By Alberto Soccol | email@example.com
In December 2017, South Sudan entered the fifth year of a brutal internal armed conflict, which has caused more than fifty thousand deaths since its inception. The conflict, which broke out following the outburst of political tension between President Kiir and Vice President Machar, has caused a catastrophic humanitarian crisis with around 7.6 million South Sudanese in need of humanitarian assistance, 6 million facing acute hunger, and about 4 million currently displaced, both internally and in neighbouring countries.
The conflict was initially localised in the capital Juba but has rapidly spread throughout the country, evolving into a series of multiple local conflicts, which mirror the societal and ethnic fractures of the country, which is composed of over 60 different ethnic groups.
Sexual violence (including rape and gang rape, sexual slavery, sexual mutilation including castration, forced pregnancy, and forced abortion) against children, women and men has been widespread since the inception of the conflict. The perpetrators are, in most cases, members of the governmental army, but are also sometimes members of the militias and of the rebel forces.
Those episodes of sexual violence constitute grave human rights violations and, being committed as part of a widespread and systematic attack against a civilian population, may also amount to crimes against humanity.
The actual number of victims of sexual and gender-based violence in South Sudan is unknown. The few available reports, however, present some extremely worrying figures.
In a report released in December 2017, UNICEF denounced hundreds of incidents of rape and sexual assault against children since the beginning of the conflict. According to a different report released by the Secretary-General on Conflict-Related Sexual Violence, the United Nations Mission in South Sudan (UNMISS) documented 577 cases of sexual-related violence taking place in 2016, showing a 32% increase in the number of incidents in the period under review (2015-2016).
Amnesty International has also recently released an extensive report on sexual and gender-related violence, based on interviews with 168 survivors and 14 witnesses. The victims of these incidents were mostly women and girls and, to a lesser extent, men and boys. There are several recurring patterns in the incidents, vividly described in the report through the words of the victims. Most of the victims stated that they were targeted because of their ethnicity. In fact, sexual violence usually occurs alongside the divide between the Dinka and the Nuer ethnic groups. Victims were also targeted due to their perceived political affiliation, although political allegiance and ethnicity are often considered complementary.
The perpetrators perceive sexual violence as a means to assert dominance over civilians of a rival ethnic group as well as as a means to degrade and humiliate victims and their ethnic communities. Gender-based violence in South Sudan is frequently met with impunity due to societal gender norms that consider women to be under men’s control and that stigmatise victims of sexual violence. Women are often discouraged from reporting violence in fear of being ostracised by their family and their community. On the other hand, men are also reluctant to speak out about the violence they experience, as they often perceive it as a process of emasculation and as a loss of their social role, leading them to face equally strong societal stigmatisation.
The path towards accountability
Since the beginning of the war, the country has been experiencing a breakdown of the rule of law. This situation gives a sense of impunity to perpetrators of sexual and gender-based crimes. In fact, the Commission on Human Rights in South Sudan stated in a report released on March 13, 2018 that there has been little to no progress in investigating and bringing to account perpetrators of human rights violations, including of sexual violence in conflict.
South Sudan’s Penal Code criminalises acts of sexual violence, including rape, abduction aimed at facilitating non-consensual sexual acts, and genital mutilation. The definitions of those crimes, however, do not conform to international standards. The definition of rape, for instance, does not include marital rape and is limited to vaginal and anal intercourse.
Furthermore, crimes against humanity and war crimes are not criminalised as such in South Sudanese law, meaning that sexual violence cannot be prosecuted in South Sudan under these crimes. Prosecution of acts of sexual violence under South Sudan’s domestic law fails therefore to reflect the scope and the gravity of the violations that are being committed during the conflict.
South Sudan has acceded to a number of international human rights treaties, and is a party to the African Charter on Human and Peoples’ Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol, the Convention on the Elimination of All Forms of Discrimination against Women and its Optional Protocol, and the Convention on the Rights of the Child. Customary norms of international human rights law are also applicable. Those conventions and customary international human rights norms entail protection from human rights violations including sexual and gender-based violence.
In addition, South Sudan is also bound by the four Geneva Conventions of 1949 and their additional protocols, as well as by customary international humanitarian law. Since many acts of sexual violence correspond to serious violations of the Geneva Conventions and customary international humanitarian law, they may also amount to war crimes.
South Sudan must therefore comply with its national and international obligations to end and prevent further cases of sexual and gender-related violence, as well as any other kind of human rights violation.
Furthermore, an Agreement on the Resolution of the Conflict was signed by the Government and the South Sudan Armed Opposition in August 2015. The Agreement foresees the establishment of a Transitional Government of National unity as well as of a Hybrid Court, a Commission of Truth and a Compensation and Reparation Authority. While a transitional government was eventually formed in April 2016, no steps have been taken towards the implementation of the transitional justice mechanisms laid down in the Agreement.
The Hybrid Court for South Sudan (HCSS) will have, according to the Agreement, the mandate “to investigate and prosecute individuals bearing the responsibility for violations of international law and/or applicable South Sudanese law, committed from 15 December 2013 through the end of the Transitional Period”. The Court will have jurisdiction over the crimes of genocide, war crimes, crimes against humanity and “other serious crimes under international law and relevant laws of the Republic of South Sudan including gender based crimes and sexual violence”.
When established, the HCSS could play a pivotal role in promoting accountability for sexual and gender-related crimes. In this regard, the landmark jurisprudence of the Special Court for Sierra Leone (SCSL) must be taken into account. Called to ensure transitional justice after a conflict in which sexual violence was widespread, the SCSL was, in fact, the first international criminal tribunal to prosecute the crime against humanity of “sexual slavery” and its innovative jurisprudence set the standards on the prosecution of gender-related crimes, as examined by Valerie Oosterveld.
The government’s reluctance in establishing the Court can be explained by the fear of prosecution of governmental actors and, as such, the attitude in Juba is unlikely to change in the near future. It is true that the UN could still enact the Agreement and establish the HCSS with a resolution adopted under Chapter VII (in fact, this is how the Special Tribunal for Lebanon was established after Beirut failed to act in a similar situation). Yet South Sudan’s lack of cooperation could hinder the prospects of achieving justice and would ultimately undermine the “hybrid” nature of the HCSS if the government refused to nominate South Sudanese judges to the Court or denied access to the country to the Court’s investigators.
It is therefore essential that the government of South Sudan sign a memorandum of understanding with the African Union to establish the Hybrid Court for South Sudan without further delay and set a deadline for the establishment of the Commission of Truth and the Compensation and Reparation Authority with a view to ensuring accountability and to restoring the rule of law in the country.
Alberto Soccol holds a Msc in International Relations, specialisation in International Law, from Sapienza University of Rome and a Postgraduate Diploma in Diplomatic Studies from SIOI – UN Association of Italy. His research interests intersect transitional justice, minority rights and environmental law.