AfricaFocus Bulletin
November 11, 2015 (151111)
(Reposted from sources cited below)

Editor’s Note

“New research from the Tax Justice Network shows that the gap
between where companies pay tax and where they really do their
business is huge … even developed countries with state-of-the-art
tax legislation and well-equipped tax authorities cannot stop
multinationals dodging their tax without a thorough reform of the
global tax system. … [these practices have] a relatively greater
impact on developing countries, whose public revenues are more
dependent on the taxation of large businesses.”

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Two new reports, briefly excerpted in this AfricaFocus Bulletin,
shed light on the complex global systems of tax evasion and tax
avoidance which are draining resources from public needs in both
rich and poor countries. While giant companies and the super-rich
move their money around the world in secrecy, the system is obscured
both by secrecy and by deceptive language.

Thus, according to the highly regarded and well-publicized
Corruption Perception Index from Transparency International,
Switzerland, Hong Kong, the United States, Singapore, Luxembourg,
Germany, and the United Kingdom are all among the 20 “least corrupt
countries” in the world. Yet the less-well-known Financial Secrecy
Index, from Tax Justice Network, also places them among the top 15
“secrecy jurisdictions” (also known as “tax havens”) which serve as
the essential “enablers” of corruption and of illicit financial
flows by multinational corporations.

Similarly, there is no doubt that Africa and other developing
regions are hardest hit by this global tax abuse, while they have
the most urgent needs for investment in public goods. But a new
report by the Global Tax Justice Network and other civil society
groups shows that rich countries themselves are also major losers,
as corporations shift profits from one rich country to another (as
well as to smaller smaller jurisdictions fitting the stereotype of
“tax havens”). In 2012 U.S. multinationals alone shifted between
$500-$700 billion dollars out of the country, or roughly 25 percent
of their annual profits.

For previous AfricaFocus Bulletins on tax justice and related
issues, visit http://www.africafocus.org/intro-iff.php

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

Financial Secrecy Index 2015 reveals improving global financial
transparency, but USA threatens progress

Tax Justice Network

Press Release

http://www.taxjustice.net/

Nov 2, 2015

European Union moves furthest with reforms; USA causes great
concern; and developing countries are (as usual) reaping few
benefits.

Today the Tax Justice Network launches the 2015 Financial Secrecy
Index, the biggest ever survey of global financial secrecy. This
unique index combines a secrecy score with a weighting to create a
ranking of the secrecy jurisdictions and countries that most
actively promote secrecy in global finance.

Most countries’ secrecy scores have improved. Real action is being
taken to curb financial secrecy, as the OECD rolls out a system of
automatic information exchange (AIE) where countries share relevant
information to tackle tax evasion. The EU is starting to crack open
shell companies by creating central registers of beneficial owners
and making that information available to anyone with a legitimate
interest. The EU is also requiring multinationals to provide
country-by-country financial data.

But these global and regional initiatives are flawed and face
sabotage by lobbies that have already weakened them. Secrecy-related
financial activity risks being shifted to other areas such as the
all-important trusts sector, where no serious action is being taken
despite promises made by the G8 in 2013, and shell companies, where
many secrecy jurisdictions such as Dubai, the British Virgin Islands
or Nevada in the U.S. are refusing to open up.

The FSI Top 10

1. Switzerland
2. Hong Kong
3. USA
4. Singapore
5. Cayman
6. Luxembourg
7. Lebanon
8. Germany
9. Bahrain
10. Dubai / UAE

[Note from AfricaFocus Editor: African countries on the list rank as
follows: Mauritius 23; Liberia 33; Ghana 48; South Africa 61;
Botswana 62; Seychelles 72]

Crucially, even in those areas where there has been progress,
developing countries are largely being sidelined: OECD countries are
the main beneficiaries.

Our analysis also reveals that the United States is the jurisdiction
of greatest concern, having made few concessions and posing serious
threats to emerging transparency initiatives. Rising from sixth to
third place in our index, the US is one of the few whose secrecy
score worsened after 2013. Switzerland stays at the top of the index
and for good reason: despite what you may have heard, Swiss banking
secrecy is far from dead, though it has curbed its secrecy somewhat.
The United Kingdom also remains a huge concern. While its own
secrecy is moderate, its global network of secrecy jurisdictions –
the Crown Dependencies and Overseas Territories – still operate in
deep secrecy and have, for instance, not co-operated in creating
public registers of beneficial ownership. The UK has failed to
address this effectively, though it has the power to do so.

The progress: a scorecard

Since the global financial crisis emerged in 2008, governments have
sought to curb budget deficits by cracking down on offshore
corporate and individual tax cheating and financial crimes by the
world’s wealthiest citizens. Campaigners have shown them the way and
the sea change in the political climate has been remarkable.
Progress has come in three main areas.

* Twelve years ago the tax justice movement created country-by-
country reporting (CbCR), a measure that can shine a light  country
where they operate, including tax havens. They told us CbCR would
never happen: it is now endorsed at G20 level and the first schemes
to implement it are in place. However, we are concerned that CbCR
cannot work unless the information is made publicly available.

* Just four years ago they laughed at us for pushing the concept of
automatic information exchange (AIE), where countries routinely
share information about each others’ taxpayers so they can be taxed
appropriately. AIE is now being rolled out worldwide.

* They said we at TJN were crazy to contemplate public registries of
beneficial ownership (BO), to crack open shell companies and ensure
that businesses, governments and the public know who they are
dealing with, and to provide the basis for effective AIE. Beneficial
ownership registries are now endorsed at G20 level: we now need a
big political push to make them a reality and bring this information
into the public domain.

Of these areas most progress has been made on AIE, with several
schemes emerging. Though the G20 had mandated the OECD to create a
country-by-country reporting standard, what it came up with has
fallen well short, victim of heavy lobbying behind the scenes by
U.S. multinationals in particular. Finally, the UK has passed
legislation to create a public register of company beneficial
ownership information, and the EU has required all member states to
make beneficial ownership information available to anyone with a
legitimate interest. However, little progress has been made towards
creating an effective form of public registry for offshore trusts.

These broad changes are welcome, and we are pleased to see the EU
leading the way: even some of Europe’s historically worst secrecy
jurisdictions, such as Luxembourg and Austria, are engaging.

The EU’s leadership role, however, is called into question by recent
resistance, spearheaded by Germany, to block public access to CbCR
data and prevent expansion of CbC reporting beyond the banking and
extractives sectors. (Read more about the current EU-level
negotiations here.)

Almost all of the progress to date has arisen from public pressure.
To counter the lobbies that constantly seek to undermine progress,
sustained political grass roots pressure is indispensable.

The backsliding

Yet huge problems remain.

None of these initiatives take the interests of developing countries
sufficiently into account. They haven’t been centrally involved in
setting the rules, and most will see little if any benefit. (Note,
too, that secrecy is just part of a wider charge sheet against tax
havens, as the box above explains.)

Meanwhile, even progress to date is under threat:

* Private sector ‘enablers’ and recalcitrant jurisdictions like
Dubai and the Bahamas are beavering away finding exclusions and
loopholes, being picky about which countries they’ll exchange
information with, and simply disregarding the rules.

* The United States’ hypocritical stance of seeking to protect
itself against foreign tax havens while preserving itself as a tax
haven for residents of other countries needs to be countered. The
European Union must take the lead here by imposing a 35 percent
withholding tax on EU-sourced payments to U.S. and other non-
compliant financial institutions, in the same way as the U.S. FATCA
scheme does; and this should become global standard practice.

* The UK has been playing a powerful blocking role to protect its
huge, slippery and dangerous trusts sector, probably the biggest
hole in the entire global transparency agenda. See below for more
details.

The next section gives a brief description of the biggest players in
the secrecy world today.

FSI 2015: the big players

[See full press release for more details on each country

* Switzerland (first place)

* United States (3rd place)

* United Kingdom [not in top ten, but “supports a network of secrecy
jurisdictions around the world.” If counted together, would be first
place]

* Hong Kong [2nd place]

* Singapore [4th place]

* Cayman Islands [5th place]

* Luxembourg [6th place]

* Lebanon [7th place]

* Germany [8th place]

* Bahrain [9th place]

* Dubai [10th place]

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

About the Financial Secrecy Index

http://www.financialsecrecyindex.com/

The Financial Secrecy Index ranks jurisdictions according to their
secrecy and the scale of their offshore financial activities. A
politically neutral ranking, it is a tool for understanding global
financial secrecy, tax havens or secrecy jurisdictions, and illicit
financial flows or capital flight. The index was launched on
November 2, 2015.

Shining light into dark places

An estimated $21 to $32 trillion of private financial wealth is
located, untaxed or lightly taxed, in secrecy jurisdictions around
the world. Secrecy jurisdictions – a term we often use as an
alternative to the more widely used term tax havens – use secrecy to
attract illicit and illegitimate or abusive financial flows.

Illicit cross-border financial flows have been estimated at $1-1.6
trillion per year: dwarfing the US$135 billion or so in global
foreign aid. Since the 1970s African countries alone have lost over
$1 trillion in capital flight, while combined external debts are
less than $200 billion. So Africa is a major net creditor to the
world Рbut its assets are in the hands of a wealthy ̩lites,
protected by offshore secrecy; while the debts are shouldered by
broad African populations.

Yet all rich countries suffer too. For example, European countries
like Greece, Italy and Portugal have been brought to their partly
knees by decades of tax evasion and state looting via offshore
secrecy.

A global industry has developed involving the world’s biggest banks,
law practices, accounting firms and specialist providers who design
and market secretive offshore structures for their tax- and law-
dodging clients. ‘Competition’ between jurisdictions to provide
secrecy facilities has, particularly since the era of financial
globalisation really took off in the 1980s, become a central feature
of global financial markets.

The problems go far beyond tax. In providing secrecy, the offshore
world corrupts and distorts markets and investments, shaping them in
ways that have nothing to do with efficiency. The secrecy world
creates a criminogenic hothouse for multiple evils including fraud,
tax cheating, escape from financial regulations, embezzlement,
insider dealing, bribery, money laundering, and plenty more. It
provides multiple ways for insiders to extract wealth at the expense
of societies, creating political impunity and undermining the
healthy ‘no taxation without representation’ bargain that has
underpinned the growth of accountable modern nation states. Many
poorer countries, deprived of tax and haemorrhaging capital into
secrecy jurisdictions, rely on foreign aid handouts.

This hurts citizens of rich and poor countries alike.

What is the significance of this index?

In identifying the most important providers of international
financial secrecy, the Financial Secrecy Index reveals that
traditional stereotypes of tax havens are misconceived. The world’s
most important providers of financial secrecy harbouring looted
assets are mostly not small, palm-fringed islands as many suppose,
but some of the world’s biggest and wealthiest countries Rich OECD
member countries and their satellites are the main recipients of or
conduits for these illicit flows.

The implications for global power politics are clearly enormous, and
help explain why for so many years international efforts to crack
down on tax havens and financial secrecy were so ineffective, it is
the recipients of these gigantic inflows that set the rules of the
game.

Yet our analysis also reveals that recently things have genuinely
started to improve. The global financial crisis and ensuing economic
crisis, combined with recent activism and exposure of these problems
by civil society actors and the media, and rising concerns about
inequality in many countries, have created a set of political
conditions unparalleled in history. The world’s politicians have
been forced to take notice of tax havens. For the first time since
we first created our index in 2009, we can say that something of a
sea change is underway.

World leaders are now routinely talking about the scourges of
financial secrecy and tax havens, and putting into place new
mechanisms to tackle the problem. For the first time the G20
countries have mandated the OECD to put together a new global system
of automatic information exchange to help countries find out about
the cross-border holdings of their taxpayers and criminals. This
scheme is now being rolled out, with first information due to be
exchanged in 2017.

Yet of course these schemes are full of loopholes and shortcomings:
many countries are planning to pay only lip service to them, if that
— and many are actively seeking ways to undermine progress, with
the help of a professional infrastructure of secrecy enablers. The
edifice of global financial secrecy has been weakened – but it
remains fully alive and hugely destructive. Despite what you may
have read in the media, Swiss banking secrecy is far from dead.
Without sustained political pressure from millions of people, the
momentum could be lost.

The only realistic way to address these problems comprehensively is
to tackle them at root: by directly confronting offshore secrecy and
the global infrastructure that creates it. A first step towards this
goal is to identify as accurately as possible the jurisdictions that
make it their business to provide offshore secrecy.

This is what the FSI does. It is the product of years of detailed
research by a dedicated team, and there is nothing else like it out
there. We also have a set of unique reports outlining detailed
offshore histories of the biggest players in the game.

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

Global Alliance for Tax Justice

G20 among biggest losers in large-scale tax abuse – but poor
countries relatively hardest hit

Press Release

[Excerpt. Full press release & related reports available at
http://www.globaltaxjustice.org | direct URL:
http://tinyurl.com/pcbgoyw]

November 10, 2015

G20 countries are among the biggest losers when US multinationals
avoid paying taxes where they do business. This is the main finding
of ‘Still Broken’ a new report on the global tax system released by
the Tax Justice Network, Oxfam, Global Alliance for Tax Justice and
Public Services International in advance of the G20 leaders’ meeting
in Turkey.

Overall it is estimated that, in order to reduce their tax bills, US
multinationals shifted between $500 and 700 billion—a quarter of
their annual profits—out of the United States, Germany, the United
Kingdom and elsewhere to a handful of countries including the
Netherlands, Luxembourg, Ireland, Switzerland and Bermuda in 2012.
In the same year, US multinational companies reported US$ 80 billion
of profits in Bermuda – more than their profits reported in Japan,
China, Germany and France combined.

Claire Godfrey, head of policy for Oxfam’s Even it Up Campaign said:
“Rich and poor countries alike are haemorrhaging money because
multinational companies are not required to pay their fair share of
taxes where they make their money. Ultimately the cost is being
borne by ordinary people – particularly the poorest who rely on
public services and who are suffering because of budget cuts.”

Rosa Pavanelli, general secretary of Public Services International
said: “Public anger will grow if the G20 leaders allow the world’s
largest corporations to continue dodging billions in tax while
inequality rises, austerity bites and public services are cut.”

The G20 Heads of State are expected to consider a package of
measures they claim will address corporate tax avoidance at their
annual meeting in Turkey on 15 and 16 November.

Alex Cobham, director of research at Tax Justice Network, said: “The
corporate tax measures being adopted by the G20 this week are not
enough. They will not stop the race to the bottom in corporate
taxation, and they will not provide the transparency that’s needed
to hold companies and tax authorities accountable. It’s in the G20’s
own interest to support deeper reforms to the global tax system.”

Twelve countries – the United States, Germany, Canada, China,
Brazil, France, Mexico, India, UK, Italy, Spain and Australia –
account for roughly 90 percent of all missing profits from US
multinationals. For example, US multinationals make 65 percent of
their sales, employ 66 percent of their staff and hold 71 percent of
their assets in America but declare only 50 percent of their profits
in the country.

While G20 countries lose the largest amount of money, low income
developing countries such as Honduras, the Philippines and Ecuador
are hardest hit because corporate tax revenues comprise a higher
proportion of their national income. It is estimated, for example,
that Honduras could increase healthcare or education spending by
10-15 percent if the practice of profit shifting by US
multinationals was stopped.

Dereje Alemayehu, chair of the Global Alliance for Tax Justice said:
“If big G20 economies with well-developed tax legislation and well-
supported tax authorities cannot put a stop to corporate tax abuse,
what hope have poor countries with less well-resourced tax
administrations? Poor countries need a seat at the table in
negotiations on future tax reforms to ensure that they can claim tax
revenues which are desperately needed to tackle poverty and
inequality.”

The Tax Justice Network, Oxfam, Global Alliance for Tax Justice and
Public Services International are calling on the G20 to support
further reforms to the global tax system that involve all countries
on an equal footing. These reforms should effectively tackle harmful
tax practices such as profit shifting and the use of corporate tax
havens and should halt the race to the bottom in general corporate
tax rates.

Summary of report

In 2013 the OECD, supported by the G20, promised to bring an end to
international corporate tax avoidance which costs countries around
the world billions in tax revenues each year. However, with the
recently announced actions against corporate tax dodging, G20 and
OECD countries have failed to live up to their promise. Despite some
meaningful actions, they have left the fundamentals of a broken tax
system intact and failed to curb tax competition and harmful tax
practices.

It is often assumed that the richest and largest economies, home to
most of the world’s multinationals, defend the current system
because it is in their interests.

However, new research from the Tax Justice Network1 shows that the
gap between where companies pay tax and where they really do their
business is huge and that among the biggest losers are G20 countries
themselves, including the US, UK, Germany, Japan, France, Mexico,
India, and Spain. This shows that even developed countries with
state-of-the-art tax legislation and well-equipped tax authorities
cannot stop multinationals dodging their tax without a thorough
reform of the global tax system.

Profit shifting to reduce taxes is happening on a massive scale. In
2012, US multinationals alone shifted $500–700bn, or roughly 25
percent of their annual profits, mostly to countries where these
profits are not taxed, or taxed at very low rates. In other words,
$1 out of every $4 of profits generated by these multinationals is
not aligned with real economic activity.

Large corporations and wealthy elites exploit the rigged
international tax system to avoid paying their fair share of taxes.
This practice has a relatively greater impact on developing
countries, whose public revenues are more dependent on the taxation
of large businesses. Recent IMF research indicates that revenue loss
to developing countries is 30 percent higher than for OECD countries
as a result of the base erosion and profit shifting activities of
multinational companies.

Tax avoidance is a key factor in the rapid rise in extreme
inequality seen in recent years. As governments are losing tax
revenues, ordinary people end up paying the price: schools and
hospitals lose funding and vital public services are cut. Fair
taxation of profitable businesses and rich people is central to
addressing poverty and inequality through the redistribution of
income. Instead, the current global system of tax avoidance
redistributes wealth upwards to the richest in society.

That is why civil society organizations, united in the C20 group,
together with trade unions, are calling for the actions announced by
the OECD to be regarded only as the beginning of a longer and more
inclusive process to re-write global tax rules and to ensure that
multinationals pay their fair share, in the interest of developed
and developing countries around the world.

Considering the enormous losses that countries around the world
incur, it is alarming that the G20 seems fairly satisfied with the
current agenda. Governments and citizens of G20 countries should
wake up, face the facts and take additional action immediately.

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

AfricaFocus Bulletin is an independent electronic publication
providing reposted commentary and analysis on African issues, with a
particular focus on U.S. and international policies. AfricaFocus
Bulletin is edited by William Minter.

AfricaFocus Bulletin can be reached at africafocus@igc.org. Please
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or to suggest material for inclusion. For more information about
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http://www.africafocus.org

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

By James Thompson

Although the peace and justice movement in the United States has done a lot of good for many years and this country would be in much worse shape if there had not been such a movement, we must ask “Where is the peace and justice movement now when the United States is engaged in constant provocative military action around the globe?”

Any rational person can see that the US constantly seeks to provoke and destabilize any country that does not carry out the wishes of the US bourgeoisie. The US military is stretched thin, but provokes both Russia and China on their own borders. It should be pointed out that Russia and China are not engaged in provocative action on US borders.

The US is engaged in military exercises in Europe, Ukraine, the Baltic states, the South China Sea, to name but a few. The U.S. Senate just voted today to send more money to the US imposed fascist government in the Ukraine. Sen. Bernie Sanders was one of three people who voted against the reactionary stupidity of the deranged maggots in the US Senate. The US continues both direct and proxy military action in the Middle East and around the world. One way of thinking about it is that it is like a colony of ants surrounding an Exterminator. When the ants irritate the Exterminator enough, the Exterminator is likely to take action which could prove extremely harmful to the ants.

So, the question remains, “Where is the mass movement to oppose catastrophic war with Russia and China?”

By James Thompson

As the Republican buffoons prepare to take the stage for a debate free of “hard questions” it seems important to shine a little light on these champions of mendacity. In Texas, particularly Houston, we have a serious problem with cockroaches. Over the years, I have learned that when you shine a light on the cockroaches, they have a tendency to scatter and run. By the way, in Houston we have some very large cockroaches.

In the Houston Chronicle today, there is an article which discusses the obfuscated history of Ted Cruz’ father. The stories about Rafael Cruz are so convoluted that it is difficult to ascertain the facts. Although Sen. Ted Cruz would happily mislead us to believe that his father “fled the tyranny of Fidel Castro,” when you shine a light on Cruz’ father’s history, it appears to contradict the picture Sen. Cruz paints. Several accounts suggest that Cruz’ father supported the revolutionary struggle against the US backed dictator Batista in Cuba which was led by Fidel Castro. It turns out that Mr. Cruz was arrested by the Batista storm troops and he successfully finagled an exit from Cuba to Austin, Texas in 1957. 1957 was two years before Castro and the revolutionary forces in Cuba seized political power from Batista. So, it turns out that Cruz’ father not only supported Castro, but he was opposed to and fled from the US backed dictator, Batista. So, it appears that Sen. Cruz has struck a major blow for mendacity.

Sen. Cruz is well known for his efforts to shut down the US government and his pernicious anti-immigrant stance.

Another Republican buffoon who will take the states tonight in the Republican debates is no stranger to mendacity. Ben Carson has been recently outed for his misleading statements about a fantasized scholarship to the West Point Academy, a prestigious military institution of higher learning.

Mr. Carson is well known for his racist, anti-Islam demagoguery.

Donald Trump, another of the leading Republican buffoons might be described as a farce wrapped inside a joke. Some people asked the question “How can you tell when Donald Trump is lying?” The answer that many people have come to is “When his lips are moving.”

Mr. Trump and Mr. Carson seem to be locked in a struggle to see who can be the most vicious anti-immigrant politician since Adolf Hitler.

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.”

For a version of this Bulletin in html format, more suitable for
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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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