31 March 2014
Re: Initial Recommendations on the Implementation of the Mandate of the Commission of Inquiry
Honorable Members of the Commission,
March 31, 2014 (SSNA) — We are writing to you in our capacity as members of Citizens for Peace Justice (CPJ) to share our thoughts on the important task that has been assigned to the African Union (AU) Commission of Inquiry on South Sudan. CPJ is a broadbased coalition of individuals and more than 40 organizations from South Sudanese civil society formed in the wake of the crisis in South Sudan to promote an inclusive, people-driven peace process. Our goal is to secure durable peace through social, political and economic transformation.
In a number of recent public statements, CPJ has applauded the decision that the African Union Peace and Security Council (AUPSC) took in its 30 December 2013 communiqué calling for the creation of 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.” We welcomed the recent announcement by the Chairperson of the AU Commission, Nkosazana Dlamini- Zuma, of the formation of the Commission of Inquiry and the swearing-in of its members.
Since the outbreak of violence almost four months ago, atrocities have been and continue to be perpetrated in conflict areas. Under the circumstances, we urge the Commission to begin its investigations immediately without undue delay. Included below are a series of recommendations on how the Commission might approach its task and some preliminary observations on what South Sudan requires in terms of truth, justice and reconciliation.
I. Recommendations for Investigations
The Commission’s mandate and terms of reference cover a broad array of tasks, including: establishing the causes of the conflict; compiling information to assist in identifying perpetrators of human rights violations with a view to holding them accountable; and making recommendations on mechanisms to promote accountability, reconciliation and healing.
In order to complete these tasks within the stipulated time period of three months, the Commission will need to work closely with stakeholders in South Sudan and build upon already existing bodies of knowledge, including information compiled by the United Nations Mission in South Sudan (UNMISS) and various national and international non-governmental organizations (NGOs). The Commission’s perceived and actual independence and impartiality must be carefully nurtured and maintained from the start of its activities if it is to have credible and effective results.
As the terms of reference are quite broad, it would be advisable for the Commission to prioritize certain aspects and adopt a phased approach to implementing its mandate. The primary focus, in our view, should be on investigating atrocities committed in conflict areas, determining the facts and circumstances surrounding the crimes, and identifying those who are responsible, including both those who directly committed the criminal acts and those with command responsibility.
a. Stakeholder Engagement
The Commission should maintain a continuous interaction with stakeholders in South Sudan in order to ensure that its work is responsive to the needs and aspirations of the South Sudanese people.
Close consultation with civil society is particularly important. Civil society groups such as CPJ have networks that extend to populations throughout the country, in both Government and Opposition held areas. We have firsthand information about violations of international human rights and humanitarian law and can provide guidance on priority areas for investigation. Our membership also includes think tanks, academics and research institutions that have developed detailed understandings of the inner workings of institutions in South Sudan. Many of our members have made credible and carefully considered recommendations for reform, both before and since the current conflict.
In order to facilitate the interaction between civil society and the Commission, it would be helpful if the Commission could appoint a focal person to have primary responsibility for engaging with civil society. This person could hold periodic meetings with civil society representatives to update them on the work of the Commission and to allow for civil society input into the process. Systems should also be developed for ensuring the quality and confidentiality of any information that is exchanged.
Beyond the consultation with civil society, the Commission should engage with other stakeholder groups, including faith-based organizations, youth groups and women’s groups. It is our recommendation that the Commission speaks to survivors of human rights abuses as well as those alleged to have perpetrated the abuses. While it is important to prioritize investigations into the grave human rights abuses that have been committed in conflict areas, the Commission should also make time to visit communities outside the conflict zone to get their views on what they would want to see happen in terms of truth, justice and reconciliation. The genesis of the conflict goes to an underlying governance crisis that affects everyone in South Sudan, and it is important for the Commission to understand the scope of this crisis if it is to provide informed and balanced recommendations.
The Commission should also take steps to ensure gender sensitivity in its operations and outcomes. Conflict affects men and women differently and it is important to acknowledge this fact in your investigations. Sexual violence is particularly difficult to investigate. Although instances of sexual violence have been recorded throughout the conflict areas, affected persons are often unwilling to discuss their experiences due to fear of being stigmatized. Effectively documenting these crimes will require a deliberate effort, patience and close cooperation with trusted civic groups.
b. Public Outreach
The Commission should develop a clear agenda and communicate it publicly from the outset so that people know what to reasonably expect upon the conclusion of its work. A commitment to transparency will be essential if the Commission is to earn and keep the people’s trust.
Information provided to the public should include an explanation of the Commission’s working methods and a feasibility assessment of the task at hand. In addition, the Commission should provide the public with information about: the date at which its mandate will expire; the procedure for extending the time period for investigations, if necessary; the dates of the proposed visits by the members of the Commission to South Sudan and the purpose of these visits; the responsibilities of the technical and administrative staff; the dates when the technical and administrative staff are planning to travel to Juba; the location where the investigators are to be based; and the Commission’s strategy for protecting informants and maintaining witness confidentiality and how this will influence its activities.
At the end of its first visit, the Commission should consider issuing a public statement and holding a press conference to inform the public about the meetings that were held and the process moving forward.
c. First Steps Upon Arriving in Juba
An important first step will be to meet with community leaders from different ethnic groups in the internally displaced person (IDP) camps in Juba. These visits should include the IDPs at the UNMISS bases in Thong Piny and Jebel, as well as those in the informal camps, the most populous of which are the camps near by the river near Konyo Konyo and in Gumbo. These meetings should be done concurrently with visits to government institutions in Juba, such as the South Sudan Human Rights Commission (SSHRC), UN agencies, diplomatic missions, and NGOs that work on issues of justice and accountability.
As the Commission commences its investigations, it is vital that it is seen to be independent and impartial from the very start. It is recommended that the Commission ensure that it has introductory meetings with people from different communities, as well as speaking to representatives of the Government, Opposition and everyone in-between. Visiting the four detainees that are currently on trial for treason in Juba would not only send a positive message of impartiality and inclusion but also prove useful as their testimonies may provide insights into events that unfolded in the lead-up to and immediate aftermath of 15 December.
II. Five Pillars of a ‘Just Peace’
Since the conflict erupted on 15 December 2014, CPJ has held a series of conferences, meetings and discussions on the meaning and requirements of truth, justice and reconciliation in light of the extreme violence that we have seen over the last three months. From these deliberations, we have identified five pillars that we feel are indispensible to a sustainable and just peace: (1) Truth, (2) Justice,
(3) Reparations, (4) Institutional Reforms and (5) Memorialization. These five pillars must be approached in an integrated manner, meaning that all are essential if South Sudan is to come to terms with the violence that continues to devastate the country and set itself on the path to peace and prosperity. The task for the nation moving forward is to generate a common understanding of what these five pillars entail and to develop workable mechanisms for achieving these goals.
a. Truth Before Forgiveness
There is a tendency in conflict-affected countries such as ours to want to close the door on the past. Once the guns are silenced, people are urged to forgive one another and move on with their lives, to forgive and forget. To adopt such an approach in South Sudan would be a grave mistake—one that has been made in the past and is increasingly considered to be a contributing factor to the enmities that led to the current conflict. People cannot be asked to forgive others who have wronged them until they know for what their forgiveness is being given. In that sense, forgiveness can only come after the truth and atonement.
As it stands now, South Sudan is awash with conflicting narratives about what has transpired since 15 December and who is responsible for the massive loss of life in the country. Thousands are missing or otherwise unaccounted for, leaving people to wonder what has happened to their loved ones. Many of the individuals who are alleged to have committed unspeakable horrors are seen walking around without consequence for their actions, a double blow for the survivors of their atrocities.
In order to come to terms with these experiences and build a narrative that is responsive to all that have been affected by the violence, South Sudan must embark on a public, transparent and meaningful process of truth-telling, in which perpetrators and victims are given a platform to share their experiences in pursuit of forgiveness and healing. This could be achieved through a truth commission or some other similar body that strives to build both an honest narrative for the nation of what caused the conflict as well as providing personal information to individuals on what has happened to their loved ones. For such an institution to deliver, steps must be taken to ensure that it has sufficient independence from political influence and that its findings are communicated to the public in a meaningful format.
b. Justice is Non-Negotiable
We firmly believe that lasting peace cannot be achieved through superficial ‘feel-good’ exercises that do not strike at the heart of the culture of impunity that permeates our institutions of governance.
Men and women in positions of authority and those in uniform have committed serious crimes on the assumption that they are absolutely immune from any accountability for their actions. The only way to correct this shortcoming is to assert individual accountability and liability for criminal behavior.
Accountability should form the bedrock of a new institutional culture in which all citizens are equal and subject to the rule of law.
We are keenly aware that sequencing of justice mechanisms is vitally important if people are to be held accountable in impartial criminal prosecutions that meet international standards. Fair and independent trials cannot be held while the nation is still at war. However, we feel that it is important to start the discussion now and to lay the groundwork for future accountability mechanisms through the comprehensive and credible documentation of human rights impacts in the country. In addition, any peace agreement that comes from the mediation efforts currently underway must secure the commitment of the belligerent parties to submit themselves and their supporters to specific accountability mechanisms.
Justice, in this instance, is non-negotiable. However, we also understand that justice may come in many forms. In framing its recommendations, the Commission should seek to understand what South Sudanese want in terms of justice and what victims and their families would like to see happen to those responsible for the crimes. Some thought must also be given to how justice will be done pragmatically and sufficiently, given the large number of combatants involved in the fighting and the scale and severity of the atrocities.
Given the existing challenges within the justice system of South Sudan, we believe that the judiciary is not adequately equipped to manage crimes of the magnitude and volume that we have seen in recent months without considerable assistance. In order to deliver justice in an independent and credible manner in accordance with international standards, the support of regional and international institutions should be sought. Several options are available and the specific accountability mechanisms that are appropriate would depend in large part on the types of crimes in question.
Based on views obtained from victims and survivors, it is clear that holding people accountable for the wrongs committed is a central concern, but many remain unsure of how accountability mechanisms could operate in a country as fractured as South Sudan. CPJ therefore recommends that accountability measures include the following as a minimum standard:
• Complete independence and impartiality from those alleged to have directed or participated in the atrocities. Actual and perceived concerns on credibility in this regard should be taken seriously such that they do not detract from the objective.
• Experience in dealing with war crimes and crimes against humanity. The gravity of the crimes committed and the sensitivities require that prosecutors, judges, investigators and support staff have the requisite expertise to meet people’s valid expectations that justice will be done.
Finally, the Commission should carefully consider the role that customary justice mechanisms might play in ensuring that perpetrators are held to account and victims are provided with remedies.
These customary mechanisms, while no substitute for the formal criminal prosecution of those who bear the most responsibility for the crimes, can help to extend the processes of truth, justice and reconciliation to the grassroots level in a form that is familiar and meaningful to people. Traditional authorities and religious leaders can also help to mediate between parties and explain the process to communities so that they do not try to take the law into their own hands. We have seen numerous examples of communities either attacking alleged perpetrators or forcefully breaking convicted or suspected criminals out of jail. Customary institutions can help to limit the potential for these types of reactions as an ancillary to more formal processes of justice and accountability.
We must, however, be open and honest about the shortcomings of the customary systems, particularly with regard to protecting due process rights and adhering to human rights, specifically the rights of women and children. Previous traditional peace processes, and in particular the people-to people conferences held in southern Sudan in the 1990s and early 2000s, relied on the goodwill and support of political and military actors and the independence of the community-led processes from the wider politics and conflict. It will be important to ensure efforts to establish justice and accountability mechanisms at the grassroots level remain impartial in order to effectively redress community grievances.
c. Reparations: A Transition from Victimhood to Citizenship
The impact of this conflict is only starting to be felt. Many families have lost breadwinners and the pain will be felt for many years to come. There has also been huge loss of property, which in many cases prevents people from returning home even long after the immediate threat is gone. Reparations can help survivors of human rights abuses and other crimes to rebuild their lives and transition from being victims to again enjoying the full rights and privileges of citizenship. Reparations also serve as an acknowledgement that the state failed to protect its people, for which it must seek to provide a remedy.
d. Institutional reform
Unlike the first three pillars of a just peace, which are backwards looking and seek to remedy wrongs committed in the past, the issue of institutional reform is forward looking and seeks to correct and strengthen institutions moving into the future so that these types of atrocities never happen again.
The focus of these reform initiatives should be on the security and the justice sectors. Institutions must be dissociated from individuals and strengthened so that ethnic, tribal or regional affiliations cannot be used as tools to influence institutional behavior. The focus of these reforms should be on the delivery of services to the end user in a manner that is responsive to people’s needs.
Finally, in order to ensure that these atrocities never happen again, the nation should embark on a series of memorials that acknowledge the wrongs that were done and remind people of the pain and suffering that we have caused to one another. Memorialization is a message to future generations, ensuring that they see and understand the full horror of conflict such that they are better equipped to avoid it themselves. Insights into how this might be factored into post-conflict mechanisms to secure truth, justice and reconciliation should be factored into the Commission’s recommendations.
Once again, we would like to take this opportunity to thank you for accepting this task. We trust that you will approach it with the care and dedication that it deserves. We also stress the importance of accountability in helping us to come to terms with the violence that has plagued our country. Until the culture of impunity in our governance institutions is eliminated once and for all, there will be no lasting peace in South Sudan. Anything less would simply be a temporary pause in the use of violence as means to resolve political crises.
We look forward to continuing to work with the AU, IGAD, and other international partners in our collective efforts to resolve the crisis in South Sudan and come to terms with our nation’s troubled past and present. Towards this end, we would like to offer our assistance and support to the Commission of Inquiry as it carries out its task.