Law

his report presents the main findings of a justice landscape assessment that the Transitional Justice Working Group (TJWG) conducted between June and July 2020. In recent years, progress towards the Hybrid Court for South Sudan, as provided for in the September 2018 peace agreement, has stalled. Protracted delays in implementing the peace agreement, ongoing insecurity, and a lack of political will to address crimes committed during the conflict have all contributed to the political impasse over the Hybrid Court. Meanwhile, several fledgling attempts to prosecute conflict-related crimes in military tribunals and national courts have emerged in recent years, suggesting that more could be done to engage existing accountability mechanisms to provide some form of justice and redress to victims. The purpose of the assessment was to provide baseline information on what is being done to address conflict-related crimes at the national and subnational level, and to stimulate thought on how to promote criminal accountability through existing mechanisms as policymakers work towards the establishment of the Hybrid Court.

The human tragedy that has occurred in South Sudan since mid-December 2013 has been widely
reported. In brief, a political struggle in South Sudan’s dominant political party, the Sudan People's
Liberation Movement, erupted at a party conference on December 15 in the capital of Juba. The
struggle immediately turned into a fast-spreading conflict along ethnic lines. Despite two agreed-upon
ceasefires, large-scale military operations and ethnic killings continue on all sides. Schools, hospitals,
churches and mosques have been targeted, and civilians, including women, children and the elderly,
have been brutally murdered. The American Bar Association Rule of Law Initiative has conducted an
assessment to examine existing and potential justice, accountability and reconciliation measures
that could respond to the current conflict in South Sudan. The following report sets forth the main
findings of the assessment and concludes with a detailed set of recommendations that describes an
integrated strategy providing for mechanisms that can investigate and prosecute perpetrators,
establish the truth about how violations occurred and advance reconciliation efforts in the country.

On August 25, Transitional Justice Working Group of South Sudan, Human Rights Watch, and Institute for Security Studies held a webinar for the African Union (AU) Peace and Security Council (PSC) members and other officials to discuss the urgency for the establishment of the AU Hybrid Court for South Sudan, as a key factor to ensuring long term stability and accountability for serious crimes in South Sudan.

The initiative came on the heels of a joint letter, signed by 24 South Sudanese, regional and international civil society organizations calling upon the AU PSC to take concrete action to enable the immediate creation of the Hybrid Court on South Sudan (HCSS). In preparation for the webinar, Human Rights Watch published a question and answer document on the three accountability mechanisms provided for in South Sudan’s 2015 and 2018 peace agreements and the rationale for the AU’s unilateral establishment of the hybrid court, available here. On the day of the webinar, the panelists – who represented perspectives from AU officials as well as South Sudanese and international lawyers and activists –presented on accountability mechanisms agreed to by the parties to the conflict and opportunities and challenges to achieving accountability to break the cycles of violence and impunity in South Sudan.

Customary laws of South Sudan’s many tribes play a critical role in regulating South Sudanese society. During the civil wars customary law provided an important source of cohesion and order in families and communities; it became a means with which responsibilities were enforced and family support was ensured. Yet the reliance on customary practices has also had negative consequences for women. In many countries customary laws do not provide sufficient protection for women, are deeply patriarchal, casting men as the undisputed heads of their families, with women playing subservient roles. While South Sudan’s 2005 Interim Constitution guarantees human rights and equality for all (GoSS, 2005), there is a conflict with numerous rules of customary law which continue to violate women’s rights. As the new state develops its justice sector, drafts new laws, and establishes a functional legal system, it faces the challenging task of reconciling customary law with the guarantees of human rights that are enshrined in the constitution. The UN Handbook on Legislation on Violence Against Women specifically addresses this situation and recommends that “where there are conflicts between customary and/or religious law and the formal justice system, the matter should be resolved with respect for the human rights of the survivor and in accordance with gender equality standards”

Africa has long observed taboos against changing the national boundaries given newly independent countries during decolonisation. Whether or not the boundaries were optimal, African leaders thought that trying to rationalise them risked continent-wide chaos. Ironically, there have been few African border conflicts since independence, but the number of internal conflicts has been high ... The debate over Sudan’s future, therefore, clearly could affect all of Africa.1

Since its establishment five years ago under the
Comprehensive Peace Agreement (CPA), the Government
of Southern Sudan (GoSS) has struggled to create a justice
system that reflects the values and requirements for justice
among the people of Southern Sudan. For both political
and practical reasons, chiefs’ courts and customary law are
central to this endeavor. A key question facing the GoSS is
how to define the relationship between chiefs’ courts (and
the ideas about law that they embody) and the courts of
Southern Sudan’s judiciary, while ensuring equal access to
justice and the protection of human rights.
■ Policy discussions and recent interventions have focused on
ascertainment, whereby the customary laws of communities
(usually defined as ethnic groups) would be identified
and recorded in written form, to become the basis for the
direct application, harmonization, and modification of
customary law.
■ This report empirically analyzes the current dynamics of
justice at the local level, identifying priorities for reform
according to the expressed needs and perceptions of local
litigants. Our findings are based on field research conducted
from November 2009 to January 2010 in three
locations in Southern Sudan: Aweil East, Wau, and
Kajokeji.