Background
The Republic of South Sudan declared independence from the Republic of the Sudan in 2011. Prior to its independence, South Sudan fought two wars against the Khartoum government in Sudan from 1955 to 1972 and from 1983 to 2005, which resulted in the deaths of at least 1.5 million and the displacement of over four million people. The second war ended with the Comprehensive Peace Agreement (CPA) between the government and the Sudan People’s Liberation Movement (SPLM), with South Sudan eventually gaining independence through a referendum in which 98 percent of the population voted in favour of independence.
The CPA included “wealth sharing” provisions designed to encourage equitable sharing of South Sudan’s oil reserves and Khartoum’s refining capacity, as well as access to seaports, through the creation of the independent National Petroleum Commission. South Sudan’s oil-producing states were entitled to 2 percent of oil revenues, while the national governments of South Sudan and Sudan were entitled to an even split of the remaining revenues.
Upon South Sudan’s independence, the negotiated border between Sudan and South Sudan was in principle based on the boundaries that existed at the time of Sudan’s independence from the United Kingdom and Egypt in 1956. Under this arrangement, oil-rich Abyei State, a territory straddling Sudan and South Sudan, would be left to Khartoum. However, South Sudan refused to accept the exclusion of Abyei by pointing to colonial rearrangements of the territory in 1905. Under the provisions of the CPA, citizens of Abyei were granted the right to retain “special administration status” rather than becoming a Sudanese state, while South Sudan was entitled to 42 percent of oil revenues. The CPA also established a Boundaries Commission to define the borders of Abyei, while a referendum was to be held to determine its final legal status.
The Boundaries Commission consisted of five representatives from the Sudanese government, five from SPLM, and five international experts.Within three months after its inauguration, the commission submitted its pre-term report, which was rejected by the Sudanese government due to its not accepting the 1905 boundary that wholly placed Abyei in North Sudan.Violence broke out between SPLM forces and the Arabic-speaking Misseriya tribesmen, resulting in dozens of deaths and the displacement of tens of thousands.
The United Nations condemned Sudan’s heavy use of artillery and aerial bombardment, while also condemning a suspected SPLM attack on a mixed Sudanese–United Nations Mission in Sudan (UNMIS) convoy. In June 2011, the Sudanese government and South Sudan Peoples’ Defence Forces (formerly the Sudan Peoples’ Liberation Army, or SPLA) reached a temporary agreement that established the Abyei Area Administration, headed by a chief administrator from SPLM approved by the Sudanese government, and a government-appointed deputy chief administrator approved by SPLM. In October 2022, Sudan and South Sudan agreed to strengthen cooperation to resolve the final status of Abyei.[1]
Jonglei is another state in South Sudan that witnessed serious violence during the conflicts in the country. Along with being South Sudan’s most populous state, it is one of the most ethnically diverse, and has significant minority communities of Arabic-speaking tribes, particularly through the policies of the previous Sudanese “Salvation Government.” Jonglei is also home to the long-feuding Murle, Nuer and Dinka tribes, which have clashed over scarce grazing land and water sources. The then SPLA, in an attempt to establish control over the area and ward off violence in neighbouring South Kordofan and Blue Nile states, occupied towns and villages across Jonglei. The SPLA was accused of committing abuses that displaced more than 100,000 people.[2]
Soon after its independence from Sudan, South Sudan was thrust into a civil war in December 2013, when President Salva Kiir accused former Vice President Riek Machar of plotting a coup against him. Over the course of this conflict, thousands were killed and thousands more fled the country.[3] Failed peace talks resulted in more than one million South Sudanese being displaced by April 2014. Fighting continued, as did attempts at peace talks. In April 2016, Machar was reinstated as vice president of a new unity government, but was fired three months later and returned into exile.
In December 2016, the United Nations Commission for Human Rights in South Sudan announced that ethnic cleansing was underway in certain parts of South Sudan, which Kiir denied. Peace talks resumed in May 2017 when Kiir announced a ceasefire. In August 2018, the president signed a power-sharing agreement with Machar and other groups involved in the civil war. However, violence against women and girls continued during this time, with the United Nations reporting at least 134 cases of rape or gang rape and 41 other cases of gender-based violence between September and December 2018 in the South Sudanese state of Unity alone.[4]
In February 2020, Machar was again sworn in as first vice president, in a Revitalised Transitional Government of National Unity (RTGoNU) headed by Kiir as president, together with four other vice presidents. In September 2018, the government and warring factions signed a Revitalised Agreement for the Resolution of the Conflict in South Sudan (R-ARCSS), which also mandated the RTGoNU to implement the terms of the R-ARCSS. Under the R-ARCSS, the government was required to conduct a general election in early 2023. But due to several genuine challenges, the implementation of the R-ARCSS became impossible and, in August 2022, the parties again signed a roadmap extending the RTGoNU by 24 months, starting from 22 February 2023.[5]
According to the roadmap, a general election is expected to be held in December 2024. However, beyond the tenuous peace and the fledgling unity government, South Sudan continues to grapple with widespread famine and food shortages occasioned by the impacts of climate change and conflict. The state of human rights remains an issue for serious concern, with sporadic cases of violence and attacks especially on indigenous communities across the country.
Although Chapter V of the R-ARCSS spells out elaborate transitional justice mechanisms to be established to address the legacies of the conflicts, both the government and international actors appear to be prioritising building functional state institutions as opposed to transitional justice mechanisms. Regarding the South Sudanese justice system, most initiatives appear to be capacity-building projects designed to strengthen the rule of law following the civil war. However, the country has carried out a few processes in an attempt to address some of its violent past.
Domestic Trials
Immediately after the 2013 South Sudanese conflicts, there were some notable prosecutions of SPLA soldiers by military tribunals, particularly regarding the then ongoing government operations in Jonglei. Military tribunals convicted five soldiers out of about 30 arrested in connection with serious crimes committed in Jonglei. The tribunal found the soldiers guilty of murdering civilians. Others were convicted of rape, while 24 were found guilty of “unprofessional conduct,” including intoxication while on duty, and were discharged. This proceeding was the first time the SPLA prosecuted its own soldiers for rape and murder.[6] In 2018, a military tribunal convicted 10 government soldiers for raping and killing a journalist and raping aid workers. Observers believe that this is the only notable trial of its kind which met public expectations in South Sudan, and they attribute its success to international pressure.[7]
Beyond military trials, the government of South Sudan promised to ensure accountability through regular judicial mechanisms, but this is yet to be carried out. Some challenges include the lack of independence from political interference of both military and regular judicial mechanisms and an apparent lack of political will on the part of the government, especially given the sensitive ethnic dimension of the conflicts in South Sudan. In addition, Many of the actors who committed violations are still in government, in Kiir’s and Machar’s factions. Such actors have historically received blanket amnesties. For example, in 2014, a committee set up by Kiir to investigate human rights violations by soldiers following a clash in Juba released a report that was never made public, following which the president granted a blanket amnesty to all the soldiers implicated in the clash.[8]
National Dialogue of South Sudan
Given the low security and political instability in the country, Kiir in December 2016 called for a National Dialogue to address these problems and discuss the way forward for the country. Consultations for the dialogue began in November 2017. The fact that most of the representatives in the dialogue were appointed by Kiir became a cause for concern, with critics doubting the credibility of the process.
Despite these criticisms, the National Dialogue committee held more than 200 grassroots consultations and three regional conferences comprising 700 delegates, and even carried out consultations with refugee groups outside the country.[9] The committee undertook consultations with rural community leaders, farmers, women’s groups, youths and religious leaders. At the end of four years, there was a conference of more than 520 representatives from all counties and interests. In fact, the National Dialogue has been praised for a level of civic engagement exceeding any other consultation in the nation’s history.
The National Dialogue committee released its final report in November 2020, with far-reaching recommendations. These include the establishment of a unified national army; restructuring of state structures; the development of a national framework for diversity management; reforms in resource allocation and sharing; the development of an inclusive national development strategy; and the adoption of a framework for national peace, healing and reconciliation.[10]
Commission for Truth, Reconciliation and Healing, the Hybrid Court for South Sudan and the Compensation and Reparation Authority
Chapter V of the R-ARCSS established three main transitional justice mechanisms, which have not yet been operationalised. These are the Commission for Truth, Reconciliation and Healing (CTRH), the Hybrid Court for South Sudan (HCSS) and the Compensation and Reparation Authority (CRA).
The CTRH is mandated to inquire into all aspects of human rights violations, excessive abuse of power by state agents, and other violations against all persons in South Sudan by the state, state agents and/or their allies. Its mandate includes establishing an accurate and impartial historical documentation of human rights abuses; determining victim redress; identifying perpetrators of human rights violations; making recommendation on legal and institutional reforms to guarantee non-recurrence of violations and excessive abuse of power.[11]
The HCSS, meanwhile, is an independent hybrid judicial mechanism with the mandate to investigate and prosecute individuals who violated international law or were otherwise complicit in crimes committed during the conflicts in the country.[12] The African Union Commission is to see to the operationalisation of the court through the provision of guidelines concerning its seat, infrastructure, funding, applicable jurisprudence, enforcement mechanisms, composition, and number of judges, who are to be drawn from any African country apart from South Sudan. The HCSS is distinct from the national courts of South Sudan, with jurisdiction to entertain complaints concerning genocide, crimes against humanity, war crimes and other crimes under international and domestic laws, including gender-based crimes and sexual violence.
And the CRA has the mandate to provide material and financial support to South Sudanese whose properties were destroyed in the conflicts, and help them rebuild their livelihoods in accordance with guidelines and criteria to be defined by the RTGoNU.[13] Beyond its post-conflict reconstruction mandate, the CRA is mandated to receive applications for and grant reparations.[14] Its composition is to be drawn from the parties to the R-ARCSS, representatives of civil society organisations, women’s groups, faith-based leaders, the business community and traditional leaders.
As noted, none of these mechanisms has been operationalised. Continuing tensions from the humanitarian crisis occasioned by years of conflict, deeply factionalised armed forces loyal to different parties to the conflict, and a fragile economy remain serious threats to the possibility of a holistic transitional justice process. Observers have expressed concerns that the atmosphere in the country is too fragile for a process that may reignite longstanding tensions.[15] With the delay in graduating the Unified National Army as recommended in the National Dialogue and other institutional reforms recommended in the R-ARCSS, the implementation of transitional justice in the country remains at risk.
Gender
Throughout the conflicts, gender-based and sexual violence, particularly against women and girls, was prevalent and deployed by all parties. Sexual violence has also been prevalent in relative peacetime. For example, after the R-ARCSS was signed, the United Nations found a surge in cases of sexual violence between September and December 2018, committed by armed groups against civilian women and girls. Since 2005, studies conducted by Sudanese women’s groups and international organisations have found a significant rise in levels of domestic violence, marital and non-marital rape, and economic deprivation and beating of women.
Before the 2015 peace agreement was revised as the R-ARCSS in 2018, the mandate of the Hybrid Court included sexual and gender-based violence. Such violence was also part of the list of prohibited actions by the parties. Now, the mandate of the CTRH and its preceding agreement contain only general language surrounding human rights violations against women. Though provisions for gender are made in the R-ARCSS, they mainly take the form of quotas for the mechanisms established under the agreement. In the meantime, victims of gender-based and sexual violations continue to bear the consequences of their experiences with little support. The most pressing obstacles are lack of access to healthcare and the stigmatisation of victims due to cultural and religious stereotypes. Aid for victims of gender-based and sexual violence remains limited, as transitional justice mechanisms in South Sudan fail to launch.[16]
International Actors
The United Nations Mission in South Sudan (UNMISS) was established after South Sudan gained its independence in July 2011 and has been involved in peacekeeping and development processes ever since. The first post-independence mandate for UNMISS was to facilitate “open forums for both government constituencies and civil society where they can discuss transitional justice and the reconciliation process in Sudan.”[17] UNMISS’ rule of law initiative also prepared an analysis paper on possible transitional justice mechanisms suitable for South Sudan, which it made available to government authorities for future implementation. Since 2014, UNMISS has focused on “protection of civilians, human rights monitoring, and support,” particularly with regards to the unity government and the overall cessation of hostilities.
Other prominent international actors involved in the establishment of transitional justice mechanisms in South Sudan include the Intergovernmental Authority on Development (IGAD) in Eastern Africa and the African Union (AU). IGAD has been involved in South Sudanese development processes since 1996. After the 2013 conflict, IGAD mobilised to re-establish stability by leading peace talks in 2014 between the parties, with a focus on ending the hostilities in order to begin negotiations. Due to the complicated geopolitical environment, the official peace process expanded to include other actors, including the AU. The added pressure from the AU eventually pushed the parties to sign the first ARCSS peace agreement in August 2015.
A large part of the AU’s involvement included the establishment of a commission of inquiry to investigate violations of human rights committed in South Sudan during the conflict. The 2014 final report of the commission made a number of findings and recommendations in the context of institution building, governance, national security, financial management, the justice system, political parties, civil society and the media, accountability for human rights abuses, healing and reconciliation, and the sequencing of peace and justice.
More recently, in the R-ARCSS, the AU was incorporated into a number of important provisions, including but not limited to AU members being required to nominate five members of the Independent Boundaries Commission; the Referendum Commission on Number and Boundaries of States being under the direct supervision of the AU and IGAD; and the National Elections Commission being expressly permitted to request assistance from the AU in a number of areas including procedures and institutional capacities. Furthermore, the RTGoNU committed to “fully cooperate” with the AU in the implementation of transitional justice mechanisms across the board, although little progress has occurred since.
[1] “Sudan, South Sudan Agree to Cooperate on Final Abyei Status,” Sudan Tribune, October 25, 2022, https://sudantribune.com/article265866/
[2] Yuki Yoshida, “Interethnic Conflict in Jonglei State, South Sudan: Emerging Ethnic Hatred between the Lou Nuer and the Murle,” Accord, https://www.accord.org.za/ajcr-issues/interethnic-conflict-in-jonglei-state-
[3] “South Sudanese Civil War (2013 -),” Black Past, https://www.blackpast.org/global-african-history/south-sudanese-civil-war-2013/
[4] “Conflict-Related Sexual Violence in Northern Unity States: September-December 2018,” United Nations Office of the High Commissioner of Human Rights, 2019, https://www.ohchr.org/sites/default/files/Documents/Countries/SS/UNMISS_OHCHR_report_CRSV_northern_Unity_SouthSudan.pdf
[5] “South Sudan Extends Transitional Government by Two Years,” Reuters, August 4, 2022, https://www.reuters.com/world/africa/south-sudan-extends-transitional-government-by-two-years-2022-08-04/
[6] “S. Sudan Soldiers Found Guilty of Murder, Rape in Jonglei,” Voice of America, October 25, 2013, https://www.voanews.com/a/south-sudan-soldiers-spla-found-guilty-murder-rape-jonglei/1777466.html
[7] “South Sudan: Crippled Justice System and Blanket Amnesties Fueling Impunity for War Crimes,” Amnesty International, 2019, https://www.amnesty.org/en/latest/press-release/2019/10/south-sudan-crippled-justice-system-and-blanket-amnesties-fuelling-impunity-for-war-crimes/
[8] Ibid.
[9] Ola Mohajer and David Deng, “South Sudan’s People Have Spoken on Peace, Is Anyone Listening?” United States Institute for Peace, 2021, https://www.usip.org/publications/2021/04/south-sudans-people-have-spoken-peace-anyone-listening
[10] See the final report of South Sudan’s National Dialogue, https://www.sudanspost.com/final-report-of-south-sudans-national-dialogue/
[11] See Chapter V, Article 5.2.1 and 5.2.2 of the Revitalised Peace Agreement for the Resolution of the Conflicts in South Sudan, https://docs.pca-cpa.org/2016/02/South-Sudan-Peace-Agreement-September-2018.pdf
[12] Section 5.3 of the R-ARCSS.
[13] Chapter V, Articles 5.4.1 and 5.4.2.4 of the R-ARCSS.
[14] Section 5.4 of the R-ARCSS.
[15] “Renewed Political Commitment to Initiate Transitional Justice in South Sudan Must Deliver for Victims, UN Experts Note,” Office of the High Commissioner for Human Rights, 2021, https://www.ohchr.org/en/press-releases/2021/02/renewed-political-commitment-initiate-transitional-justice-south-sudan-must
[16] “Access to Health for Survivors of Conflict-Related Sexual Violence in South Sudan,” Office of the High Commissioner for Human Rights, 2020; “Conflict-Related Sexual Violence in Northern Unity: September-December 2018.”
[17] “Building Just Societies: Reconciliation in Transitional Settings,” United Nations, 2012, https://www.un.org/peacebuilding/sites/www.un.org.peacebuilding/files/documents/12-58492_feb13.pdf
