The challenges of South Sudan: how to document the war and its crimes?

By South Sudan

19 April 2016: Recent research highlights some of the worst of many abuses which have taken place in South Sudan. But when the UN’s own investigations can’t be used as evidence, how to ensure that victims and perpetrators see justice? Two researchers on South Sudan discuss the difficulties.

Nepalese peacekeepers in South Sudan. The UN Mission in South Sudan has documented abuses in the country, but the standard of proof is unlikely to be high enough for convictions. Image credit: United Nations Photo. Nepalese peacekeepers in South Sudan. The UN Mission in South Sudan has documented abuses in the country, but the standard of proof is unlikely to be high enough for convictions. Image credit: United Nations Photo.

Nobody knows how many people have been killed in South Sudan
Nobody knows how many people have been killed since civil war broke out in South Sudan in December 2013. Some have tentatively suggested that the death toll is now comparable to that of Syria, which has been at more than war twice as long - and received a great deal more public attention.

What we do know for sure though, following the work of human rights documentation work in South Sudan in recent years, is that the individual and collective pain suffered by South Sudanese people is immense. Last month, the UN Human Rights Commission released a report detailing the grave human rights abuses and violations of humanitarian law that have taken place in South Sudan throughout 2015. The report follows on the back of others by the UN Mission in South Sudan (UNMISS) and the much-anticipated, heavily delayed report of the African Union Commission of Inquiry (AUCOI), which covered the period from December 2013 to September 2014, but due to political pressure was not released until October 2015.

International and South Sudanese organisations and researchers – ourselves included – have also sought to overcome the clear deficit in accurate information and documentation on the damage of this war; to understand not just the effects but the cause as well. In an environment which has increasingly witnessed a crackdown on freedom of movement and expression, including violent threats, intimidation and deliberate obstruction of the media and researchers, such work is not easy, but this makes it all the more important.

A multitude of violations

The litany of abuses reads like a rap sheet for civil wars
The latest UN report walks through a multitude of violations of human rights and international humanitarian law committed by all parties to the current conflict, from the destruction of entire villages and livelihoods by the South Sudan’s standing army, the SPLA, and its allied militias, to mass recruitment of child soldiers by the SPLA and the rebel opposition, the SPLA-IO.

The litany of abuses reads like a rap sheet for civil wars globally: mass killing, forced and arbitrary detention, torture, ethnic targeting, deliberate starvation, and the terrorising of civilian populations. Notably, in South Sudan’s Unity state, the UN report details evidence of crimes against humanity, committed by the SPLA and allied militia during a military offensive in the spring of 2015. This report has also shed important light onto the spreading of the conflict from the country’s oil-producing regions in the north, to the Equatoria region in the south, which was until recently relatively secure and stable, but is now beset by violence.

Equatorian towns including Mundri, Maridi and Wonduruba, have seen forced displacement of thousands of people, destruction of property, the abduction of civilians and the terrorising of those populations, as the SPLA seeks to weaken burgeoning local militia groups and their links to the rebel SPLA-IO.

Moreover, the UN report is one of a number of research pieces which have laid bare the trend that this war has perhaps become most well-known for: sexual and gender-based violence. Indeed, in a recent research project carried out by national and international researchers it was revealed that rape is common practice in the conflict. A number of the women interviewed for the research spoke about the harrowing choice between being raped and killed. As one woman living in a UN Protection of Civilian (POC) site in the capital Juba told us: “The best they could do was give their bodies so that they could survive being killed.”

Sexual violence in South Sudan

There is massive under-reporting due to social stigma
While much of the sexual violence seen in the current conflict appears to be part of some sort of collective targeting, the research also highlights the multiple purposes that sexual offences serve in South Sudan’s current civil war. The targeting of women by armed men outside the perimeters of the UN POC sites around the country, for example, was attributed to both intimidation of populations with the intention of keeping them displaced, as well the opportunistic actions of ill-disciplined recruits. It also touched on the possibility that the "rape camps" established in southern Unity State during the 2015 government offensive (also highlighted in the UN report) might have been used to incentivise participation and recruitment into armed groups in a collapsing economy.

Despite massive under-reporting due to social stigma, the research also discussed the sexual victimisation of men and boys during the course of fighting, pointing to both male rape and the castration of young boys. Thus far, efforts by both the Government of South Sudan and the SPLA-IO to investigate, document and enforce accountability for the acts committed under their watch have been by many accounts, woefully lacking. The UN report states that "there is no evidence or available public information of any genuine Government accountability efforts, or the results of these efforts, to investigate, prosecute or punish these violations," and likewise that the SPLA-IO has failed to produce a long-promised investigative report to the AUCOI.

Our own research, among others’, has found that underpinning this vacuum of accountability is a national justice system that is extremely weak in capacity, that struggles to be independent in the face of visible politicisation and militarisation, and is prone to committing abuse itself. The Compromise Peace Agreement signed by both parties in August 2015 sets out a range of means for accountability to be undertaken by the (not yet formed) Transitional Government. These include a Hybrid Court for criminal prosecutions, that seeks to overcome the barriers to accountability by bringing in regional and international expertise. At best, though, this will only be capable of processing a minute fraction of the total volume of crimes committed, leaving the remainder to be dealt with by the national judiciary and ubiquitous customary justice systems in the country – or even not be dealt with at all.

Though the UN’s recent human rights documentation, as well as that previously completed by UNMISS and other organisations, represents a positive development in uncovering some of what has gone on during this war, its findings of grave human rights violations, possible war crimes and crimes against humanity by no means ensure that those crimes will be prosecuted in the Hybrid Court or any other international court.

Obstacles to accountability

The greatest obstacle is - as elsewhere - politics
Of course, the greatest obstacle to accountability will inevitably be – as it has been in so many cases in Africa and elsewhere – politics. That aside, the process will face further legal impediments along the way. Though it is rarely explained explicitly, the human rights investigations carried out by UNMISS are not treated by the UN Security Council – and we can assume other global judicial bodies – as an adequate standard of proof to permit criminal sanctions. Even the recent UN report somewhat ambiguously states that the standard of proof given in the report is only good enough to "call for a judicial investigation into violations and abuses" – in other words, it can draw attention to certain issues that merit investigation, but it is not treated as evidence in itself. Investigations by other human rights organisations, no matter how thorough, will carry even less weight in court.

Furthermore, as mentioned above in relation to sexual violence in the current conflict, the violations like the ones mentioned in the UN report often serve multiple functions for those perpetrating abuses. Despite common wartime tropes of sexual violence as a "weapon of war" or terror tactic, sexual violence like any other form of violence is not only an ordered strategy. While there is evidence to suggest that offences such as sexual violence have been used as a strategy, for instance, in Bentiu, Unity State, in April 2014, where it was reported that opposition forces used the local radio station to incite rape, at other times sexual violence appears to be far more indiscriminate, the result of indiscipline, or a reward for foot soldiers for participating in violence.

This is important to recognise, as it means that further investigations and prosecutions need to search for evidence above and beyond that of an explicit strategy of wartime rape. Finally, notwithstanding the almost exclusive focus on sexual violence by armed groups in the conflict, there is also a need to pay attention to the kinds of sexual and gender-based offences that South Sudanese experience on a daily basis, including forced and early marriages, domestic violence and marital rape. In fact, the same research discussed above noted that while a number of research participants talked about sexual assault at the hands of the Government and SPLA-IO forces, often their main sexual and gender-based violence-security concerns reflected other, less publicised forms of harm.  It is crucial that human rights abuses such as those highlighted in the UN report are addressed in any accountability process, our research findings also highlight it is also important to demand accountability for everyday experiences of injustice in order to ensure all survivors of violence can seek redress.

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Comments

Ferdinand von Habsburg on April 19, 2016, 12:06 p.m.

I thank the authors for trying to draw together a brief commentary of the very complex series of events and the need for a response for the people of the country. I have spent 20 years in South Sudan and the former unified Sudan and thus have a long perspective on the history of violence and the political conflicts that have marred the entire country. While I do not disagree with some of the issues raised, there is a veritable need to take a step back for a more profound understanding. Of primary importance is the recognition that violence does not emerge out of nowhere, that the context of 2013 is anchored on decades of violence, inter- and intra-ethnic communal clashes, proliferation of small arms all with the background of 3 civil wars within half a century. The memories of many citizens goes way beyond 2013 and digs deep into the annals of history of their grandfathers and mothers. Many may argue that the key is dealing with the present 'caseload' of killings, tortures and other disasters that have befallen the population, and our technical language speaks to framing this in our own norms and frameworks. The international community has long existed in this particular context and has rarely truly understood the nature of life and violence, contained in its compounds, living in its own particular culture and rarely penetrating the depths of this complex history. Linguistically, we are far removed, working through translators and intermediaries whose task is to simplify events (whether for political gain or to fit in short sitreps), while our own habits of short visits for 1 hour or a day in no way help us to connect, listen and truly hear what people will tell us. Many South Sudanese now understand our habits and play to these, giving us headlines in conversations as they know we will not profoundly understand. Many of us have arrived at the cusp of a crisis, moving at high speed, judging using our standards, falling into political games at national and local levels. We seek the most obvious solutions that correspond to the burgeoning industry of the 'transitional justice' market that moves across academic circles, the UN Security Council and regional conferences speaking about lessons learnt. We speak of violence as though this had emerged over the last three years - a dangerous falsehood that will ensure that the so-called solutions are far more harmful and far less likely to truly provide what the citizens are looking for. While I do not deny that justice is key in signalling that violence perpetrated against non-combatants is unacceptable, yet we need to see what has existed as a culture of 'violence' first - a life of mobile, armed youth protecting assets (livestock etc.), related to numerous people in government on either side of the political spectrum, living in deeply rural, remote settings where the state does not exist, except in name. Many would argue that the state is a cover that lends itself to socio-cultural groups (clans, sections etc.) who exist and use the new terminology that we have invested in over the last 11 years since the Comprehensive Peace Agreement between the Government of Sudan and the SPLM, mimicking behaviour and language. Youth (by far the majority) have been observing the Government and our international behaviour, noting the absence of real interest, the distance that cannot be bridged between us, and ultimately leaves a vacuum that only citizens can fill, to protect themselves from threats. Thus, the type of violence seen from 2013 has its genesis far further back, with armament of youth groups in various parts of the country under various communal mechanisms for protection, while serving others to undertake criminal activities which would be justified as legitimate (seizing back stolen cattle, revenge killings etc.). Recent surveys indicate that South Sudanese know almost nothing about the Peace Agreement signed in August last year (neither IGAD nor the parties nor the international community have extensively publicised what stands in the agreement), including Chapter 5 that outlines transitional justice measures. We fail to understand that leaders around a table do not represent citizens and that we, crowding around the table, have filled the spaces with our frameworks. Have Truth and Reconciliation Commissions in Africa worked to build what they claim - truths that help build a reconciled society? George Wachira in his recent book 'Stretching the Truth' strongly cautions against placing our blind faith in these. Or what is it that we claim a hybrid court will provide, together with a TRC and a Compensation and Reparations Authority? The people, in the South Sudan Law Society survey recently, and in the consultations undertaken by the Committee for National, Healing, Peace and Reconciliation, have shown that their understanding of what they wish to see happening is far more complex than these instruments - but few cared to ask them. Answers have ranged from firing squad to forgiveness and everything in between. Above all, there is a recognition that living together will require more than justice, but also profound dialogue about the past (well beyond 2013) and local to national means to help people find their way towards each other again. The UN, the NGOs, the diplomatic community and donors over the past decade showed little or no interest in local and national dialogue processes, treating them as side shows of their own programmes that place technical support, economic deals and domestic policy in the forefront. What people want has little to do with what we provide in the end. Should we care to truly invest in supporting the South Sudanese in their long journey towards peace and reconciliation, we will need to start by truly listening to them, understanding that there is a difference between their hopes and aspirations and those of their leaders, between our interests and theirs. Our support should have been prompted by seeing and understanding that this violence started long before with deep historical roots. Even as we were told it was going to erupt, still then the UN and other actors failed to engage. The only avenue left was reaction and then justification. In conclusion, the South Sudan Council of Churches, the Committee for National Healing, Peace and Reconciliation and other local and national processes are key to underpin peace and reconciliation long into the future, certainly well beyond the narrow frame of the 3 years of agreement. Investment there will be crucial even as the long road to establishing the rule of law is embarked upon. History has shown us that technical tools in political environments have a very low chance of success if utilised remotely from context and root causes. Bennett et al. in 'Aiding the Peace' (2011) suggest that this may even make matters far worse. I hope and pray for peace, and that we may help rather than hinder the long journey of South Sudanese towards it.

Peter Moszynski on April 23, 2016, 8:23 p.m.

Ferdinand, you have just said exactly what needs to be said at this current time: there is such a complete disconnect between what outsiders and locals think that it is hardly surprising so many donor-funded initiatives just seem to perpetuate the vicious cycle

Anthony Kadoma on April 25, 2016, 9:06 a.m.

Thanks for sharing this information. I think it is fundamental for any right thinking human to condemn human rights abuse. What has been going on in South Sudan is much more than meets the eye. Many of us who live outside that country hear what some people want us to hear and it is difficult to know what exactly happens. It is common practice that history is always shaped by the conquerors and not the conquered so as scholars we have to make an effort to hear and learn from the life stories and experiences as lived by the South Sudanese people themselves. I also have a belief that the terrain of the country coupled with the language problem makes it hard to unearth the truth between the two worrying parties. My call as a human being is for those who have their egos way up there to calm down and think of their fellow citizens who are experiencing untold suffering at the hands of those who are power hungry and are determined to forego nothing unless they achieved what their minds do tell them. The intervention of both the neighboring and international community in South Sudan affairs have not so much yielded the results in the anticipated time frame. In the mean a lot of suffering go on unabated which in my view should be brought to an end by yesterday. The solution thus lies within empowering the people involved in the conflict to use rational judgement especially the leaders so that they measure the magnitude of suffering they have orchestrated to the harmless citizens.