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South Sudan: Hard-Hitting Report from African Union

AfricaFocus Bulletin
October 28, 2015 (151028)
(Reposted from sources cited below)

Editor's Note

"Based on its inquiry, the Commission finds that there are reasonable grounds to believe that acts of murder, rape and sexual violence, torture and other inhumane acts of comparable gravity, outrages upon personal dignity, targeting of civilian objects and protected property, as well as other abuses, have been committed by both sides to the conflict."

This AfricaFocus Bulletin contains excerpts from the introduction and executive summary of the report, which was completed a year ago but only released this month, after extensive internal consideration by the African Union. The report is published in full, with the exception of a confidential list of alleged perpetrators submitted to the AU Peace and Security Council.

Although these excerpts focus on accountability for human rights violations, the report also contains in-depth analysis and recommendations on other fundamental issues of state-building, as well as on continued engagement by the African Union, other international institutions, and Sudanese civil society and governmental institutions. In addition, there is a separate opinion by one of the commissioners, Dr. Mahmood Mamdani, with very substantive additional analysis. Your editor has not yet read the full report (315 pages) and separate opinion (60 pages), but both clearly warrant careful attention not just for their analysis of South Sudan but also for their critical approach to international peace-building initiatives more generally.

For other news on South Sudan, visit http://allafrica.com/southsudan and http://sudantribune.com/

For previous AfricaFocus Bulletins on South Sudan, visit http://www.africafocus.org/country/southsudan.php

For previous AfricaFocus Bulletins on peace and security, visit http://www.africafocus.org/intro-peace.php

++++++++++++++++++++++end editor's note+++++++++++++++++

Final Report of the African Union Commission of Inquiry on South Sudan

AU Commission of Inquiry on South Sudan

Addis Ababa, Ethiopia P. O. Box 3243 Telephone: +251 11 551 7700 / +251 11 518 25 58/ Ext 2558

Website: http://www.au.int/en/auciss

[excerpts from executive summary; full executive summary and full report available at http://www.peaceau.org/en/article/abc]

Introduction

  1. As part of its response to the crisis in South Sudan, the Peace and Security Council of the African Union (AU), at its 411th meeting held at the level of Heads of State and Government, in Banjul, The Gambia, on 30 December 2013, mandated the establishment of the Commission of Inquiry on South Sudan (AUCISS). In the said communiqué, the PSC requested: [...] the Chairperson of the Commission, in consultation with the Chairperson of the African Commission on Human and Peoples' Rights (ACHPR) and other relevant AU structures, to urgently establish a Commission to investigate the human rights violations and other abuses committed during the armed conflict in South Sudan and make recommendations on the best ways and means to ensure accountability, reconciliation and healing among all South Sudanese communities. Council requests that the abovementioned Commission submit its report to Council within a maximum period of three months.
  2. In specific terms, the AUPSC Communiqué mandates the AUCISS:
    1. To investigate the human rights violations and other abuses committed during the armed conflict in South Sudan;
    2. To investigate the causes underlying the violations;
    3. To make recommendations on the best ways and means to ensure accountability, reconciliation and healing among all South Sudanese communities with a view to deterring and preventing the occurrence of the violations in future; and
    4. To make recommendations on how to move the country forward in terms of unity, cooperation and sustainable development;
    5. To submit a report within a maximum period of three (3) months.
  3. Pursuant to the AUPSC Communiqué, the Commission adopted the Terms of Reference (ToR) detailed in the Concept Note Relating to the Establishment of the AUCISS are to:
    1. Establish the immediate and remote causes of the conflict;
    2. Investigate human rights violations and other abuses during the conflict by all parties from 15 December 2013;
    3. Establish facts and circumstances that may have led to and that amount to such violations and of any crimes that may have been perpetrated;
    4. Compile information based on these investigations and in so doing assist in identifying perpetrators of such violations and abuses with a view to ensuring accountability for those responsible;
    5. Compile information on institutions and process or lack thereof that may have aided or aggravated the conflict resulting in violations of human rights and other abuses;
    6. To examine ways on how to move the country forward in terms of unity, cooperation and sustainable development;
    7. Present a comprehensive written report on the overall situation South Sudan to the African Union Peace and Security Council within a period of three (3) months from the commencement of its activities.
    8. Make recommendations based on the investigation on the following:
      • appropriate mechanisms to prevent a recurrence of the conflict
      • mechanisms to promote national healing and cohesiveness, particularly focusing on the need for all South Sudanese communities to live together in peace;
      • modalities for nation building, specifically focused on building of a functional political order, democratic institutions and postconflict reconstruction;
      • accountability mechanisms for gross violations of human rights and other egregious abuses to ensure that those responsible for such violations are held to account.
  4. The Commission interpreted its mandate to consist of four focal areas: healing, reconciliation, accountability and institutional reforms. The Commission approached its mandate in a holistic manner, emphasizing the interrelatedness of the mandate areas.
  5. Following consultations, the Chairperson of the AU Commission formally announced the creation of the AUCISS on 7 March 2014 at the Headquarters of the African Union. The Commission is constituted as follows:

    The Chairperson:

    i) H.E. Olusegun Obasanjo, Former President of the Republic of Nigeria.

    Other members of the Commission:

    ii) Lady Justice Sophia A.B Akuffo, Judge of the Supreme Court of Ghana, President of the African Court on Human and Peoples' Rights.

    iii) Professor Mahmood Mamdani, Professor and Executive Director, Makerere Institute of Social Research, Makerere University, Kampala, Uganda, Herbert Lehman Professor of Government, Columbia University.

    iv) Ms. Bineta Diop, President, of Femmes Africa Solidarité (FAS), AU Chairperson's Special Envoy on Women, Peace and Security.

    v) Professor Pacifique Manirakiza, Professor of Law, University of Ottawa and Member, African Commission on Human and Peoples' Rights

6. The Commission was sworn in on March 12, 2014 and thereafter adopted a programme of work.

...

21. During the first three months following its constitution, the Commission conducted several missions to South Sudan and neighbouring countries during the following dates; April 16 (Khartoum), April 23-30 (Juba), May 10-15 (Kenya), May 15-18 (Uganda); May 26-June 4 (South Sudan: Juba, Bor, Bentiu and Malakal), June 5-7 (Kenya: Kakuma Refugee Camp) and Khartoum; and 20 July - 11 August (Unity, Upper Nile, Jonglei, Central Equatoria State, Western Equatoria State, Lakes State, Western Bahr el Ghazar State, Northern Bahr el Ghazal State, Warrap State and Eastern Equatoria State).

22. The Commission was granted an extension of time of 3 months by the decision of the 23rd Ordinary Session of the Assembly of the AU held in Malabo from 26 to 27 June 2014 following the presentation of its Interim Report to the Assembly of Heads of States and Government. The Commission's request for extension of time was justified by the need to conduct more extensive consultations with different sectors of South Sudanese Society in all the 10 states as well as the Diaspora (Kenya, Uganda, Switzerland, United Kingdom) and to finalize investigations. During this second phase of the Commission's work, the Commission covered the entire country between July and August in its efforts to ensure that all parts of the society - particularly those parts of the country that were not the specific theatres of violence but had been, inevitably, affected by the conflict - were given the opportunity not only to offer their perspectives on the background to the crisis but to also air their views on the way forward for the country.

...


II. Examination of Human Rights Violations and Other Abuses During the Conflict: Accountability

125. The Commission's inquiry and investigations focused not only on the key areas in the four states that have been the main theatres of violence but also extended to other places where violations could have occurred or where relevant evidence may be found. The sites of investigations included Juba and its environs, Bor (Jonglei), Bentiu (Unity), Malakal (Upper Nile), rural areas surrounding these major towns, and Kakuma refugee camp in Kenya. Time constraints precluded visits to refugee camps in Ethiopia (Gambella), Sudan, and Uganda. Site visits to alleged theatres of violence were undertaken where permitted. In particular, the Commission visited Gudele joint operation centre, Tiger Battalion barracks, Juba Teaching Hospital, New Site burial site, Giyada Military Hospital, Bor Teaching Hospital, St Andrews burial site, Bor burial site, Malakal Teaching Hospital and Malakal burial site. Forensic reviews of the stated sites were undertaken and documentation carried out. Witness or survivor injuries were also examined by the forensic doctors and forensic evidence was collected at crime scenes or incident sites.

Findings Relating to Violations of Human Rights and Other Abuses (violations IHL)

126. The Commission found cases of sexual and gender based violence committed by both parties against women. It also documented extreme cruelty exercised through mutilation of bodies, burning of bodies, draining human blood from people who had just been killed and forcing others from one ethnic community to drink the blood or eat burnt human flesh. Such claims were registered during interviews of witnesses of crimes committed in Juba. Elsewhere, witnesses of crimes committed in Bor Town, also provided evidence of brutal killings and cruel mutilations of dead bodies. In Malakal town, reports of abduction and disappearance of women from churches and the hospital where communities had sought refuge during the hostilities that began in December 2013 were rife. In Unity State, Bentiu, the capital has been the focus of much of the fighting, having changed hands several times between government and opposition soldiers during the course of the conflict. Bentiu town is largely destroyed. In Leer county, the Commission heard testimony of civilians, including children and teenagers killed, houses, farms and cattle burned, and of sexual violence.

127. Overall, the Commission found that while there was limited active conflict in all states visited, tensions remain high in the three most conflict affected states of Upper Nile, Unity and Jonglei. Many respondents talked of fear and all stakeholders and interlocutors noted a level of anxiety of an impending attack by one side or the other. Life for civilians in all three state capitals of Malakal, Bentiu and Bor has not fully returned to normal. The majority of civilians remain either in UNMISS protection of civilian sites (POCs) or in inaccessible locations in the surrounding villages and rural areas. Guarantees of security remain a great concern for civilians.

128. The Commission found that most of the atrocities were carried out against civilian populations taking no active part in the hostilities. Places of religion and hospitals were attacked, humanitarian assistance was impeded, towns pillaged and destroyed, places of protection were attacked and there was testimony of possible conscription of children under 15 years old.

129. The Commission found that unlawful killings of civilians or soldiers who were believed to be hors de combat (no longer taking part in hostilities), were committed in and around Juba. The people killed were either found during the house to house searches or captured at roadblocks.

130. The Commission found that violations of human rights and other abuses in relation to massive and indiscriminate attacks against civilians and civilian property were carried out in Bor town. Visible evidence of torched non- military objects like houses, market place, administration houses, hospital and hospitals form the basis of the Commission's conclusion that these crimes were committed. The Commission also found that civilians were targeted in Malakal, which was under the control of both parties at different times during the conflict. Serious violations were committed in Malakal Teaching Hospital through the killings of civilians and women were raped at the Malakal Catholic Church between 18th and 27th February 2014. In Bentiu the Commission heard testimony of the extremely violent nature of the rape of women and girls - that in some instances involved maiming and dismemberment of limbs. Testimony from women in UNMISS PoC Site in Unity State detailed killings, abductions, disappearances, rapes, beatings, stealing by forces and being forced to eat dead human flesh.

131. Based on its inquiry, the Commission finds that there are reasonable grounds to believe that acts of murder, rape and sexual violence, torture and other inhumane acts of comparable gravity, outrages upon personal dignity, targeting of civilian objects and protected property, as well as other abuses, have been committed by both sides to the conflict.

132. The Commission found that the context in which these violations and crimes were committed is a non-international armed conflict (NIAC) involving governmental (and allied) forces and SPLM/IO fighters.

133. The Commission's investigations as well as information received from various sources, including its consultations, leads the Commission to conclude that there are reasonable grounds to believe that serious violations of human rights have occurred and that serious violence of other abuses have also occurred, which, given the context in which they have occurred - may amount to violations of international humanitarian law.

Finding on the Crime of Genocide

134. The Commission finds that based on the information available to it, there are no reasonable grounds to believe that the crime of genocide has occurred.

135. Despite the seeming ethnic nature of the conflict in South Sudan, the Commission, during its consultations with various groups and individuals did not have any reasonable grounds to believe that the crime of genocide was committed during the conflict that broke out on December 15, 2013.

Recommendations Relating to Violations of Human Rights and Other Abuses (Violations of IHL)

136. The Commission recommends the establishment of an ad hoc African legal mechanism under the aegis of the African Union which is Africa led, Africa owned, Africa resourced with the support of the international community, particularly the United Nations to bring those who bear the greatest responsibility at the highest level to account. Such a mechanism should include South Sudanese judges and lawyers. The Commission has identified possible alleged perpetrators that might bear the greatest responsibility using the standard of 'reasonable grounds' to believe that gross violations of human rights and other abuses have occurred during the conflict (see the highly confidential list not publicly available as part of this report).

137. The Commission believes that with appropriate reforms, both military and civilian justice can and should contribute to establishing accountability. The Commission therefore recommends that immediate reforms of civilian and military justice be initiated. While it is believed that a long-term reform process of the judiciary is necessary (see section recommendations related to the judiciary above), a minimalist approach can be adopted with respect to the criminal justice system.

138. Based on the central role played by customary justice in facilitating access to justice in South Sudan, and the views expressed by South Sudanese that this institution must play a role in reconciliation at community level, the Commission recommends that an appropriate role should be fashioned for traditional justice and conflict resolution mechanisms, to be established in relationship with formal accountability processes as well as the peace and the national healing, peace and reconciliation. The Rwandan experience with Gacaca could be instructive.

139. The Commission's inquiry established that South Sudanese traditional justice mechanisms combine retributive and restorative remedies which include payment of compensation in modes acceptable by litigants, often cattle. The notion of civil accountability i.e. compensation to an individual for loss suffered, is indeed one of the key features of South Sudan's indigenous justice systems. More importantly, the moral authority and legitimacy inherent in the traditional systems, as understood and valued by the South Sudanese people has a valuable role to play in healing and reconciliation and appeasing the deeply felt grievance occasioned by violations suffered by individuals and communities.

140. The Commission therefore recommends the creation of a national reparations fund and programme linked appropriately to these traditional justice mechanisms, to benefit victims of gross human rights violations. Eligibility for reparative measures undertaken (including rehabilitation and psychosocial assistance should not be limited to the period to which the Commission's mandate relates (from December 15, 2013) but can include victims of past human rights violations. While certain elements, particularly psychosocial assistance and other appropriate forms of interim reparations should be implemented immediately the broader reparations programme can be linked to the work of a future Truth Commission.

Findings Relating to Healing and Reconciliation

141. The Commission found that the multiple conflicts and repeated violations of human rights experienced in South Sudan have wrecked relations between and among communities, and generated many victims. It also established that the policy of amnesty adopted by the government after the signing of the CPA left the past unexamined, conflicts unresolved and their impacts, partly represented in victims and survivors of human rights violations unaddressed.

142. The crisis has occasioned massive displacement of South Sudanese (a reported 1.5m). Many of those displaced have live in multiple protection sites and IDP camps around the country while others have taken refuge in neighbouring countries.

143. The Commission's consultations disclosed that many South Sudanese take the view that reconciliation is dependent upon justice, which is broader than criminal justice. The view was expressed that those who have committed atrocities should be prosecuted, and that victims and communities are unlikely to embrace reconciliation otherwise, given the culture of impunity in South Sudan. Recommendations Relating to Healing and Reconciliation

144. The Commission believes that the only sustainable solution to facilitate the return of IDPs and refugees to their homes, is dependent upon a political settlement in the ongoing mediation process. The Commission urges all actors to work towards a speedy resolution of the crisis.

145. The Commission recommends that warring parties should facilitate the movement of IDPs in and out of the camps in their respective areas of control.

146. It is the Commission's view that it is necessary to establish a structured process to provide an opportunity for South Sudanese to engage with their history, to discover the truth about the conflicts and human rights violations of the past, and to attend to the needs of victims. This is the only way to foster healing, peace and reconciliation in South Sudan, and to forge a common future. Such a body should lead to truth, remorse, forgiveness and restitution where necessary, justice and lasting reconciliation being achieved.

147. The Commission recommends that such a structured process must involve and include women as key stakeholders, and that processes and procedures operated by a future mechanism should be gendersensitive.

148. Overall, it is recommended that there is a need for a national process, however organised, to provide a forum for dialogue, inquiry and to record the multiple, often competing narratives about South Sudan's history and conflicts; to construct a common narrative around which a new South Sudan can orient its future; to uncover and document the history of victimization and to recommend appropriate responses.

149. The Commission urges all sectors of South Sudanese society and relevant regional and international actors to unite around the process of national reconciliation, which is necessary for the restoration of sustainable peace, social cohesion and stability.

150. The Commission recommends that the Truth and Reconciliation should be established in relationship with 'hybrid' mechanisms such as Wunlit with a mandate to investigate human rights violations and to drive a national peace and reconciliation process. Unlike Wunlit, such hybrid mechanism should be comprehensive, rather than localized. Such mechanisms would operate under the national mechanism, which should develop guidelines that seek to among others, align the operations of grassroots mechanisms with human rights and other identified ideals.

151. The Commission also recommends the establishment of a framework for memorialization as part of the broader process of reparations. This process should be inclusive and participatory.

On Sequencing Peace and Justice

152. The Commission's discussion of the relationship between peace and justice concluded that while they should be conceived as complementary, comparative experience shows that the two notions are often in tension, and that the context in which relevant processes unfold is critical: while some contexts allow for reconciliation processes and justice, particularly criminal justice measures to be undertaken at the same time, multiple factors in other contexts militate against such an approach. In these contexts, sequencing offers an alternative approach that responds to the imperatives of justice and the need to reconcile and establish stability in post conflict societies.

153. Having considered the specific context of South Sudan, the Commission recommends that consideration should be given to sequencing of peace and justice, with the result that certain aspects of justice allow for the establishment of basic conditions, including restoring stability in South Sudan and strengthening of relevant institutions. This should facilitate necessary reform of the criminal justice system in order to implement some of the Commission's recommendations on accountability. These necessary reforms to civilian and military justice should, in the context of broader institutional reforms, facilitate the institution of reconciliation measures.


AfricaFocus Bulletin is an independent electronic publication providing reposted commentary and analysis on African issues, with a particular focus on U.S. and international policies. AfricaFocus Bulletin is edited by William Minter.

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