Bodies of civilians, including 11 women killed in January by forces opposed to President Kiir, lie in body bags at the St Andrews Episcopal Church compound in Bor town, Jonglei State.

(Nairobi) – South Sudan should make an unequivocal commitment to justice for serious crimes committed during the brutal war that began a year ago, Human Rights Watch said in a report released today. The government should acknowledge that a purely domestic effort will not assure fair, credible trials given major deficiencies within the national courts.

The 38-page report, “Ending the Era of Injustice,” draws from interviews with South Sudanese judges, prosecutors, private lawyers, victims, government officials, nongovernmental groups, UN staff, and foreign diplomats in October 2014 to explain why justice is needed, and makes recommendations to ensure perpetrators are held to account. Lack of justice in South Sudan has emboldened those carrying out abuses, and Human Rights Watch found strong support among activists, lawyers, and victims for prosecuting crimes committed during the current conflict.

“The unaddressed abuses and bloody cycle of ethnic revenge killings in the South Sudan conflict create an urgent need to hold those responsible for atrocities to account,” said Elise Keppler, associate international justice director at Human Rights Watch. “But domestic will and capacity to prosecute the cases in South Sudan is not there.”

On December 15, 2013, fighting began in the capital, Juba, between soldiers loyal to President Salva Kiir, from the Dinka tribe, and former Vice President Riek Machar, a Nuer who is now the head of the opposition forces. The fighting quickly spread, engulfing much of the country. Despite intensive regional and international efforts to promote a negotiated settlement, the conflict continues amid fears that violence and abuse will intensify with the end of the rainy season, which hampered fighting. On December 9, 2014, Human Rights Watch called on the UN Security Council to impose sanctions on those responsible for serious human rights abuses and an arms embargo on both parties to help stem further such abuses.

In January, the African Union (AU)’s chairperson, Dr. Nkosazana Dlamini Zuma, established a commission of inquiry into the crisis and human rights abuses committed by both sides, the first such investigation by the AU. AU officials say that the commission’s report, which should also make recommendations on accountability and reconciliation, is finalized but it is unclear if or when it will be made public.

“The world has been waiting for the AU inquiry to recommend how South Sudanese may seek justice for the horrific crimes they have experienced,” Keppler said. “The AU should stand by its commitment to end impunity and ensure that the report is strong, public, and insists on credible criminal investigations.”

Timeliness in delivering justice is important and could help minimize anger that appears to be driving further crimes, Human Rights watch said. Concrete steps to prosecute the crimes need not and should not be conditioned on progress in peace negotiations.

Widespread abuses, which should be investigated as war crimes and crimes against humanity, began within hours after the first shots were fired in December 2013 as government soldiers and other forces systematically attacked Nuer civilians in the capital. The abuses included a gruesome massacre of 200 to 400 Nuer men in the Gudele area between December 15 and 18.

Between mid-December 2013 and mid-April 2014, both sides engaged in further attacks and revenge killings on Nuer and Dinka civilians because of their ethnicity, including in further gruesome massacres in towns and villages outside of Juba. Men, women, and children were shot in their homes, churches, and hospitals, and as they fled. There were extraordinary levels of destruction and pillage of civilian property by forces from both sides.

South Sudan’s government has not moved to prosecute war crimes and potential crimes against humanity by its forces. Reports by investigation committees established by South Sudan’s army and separately by the police service soon after the killings in Juba have not been made public. An investigation committee established by Kiir in January 2014 has yet to provide any report or update of its work and refused to cooperate with the AU inquiry. Authorities have also yet to pursue cases regarding a massacre in April 2014 of more than 50 people, mostly Nuer, seeking sanctuary inside the UN compound in the town of Bor. As far as Human Rights Watch has been able to ascertain, Machar’s opposition forces have made no serious efforts to hold abusive forces to account.

Human Rights Watch documented a range of problems in South Sudan’s justice system that would impede prosecutions for serious crimes before domestic courts, including a lack of independence and capacity of prosecutors, and a climate of intimidation and insecurity for judges. South Sudanese law also does not include war crimes and crimes against humanity as offenses, or the concept of command responsibility, which can be important to hold those in leadership positions to account. South Sudanese law furthermore restricts pursuing cases against officials, and includes the death penalty, which Human Rights Watch believes constitutes an inherently cruel punishment.

The possibility of a “hybrid” international-national court to try serious crimes committed in South Sudan has gained a lot of interest in international and domestic policy debates. Some South Sudanese nongovernmental groups are advocating that approach. 

Hybrid court arrangements – such as the Special Court for Sierra Leone and the Extraordinary African Chambers – involve varying degrees of international and domestic judges and other staff. Human Rights Watch outlined significant challenges a hybrid court is likely to face to ensure fair, effective trials for crimes committed in South Sudan, especially given the lack of independence of South Sudanese prosecutors and a climate of intimidation of judges.

“Hybrid courts have advantages, such as building domestic capacity, but it remains unclear if the South Sudanese government can muster the will to pursue this option,” Keppler said. “Given the problems with South Sudan’s justice system and overall insecurity, to be effective a hybrid tribunal would need to be separate from the national courts, probably located outside the country, with a heavy contingent of international judges and prosecutors.”

Given its role as a permanent court of last resort when national courts are unable or unwilling to prosecute, the International Criminal Court (ICC) is also an important option to consider, although opposition can be expected given political backlash by the AU to the ICC in recent years. South Sudan is not a party to the ICC, so the ICC could only investigate crimes in South Sudan if the government requested the ICC’s involvement or the UN Security Council referred the situation to the court.

South Sudan should also ratify the ICC’s Rome Statute to give the ICC jurisdiction for future crimes and reform its laws, including incorporating genocide, war crimes, and crimes against humanity into domestic law.

Key international partners including the AU, Intergovernmental Authority on Development, UN Security Council, United States, and European Union should help South Sudan ensure that those responsible for crimes are held to account and that an amnesty for serious crimes is not included in any peace agreement.

“Violations of human rights in South Sudan continue, fueled by lack of justice, and South Sudan should reverse this pattern,” Keppler said. “South Sudan could demonstrate it is committed to justice by promptly requesting international assistance from the UN and AU to establish a hybrid court, or requesting the ICC to exercise jurisdiction over the crimes, or both. Meanwhile international and regional partners should press for progress on fair, credible trials.”