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South Sudan: Paralyzed justice system fuelling impunity for Inter-communal killings

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During more than six years of conflict, civilians in South Sudan have been displaced, raped, maimed, tortured, and killed. Security forces, including the intelligence agency, and armed groups including those allied to both President Salva Kiir and the then opposition leader Riek Machar have committed atrocities with impunity.

No prospects for accountability in South Sudan reveals a justice system that is paralyzed by a lack of independence. Prosecutors only follow the directives of the executive, and in the absence of such directives, do not investigate serious crimes. From Juba to Malakal, Wau, Bentiu, and other places, a trail of monstrous crimes against civilians have been committed. A lot of people have lost relatives in the ongoing recent attack in poktap, Duk Payuel, besides more than forty deaths and over seventy wounded in Duk county as a whole in the last two days of massacres.

The government as a matter of priority should urgently establish legal mechanisms that can help to reform from practicing barbaric acts of banditry, murder, child abduction, and cattle theft because under South Sudan laws passed by the Parliament and signed into law by the President: banditry practice is a crime, child abduction practice is a crime, murder practice is a crime, cattle theft practice is a crime. Where on earth other than this Country will you be allowed to practice these criminal offenses without you facing the full wrath of the law

Marko Agei Makor Chol, a journalist was recently shot in a road ambush while traveling to Tonj town, according to the former Information Minister of the defunct Tonj state. According to the report seen by NCMP, no suspect has been arrested for the killing of the “resilient journalist”.

This week, the SSPDF launched disarmament exercises in Tonj North County of Warrap state. But disarmament operations often witness abuses by undisciplined soldiers that are never punished nor prosecuted. If several issues with the South Sudan justice and security system amid other challenges are addressed by the government, the civilians will be willing to lay down their weapons. Observing the timing of the disarmament proofs the fact that it is an exercise in futility. During the rainy season, the major part of South Sudan is inaccessible. As observers have rightly put it, the South Sudanese government is putting the cart before the horse.

The recent Sherikat Massacre and other killings like that, South Sudan’s government just responded with investigation committees whose reports rarely see the light of day, and when they do, their findings largely ignore crimes committed by government forces.

Recently a military court was established in Tonj state, at present, President Salva Kiir can confirm or reject judgments by the military courts, effectively giving him veto powers over what is supposed to be an independent judicial process. On at least two occasions, President Kiir has also dismissed judges of civilian courts, violating the laws of the country. The authorities’ failure to prosecute and punish the perpetrators of crimes under international law, committed by both government and opposition armed groups necessitates a meaningful and effective alternative justice mechanism for the people of South Sudan. 

In addition, South Sudanese authorities typically deny credible reports implicating the armed forces in serious human rights violations. A notable incidence is the claims that the 7th October leader was killed in action when it is so glaring what really happened.

Also, when the President does respond by setting up investigation committees, they lack independence and impartiality and, with the one exception, do not result in criminal trials.

Many victims had placed their hopes for justice in the Hybrid Court for South Sudan (HCSS), which the government committed to setting up when it signed both the 2015 peace agreement and the 2018 revitalized peace accord – but the court has yet to be established.

Following the South Sudanese government’s failure or refusal to take action against the horrific crimes committed in the past seven years, the African Union must now set a deadline for the authorities to sign the relevant legal documents for the establishment of the hybrid court. The deadline given to South Sudan should not exceed a period of six months, the African Union should unilaterally establish an ad hoc tribunal for South Sudan to create an impartial mechanism that will deliver justice to the countless victims of crimes committed during the on-going conflict. 

A prosecution mirage

In September 2018, a military court convicted 10 government soldiers of killing a journalist and raping aid workers at the Terrain hotel in July 2016. It is so far the only prosecution of crimes committed in the conflict – and even then, the trial largely happened because of pressure from foreign governments seeking to secure justice for their citizens.

The proceedings of this case however raised serious fair trial concerns. In addition, military courts lack the jurisdiction to try cases of crimes against civilians under South Sudanese law. These crimes should have been tried by civilian courts, in consistence with international practice.

Without international pressure and the involvement of governments whose citizens fell victim to the Terrain attack, there would still be not a single record of meaningful prosecution of the countless gut-wrenching human rights violations and crimes against the people of South Sudan seven years on. 

Amnesties that defeat justice

Amnesty International also documented the all too frequent use of blanket amnesties granted by the President, violating international law and denying victims their rights to truth, justice, and reparations.

On 24 January 2014, President Kiir set up a committee to investigate the human rights violations and abuses from the December 2013 clashes in Juba and received the report on 2 December 2014.

Not only has the report never been released to the public, but on 24 February 2015, President Kiir granted a blanket amnesty to all armed forces allegedly implicated in serious crimes committed during that attack.

Impunity once again reigned supreme in February 2016 when government soldiers forced their way into a UN civilian protection site in Malakal, attacking internally displaced people, killing at least 29 people, wounding 140 others, and destroying 1,251 shelters. The perpetrators of heinous crimes committed during the conflict should be held accountable and punished, not offered a slice of power. 

The presidential formed another investigation committee whose report into this attack made no mention of violations by the government soldiers and did not recommend accountability measures for individuals responsible for the killings or the other crimes committed during the attack.

On several occasions, individuals under UN sanctions for their alleged role in the perpetration of crimes under international law have been promoted in the army or offered positions within the ruling party.

Reference: Amnesty International Website

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