AfricaFocus Bulletin
October 28, 2015 (151028)
(Reposted from sources cited below)

Editor’s Note

“Based on its inquiry, the Commission finds that there are
reasonable grounds to believe that acts of murder, rape and sexual
violence, torture and other inhumane acts of comparable gravity,
outrages upon personal dignity, targeting of civilian objects and
protected property, as well as other abuses, have been committed by
both sides to the conflict.”

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This AfricaFocus Bulletin contains excerpts from the introduction
and executive summary of the report, which was completed a year ago
but only released this month, after extensive internal consideration
by the African Union. The report is published in full, with the
exception of a confidential list of alleged perpetrators submitted
to the AU Peace and Security Council.

Although these excerpts focus on accountability for human rights
violations, the report also contains in-depth analysis and
recommendations on other fundamental issues of state-building, as
well as on continued engagement by the African Union, other
international institutions, and Sudanese civil society and
governmental institutions. In addition, there is a separate opinion
by one of the commissioners, Dr. Mahmood Mamdani, with very
substantive additional analysis. Your editor has not yet read the
full report (315 pages) and separate opinion (60 pages), but both
clearly warrant careful attention not just for their analysis of
South Sudan but also for their critical approach to international
peace-building initiatives more generally.

For other news on South Sudan, visit http://allafrica.com/southsudan
and http://sudantribune.com/

For previous AfricaFocus Bulletins on South Sudan, visit
http://www.africafocus.org/country/southsudan.php

For previous AfricaFocus Bulletins on peace and security, visit
http://www.africafocus.org/intro-peace.php

++++++++++++++++++++++end editor’s note+++++++++++++++++

Final Report of the African Union Commission of Inquiry on South
Sudan

AU Commission of Inquiry on South Sudan

Addis Ababa, Ethiopia P. O. Box 3243 Telephone: +251 11 551 7700 /
+251 11 518 25 58/ Ext 2558

Website: http://www.au.int/en/auciss

[excerpts from executive summary; full executive summary and
full report available at http://www.peaceau.org/en/article/abc]

A. Introduction

1. As part of its response to the crisis in South Sudan, the Peace
and Security Council of the African Union (AU), at its 411th meeting
held at the level of Heads of State and Government, in Banjul, The
Gambia, on 30 December 2013, mandated the establishment of the
Commission of Inquiry on South Sudan (AUCISS). In the said
communiqué, the PSC requested: […] the Chairperson of the
Commission, in consultation with the Chairperson of the African
Commission on Human and Peoples’ Rights (ACHPR) and other relevant
AU structures, to urgently establish a Commission to investigate the
human rights violations and other abuses committed during the armed
conflict in South Sudan and make recommendations on the best ways
and means to ensure accountability, reconciliation and healing among
all South Sudanese communities. Council requests that the above-
mentioned Commission submit its report to Council within a maximum
period of three months.

2. In specific terms, the AUPSC Communiqué mandates the AUCISS:

a) To investigate the human rights violations and other abuses
committed during the armed conflict in South Sudan;

b) To investigate the causes underlying the violations;

c) To make recommendations on the best ways and means to ensure
accountability, reconciliation and healing among all South Sudanese
communities with a view to deterring and preventing the occurrence
of the violations in future; and

d) To make recommendations on how to move the country forward in
terms of unity, cooperation and sustainable development;

e) To submit a report within a maximum period of three (3) months.

3. Pursuant to the AUPSC Communiqué, the Commission adopted the
Terms of Reference (ToR) detailed in the Concept Note Relating to
the Establishment of the AUCISS are to:

a) Establish the immediate and remote causes of the conflict;

b) Investigate human rights violations and other abuses during the
conflict by all parties from 15 December 2013;

c) Establish facts and circumstances that may have led to and that
amount to such violations and of any crimes that may have been
perpetrated;

d) Compile information based on these investigations and in so doing
assist in identifying perpetrators of such violations and abuses
with a view to ensuring accountability for those responsible;

e) Compile information on institutions and process or lack thereof
that may have aided or aggravated the conflict resulting in
violations of human rights and other abuses;

f) To examine ways on how to move the country forward in terms of
unity, cooperation and sustainable development;

g) Present a comprehensive written report on the overall situation
South Sudan to the African Union Peace and Security Council within a
period of three (3) months from the commencement of its activities.

h) Make recommendations based on the investigation on the following:

* appropriate mechanisms to prevent a recurrence of the conflict;

* mechanisms to promote national healing and cohesiveness,
particularly focusing on the need for all South Sudanese communities
to live together in peace;

* modalities for nation building, specifically focused on building
of a functional political order, democratic institutions and post-
conflict reconstruction;

* accountability mechanisms for gross violations of human rights and
other egregious abuses to ensure that those responsible for such
violations are held to account.

4. The Commission interpreted its mandate to consist of four focal
areas: healing, reconciliation, accountability and institutional
reforms. The Commission approached its mandate in a holistic manner,
emphasizing the interrelatedness of the mandate areas.

5. Following consultations, the Chairperson of the AU Commission
formally announced the creation of the AUCISS on 7 March 2014 at the
Headquarters of the African Union. The Commission is constituted as
follows:

The Chairperson:

i) H.E. Olusegun Obasanjo, Former President of the Republic of
Nigeria.

Other members of the Commission:

ii) Lady Justice Sophia A.B Akuffo, Judge of the Supreme Court of
Ghana, President of the African Court on Human and Peoples’ Rights.

iii) Professor Mahmood Mamdani, Professor and Executive Director,
Makerere Institute of Social Research, Makerere University, Kampala,
Uganda, Herbert Lehman Professor of Government, Columbia University.

iv) Ms. Bineta Diop, President, of Femmes Africa Solidarité (FAS),
AU Chairperson’s Special Envoy on Women, Peace and Security.

v) Professor Pacifique Manirakiza, Professor of Law, University of
Ottawa and Member, African Commission on Human and Peoples’ Rights

6. The Commission was sworn in on March 12, 2014 and thereafter
adopted a programme of work.

…

21. During the first three months following its constitution, the
Commission conducted several missions to South Sudan and
neighbouring countries during the following dates; April 16
(Khartoum), April 23-30 (Juba), May 10-15 (Kenya), May 15-18
(Uganda); May 26-June 4 (South Sudan: Juba, Bor, Bentiu and
Malakal), June 5-7 (Kenya: Kakuma Refugee Camp) and Khartoum; and 20
July – 11 August (Unity, Upper Nile, Jonglei, Central Equatoria
State, Western Equatoria State, Lakes State, Western Bahr el Ghazar
State, Northern Bahr el Ghazal State, Warrap State and Eastern
Equatoria State).

22. The Commission was granted an extension of time of 3 months by
the decision of the 23rd Ordinary Session of the Assembly of the AU
held in Malabo from 26 to 27 June 2014 following the presentation of
its Interim Report to the Assembly of Heads of States and
Government. The Commission’s request for extension of time was
justified by the need to conduct more extensive consultations with
different sectors of South Sudanese Society in all the 10 states as
well as the Diaspora (Kenya, Uganda, Switzerland, United Kingdom)
and to finalize investigations. During this second phase of the
Commission’s work, the Commission covered the entire country between
July and August in its efforts to ensure that all parts of the
society – particularly those parts of the country that were not the
specific theatres of violence but had been, inevitably, affected by
the conflict – were given the opportunity not only to offer their
perspectives on the background to the crisis but to also air their
views on the way forward for the country.

…

*******************************************************

II. Examination of Human Rights Violations and Other Abuses During
the Conflict: Accountability

125. The Commission’s inquiry and investigations focused not only on
the key areas in the four states that have been the main theatres of
violence but also extended to other places where violations could
have occurred or where relevant evidence may be found. The sites of
investigations included Juba and its environs, Bor (Jonglei), Bentiu
(Unity), Malakal (Upper Nile), rural areas surrounding these major
towns, and Kakuma refugee camp in Kenya. Time constraints precluded
visits to refugee camps in Ethiopia (Gambella), Sudan, and Uganda.
Site visits to alleged theatres of violence were undertaken where
permitted. In particular, the Commission visited Gudele joint
operation centre, Tiger Battalion barracks, Juba Teaching Hospital,
New Site burial site, Giyada Military Hospital, Bor Teaching
Hospital, St Andrews burial site, Bor burial site, Malakal Teaching
Hospital and Malakal burial site. Forensic reviews of the stated
sites were undertaken and documentation carried out. Witness or
survivor injuries were also examined by the forensic doctors and
forensic evidence was collected at crime scenes or incident sites.

Findings Relating to Violations of Human Rights and Other Abuses
(violations IHL)

126. The Commission found cases of sexual and gender based violence
committed by both parties against women. It also documented extreme
cruelty exercised through mutilation of bodies, burning of bodies,
draining human blood from people who had just been killed and
forcing others from one ethnic community to drink the blood or eat
burnt human flesh. Such claims were registered during interviews of
witnesses of crimes committed in Juba. Elsewhere, witnesses of
crimes committed in Bor Town, also provided evidence of brutal
killings and cruel mutilations of dead bodies. In Malakal town,
reports of abduction and disappearance of women from churches and
the hospital where communities had sought refuge during the
hostilities that began in December 2013 were rife. In Unity State,
Bentiu, the capital has been the focus of much of the fighting,
having changed hands several times between government and opposition
soldiers during the course of the conflict. Bentiu town is largely
destroyed. In Leer county, the Commission heard testimony of
civilians, including children and teenagers killed, houses, farms
and cattle burned, and of sexual violence.

127. Overall, the Commission found that while there was limited
active conflict in all states visited, tensions remain high in the
three most conflict affected states of Upper Nile, Unity and
Jonglei. Many respondents talked of fear and all stakeholders and
interlocutors noted a level of anxiety of an impending attack by one
side or the other. Life for civilians in all three state capitals of
Malakal, Bentiu and Bor has not fully returned to normal. The
majority of civilians remain either in UNMISS protection of civilian
sites (POCs) or in inaccessible locations in the surrounding
villages and rural areas. Guarantees of security remain a great
concern for civilians.

128. The Commission found that most of the atrocities were carried
out against civilian populations taking no active part in the
hostilities. Places of religion and hospitals were attacked,
humanitarian assistance was impeded, towns pillaged and destroyed,
places of protection were attacked and there was testimony of
possible conscription of children under 15 years old.

129. The Commission found that unlawful killings of civilians or
soldiers who were believed to be hors de combat (no longer taking
part in hostilities), were committed in and around Juba. The people
killed were either found during the house to house searches or
captured at roadblocks.

130. The Commission found that violations of human rights and other
abuses in relation to massive and indiscriminate attacks against
civilians and civilian property were carried out in Bor town.
Visible evidence of torched non- military objects like houses,
market place, administration houses, hospital and hospitals form the
basis of the Commission’s conclusion that these crimes were
committed. The Commission also found that civilians were targeted in
Malakal, which was under the control of both parties at different
times during the conflict. Serious violations were committed in
Malakal Teaching Hospital through the killings of civilians and
women were raped at the Malakal Catholic Church between 18th and
27th February 2014. In Bentiu the Commission heard testimony of the
extremely violent nature of the rape of women and girls – that in
some instances involved maiming and dismemberment of limbs.
Testimony from women in UNMISS PoC Site in Unity State detailed
killings, abductions, disappearances, rapes, beatings, stealing by
forces and being forced to eat dead human flesh.

131. Based on its inquiry, the Commission finds that there are
reasonable grounds to believe that acts of murder, rape and sexual
violence, torture and other inhumane acts of comparable gravity,
outrages upon personal dignity, targeting of civilian objects and
protected property, as well as other abuses, have been committed by
both sides to the conflict.

132. The Commission found that the context in which these violations
and crimes were committed is a non-international armed conflict
(NIAC) involving governmental (and allied) forces and SPLM/IO
fighters.

133. The Commission’s investigations as well as information received
from various sources, including its consultations, leads the
Commission to conclude that there are reasonable grounds to believe
that serious violations of human rights have occurred and that
serious violence of other abuses have also occurred, which, given
the context in which they have occurred – may amount to violations
of international humanitarian law.

Finding on the Crime of Genocide

134. The Commission finds that based on the information available to
it, there are no reasonable grounds to believe that the crime of
genocide has occurred.

135. Despite the seeming ethnic nature of the conflict in South
Sudan, the Commission, during its consultations with various groups
and individuals did not have any reasonable grounds to believe that
the crime of genocide was committed during the conflict that broke
out on December 15, 2013.

Recommendations Relating to Violations of Human Rights and Other
Abuses (Violations of IHL)

136. The Commission recommends the establishment of an ad hoc
African legal mechanism under the aegis of the African Union which
is Africa led, Africa owned, Africa resourced with the support of
the international community, particularly the United Nations to
bring those who bear the greatest responsibility at the highest
level to account. Such a mechanism should include South Sudanese
judges and lawyers. The Commission has identified possible alleged
perpetrators that might bear the greatest responsibility using the
standard of ‘reasonable grounds’ to believe that gross violations of
human rights and other abuses have occurred during the conflict (see
the highly confidential list not publicly available as part of this
report).

137. The Commission believes that with appropriate reforms, both
military and civilian justice can and should contribute to
establishing accountability. The Commission therefore recommends
that immediate reforms of civilian and military justice be
initiated. While it is believed that a long-term reform process of
the judiciary is necessary (see section recommendations related to
the judiciary above), a minimalist approach can be adopted with
respect to the criminal justice system.

138. Based on the central role played by customary justice in
facilitating access to justice in South Sudan, and the views
expressed by South Sudanese that this institution must play a role
in reconciliation at community level, the Commission recommends that
an appropriate role should be fashioned for traditional justice and
conflict resolution mechanisms, to be established in relationship
with formal accountability processes as well as the peace and the
national healing, peace and reconciliation. The Rwandan experience
with Gacaca could be instructive.

139. The Commission’s inquiry established that South Sudanese
traditional justice mechanisms combine retributive and restorative
remedies which include payment of compensation in modes acceptable
by litigants, often cattle. The notion of civil accountability i.e.
compensation to an individual for loss suffered, is indeed one of
the key features of South Sudan’s indigenous justice systems. More
importantly, the moral authority and legitimacy inherent in the
traditional systems, as understood and valued by the South Sudanese
people has a valuable role to play in healing and reconciliation and
appeasing the deeply felt grievance occasioned by violations
suffered by individuals and communities.

140. The Commission therefore recommends the creation of a national
reparations fund and programme linked appropriately to these
traditional justice mechanisms, to benefit victims of gross human
rights violations. Eligibility for reparative measures undertaken
(including rehabilitation and psychosocial assistance should not be
limited to the period to which the Commission’s mandate relates
(from December 15, 2013) but can include victims of past human
rights violations. While certain elements, particularly psychosocial
assistance and other appropriate forms of interim reparations should
be implemented immediately the broader reparations programme can be
linked to the work of a future Truth Commission.

Findings Relating to Healing and Reconciliation

141. The Commission found that the multiple conflicts and repeated
violations of human rights experienced in South Sudan have wrecked
relations between and among communities, and generated many victims.
It also established that the policy of amnesty adopted by the
government after the signing of the CPA left the past unexamined,
conflicts unresolved and their impacts, partly represented in
victims and survivors of human rights violations unaddressed.

142. The crisis has occasioned massive displacement of South
Sudanese (a reported 1.5m). Many of those displaced have live in
multiple protection sites and IDP camps around the country while
others have taken refuge in neighbouring countries.

143. The Commission’s consultations disclosed that many South
Sudanese take the view that reconciliation is dependent upon
justice, which is broader than criminal justice. The view was
expressed that those who have committed atrocities should be
prosecuted, and that victims and communities are unlikely to embrace
reconciliation otherwise, given the culture of impunity in South
Sudan. Recommendations Relating to Healing and Reconciliation

144. The Commission believes that the only sustainable solution to
facilitate the return of IDPs and refugees to their homes, is
dependent upon a political settlement in the ongoing mediation
process. The Commission urges all actors to work towards a speedy
resolution of the crisis.

145. The Commission recommends that warring parties should
facilitate the movement of IDPs in and out of the camps in their
respective areas of control.

146. It is the Commission’s view that it is necessary to establish a
structured process to provide an opportunity for South Sudanese to
engage with their history, to discover the truth about the conflicts
and human rights violations of the past, and to attend to the needs
of victims. This is the only way to foster healing, peace and
reconciliation in South Sudan, and to forge a common future. Such a
body should lead to truth, remorse, forgiveness and restitution
where necessary, justice and lasting reconciliation being achieved.

147. The Commission recommends that such a structured process must
involve and include women as key stakeholders, and that processes
and procedures operated by a future mechanism should be gender-
sensitive.

148. Overall, it is recommended that there is a need for a national
process, however organised, to provide a forum for dialogue, inquiry
and to record the multiple, often competing narratives about South
Sudan’s history and conflicts; to construct a common narrative
around which a new South Sudan can orient its future; to uncover and
document the history of victimization and to recommend appropriate
responses.

149. The Commission urges all sectors of South Sudanese society and
relevant regional and international actors to unite around the
process of national reconciliation, which is necessary for the
restoration of sustainable peace, social cohesion and stability.

150. The Commission recommends that the Truth and Reconciliation
should be established in relationship with ‘hybrid’ mechanisms such
as Wunlit with a mandate to investigate human rights violations and
to drive a national peace and reconciliation process. Unlike Wunlit,
such hybrid mechanism should be comprehensive, rather than
localized. Such mechanisms would operate under the national
mechanism, which should develop guidelines that seek to among
others, align the operations of grassroots mechanisms with human
rights and other identified ideals.

151. The Commission also recommends the establishment of a framework
for memorialization as part of the broader process of reparations.
This process should be inclusive and participatory.

On Sequencing Peace and Justice

152. The Commission’s discussion of the relationship between peace
and justice concluded that while they should be conceived as
complementary, comparative experience shows that the two notions are
often in tension, and that the context in which relevant processes
unfold is critical: while some contexts allow for reconciliation
processes and justice, particularly criminal justice measures to be
undertaken at the same time, multiple factors in other contexts
militate against such an approach. In these contexts, sequencing
offers an alternative approach that responds to the imperatives of
justice and the need to reconcile and establish stability in post
conflict societies.

153. Having considered the specific context of South Sudan, the
Commission recommends that consideration should be given to
sequencing of peace and justice, with the result that certain
aspects of justice allow for the establishment of basic conditions,
including restoring stability in South Sudan and strengthening of
relevant institutions. This should facilitate necessary reform of
the criminal justice system in order to implement some of the
Commission’s recommendations on accountability. These necessary
reforms to civilian and military justice should, in the context of
broader institutional reforms, facilitate the institution of
reconciliation measures.

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