Annual report of the United Nations High Commissioner
for Human Rights and reports of the Office of the
High Commissioner and the Secretary-General
Assessment mission by the Office of the United Nations High Commissioner for Human Rights to improve human rights, accountability, reconciliation and capacity in South Sudan: detailed findings*
This present document contains the detailed findings of the comprehensive assessment conducted by the Office of the United Nations High Commissioner for Human Rights (OHCHR) into allegations of violations and abuses of human rights and violations of international humanitarian law in South Sudan since the outbreak of violence in December 2013. It should be read in conjunction with the report of the United Nations High Commissioner for Human Rights on the assessment mission to South Sudan submitted to the Human Rights Council at its thirty-first session (A/HRC/31/49).
Executive Summary 6
I. Establishment of the OHCHR Assessment Mission to South Sudan 8
A. Mandate 8
B. Methodology 9
C. Challenges and Constraints 11
II. Legal Framework 12
A. International Humanitarian Law 13
B. International Human Rights Law 14
C. International Criminal Law 16
D. Domestic Law 18
III. Contextual analysis – Historical Background to the Conflict 19
A. Introduction 19
B. Patterns of State Violence 20
C. Relationships between Nuer and Dinka Peoples 25
D. The Search for Reconciliation and Justice in South Sudan History 26
I V. Overview of Alleged Violations and Abuses of Human Rights and Violations of International
Humanitarian Law 34
A. Introduction 34
B. Killings 34
C. Sexual and gender-based violence 38
D. Violence against children and the recruitment of child soldiers 39
E. Violations of the freedoms of opinion and expression, and of peaceful assembly 40
F. Unlawful and arbitrary detention and conditions in places of detention 41
V. Human rights situation in specific states in 2015 43
A. Unity State 43
B. Upper Nile State 55
C. Central Equatoria 64
D. Western Equatoria 66
VI. Principal findings of OHCHR Assessment Mission to South Sudan 71
A. Crimes against Humanity 71
B. Killings 73
C. Deaths in detention 74
D. Starvation of Civilian Populations. 74
E. Discrimination and Targeting on the Basis of Ethnicity 75
F. Sexual and Gender-based Violence 75
G. Violations relating to the deprivation of liberty 76
H. Crimes against Children 76
I. Destruction and Looting of Property 76
J. Terrorizing and Punishment of Civilian Populations 77
K. Violations of freedom of opinion and expression and of assembly 77
L. Organization of the Relevant Authorities and Armed Actors 77
VII. Justice and Accountability- 78
A. Government and Opposition responses to conflict-related violence 78
B. Capacity and competence of the judicial system 80
C. Accountability and the Peace Agreement 84
VIII. Conclusions 88
IX. Recommendations 88
Terms of Reference 91
Chronology of “Accountability” Commitments Made by the Parties 94
Maps of South Sudan 98
ARCSS Agreement on the Resolution of Conflict in South Sudan
AU African Union
BANFMU Bangladeshi Forces Marine Unit
CEAWC Committee for the Elimination of the Abduction of Women and Children
UNMISS United Nations Mission in the Republic of South Sudan
UNOSAT United Nations Operational Satellite Applications Programme
UNPOL United Nations Police
UPDF Uganda People’s Defence Force
WFP World Food Programme
Since the outbreak of violence in December 2013 and through most of 2014, the United Nations (UN) and the African Union (AU) have documented brutal violations and abuses of human rights committed by the Government and the Sudan People’s Liberation Movement/Army-in Opposition (SPLM/A-IO) forces, together with allied militia, which may amount to war crimes and/or crimes against humanity if established in a court of law. The UN and AU reporting found that Government and opposition forces and their allied militia have killed civilians, raped women and girls, pillaged and destroyed civilian property such as houses, humanitarian infrastructure, medical facilities including hospitals, and schools. In addition, it was alleged that both sides targeted places of refuge, including churches, hospitals, and UN bases.
A country some five years old has had more than two years of war, in which more than one and a half million people have been internally displaced and forced into harsh and dangerous living conditions. Thousands more have sought safety and shelter from their own government and opposition forces and allied militia, finding refuge within UN compounds. According to the United Nations Mission in South Sudan (UNMISS), more than 201,000 IDPs are currently protected in six UNMISS bases across South Sudan.1 In addition, more than 600,000 are living in refugee camps in Uganda, Kenya and Ethiopia.2 As a result of these displacements, most parts of the country face severe food insecurity and possible famine.3
Extreme violence in the spring of 2015 triggered the adoption in July 2015 of United Nations Human Rights Council’s resolution A/HRC/29/13, “A Mission by OHCHR to Improve Human Rights, Accountability, Reconciliation and Capacity in South Sudan,” in which the Human Rights Council requested the High Commissioner to present a full report at the Council’s 31st session. In accordance with this mandate, the High Commissioner established the OHCHR Assessment Mission to South Sudan (the assessment team), based in Juba. The mission was mandated with a number of tasks, most importantly, “to undertake a comprehensive assessment of allegations of violations and abuses of human rights, with a view to ensuring accountability and complementarity with the African Union Commission of Inquiry.”
Since the Council resolution in July 2015, there have been important political developments. In August 2015, the parties signed a peace agreement that was intended to halt the fighting, put in place the machinery for establishing a transitional government and create accountability and reconciliation mechanisms.4 The transition period, which should have started in November 2015, was delayed several times by the failure of the parties to agree on key security arrangements. In late December 2015, an advance team from the SPLM/A-IO arrived in Juba to commence the preparations for the transition period. Despite repeated violations of the cease-fire that came into effect on 29 August, both sides continued to reiterate their commitment to the implementation of agreement.
In terms of accountability, the peace agreement provides for the establishment of a hybrid tribunal under the auspices of the African Union, with the authority to try genocide, war crimes, crimes against humanity and other serious crimes. The transitional government, once established, is also required to create, within six months, a truth and reconciliation commission to establish a record of violations of human rights since the start of the conflict and a compensation and reparations authority.
In October 2015, the African Union released its ground-breaking Commission of Inquiry report. The Commission of Inquiry, which covered the period from the start of the conflict until September 2014, concluded that serious violations of human rights and international humanitarian law, as well as human rights abuses had been committed by all parties, in particular with regard to the right to life, freedom from torture, sexual violence, destruction of property and violations against children, including the recruitment and use of children in hostilities.5
This assessment report identifies patterns of violations and abuses South Sudanese have endured since December 2013, particularly targeted killings of civilians, sexual and gender-based violence, mass pillage and destruction of civilian objects. To complement existing reports, it focuses especially on violations of international law committed in 2015 in the states of Unity, Upper Nile and Western and Central Equatoria.
The time frame for the assessment was extremely limited and the constraints formidable, including the lack of any meaningful cooperation from the government and its armed forces, lack of access to conflict areas and serious witness protection concerns. Nevertheless, the assessment team did confirm that the patterns of violations of international human rights and humanitarian law, as well as human rights abuses identified in the earlier UN and AU reports in 2014 have continued unabated throughout 2015, including following the signing of the peace agreement in August.
Since the beginning of the conflict, the warring parties have sought to prevent the peacekeeping forces of the UN Mission in South Sudan (UNMISS) from moving freely around the country to protect civilians, despite a mandate from the Security Council to do so. As a consequence, UNMISS had no access to the southern part of Unity State until November 2015, meaning that the local civilian population could not be effectively protected from the violent campaign government forces launched in the spring of 2015, while they already faced malnutrition, disease and hunger.
The government’s counter insurgency offensive in the spring of 2015 in Unity State was carried out with the apparent purpose of spreading terror among civilians including widespread sexual and gender based violence and apparently led to the abduction of women and girls and indiscriminate attacks, on villages some of which involving massive looting of property, including thousands upon thousands of cattle.
Throughout this conflict, sexual and gender-based violence has been widespread. In 2015 in Unity state, as documented by the Assessment Mission, the breadth and depth of the crimes against women and girls is alarming.
Both parties have made commitments related to accountability for the violations committed during the conflict. Despite repeated assurances to the UN, including from the Head of State, the Government did not provide the assessment team with any information on, or evidence of, national investigations into the conflict-related violence. There appears to be little political will to explore issues of truth, justice and accountability, notwithstanding the formal acceptance of these requirements in the peace agreement. In the period covered by this report, justice has clearly not gained much ground in South Sudan.
This report also explores South Sudan’s history of war, inter-communal violence and abuse, without any form of accountability or meaningful reconciliation. The complex inter-tribal narratives and the shifting alliances and general unpredictability of political relations in South Sudan cannot be merely understood through easy assumptions about ethnicity and tribalism. The root causes of the violence are also moored in the divisions within the political and military movements and consequent unresolved tensions following the split in the military movement in the 1990s.
The High Commissioner hopes that this report will be viewed as an opportunity to truly acknowledge the suffering of the people of South Sudan, and that, even more importantly, its presentation to the Human Rights Council will contribute to a genuine process of accountability, truth and reconciliation, as well as guarantees of non-recurrence for the thousands of victims and their families who have suffered immeasurably over the course of the last two and a half years. Failure to address the deeply engrained disregard for human life will only generate the risk that such violations will continue to be repeated.
I. Establishment of the OHCHR Assessment Mission to South Sudan
The OHCHR Assessment Mission for South Sudan was set up by the High Commissioner following the adoption of resolution A/HRC/29/13 by the Human Rights Council in July 2015. An advance team deployed to Juba, South Sudan, in October 2015 and the full assessment team became operational in November 2015. The resolution requested OHCHR to undertake a comprehensive assessment of allegations of violations and abuses of human rights, with a view to ensuring accountability, to monitor and report on the human rights situation and to engage with the Government, in particular to make recommendations for technical assistance and capacity building and on ways to improve the situation of human rights in the country.
The resolution further asked OHCHR to assess the effectiveness of steps taken by the Government of South Sudan on a number of benchmarks including accountability for human rights violations and abuses, steps taken to investigate, arrest and prosecute perpetrators of human rights violations and abuses, including targeted killings, rape and other forms of sexual violence, steps taken to prevent violence against children, the recruitment of children into the armed forces, arbitrary detention and to increase democratic space for civil society and media.
The terms of reference for the assessment mission (Appendix I) outline the time frame, methodology, standards of proof and other key aspects of this assessment. The mandate to carry out a comprehensive assessment was interpreted as the collection of information on the human rights situation, including on specific violations and abuses, from both primary and secondary sources, in order to evaluate specific trends and patterns of violations and abuses and identify the alleged perpetrators. The assessment looked at violations and abuses attributed to both State actors and non-State armed groups, including the SPLM/A-IO which continued to be in de facto control of some parts of the country.
The Human Rights Council resolution did not set out a temporal scope for the assessment. However its preamble referred to human rights violations committed since the outbreak of violence on 15 December 2013. In this context, the team, subject to considerable constraints, carried out an assessment of alleged violations and abuses of human rights committed from 15 December 2013 through 31 December 2015, with a special emphasis on those violations and abuses that were committed after the departure of the African Union Commission of Inquiry (AU COI) in September 2014. The assessment mission did not re-examine violations set out in the AU COI report, nor those alleged in the reporting of UNMISS in 2014.6
The assessment mission took into consideration contextual and other relevant information that, while falling outside the time frame, helped in providing a better understanding of the current crisis, particularly the legacy of violence that has had a profound impact on the civilian population.
With regard to the geographical scope, while the human rights situation in the country as a whole was assessed, because of the nature of the conflict and the limited time available, the assessment focused on conflict-affected states, Unity and Upper Nile, as well as states previously unaffected by fighting but that have seen an increase in insecurity and pockets of violence in 2015, in particular Western and Central Equatoria.
Extensive documentation of violations of international law is already available for the period covered by the OHCHR Assessment Mission. The assessment team undertook a desk review of existing material, including UNMISS public reports and the report of the AU COI on South Sudan that was released in October 2015. In addition, the team examined official documents of the Government, reports by other UN entities and agencies including the UN Panel of Experts on South Sudan, international NGOs, national civil society organizations and reports of the United Nations Special Procedures and treaty bodies.
In the course of its work, the assessment team received and gathered information from many sources including the parties to the conflict, as well as United Nations personnel, national civil society organizations, international NGOs, human rights defenders and other professionals. Further, the United Nations’ Operational Satellite Applications Programme (UNOSAT) provided invaluable analysis on satellite imagery.
1. Protection of victims and witnesses
While, the team placed emphasis on collecting first-hand testimony of victims and witnesses of violations and abuses, identifying and protecting victims and witnesses and other potential sources of testimony during an on-going internal armed conflict was challenging. Though some victims and witnesses could be located within the Protection of Civilians sites (POCs) in UNMISS compounds, many victims and witnesses had been displaced into harsh and dangerous living conditions, far away from towns and villages, or transport hubs.
In line with UN policy on information sensitivity, classification and handling, information provided by witnesses and other confidential material collected are classified as strictly confidential.7 Details which could reveal the identity of victims or witnesses such as names, dates and places have been omitted in order to ensure victims, witnesses and their families’ safety and security.
In total, 121 confidential interviews were conducted. Most of the testimonies came from victims and witnesses that had experienced extensive trauma and terror, with many constantly being displaced by renewed violence and having no safe haven. Building trust through strict confidentiality and ensuring adequate protection measures were in place, particularly when children were involved, was essential to creating a secure environment in which victims and witnesses could recount their experiences.
With regard to sexual and gender-based violence, the assessment team interviewed women individually and held group discussions and meetings with several women representing particular ethnic groups in UNMISS POCs as part of the information gathering process. Beyond violations of a sexual and gender-based nature, women spoke to the team about the impact of the conflict on livelihoods, family and societal relations, sexual and reproductive health and general insecurity.
2. Fear of reprisals, harassment, intimidation and other abuses
Since the outbreak of the conflict in late 2013, civil society activists, human rights defenders, humanitarian actors, journalists and print media, and even UN staff members have been the subject of threats, intimidation, harassment, detention and, in some instances, death by the Government. Notwithstanding such an environment, many witnesses showed enormous courage by reaching out and making a contribution to the work of the Assessment Mission. The assessment team exercised extreme caution in communicating with sources inside the country.
3. Risk of re-traumatization
Since late December 2013, a number of inter-government bodies (the UN, the AU and IGAD) have undertaken extensive interviewing of victims and witnesses to the conflict. In addition, international NGOs and local and international media have also covered the crisis, interviewing victims of violations or abuses. The continuing trauma suffered by thousands of civilians since the outbreak of violence in December 2013 made the assessment team sensitive to the risks of re-traumatization through repeated interviewing and appropriate measures were taken in this regard. The assessment team was conscious of the fact that in South Sudan there is limited counseling or psychosocial support available to victims and witnesses, however whenever possible and as necessary, victims and witnesses were directed towards existing services.
The OHCHR mandate was primarily to undertake a human rights assessment. Although the assessment was not expected to undertake in-depth investigations, the amount of verified information it collected enabled the team to use the standard of proof commonly used for human rights investigations, i.e. the standard of “reasonable grounds to believe.” 8 There are “reasonable grounds to believe” that an incident or pattern of violations or abuses, some of which may amount to violations of international law, occurred when there is a credible body of information, consistent with other information, indicating their occurrence. This standard of proof is sufficiently high to call for a judicial investigation into violations and abuses of international human rights and humanitarian law as well as international crimes.
The OHCHR assessment team received allegations which linked individual alleged perpetrators to specific violations or abuses or to pattern of violations or abuses. In some instances, there is sufficient information to warrant criminal investigations of individual alleged perpetrators so as to assess their criminal responsibility and establish whether, by acts or omissions, they may be responsible directly or have command responsibility under international humanitarian law. Considering the importance of this information for its mandate, in particular in ensuring accountability, OHCHR has recorded this information. For reasons of witness protection, individual names have not been included in this present report, and are retained on a strictly confidential basis by OHCHR. In other instances, there was insufficient information regarding perpetrators. Though credible information exists that a violation or abuse may have occurred, further investigation would be required to draw meaningful conclusions as to who was responsible. During the assessment, the team received information concerning individuals with alleged responsibility for violations and abuses.