1. BACKGROUND AND POLITICAL CONTEXT

South Sudan remains embroiled in the one of the most complex and multi-faceted security situations in the East and Horn of Africa sub-region. After decades of ethno-political marginalisation, violent conflict, and gross and systematic human rights violations and abuses, in 2011 the people of Southern Sudan voted overwhelmingly to secede from the Khartoum-based government of Sudan and form an independent nation. Peace was short-lived. In December 2013, amid a larger power struggle, President Salva Kiir sacked First Vice-President Dr. Riek Machar, igniting a civil war that has killed some 400,000 people and displaced more than four million, most of whom remain internally displaced or have fled to neighbouring countries. Multiple peace agreements between the government, Sudan People’s Liberation Army In-Opposition (SPLA-IO), and other military groups have failed to meaningfully halt fighting and local insurgencies, leading to severe human rights abuses and inter-communal ethnic violence committed by all parties involved in the conflict. Regional and international mechanisms, including the AU Commission of Inquiry on South Sudan and the United Nations (UN) Commission on Human Rights in South Sudan (CoHR) established by the UN Human Rights Council (HRC), have documented the abuses and collected and preserved evidence about the perpetrators.

The Revitalised Peace Agreement for Resolution of the Conflict in the Republic of South Sudan (R-ARCSS), signed on 12 September 2018 after the breakdown of the first, 2015 Peace agreement, remains the most promising basis to improve human rights and build sustainable pea­ce in the coun­­try as it ad­dresses key issues such as governance reform, ceasefire and security arran­ge­ments, hu­ma­­ni­tarian assis­tance, resource management, and transitional justice in a com­pre­hensive manner. However, since its signing, fighting has continued in parts of the country, particularly in Yei River State, and significant humanitarian and human rights issues have remained unaddressed. Ac­cor­ding to the World Food Programme, more than 5.5 million South Sudanese could go hungry by early 2020.[2] Former warring parties remain largely operational on the ground, as the process of cantonment remains limited and lags behind the deadlines set out in the R-ARCSS. Despite repeated pledges to approve the establishment of the Hybrid Court for South Su­dan (hereafter Hybrid Court) as per Chapter V of the R-ARCSS, the gover­n­ment is yet to sign a memorandum of understanding with the Afri­can Union (AU) and enact legislation to operationalise the Court.

On 20 February 2020, President Kiir and Dr. Machar agreed to form the Re­vi­talised Tran­sitional Government of Natio­nal Unity (here­after Unity Govern­ment), with the latter reinstated as First Vice-President, and a return to 10 administrative states based on independence-era boundaries. Disagreement remains over the announcement by President Kiir of the creation of three special administrative areas, in oil-rich areas. On the same day, ahead of the 43^rd session of the HRC (24 February-20 March 2020), the CoHR released its fourth report, detailing campaigns of deliberate starvation, widescale corruption, and political competition fuelling human rights abuses and ethnic conflict. While the formation of the Unity Govern­ment on 22 February was a welcome development, the proposed creation of the abovementioned new administrative areas, completion of the process of disarmament and disassembly of forces, and fulfilment of key provisions of Chapter II of the R-ARCSS, including ultimately the formation and joint training of unified forces, and protection for senior opposition leaders, remain significant areas of contention. Disagreements over similar issues led to the break-down of the attempt, in 2016, to realise the first Peace Agreement by forming a stable unity government.

2. SUMMARY OF AVAILABLE EVIDENCE

In its March 2019 report to the Council,[3] the CoHR concluded that despite the signing of the R-ARCSS, violations, including rape and sexual and gender-based violence (SGBV), continued to occur, which may amount to crimes under international law, including war crimes and crimes ag­ainst huma­nity. Ad­di­tionally, widespread impunity for these and other crimes remained prevalent. In the address it delivered to the Council during the 42^nd ses­sion in September 2019, the CoHR highlighted a number of key issues that might “sabotage pro­g­ress towards implementation of the Agree­ment,” ele­ments that might “destabilise the peace pro­cess,” and a complex reality marked by inter-com­mu­nal violence and risk factors of further violence.

The Commission reported on­going high levels of SGBV and enforced disappearances and lamented the continued impunity enjoyed by per­petrators of grave viola­tions of inter­na­tional humanitarian law and violations and abuses of human rights. The CoHR’s fourth report, issued on 20 February 2020, expanded on the aforementioned challenges by exposing how South Sudan’s political economy, including entrenched corruption and abuse of power by officials, continued to threaten the prospect of sustainable peace.[4] The report lists deliberate starvation, continued ethnic violence, recruitment of children into armed forces, and the use of sexual violence as a weapon of war as ongoing rights violations that could amount to war crimes and crimes against humanity.

In early February 2020, DefendDefenders undertook a two-week research mission in South Sudan to ascertain the human rights situation and make concrete evidence-based policy recommendations. While this mission predated the formation of the Unity Government by one week, it revealed a grave, and in some respects deteriorating, human rights situation and an increase of attacks against HRDs and those critical of the state. While evidence obtained during this mission is in line with the findings of the CoHR’s third and fourth reports, sources expanded on several additional issues that should be considered by the HRC ahead of its 43^rdsession, as well as by regional and other stakeholders.

Based on testimony from 31 respondents,[5] this brief addresses four pressing areas of concern: (1) An overall shrinking of civic space, (2) Threats against HRDs, including human rights monitors and researchers, (3) Suppression of journalists and independent media, and (4) A serious lack of political will to implement the Hybrid Court and act upon other key aspects of the transitional justice agenda, including ensuring accountability for grave violations.

2.1. Shrinking Civic Space

A reduction in military hostilities between the government and rebel (SPLA-IO and other) forces since September 2018 has not translated into an opening of democratic and civic space at the national level. Moreover, local-scale inter-communal ethnic tensions and violence continue throughout the country, though the degree to which these are fuelled or spurred by national political interests remains a point of contention and debate among HRDs and researchers. Conflicts over livelihoods (including water, cattle and grazing land), the number of regional states and their boundaries, as well as over lack of redress for past and ongoing violence, have multiplied. It is important to acknowledge the differences between a military ceasefire, an overall fragile peace at the national level, and an enabling environment for civil society, including transitional justice and accountability actors. The latter is an essential condition for peace to be lasting and sustainable.

Impunity for violations has fuelled not only grievances, including a number of grievances that have led to retaliatory attacks and inter-communal violence at the local level, but the repetition of violations and abuses, including resumption of conflict in 2016, at the national level.

Most respondents pointed to the National Security Service (NSS) as the main, though by no means the only source, of violations. They have created an environment in which freedoms of association, peaceful assembly, expression, and participation in public affairs have been significantly curtailed. Though mainly affecting civil society organisations (CSOs) and HRDs, this has extended in turn to virtually all political opponents, government critics, and independent voices, and continued with almost complete impunity for instances and patterns of surveillance, threats, harassment, attacks, arbitrary detention, torture and ill-treatment, and enforced disappearances. Moreover, the NSS’ de facto prior authorisation regime regarding the holding of civil society events and workshops, as well as their insistence that security members attend these meetings, has all but chilled civil society activities. This has significantly curtained civil society’s ability to be active in the security and peacebuilding process (in addition to human rights), including in the areas of monitoring of respect for transitional security arrangements provisions (including cantonment of armed forces) and capacity building. This has strained relations with donors and other stakeholders in South Sudan.

HRDs interviewed for this research noted that they were working under increasing pressure from security forces to refrain from any activities that may be construed as involving accountability for violations (and thus identification of perpetrators), human rights, or criticism of the implementation of R-ARCSS provisions/failure to abide by deadlines.

Several respondents noted the important role played by civil society in peacebuilding, including  ensuring accountability and advancing transitional justice in all its dimensions (truth-telling, reparations, the full rehabilitation of survivors, building guarantees of non-recurrence, and ultimately reconciliation) and providing open forums in which citizens can air grievances and forge a collective path forward. This is especially important given the ethnic dimension of South Sudan’s conflict and political economy.

It must therefore be highlighted that an overall reduction in violent armed conflict has not led to an opening of civic space at the national level – to the contrary – increasing the possibility of a return to violence, especially at the local level. Inter-communal grievances and tensions have not been addressed by the recent announcement of the formation of a National Unity Government.

2.2. Human Rights Defenders at Risk

Issues surrounding accountability for human rights violations are central to civil society’s involvement in the peace process, fostering space for inclusive dialogue and ensuring that perpetrators are held to account. South Sudanese HRDs have engaged in efforts to monitor, and more importantly, document human rights violations and abuses both for truth-telling and with a view to prosecuting perpetrators under a future Hybrid Court or other accountability mechanisms. These documentation efforts have thus far proven invaluable to international organisations and to the work of the CoHR itself. However, as noted in a previous DefendDefenders report, there remain concerns regarding a lack of professional capacity among human rights monitors and researchers in the country, digital security, safe storage of sensitive documents, and the ability to effectively collect and preserve evidence at a level that meets evidentiary requirements for prosecution.[6]

Over the last two years, HRDs and CSOs documenting the atrocities committed during the conflict have become targets for repression, as well as those who share information with them – including victims and survivors. Human rights researchers currently describe a heightened sense of fear and apprehension in carrying out their work, as well as pessimism regarding operationalisation of the Hybrid Court in the near future. Many have been victims of arbitrary arrest and harassment by both government and opposition forces, especially by those they see as the main culprits of human rights violations and abuses in the rural areas that saw the bulk of the fighting.

In essence, human rights researchers represent a clear risk for perpetrators of violations, who have attempted to silence and obstruct their efforts. One HRD consulted for this brief recounted having to disguise documentation efforts in rural areas as peacebuilding workshops, as the NSS had sent a representative to observe the process, leading them to collect evidence discreetly from sources who feared being targeted for reprisals once the HRD left. Another noted how they immediately shared information collected with sources outside of the country via digital means, but often had difficulty doing so in a timely manner given South Sudan’s unreliable telecommunications networks, putting them at risk if security forces found them with the information.

As an unintended consequence, it appears as though United States (US) and European Union (EU) financial sanctions on key government and opposition individuals have fuelled a crackdown on those attempting to document human rights violations and preserve evidence. Several human rights researchers consulted explained how sanctions made perpetrators increasingly nervous, leading them to threaten or directly harm those seen as providing information to international CSOs, the CoHR, the Office of the UN High Commissioner for Human Rights (OHCHR), or the UN Mission in South Sudan (UNMISS) Human Rights Division.

This apparent sanction-related crackdown has caused a great deal of apprehension among HRDs, who fear keeping sensitive information on their computers or at their organisations’ premises and have become increasingly worried about their communications with sources outside the country, lest they be branded as “foreign agents.” While all human rights monitors consulted for this research agreed on the importance of their work, one interviewee doubted whether it was worth the risk to their personal safety – unless the Hybrid Court eventually used the information to prosecute perpetrators.

2.3. Stifling of Independent Media and Journalists

A vibrant independent media can use its platforms to highlight and share evidence of human rights violations with the international community. However, this is not currently the case in South Sudan. Press freedom has been significantly restricted in the country, leading to the closure of media outlets and forcing many journalists to leave the profession altogether. State-sanctioned censorship and self-censorship among media professionals are major challenges – fear of retribution also makes many sources unwilling to speak to journalists on the record.

Journalists and media professionals interviewed for this report again pointed to the NSS as the major culprit in the deliberate stifling of independent media through a system of intimidation, illegal oversight, direct censorship, and threats. Topics in the public interest such as implementation of the R-ARCSS, in particular transitional security arrangements under its Chapter II, cantonment, the number and boundaries of states, accountability, and corruption were cited as topics which journalists could not freely cover without fearing repercussions. Journalists, and more often editors, are frequently threatened by security forces, arbitrarily detained, and judicially harassed, which has led many to censor their own work or refrain from covering sensitive topics altogether, thereby engaging in self-censorship.

Additionally, journalists and press freedom advocates consulted for this research all noted that NSS agents retain a permanent presence at major printing presses in Juba, and routinely pressure editors to remove articles they deem controversial, ahead of publication.

Based on available evidence, it seems unlikely that this crackdown on independent voices will be ameliorated with the formation of a unity government. Several major news outlets, such as Radio Tamazuj, remain blocked in the country without the use of a Virtual Private Network (VPN). This limits information, for most citizens, to government-affiliated sources. It is also unlikely that a robust, professional, and free independent media will emerge in the near future, regardless of whether the new Unity Government decides to rein in security forces. Therefore, South Sudanese media platforms are not able to perform their role in exposing facts and making evidence of human rights violations and abuses available to the general public.

2.4. Future of the Hybrid Court and the Accountability Agenda

The need to operationalise the Hybrid Court remains paramount, not only in order to fully implement the R-ARCSS and build lasting peace, but also because, as previously noted, HRDs and CSOs documenting abuses are increasingly under threat and journalists who may otherwise have filled that role have been deliberately silenced. The international community, including the AU, have thus far failed to apply adequate diplomatic pressure to ensure that the Hybrid Court – which as per the R-ARCSS is intended to be a South Sudanese and African mechanism – is operationalised at the soonest possible opportunity.

Given the recent developments regarding the formation of the Unity Government, the role of regional actors, including the Intergovernmental Authority on Development (IGAD), and the international community in pushing for accountability is paramount to ensure lasting peace.

HRDs interviewed for this research were generally pessimistic about the Hybrid Court’s prospects, instead giving more focus to ad hoc community-based peacebuilding efforts, the Truth, Healing and Reconciliation Commission, and the Reparations and Compensation Authority, to be established pursuant to the Peace Agreement. However, while undoubtedly helpful mending national wounds, none of these mechanisms will have a mandate to prosecute human rights violators for crimes committed since the civil conflict began, in 2013. Only an internationally backed, regionally operationalised Hybrid Court, or another adequate justice and accountability mechanism, could do this.

Delays in the collection of evidence may result in evidence been destroyed, disappearing, or victims deliberately opting not to share their testimony out of fear for their own safety or mental wellbeing. Several actors interviewed for this research noted how, as time passed, victims and survivors and their families, or witnesses, remembered fewer and fewer details, or had died or moved away, making the collection of their testimonies increasingly difficult.

It cannot be understated that some members of the new Unity Government would likely be potential targets for prosecution under the Hybrid Court and would thus have a vested interested in seeing it permanently put on ice – all the more since the Statute of the Hybrid Court provides for the inability for any indicted individual to run for elections. Those attempting to stall the formation of the Hybrid Court are doubtless aware that delays in this process may result in lack of accountability.

In a letter published ahead of the 43^rd session of the HRC, dozens of civil society organisations called on states to urge the government of South Sudan to adopt the Statute of the Hybrid Court and sign the Memorandum of Understanding to formally establish and operationalise the Hybrid Court. They also encouraged the AU Commission to: “(a) take immediate steps, including the establishment of the Hybrid Court for South Sudan, to ensure justice for serious crimes committed, as recommended by the AU Commission of Inquiry on South Sudan and provided for in the 2015 Peace Agreement and the 2018 Revitalised Agreement; (b) inform the public about a timeline for the establishment and operationalisation of the Court, making clear that failure by the Government to sign the MoU and adopt the Statute for the Court will result in the AU unilaterally establishing an ad hoc tribunal; and (c) guarantee the transparency of the process for establishment of the Court or an ad hoc tribunal, and ensure that South Sudanese civil society actors will be consulted throughout.”[7]

Moreover, as previously noted, concerns remain over a lack of domestic capacity among human rights monitors and researchers to adequately collect evidence that meets the evidentiary requirements and standards of proof under an operationalised Hybrid Court or similar mechanism. While the efforts of CSOs and the UNMISS Human Rights Division have been commendable, they do not have the capacity or mandate that a Hybrid Court will enjoy to actively ensure accountability. The CoHR remains the most viable avenue to continue collecting, preserving, publicising, and sharing evidence with the international community, including evidence of SGBV, as per its mandate. No other mechanism is currently able to do this work.

3. CONCLUSION

Based on the available evidence, as well as testimonies collected by DefendDefenders, the renewal of the mandate of the CoHR must remain a matter of utmost priority for the international community. The formation of a Unity Government is a positive step forward, but it does not in itself guarantee human rights improvements – a sine qua non for sustainable peace.

A continued high-level of scrutiny will ensure the international community’s sustained commitment to help create and build a stable, rights-respecting South Sudan that rules out the recurrence of conflict and atrocities.