“Soldiers Assume We Are Rebels”

More than three years after South Sudan’s conflict began in the capital Juba in December 2013, the war has spread to the Greater Equatoria region, in the southern part of the country, which had until recently been largely spared from the fighting. In the past year alone, over one million civilians, many of them from villages in this region, have fled to neighboring countries. More than 700,000 crossed into Uganda alone.  As elsewhere in South Sudan, the conflict in the Equatorias has played on pre-existing ethnic and communal tensions and is marked by serious abuses committed against civilians by government soldiers and opposition fighters.

In May 2017, Legal Link International researchers visited two refugee settlements in northern Uganda and interviewed over 100 South Sudanese refugees who fled from the Kajo Keji and Pajok areas, south and southeast of Juba, between January and May of this year. Their accounts of serious violations at the hands of government soldiers match the wider patterns of violations observed since the government began to conduct counterinsurgency operations against opposition forces in the south and west of the country in late 2015.

Despite the signing in August 2015 of the Agreement for the Resolution of the Conflict in South Sudan (ARCSS), between the government and the armed opposition led by former vice-president Riek Machar, the Sudan People’s Liberation Movement/Army-in Opposition (the “IO”), attacks on civilians have now become commonplace in the previously stable southern and western regions of the country. Fighting between government forces and the IO in the capital Juba reignited in July 2016.

The conflict reached the western parts of the Greater Equatorias region in late 2015, and expanded southeast in more recent episodes of violence. Legal Link International researchers documented the unlawful killing of at least 47 civilians from the Kajo Keji area, in the former state of Central Equatoria, by government forces between June 2016 and May 2017. Researchers also documented the unlawful killing of at least 13 men and 1 woman, all civilians, by government forces during a large-scale attack on the town of Pajok, in the former state of Eastern Equatoria.

The regions of South Sudan formerly known as Western Bahr el-Ghazal, Western Equatoria, Central Equatoria and Eastern Equatoria states have been the most severely impacted by government counterinsurgency operations since late 2015.  

Witnesses and victims of abuse interviewed by Legal Link International also reported dozens of cases of arbitrary detention by the army, including cases in which victims were held in shipping containers sometimes for long periods; and enforced disappearances, whereby authorities refuse to acknowledge the detention or disclose the whereabouts or fate of a detainee. Soldiers beat and tortured the vast majority of detainees, according to victims and relatives who spoke to Legal Link International.

The cases described in this report are part of a much larger body of similar abuses documented since January 2016 by Legal Link International in the Greater Equatoria and Bahr-el-Ghazal regions -- in and around the towns of Yambio, Wau, Juba and Yei. The accounts show a clear pattern of government forces unlawfully targeting civilians for killings, rapes, arbitrary arrests, disappearances, torture, beatings, harassment and the looting, burning and destruction of their property.

In many instances, government soldiers fired indiscriminately in populated areas in what seems to have been retaliation for IO hit-and-run attacks on their forces, failing to take any precautions to protect civilians. In other cases, indiscriminate shootings and other tactics designed to instill fear in the population seemed to have the goal of displacing the civilians from rebel-held areas in an apparent effort to expose rebel fighters. The decision of rebels to encourage civilians from their own communities – particularly in the Equatorias and Wau area – to leave cities controlled by government forces, have further   contributed to displacement.

The ethnic dimension to these crimes, with predominantly Dinka forces targeting members of other ethnic groups suspected of supporting the opposition, is clear.  Exacerbating these divisions is a long legacy of the Sudanese government’s support for some of the same ethnic groups during the long southern independence wars.

The gravity of the abuses since the new war began in December 2013 and the ethnic dynamics that accompany many of these abuses is extensively and publicly documented by international organizations such as the United Nations and the African Union, non-government organizations, such Amnesty International,Legal Link International and Human Rights Watch, and by national investigative committees reporting to President Salva Kiir. However, both parties to the conflict have failed to take all necessary and reasonable measures to stop the crimes or hold those responsible to account. 

The proposed Hybrid Court for South Sudan (HCSS), provided for under the ARCSS, raised hopes that further atrocities fueled by decades of impunity and de facto amnesties would finally be curtailed. Under the peace agreement, the court is to be composed of South Sudanese and other African judges and staff, and to be established by the African Union Commission.

Nearly two years after the ARCSS was concluded, the court has yet to be established, and for more than eighteen months, almost no tangible progress toward its establishment was made. Serious crimes continue to be perpetrated, and concern that the court would never materialize increased.

Although the parties to the conflict agreed in principle to the HCSS under the ARCSS, a key challenge for the HCSS was that South Sudan’s government had yet to substantively engage with the AU Commission on the establishment of the court. 

On July 21, AU Commission, South Sudanese, and UN officials met in Juba to discuss the Hybrid Court for South Sudan and agreed on a roadmap for the court’s establishment, including finalizing the court’s statute by the end of August. If implemented, the roadmap could represent a breakthrough in advancing justice for victims of grave crimes committed in South Sudan.

The UN Security Council failed to impose an arms embargo on South Sudan and couldn’t agree to impose additional individual sanctions on two South Sudanese implicated in serious human rights abuses. These repeated failures on the international stage have contributed to the atmosphere of impunity enjoyed at home by South Sudanese leaders on both sides, and seems to have emboldened their stance. 

The impact of the violence and persistent abuses against the civilian population is devastating. Acute food insecurity is widespread. Six million South Sudanese, almost half the country’s population, face severe food shortages. The outflow of refugees continues at an alarming rate, uprooting entire communities and effectively emptying swathes of land, and 1.9 million civilians remain internally displaced, with some sheltering on UN bases. The crisis is costing the international community billions of dollars. 

Rather than allow this situation to fester, international and especially regional actors should take all means necessary to stop violations against the civilian population and provide meaningful accountability.  These include enacting and implementing an arms embargo, additional individual sanctions, and accelerating the deployment of the UN Regional Protection Force, authorized by the UNSC in August 2016 to bolster the mission’s protection capacity.

The AU Commission should move ahead with establishing the Hybrid Court for South Sudan. While positive engagement with the government of South Sudan is helpful, the AU Commission has the authority to establish the court with or without the engagement of the government and should proceed on that basis if necessary. If a credible, fair and independent hybrid court does not progress, the option of the International Criminal Court (ICC) remains and should be pursued. As South Sudan is not a party to the court, the UN Security Council would need to refer the situation to the ICC in the absence of a request from the government of South Sudan.

Based on cumulative evidence from reporting since December 2013, investigations into those responsible for committing war crimes and crimes against humanity should include investigations into the potential criminal responsibility of President Kiir, rebel leader Riek Machar and their respective top military commanders.  All those against whom there is credible evidence of criminal responsibility should be charged and prosecuted in accordance with international fair trial standards.