Joint NGO letter on the mandate renewal of the Commission on Human Rights in South Sudan

Excellencies,

We, the undersigned national, regional, and international non-governmental organisations, write to call on your delegation to actively support the extension of the mandate of the Uni­ted Nations (UN) Commission on Human Rights in South Sudan (“the CoHR”) during the up­co­ming 43^rd session of the UN Human Rights Council (“the Council” or “the HRC”), which will take place from 24 Feb­ruary-20 March 2020.

The Revitalised Peace Agreement for Resolution of the Conflict in the Republic of South Sudan (R-ARCSS), which was signed on 12 September 2018, has offered hope to the South Sudanese peo­ple. The Agreement remains the most promising basis to improve human rights and build sustainable pea­ce in the coun­­try as it ad­dresses key issues (governance reform, ceasefire and security arran­ge­ments, hu­ma­­ni­tarian assis­tance, resource management, and transitional justice, including account­a­bility) in a com­pre­hensive manner.

However, in the last 17 months, 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. Millions remain internally displaced. Former warring parties largely remain 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 by South Sudan’s Coun­­cil of Ministers to approve the establishment of the Hybrid Court for South Su­dan as per Chapter V of the R-ARCSS, the Gover­n­ment is yet to sign a Memorandum of Understanding (MoU) with the Afri­can Union (AU) and to enact legislation to operationalise the Court. The MoU can be signed immediately, prior to the effective establishment and operationalisation of a Re­vi­talised Tran­sitional Government of Natio­nal Unity (RTGoNU, here­after Na­tio­nal Unity Govern­ment).

In its last report to the Council, in March 2019, the CoHR concluded that despite the signing of the R-ARCSS, violations, including rape and sexual and gender-based violence (SGBV), continue 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, and lack of support and a full range of reproductive health services for survivors, remain prevalent. In the address it delivered to the Council during the latter’s 42^nd ses­sion (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 latter is supported by findings in a report pub­lished by Amnesty International in October 2019. The report documents the failure of the South Sudanese Government to investigate and prosecute suspects of such crimes since the start of the conflict in December 2013.

Indeed, the parties have done very little to address these and other systemic human rights issues iden­­tified by the CoHR and other actors, including the UN Mission in South Sudan (UNMISS), the Office of the UN High Commissioner for Human Rights (OHCHR), and human rights NGOs. In March 2019, during the Council’s 40^th session, the South Sudanese Government dismissed findings of on­going rape, including gang rape, committed in Bentiu and other areas of the country.

In November 2019, after weeks of uncertainty and a first six-month extension of the deadline, Pre­sident Salva Kiir and Dr. Riek Machar agreed to a 100-day extension of the dead­line to form a National Unity Government. The extended deadline has been set for 22 Feb­­ruary 2020, i.e., two days prior to the open­ing of the Council’s 43^rd session in Geneva. Yet, un­­cer­tainty remains over whe­­ther a National Unity Gov­ern­ment will be formed and, beyond, over imple­mentation of other mile­stones set out in the R-ARCSS.

Observations and investigations by some of the present letter’s signatories point to a volatile secu­rity situ­ation, ongoing human rights abuses, and a rapidly shrinking civic space in the country. The National Security Service and military intelligence continue to carry out unlawful arrests, detentions and torture or other ill-treatment of critics and perceived dissidents. Authorities have applied moun­ting pres­sure over human rights defenders and other independent actors, including jour­na­lists who report on the situation. Fear and self-censorship have increased as the country approaches the Feb­ruary 2020 deadline. In September 2019, the CoHR indi­cated that “sur­veillance and securitization have created a climate of fear and heightened paranoia among ci­vil society.”

On 10 November 2019, the African Commission on Human and Peoples’ Rights (ACHPR) adopted a resolution on the human rights situation in South Sudan, in which it “strongly condemn[ed] all acts of violations of human rights and international humanitarian law in South Sudan, including at­tacks against journalists, human rights defenders, members of civil society organizations and hu­ma­­nitarian workers.”

There have been significant delays in the implementation of tran­si­tional security arrangements. The overall implementation of Chapter II of the R-ARCSS re­mains limited. Risk factors and war­n­ing signs of mass atrocities, including inter-communal vio­len­ce, internal displacement, conflict over land and livelihoods, and disputes over state boun­da­ries, exist. Funds also ap­pear to be missing for the full implementation of the R-ARCSS, and a range of actors, including African human rights bo­dies such as the ACHPR, have reiterated their calls on parties to the R-ARCSS to implement Chapter V of the Agreement, including provisions on the establishment of the Hybrid Court for South Sudan and a Commission for Truth, Reconciliation and Healing. These ele­ments point to the fragility of peace in the country.

The inability of the leaders to expeditiously solve outstanding issues of the R-ARCSS puts civilians at increased risks of atrocity crimes. Numerous failed peace agreements in the past led to further violence and dire humanitarian crises.

*     *     *

In the lead-up to the Council’s 43^rd session, three scenarios still appear to be possible. First, fight­ing might resume on a local or larger scale, and the violence that has not ceased in some areas of the country might increase. Throughout the coun­try, grievances over past violen­ce and atrocities, dis­pla­cement, land grabbing, cattle, livelihoods, and state boundaries remain unaddressed and could trig­ger further violence. In this scenario, the unaddressed underlying causes of the violence and sig­nificant risk factors of further violations make it likely that grave human rights violations will be com­mit­ted.

Second, the parties may further delay formation of a National Unity Govern­ment. On 17 December 2019, President Salva Kiir and Dr. Riek Machar announced that they had “agreed to form a tran­si­tional unity government even if they fail to resolve all their dif­ferences before a new deadline.” However, a government is yet to be formed and operationalised, and much uncertainty remains. A number of States, including members of the Troika, have expressed con­cern over the urgent need for the par­ties to work towards meeting the extended deadline and called on all sides to further de­m­onstrate that they possess the political will to deliver peace. Such delays extend the status quo and could fuel more violence and rights abuses. The third scenario is that a National Unity Government is formed by the extended deadline. This would be a welcome development but does not mean the R-ARCSS will have been fully imple­men­ted – far from it – and that no setbacks could occur. Many challenges would still lie ahead, including with regard to Chapter II (transi­tio­nal security arrangements) and Chapter V (transitional justice and accountability) of the Agreement. Political disa­gree­ment leading to a government collapse and parties reneging on their promises to implement the R-ARCSS will remain a possibility. The poli­ti­cal economy of the con­flict, corruption, syste­mic human rights violations and abuses, and impunity (especially at the com­mand res­pon­sibility level) will remain unchanged.

Sustained regional and international engagement is vital for the full implementation of the R-ARCSS by the parties. South Sudan deserves the priority attention of the AU, the Intergovern­men­tal Authority on Development (IGAD) and the UN Security Council (UNSC), and we be­lie­ve that UN Human Rights Council action is an integral part of this engagement. The Council should extend the mandate of the CoHR for another year.

Whichever of the above scenarios prevails in the lead-up to the Council’s 43^rd session and in the up­coming months, the Council should renew the CoHR’s mandate as is. Indeed:

(i) If fighting resumes, the CoHR’s inves­ti­gative and reporting work will be crucial to keep the inter­­national community informed of human rights deve­lopments in the country and to further advance accountability and other components of the transitional justice agenda.

(ii) If further delays are observed in relation to the formation of a National Unity Govern­ment, the CoHR will play an essential role in monitoring the human rights situation, including human rights-rela­ted provisions and implications of the R-ARCSS, and the Commission will be an inte­gral part of regional and international efforts to push the parties to abide by the Agreement, in­c­luding effective transitional justice me­cha­nisms. The CoHR will also continue to fulfil a vital role in collecting and preserving evidence of crimes and human rights violations and abuses, as well as keeping the international community informed of the situation.

(iii) Lastly, even if a National Unity Government is formed by the extended dead­line, imple­men­tation of the R-ARCSS will remain fragmented and limited, and the security situation will remain fragile for the foreseeable future with risks of a return to violence, which necessitates an impartial and independent mechanism exercising an inves­tigative mandate. Continuous work will be needed on all aspects of the R-ARCSS, including Chapters II and V. The CoHR’s man­da­te will continue to fulfil a vital role in collecting and preserving evidence and in keeping the inter­national community informed of the situation, providing technical advice to the Govern­ment and other stake­holders, and assisting in the ope­ra­tionalisation of effective transitional jus­ti­ce mechanisms, which are es­sen­tial to build sustainable peace in South Sudan.

The country still needs a holistic transitional justice pro­g­ram­me that includes the Hybrid Court, a Commission on Truth, Reconciliation and Healing (CTRH) and a Compen­sa­tion and Repa­ration Authority (CRA). Disarmament, demobilisation and reintegration (DDR) and the esta­blishment of a vetting system in the army and security forces will also be key for human rights improvements.

*     *     *

As the human rights and security situation in South Sudan is not consolidated, it is pre­ma­ture to consider a change of ap­proach and crucial for the Council to maintain its scrutiny and en­gagement. The Council should continue to dedicate its utmost attention to South Sudan and allow the CoHR the time it needs to ful­fil its res­pon­sibility with regard to all aspects of its man­­date: inves­tiga­tion, monitoring, re­por­ting, technical assis­tance and capacity-building, and advice on transitional justice in all its di­mensions – truth-telling, reparations, the full re­­ha­­­bilitation of survivors, and building gua­ran­tees of non-recur­ren­ce (inc­luding through ac­coun­­tability, legal and ju­di­cial reform, institution-building, and ultimately reconciliation).

For the Council, any way forward beyond its current approach to the promotion and pro­tec­tion of human rights in South Sudan should rely on benchmarks and a thorough assess­ment not only of the situation on the ground, but of risk factors of further violations. Given the vo­la­tile situation in the country, a change of approach in Geneva would risk sending the wrong signal, and ultimately being detrimental to efforts to push the par­ties to fully abide by the R-ARCSS and respect and protect human rights.

Ahead of its 43^rd session, we call on the Council to follow up on its meaningful action on South Su­dan to date by renewing the CoHR’s mandate as currently is. Member and Observer States should sup­port the development and adoption of a reso­lution that:

• Renews the mandate of the Commission in full, to allow it to continue to conduct inde­pen­dent investigations into alleged hu­man rights violations and abuses and viola­tions of inter­national humanitarian law, and to collect and preserve evidence of, and clarify respon­sibi­lity for, alle­ged gross violations and abuses of human rights and related crimes, with a view to ending im­­punity and ensu­ring ac­coun­tability, with a particular focus on sex­ual and gen­der-based cri­­mes (the CoHR’s mandate explicitly includes documentation of evidence for SGBV), and attacks and reprisals against human rights defenders, huma­ni­tarian aid wor­kers and other in­de­­pen­dent actors;
• Recalls that the Government of South Sudan has the responsibility to protect its popu­la­tion from, among other human rights violations and abuses, genocide, war crimes, ethnic clean­sing, and crimes against humanity;
• Urges the Government of South Sudan and opposition groups to allow and facilitate access to all locations and per­­sons of interest to the Commission;
• Requests that reports and updates of the Commission be transmitted to the AU Com­mission in order to support and inform future inves­tigations of the Hybrid Court for South Sudan and to the UN Security Council for conside­ra­tion and further action;
• Requests that reports and updates of the Commission be transmitted to the ACHPR, in con­cor­dance with the 2019 Cooperation Agreement between OHCHR and the ACHPR. The re­ports should support and inform regular ACHPR briefings to the AUPSC;
• Encourages 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;
• Urges the Government of South Sudan to adopt the Statute of the Hybrid Court for South Su­dan and sign the Memorandum of Understanding to for­mal­ly establish and opera­tionalise the Hybrid Court; and
• Urges all States to encourage further concrete action to deter and address ongoing vio­la­tions of international law at the UN Security Council, and to exercise their jurisdiction over crimes under international law committed in South Sudan under the principle of univer­sal juris­dic­tion and where the opportunity arises.

We thank you for your attention to these pressing issues.

Sincerely,

African Centre for Democracy and Human Rights Studies (ACDHRS)

AfricanDefenders (Pan-African Human Rights Defenders Network)

Cairo Institute for Human Rights Studies (CIHRS)

Center for Reproductive Rights

Central African Network of Human Rights Defenders (REDHAC)

CIVICUS

Community Empowerment for Progress Organization (CEPO) – South Sudan

Crown The Woman – South Sudan

DefendDefenders (the East and Horn of Africa Human Rights Defenders Project)

Dominicans for Justice and Peace

Geneva for Human Rights / Genève pour les Droits de l’Homme

Global Centre for the Responsibility to Protect (GCR2P)

Human Rights Watch

International Commission of Jurists

FIDH (International Federation for Human Rights)

International Movement Against All Forms of Discrimination and Racism (IMADR)

International Service for Human Rights

Lawyers’ Rights Watch Canada

Legal Action Worldwide (LAW)

National Alliance for Women Lawyers – South Sudan

Southern Africa Human Rights Defenders Network (SAHRDN)

South Sudan Human Rights Defenders Network (SSHRDN)

World Organisation Against Torture (OMCT)