The African Union Commission of Inquiry on South Sudan released its 315-pages final report on Tuesday.
The Commission of Inquiry, established by the Peace and Security Council of the African Union (AU), has been investigating the human rights violations and other abuses committed during the armed conflict in South Sudan.
After a year and half investigation – and repeated extensions of its lifespan – the Commission finally released its final report this week.
Here is a section of the executive summary of the report pertaining to human rights violations and other abuses committed during the conflict.
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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.[1] 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).[2]
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.
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Footnotes:
[1] One of the members of the Commission Professor Mahmood Mamdani was of the opinion that the only and most appropriate option in relation to accountability is political accountability, which he interprets to mean that political leaders identified as a subject for formal criminal investigations should be excluded from holding office for the duration of the investigations and for the duration of any criminal proceedings arising from such investigations.
[2] The highly confidential list will be submitted directly to the Peace and Security Council of the African Union.
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