2019

Good Morning/Afternoon, Ladies and Gentlemen and thank you for joining us today as we launch the third Report of the Commission on Human Rights in South Sudan. The report is being launched today in both Nairobi and Geneva. It will be officially presented to the 40th session of the UN Human Rights Council in Geneva on March 12.

The Commission on Human Rights in South Sudan was established by the Human Rights Council in March 2016 to monitor and report on the human rights situation in the country and to make recommendations to improve it. This includes collecting and preserving evidence of – and clarifying 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. Critical evidence collected by the Commission is being preserved in order to contribute towards a factual basis for transitional justice mechanisms and reconciliation. The mandate of the Commission was originally for one year, but it has been extended twice – for another year in March 2017 and again in March 2018.

The Commission is independent and is mandated to engage with the Government of South Sudan, international and regional mechanisms, including the United Nations, the UN Mission in South Sudan, the African Union, the Intergovernmental Authority on Development and civil society, among others, so that it can provide support to national, regional and international efforts to promote accountability for human rights violations and abuses.

The Commission is also mandated to make recommendations on technical assistance and capacity-building, including to law enforcement institutions, on the promotion and protection of human rights and fundamental freedoms, including on addressing sexual and gender-based violence.

The report we are launching today provides an overview of the human rights situation in South Sudan, with an update on critical developments and incidents that took place in 2018, on which we have collected and preserved evidence. But before I come to our conclusions and recommendations, I would like to thank the Government of South Sudan for the cooperation extended to the Commission since it was established and for the support given to our staff on the ground. We would also like to thank the governments of Kenya, Uganda, Sudan and Ethiopia who have assisted the Commission members and staff particularly with regard to our visits to refugee settlements in those countries. Support from South Sudan’s neighbours has been crucial for the work of the Commission – and such support will be vital for South Sudan itself as it addresses the many challenges it faces and will continue to face in the future. We would also like to thank the United Nations Mission in South Sudan for its support of the Commission on the ground.

The Commission has received reports this week of the ongoing fighting in the Yei River Area in Central Equatoria between forces of the government and National Salvation Front(NAS). It is outraged by reports of thousands of civilians forcibly displaced following a scorched earth policy in which the parties to the conflict are attacking villages, torching homes, killing civilians and also raping women and girls. UNHCR estimates that more than 5,000 refugees have arrived in border villages near Ingbokolo, in the Ituri province in the Democratic Republic of the Congo. In addition, large numbers of internally displaced persons (IDPs) have taken refuge in Yei Town where authorities report the registration of 6,000 IDPs, with a further 8,000 around Yei. UNHCR anticipates that they may have to plan for up to 20,000 IDPs in the Yei river area alone. What is shocking for the Commission is that in August 2018 we met with families who 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, this is completely inadequate given the current and expected numbers. Humanitarian access outside of Yei is severely restricted due to the ongoing fighting the constraints imposed by the warring parties.

While the situation in the rest of the country is more hopeful with the signing of the Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan five months ago, the situation in the Equatorias is extremely volatile. Our report concludes that, human rights violations, including rape and sexual violence continue  and may amount to war crimes. We urge the Government of South Sudan – and for the region and the wider international community – to take urgent steps to implement the resolutions of the Revitalized Agreement without delay and to push to silence the guns completely. The people of South Sudan deserve a chance to build their lives in peace and security.

In December 2017 we updated the Human Rights Council on the magnitude of the crimes of rape and sexual violence being perpetrated in South Sudan. Unfortunately, more than a year later, we are not able to say that the situation has improved. In actual fact it has markedly worsened as cases documented by the Commission show a surge in rapes between November and December 2018 particularly in the areas around Bentiu, Nhialdiu and Guit, in Northern Liech state.  In the Bentiu area, in December 2018, more than 125 women experienced multiple incidents of gang rape over a 10-day period. The Commission has numerous accounts which confirms the pattern of how the belligerents went in to attack villages, plundering homes, stealing cattle, taking women as sexual slaves and then setting homes alight often with people in them.

Documenting incidents of rapes, gang rapes, sexual mutilation, abductions and sexual slavery, as well as killings has become quite normalized in South Sudan. UNICEF reports that 25 per cent of those targeted are children including the rapes of girls as young as 7. Elderly and pregnant women have also been raped.

The Commission also received reports of male victims of sexual violence. Sexual and gender-based violence against men and boys is even more underreported than that against women and girls as there is a greater level of stigma. Reports include incidents of castration and sexual mutilation – including one such attack on a 12-year-old boy. Our report also highlights the nexus between patriarchy and sexual and gender-based violence in South Sudan. There is no doubt that these crimes are persistent because impunity is so entrenched in South Sudan that every kind of norm is broken even raping and killing the young and the elderly.

The Commission documented in one of its case studies on Leer, how more than 8000 young men were recruited to fight in Leer in Southern Unity state with the words: “you go and get cattle from Mayendit, also abduct and rape beautiful women you find here, loot their properties”. These young men were also told that this was the perfect time to seek revenge for relatives they had lost in the conflict and that they would never have another opportunity like this. Where almost every single family has lost a loved one, one can only imagine the impact.

The Commission has also looked at the allegations of sexual exploitation and abuse by UN peacekeepers. Between January 2018 to 2019, seven cases of sexual exploitation and abuse involving 18 alleged UNMISS perpetrators were registered in the UN Sexual Exploitation and Abuse Database. These cases were swiftly investigated by the UM Peacekeeping mission in South Sudan which resulted in the repatriation of members of the Ghanaian Formed Police Unit who were implicated in sexual activity with women at the Protection of Civilians site in Wau. The Commission has however recommended that the current database, which only reflects incidents involving UN Peacekeepers, should be expanded to include personnel of implementing partners.

The Commission is alarmed at the number of executions that have taken place in South Sudan. In the last two weeks alone, there have been seven executions. There are currently 185 persons on death row in Juba alone – of which two are juveniles. The Commission remains concerned at the use of the death penalty by the Government of South Sudan and calls for a moratorium on executions.

Most conflicts in the world today are linked to the political economy which is certainly true for South Sudan. Even before the country’s independence, there were concerns about the appropriation of natural resources, particularly oil, and the significant role this has played in the conflict. The fighting continues in the oil producing areas of the country, which has become increasingly militarized by Government forces. The National Security Services, in particular, have been expanding their involvement in the oil sector, including through their control over the state-owned Nilepet oil company. Nilepet’s operations have been characterized by a total lack of transparency and independent oversight. It has diverted oil revenues which should be shared with states into the coffers of elites in the government. It’s not so surprising therefore that the Revitalized Agreement(R-ARCSS) calls 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.  Prosecutions for such unlawful conduct should include pillage and economic crimes. South Sudanese activists have also urged the Commission and the AU to ensure that the mandate of the Hybrid Court for South Sudan incorporates such crimes.

A key element in our report is that sustainable peace requires a tangible and credible pursuit of accountability and justice that meets the needs of the many thousands of victims. The lack of accountability for decades of violence during the struggle for independence helped to fuel the current conflict in South Sudan.

We acknowledge the efforts of the Government to hold some perpetrators accountable for gross violations of human rights and serious violations of international humanitarian law. While the trial and conviction of SPLA soldiers in the Terrain Hotel case was commendable, pervasive impunity remains the norm.

The Commission has long been concerned about 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. We note that the Revitalized Agreement has reaffirmed the need for these institutions, and we fully expect that concerted efforts will be made by the Revitalized Government, the African Union and Regional Governments to ensure that these bodies are set up and contribute to the consolidation of peace in South Sudan.

We must underline that in this process, victims and vulnerable communities, especially women and those internally displaced and refugees, are core stakeholders, who must be included in the design and implementation of Transitional Justice mechanisms. We welcome 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, and urge all parties to respect and implement this important provision.

We also call again on the region and wider international community to invest, politically and materially, in these transitional justice mechanisms, 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 remains concerned by the removal and transfer  of James Gatdet Dak by Kenyan security forces into the custody of the South Sudanese National Security Services. This is in violation of the Convention Relating to the Status of Refugees which prohibits any State Party from expelling or returning a refugee in any manner whatsoever to the frontiers of territories where their life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group, or political opinion. This prohibition against return is also established in the AU Convention Governing Specific Aspects of Refugee Problems in Africa. Kenya is a party to both these conventions.

Finally, I would like to remind you that the Mandate of this Commission includes the collection and preservation of evidence. The Commission has continued to document violations, collect evidence and preserve it for future accountability processes.

In this course of this process, the Commission has also continued to build dossiers on perpetrators. The Commission in this report details three case studies in which the incidents and events have been extensively documented taking account of those who have command responsibility for the crimes. The names of alleged perpetrates are contained in a confidential dossier which will be handed over to the UN High Commissioner for Human Rights in Geneva. The acts described as war crimes in our report are also human rights crimes under the Torture Convention and the Convention on Enforced Disappearances – both monitored in Geneva. All states parties to those instruments are obliged to prosecute or extradite persons found on their territory suspected of such crimes. 

The evidence that the Commission has collected and preserved will be available to the prosecutor of the future Hybrid Court and other transitional justice mechanisms. The use of this evidence is not restricted to South Sudan bodies and may be available on request to regional and state parties for the purposes of future prosecutions and vetting and screening processes, among others. However, the conditions relating to the protection of witnesses and due process guarantees must be met.

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 organisational and human resources; and what is perceived to be a dysfunctional and predatory elite system of government.

We urge the Government of South Sudan and all parties to the conflict urgently to respect the cessation of hostilities and implement the revitalized peace agreement, including the crucially important mechanisms to secure accountability and justice and putting an end to impunity.

With sustained political will and effective leadership, the transitional justice framework and mechanisms can help to bring accountability, reconciliation and healing as South Sudanese deal with the past and secure their stability and prosperity.

ENDS