February 12, 2009

X. Lack of Accountability for Human Rights Violations

According to one of the highest ranking judges in Southern Sudan, "there is a lot of aggressive behaviour and impunity for those with guns." He attributed this to the militarization of the criminal justice system-soldiers taking the law into their own hands-and to the lack of independence in the judiciary, citing a well-known 2006 case in which a judge was beaten up in Aweil by guards in front of the Governor's office. [165]

Southern Sudan's justice system is in an embryonic stage of development and still too weak to provide accountability for most human rights violations. The judiciary and prosecution staff from the Judiciary of Southern Sudan and the Ministry of Legal Affairs and Constitutional Development lack basic training, English skills, equipment, libraries, and other resources, and remain concentrated in Juba and other main towns. The State of Eastern Equatoria, for example had only five judges covering an area twice the size of Switzerland, while the even larger Western Bahr el Ghazal had judicial staff in only one town. [166]

One obstacle to holding human rights violators accountable is the reluctance of police to investigate crimes involving soldiers or other security personnel. In many cases, police simply do not open a case. In an alleged case of rape of three Ugandan women by six soldiers from SPLA and Joint Integrated Units (joint forces made up of SPLA and SAF soldiers, created under the CPA) in the Torit market in December 2007, police refused to take victims' statements and open an investigation. [167] Instead, police may refer victims to national security or to SPLA's military police unit. Following the September 2008 violence in Rumbek, victims reported that police initially refused to open investigations, and referred people instead to SPLA. [168]

The police's reluctance to investigate human rights violations-including by other police-may reflect their fear of violent retaliation. In one incident in Western Equatoria in November 2007, a group of SPLA soldiers serving in the JIU at Yambio attacked local police, killing ten, including three senior police officers. [169] Authorities often cite the incident as illustrative of soldiers' interference in the justice system and impunity. The incident was prompted because the civilian police arrested a soldier suspected of killing another soldier.

The extent to which the military justice system punishes soldiers for human rights violations remains unclear as the courts martial are closed to the public. [170] After the clashes at Logurun and Iloli villages a local chief reported that the SPLA commander and 12 soldiers investigated the killings of civilians, but no one was punished for them. [171] The SPLA subsequently launched an investigation into the incident. [172] However, results have not been made public. [173]   The results of investigations into the Rumbek violence have also not been made public.

SPLA is starting to develop a military justice system and improve accountability measures. [174] A new SPLA Act, passed in January 2009, could help provide guidance and discipline. The law defines military crimes and it applies the civilian penal code for non-military crimes. It also references a code of conduct to be drafted by military authorities.

The police disciplinary system also lacks transparency. Police who are implicated in human rights violations, such as arbitrary arrests and detentions, are rarely held accountable in the civilian courts. UNMIS monitors reported that in only one of the arbitrary arrest and detention cases they monitored were perpetrators disciplined. [175] According to UNMIS police advisers, the office of inspector general, based in Juba, has so far largely focused on minor disciplinary breaches such as drunkenness rather than serious human rights violations. [176] A Police Act, currently in draft, is urgently needed to clarify the roles and responsibilities of police and provide a basis for more transparent accountability.

Committees in the legislative assembly, such as the Human Rights and Humanitarian Affairs Committee, investigate some of the larger-scale conflicts and document abuses including in detention facilities. [177] Their reports complement the work of the Southern Sudan Human Rights Commission (SSHRC) in raising awareness about human rights violations and trends, but the Commission's reports have not led to prosecutions for specific crimes. An assembly committee report on the massacre of 54 Didinga women and children by armed Toposa at Buda County, Eastern Equatoria, in May 2007 has not been discussed publicly because it is considered too sensitive. [178]

In February, the legislative assembly passed a long-awaited bill giving the Southern Sudan Human Rights Commission legal standing to summons state actors. If the Commission is adequately supported by GoSS and donors, its work could provide the basis for prosecutions in criminal courts. Other commissions, notably Land and Anti-Corruption, will also help promote accountability for abuses. The Southern Sudan Anti-Corruption Commission collected some 14,000 complaints against officials in the first half of 2008 alone, but its enabling law is still pending. [179]

[165] Human Rights Watch interview with judge (name withheld), Juba, December 1, 2008.

[166] "Tenth periodic report," p.37.

[167] "Report of the Special Rapporteur on the situation of human rights in the Sudan, Sima Simar," Human Rights Council, A/HRC/7/22, March 3, 2008, para. 68.  http://www.unhcr.org/refworld/docid/47df89002.html (accessed February 3, 2009).

[168] UNMIS Human Rights Bulletin, October 23, 2008, on file with Human Rights Watch.

[169] "Yambio killing death toll raised to 10," Sudan Tribune, November 8, 2007, http://www.sudantribune.com/spip.php?article24647 (accessed Oct. 7, 2008).

[170] Human Rights Watch interviews with UNMIS staff, Juba, June 29, 2008, and by email correspondence, August 6, 2008.

[171] Human Rights Watch interview with paramount chief, Hiyala, July 2, 2008

[172] "Report of the Special Rapporteur on the situation of human rights in the Sudan, Sima Simar," Human Rights Council, A/HRC/9/13, September 2, 2008, para. 68, http://daccessdds.un.org/doc/UNDOC/GEN/G08/159/95/PDF/G0815995.pdf?OpenElement (accessed October 6, 2008).

[173] United Nations Security Council, "Report of the Secretary-General on Sudan," S/2009/61, January 30, 2009, para. 56.

[174] Human Rights Watch telephone interview with Capt. Robert Lubang, January 23, 2009.

[175] "Tenth Periodic Report," p.41.

[176] One UN Police adviser was not aware of any police officer disciplined for a human rights violation. Human Rights Watch interview (Confidential), January 20, 2009.

[177] The Peace and Reconciliation Committee has also investigated incidents and issued reports

[178] Human Rights Watch interview with Hon. Mary Nyaulang, Juba, December 22, 2008.

[179] James Gatdek Dak, "South Sudan passes long awaited Anti-Corruption bill," Sudan Tribune, October 11, 2008, http://www.sudantribune.com/spip.php?article28883 (accessed January 27, 2009).