Country Context
SOUTH SUDAN
Conflict in South Sudan has its origin in discriminatory British colonial policies that benefited certain ethnic groups over others. The British provided educational, linguistic and administrative privileges to communities in north Sudan, marginalized communities in the south and ruled both territories through separate administrative structures.[i] A civil war began shortly before Sudan’s independence in 1956 and ran for decades, with two significant periods of greater violence: from 1955 to 1972 and 1983 to 2005. The conflict ultimately split Sudan into two separate nations, and South Sudan became the world’s newest country in 2011. The people of South Sudan enjoyed only two years of relative peace before conflict again broke out, this time between rival factions in the transitional government. The armed struggle that began in December 2013 between President Salva Kiir Mayardit and Vice President Riek Machar left a toll of more than 400,000 casualties and displaced approximately 4 million people.[ii] The combatant parties signed a peace deal in 2018, but it is imperiled by continuous delays and challenges to the implementation of bilateral sub-agreements.[iii]
The ongoing conflict in South Sudan is driven in part by the failure of transition mechanisms established in the Comprehensive Peace Agreement that ended the second Sudanese war (1983–2005). After South Sudan’s independence, perpetrators of atrocities were appointed to senior positions in the government and military, entrenching a culture of impunity.[i] The planned demobilization, disarmament and reintegration plan was never fully implemented, nor were promised security sector reforms that would have integrated fighting forces from different factors. These failures incentivized armed groups, even those partially integrated into the military, to engage in violence in order to gain spoils and additional concessions from the government.[ii] The result was rampant community violence, increasing instability and, eventually, open war characterized by mass atrocities and widespread violations of human rights across South Sudan.[iii]
The 2015 Agreement on the Resolution of the Conflict in the Republic of South Sudan (ARCSS) sought to address both the failures of security sector reform and the immense need for transitional justice caused by recent events and South Sudan’s long struggle for independence.[iv] The signatories agreed on an ambitious transitional justice program that included a Commission on Truth, Reconciliation and Healing (CTRH), a hybrid criminal court and a Compensation and Reparations Authority (CRA).[v] The subsequent 2018 Revitalised Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCSS) brought a semblance of stability to parts of South Sudan, but large parts of the country—including much of the Greater Upper Nile region and localities such as Yei and Lainya Counties in Central Equatoria—continue to struggle with large-scale violence.[vi]
Since the ARCSS was signed, however, state efforts[1] to promote memory, education and justice for atrocities have faced insurmountable political obstacles.[vii] The lack of a meaningful political transition, coupled with ongoing insecurity, has frustrated victims’ and communities’ efforts to access truth. In addition to political obstacles, South Sudan has also experienced the worst flooding in living memory, widespread food insecurity and the ongoing displacement of more than 4 million people. These factors, driven by conflict and exacerbated by climate change, have made it harder for truth, justice and memory to hold the spotlight of political and international attention. In the absence of state-led efforts, individuals and groups have embarked on their own initiatives, but they struggle for resources in a context where most international support is focused on the humanitarian sector.
Memory
State-run memorial projects in South Sudan have fallen short of recognizing the collective struggle and loss due to decades of conflict. This lack of public acknowledgment has led to individual and community trauma and division among ethnic groups presumed responsible for violence and an inability to fulfill cultural norms around loss and memorialization. State actors have also inaccurately represented these losses for political or personal gain.
South Sudan’s overlapping crises have also made it difficult for individuals and communities to engage in private, informal memory practices. Honoring the dead is culturally important to every South Sudanese community, and there are many mourning rituals, special burial[1] practices and memorial ceremonies.[2] As in many cultures, proper burials, especially for chiefs and elders, are linked to the future well-being of the living. It has become impossible to uphold many of these customs during conflict, displacement and insecurity, which imposes heavy moral and emotional burdens on families and communities.[i]
State and International Initiatives
There are scattered memorials across the country commemorating events dating back to 1955, some of which were erected by communities and others by governing authorities. They do not represent a comprehensive or cohesive effort to memorialize South Sudan’s recent history, and, furthermore, access to these monuments is sometimes restricted. The most famous memorial is the John Garang Mausoleum[1] commemorating the late founder of the Sudan People’s Liberation Movement and Army. Garang’s statue stands in the middle of what is known as Freedom Square.[i] While Freedom Square is formally under the responsibility of the Ministry of Culture, Museums and National Heritage, it is informally administered by the presidency, which heavily guards the area and prohibits public access to it. Memorials have also been established to commemorate leaders of other liberation movements, including Father Saturnino Ohure, Father Leopoldo Anywar and Gordon Muortat Mayen, all of whom fought in the Anyanya liberation movement during the First Sudanese Civil War (1955–1972).
Culture, Music and Arts
South Sudan has a rich cultural heritage of music, poetry, drama and art, which, like other aspects of South Sudanese society, are threatened by conflict and crisis. These are important elements for processing collective trauma, making sense of the past and imagining a shared future.[i] Community organizations are working to preserve memory through art, including in communities of displaced persons. The Maale Heritage Development Foundation, for example, promotes and disseminates cultural knowledge through folktales, dance, poetry, drama and other cultural events.[ii] Maale people’s displacement to UN-administered Protection of Civilians sites (POCs) initially affected the expression of their culture and heritage, but they have been slowly making a comeback. As one member of the community reflected, “At the beginning, it was hard to hold cultural activities, because people didn’t think the POCs should be a place for dancing. They said, ‘we are mourning’ and traditionally, when there is a death, people stop dancing. But after some years, we began to hold cultural events.
National Archives
The Ministry of Culture, Museums and National Heritage has been working with the Rift Valley Institute, UNESCO and other international partners since 2010 to build a National Archives Museum in Juba.[1] The National Archives Museum project plans to preserve historical documents and objects from the colonial era to the present and make them available to the public in a variety of formats.[i] Approximately 50 percent of the documents held by the project have been digitized, an important effort since many of these records have been damaged or are in a state of decay.[ii] Since 2021, efforts have focused on digitizing the personal papers of significant figures in South Sudanese history, including Lubari Ramba Lokolo, Joseph Abuk, Monani Alison Magaya, Ezbon Mundiri and Abdulrahman Sule Ladu Swaka. After many years of delay, construction on the National Archives Museum building began in July 2022.[iii]
Preserving Oral Traditions
South Sudan’s rich oral traditions are also being lost with the death of elders and knowledge keepers who are particularly vulnerable. The elderly are often left behind when communities flee, leaving them susceptible to violence, disease and starvation. Brutal killings and rape of elderly people have also been documented.[i] In the absence of traditional ways of transferring such knowledge and histories, it is all the more important to document and record stories to preserve this history.
Documenting Ongoing Violations
Civil society has launched other initiatives in recent years to preserve information about the human rights impacts of the conflict. These initiatives work to support peace and provide psychosocial support to victims of the conflict. Initiatives such as these face considerable security risks, but they play an indispensable role in laying a foundation for future truth, justice and reconciliation processes.
Community and Civil Society Initiatives
In the absence of consistent leadership from the national government, communities and civil society have attempted to memorialize conflict losses and disappearances. Some initiatives are focused on specific events. For instance, the 1992 Juba Massacre Widows’ and Orphans’ Association works to memorialize an attack on 200 civilians who were tortured and extrajudicially executed during the siege of Juba.[i] It does so through events, radio programs and documentation of stories.
Others work broadly to preserve the memory of the many South Sudanese lost to conflict in the hope of inspiring a different future. Remembering the Ones We Lost (ROWL) is a local NGO that maintains a public online memorial of victims of armed violence since 1955.[ii] ROWL was founded in the early days of the current civil war when past atrocities were used to justify new attacks and revenge killings.[iii] Communities began circulating lists of victims across social media as a form of documentation and memory, but the lists were sometimes dismissed as fake.[iv] False lists were actually being disseminated at that time, including by individuals accused of committing atrocities. The goal of the ROWL initiative is to depoliticize conflict deaths and document all conflict losses. Volunteers compile records through research[1] and interviews with victims’ friends, family and communities.[2] To date, ROWL has collected, verified and published almost 20,000 names, many of them from the initial lists produced by communities.[3]
Justice
The ARCSS and R-ARCSS established a multifaceted transitional justice mechanism for South Sudan that includes a truth commission, a hybrid court and a reparations mechanism. Due to a combination of low political will, ongoing conflict and the humanitarian crisis that increasingly draws resources and attention, none of these have begun operating. Some domestic courts have begun to address the immense backlog of cases, while community-based traditional practices provide a possible avenue for justice more focused on victims, but neither is capable of addressing the most severe and complex atrocity crimes.
State-Led Accountability and Justice Mechanisms
After substantial delays, the RTGoNU announced in January 2021 that it was resuming the transitional justice process.[i] The Cabinet gave its formal approval the following month for the establishment of the Hybrid Court, the CTRH and the CRA.[ii] A technical committee was established in May 2021, but no further action was taken until December 2021, when the UN Commission on Human Rights in South Sudan hosted a high-level conference to develop a joint strategy and plan of action on transitional justice.[iii] Public consultations on the CTRH began in April 2022, and a draft bill for the CTRH is reportedly in preparation.[iv]
Hybrid Court
The Hybrid Court is the primary accountability mechanism envisioned by South Sudan’s past peace agreements, but it is also the most controversial. As mentioned above, the Hybrid Court of South Sudan is unlikely to move ahead in the absence of the support of the RTGoNU,[1] which has voiced its dissatisfaction with the process.[v] The Hybrid Court must also overcome public skepticism that it will effectively deliver justice without political or ethnic bias, and do so without triggering retaliatory violence.[vi] It has not yet been made clear what crimes the court will address, what period of time it will be mandated to investigate or whom it may try, all of which are critical questions for its future legitimacy.[vii] Many of the alleged perpetrators the Hybrid Court might investigate are senior members of the government, the military and powerful political factions, and they have historically chosen to return to violence rather than surrender power or accept accountability.[viii]
Accountability in Domestic Courts
In recent years, a handful of cases of conflict-related crimes have begun to be heard in domestic courts in South Sudan. In 2018, a military court tried 10 soldiers from the South Sudan People’s Defence Force for an attack on journalists and humanitarian workers at the Terrain Hotel in Juba in 2016, finding them guilty of rape and murder.[ix] Since then, military tribunals have been held in Yei and Bentiu, resulting in the conviction of several soldiers for serious crimes including murder, rape, looting and harassment.[x] Other cases have been brought before mobile courts[2] that the judiciary has deployed with the support of the UN Mission in South Sudan and the UN Development Programme in various parts of the country.[xi] Special courts[3] are presided over by a combination of chiefs and statutory court judges who have been tasked with adjudicating crimes committed during intercommunal violence.[xii] These efforts remain ad hoc and sporadic and most victims in South Sudan remain without meaningful recourse to justice.
Legal, Political or Social Constraints to Accountability
Justice and accountability efforts in South Sudan are hamstrung by lack of political will, in part because many of those with decision-making power may themselves have to face accountability if the transitional justice mechanisms begin operating. Public doubt is another significant obstacle. Many South Sudanese do not believe any court or truth-telling mechanism will meaningfully address the abuses they have suffered, provide reparation or change the future behavior of elites. There is also a widespread fear, based in the events of the past 10 years, that an effective accountability mechanism will trigger more violence rather than end it.
International Accountability and Justice Mechanisms
South Sudan is not party to the Rome Statute, which means that the ICC does not have jurisdiction over any crimes committed during the conflict unless they are referred by the UN Security Council. UN entities have consistently pushed the RTGoNU to fulfill its obligations under ARCSS and R-ARCSS,[xiii] and the African Union will be the RTGoNU’s partner in the Hybrid Court if it is established. There are no other international accountability mechanisms active for South Sudan at this time.
Community and Civil Society Contributions to Justice
Customary courts, established at the village level and presided over by chiefs and elders, provide a potential alternative route to secure remedies for victims.[4] While customary courts offer certain advantages in terms of accessibility and cultural familiarity, they lack expertise and enforcement capacity, particularly when confronted with crimes committed by military personnel. Customary courts also tend to be male-dominated spaces, and their approaches to SGBV typically privilege traditional patriarchal norms[5] and the interests of families as a collective over individual female victims.[xiv] Nonetheless, customary courts are one of the few forums that exist within communities and are sometimes called upon to adjudicate conflict-related crimes. Often remedies are provided in the form of non-monetary compensation. For example, customary courts will often negotiate “blood compensation” (or dia) in instances of homicide. Under such arrangements, perpetrators and their families are required to pay a certain amount of cattle to the family of the deceased.[xv]
Education
The conflict that erupted in December 2013 has taken a devastating toll on the education sector in South Sudan. There were some signs of progress in terms of school enrollment between 2014 and 2018,[1] but major challenges remain.[i] Both COVID and ongoing displacement have further disrupted access to education. Due to the prevailing economic crisis, civil servants, including teachers in publicly funded schools, receive meager salaries[2] that regularly go unpaid for months at a time, and many teachers do not show up for class.[ii] The Ministry of Education says it has tried to prioritize a learner-based rather than teacher-based education, ensuring that learners can actively participate in up to the fourth level of primary school. In some cases, people can participate in their native language.[3] Private schools are available in some parts of the country, but the costs are exorbitant and out of reach for many South Sudanese.[iii]
In practice, children have learned about the history of the conflict through the ad hoc efforts of individual teachers. The Minister of Education said in August 2021 that a new national curriculum had been developed to teach about “shared national identity” and “[support] key values for the country including justice, democracy, tolerance and respect,” but it is not clear to what degree this curriculum has been disseminated throughout the country.[iv]
Recommendations
The RTGoNU should prioritize drafting and adoption of the draft bill for the CTRH. Meanwhile, international partners of the RTGoNU should ensure that financial and other resources are available for the CTRH to begin operations as soon as it is authorized to do so.
International NGOs and donors should support efforts by South Sudanese NGOs, particularly those outside Juba, to document missing persons, land theft, extrajudicial killing and other crimes.
The RTGoNU should consult with community organizations and civil society groups in rural areas to ensure that the curriculum designed to teach about a shared national identity reflects perspectives from a diverse array of South Sudanese perspectives.
The RTGoNU should publish the results of the public consultations on the CTRH as quickly as practicable after the consultations are completed, alongside a timeline for the remainder of the truth-telling process.
Notes
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