Introduction
Years of conflict in South Sudan have resulted in widespread acts of conflict-related sexual violence (CRSV) in the nation, especially against women and young girls. The devastating effects of this issue are usually physical harm, psychological issues, and in many cases death of the victims. Despite the peace agreement signed by the political leaders and efforts taken to stop the conflict and the crimes, CRSV is still one of the most prevalent issues in the country. The South Sudanese government and opposition leaders signed the Agreement on the Resolution of Conflict in South Sudan (ARCSS) in an attempt to stop the fighting. However, conflict resumed in 2016, rendering the agreement temporary. The Revitalized Agreement on the Resolution of Conflict in South Sudan (R-ARCSS), signed in 2018, included three important components related to transitional justice and peace. The first element is the establishment of a Truth, Reconciliation, and Healing Commission, which is critical for promoting peace. The second component is the creation of an independent hybrid court to hold accountable those who violated national and international laws. The third element is the Compensation and Reparation Authority, which will provide financial and material assistance to those who suffered losses in the conflict.[1] Although this agreement is viewed as a significant move towards peace in the country, it has yet to fully execute its mandates due to the prevalence of conflict-related sexual violence.
The best approach to achieving lasting peace and addressing the needs of CRSV victims in South Sudan is a holistic, victim and gender-sensitive approach appropriate to the social and cultural context of the conflict.
Holistic and Victim-centered Approach
To effectively address the needs of victims of CRSV, a holistic, gender-sensitive, and victim-centered approach is required. This approach prioritises victims’ needs by listening to them, avoiding re-traumatization, and focusing on their safety, rights, well-being, needs, and choice, which would guarantee that services are delivered in an empathetic, sensitive, and non-judgemental manner.[2] It would also aid in resolving the conflict’s underlying causes, advance gender equality and social inclusion, and aid victims on their path to recovery. A holistic approach ‘complements retributive and restorative justice by addressing accountability, truth recovery, reconciliation, institutional reforms, and reparations’.[3] This approach would prioritize the victims’ needs in the justice process, promote their social and economic development, encourage truth-telling, and foster reconciliation while respecting cultural and social norms.
Some may criticize a holistic approach that focuses more on restorative than retributive justice as ‘endorsing a form of social holism’ and not adequately enforcing justice as stated in the rule of law.[4] However, a focus solely on retributive justice in South Sudan may prove ineffective since most of the key decision makers and perpetrators of most of the war crimes and CRSV are the pollical leaders responsible for the peace agreement. Given the fragility of the country’s peace and the early stages of its transition, placing more emphasis on the holistic and victim-centered approach may be necessary. This does not mean total impunity for the crimes committed, but rather prioritising truth, reconciliation, and healing as was done in the case of South Africa, Rwanda, Sierra Leone, and Mozambique.[5]
The implementation of a victim-centered and holistic approach to addressing the needs of CRSV victims would be a challenging endeavor. One of the challenges is the concern over the cost and availability of resources needed to support such an approach.[6] One way to address this is through support from regional and international bodies and organizations. Various organizations, such as the European Union (EU), have pledged financial support to South Sudan to assist with its post-conflict transitions. The EU provided over 44 million euros in 2020 alone to support humanitarian action and support to South Sudan.[7] International as well as regional support from the African Union, combined with political willingness at the federal level are key to the ensuring proper implementation of the transitional justice mechanisms.
The reluctance of political leaders to accept prosecution for crimes of the past[8] is another challenge to the establishment of the transitional justice process. The reluctance and lack of political will would be a hindrance to the implementation and success of the process. To address this challenge, alternative mechanisms such as lustrations and vetting may be employed as a part of a soft diplomacy approach. Lustration is a form of retributive justice that is applied by discontinuing the employment of high-ranking officials and their collaborators from their senior positions[9] either to lower posts with little to no authority or fully resigning from their political office. Vetting, on the other hand, is the process of implementing lustration. Although these mechanisms do not include judicial proceedings and punishment, they can be effective in promoting accountability and preventing the recurrence of conflict and CRSV. Nevertheless, it is important to bear in mind that lustration and vetting have their limits, in terms of how they could affect the stability of the nation and the transitional justice process. Therefore, these mechanisms must be executed in a fair manner that is transparent and encourages inclusiveness[10] of the population. Before applying the holistic approach to the South Sudan Peace Agreement, it is essential to examine some of its advantages.
Prioritize Victims Needs
According to a 2019 survey conducted on civilians in parts of South Sudan, it was revealed that there is more preference by citizens towards the Truth Commissions that will complement the already ongoing peace initiatives conducted by local and religious organizations. However, this does not mean a disregard for justice as some of the respondents pointed out. As noted by one of the respondents, ‘the prioritization of the CTRH should not be viewed as a trade-off to accountability but a strategy to propel constructive conversation with a government that seemed critical and adamant to hold perpetrators of human rights violation to account’.[11] Therefore, it is important to strike a balance between achieving accountability and addressing victims’ needs by promoting effective dialogue.
Reparations should be sought through an empowered and transformative process. The strategy for the ‘mapping, design, implementation, monitoring, and assessment of reparations should be victim-centered, allowing sexual assault victims to take the initiative in seeking restitution. [12] This will not only guarantee that the victims’ needs are met but will also encourage their agency and sense of empowerment. Other surveys have also shown that victims’ needs are mainly focused on reparations, truth-telling, prosecution of perpetrators, memorialization, and public apologies.[13] As a result, it is critical to implement a holistic and integrated transitional justice process that serves the victims’ diverse needs. A framework like this should prioritise victims’ needs and viewpoints while also ensuring community interaction and consultation.
Addressing Root Causes and Transforming Cultural and Social Norms
To effectively prevent the recurrence of conflict and address the issue of CRSV, it is imperative to identify the root causes of the conflict. In South Sudan, militarized tribalism and government corruption have been continuous drivers of conflict.[14]These have led to ethnic disputes over resources as well as a lack of accountability and transparency in the country. Consequently, investigations and community consultations are required to identify and address the root causes of violence in the country. Liberia’s truth commission serves as a positive example of a gender-sensitive commission that collaborated with civic and grassroots organizations to ensure a strong representation of women. The commission with 44% female representation, was able to identify and address the core causes of conflict and sexual assault.[15] A similar truth commission in South Sudan with a primary focus on gender and sexual violence can play a significant role in revealing the rationale behind domestic and conflict-related sexual violence, and its findings can be used for community and cultural transformations.
The involvement of victims and other women in truth commissions is vital, despite the challenges created by persistent CRSV and the worry of reprisal. Moreover, Truth commissions, judicial inquiries, and restitution initiatives together can offer insightful data on the root causes of conflict that can be utilised to guide institutional changes to help victims and prevent future CRSV. A truth commission that is sensitive to gender issues and prioritizes sexual violence, coupled with reparations programs and judicial investigations in the Hybrid Court, can serve as a crucial component of a holistic and victim-centered approach. This can provide a broader understanding of the root causes of conflict and guide institutional reforms to prevent the recurrence of crimes and conflicts. To establish long-term peace and stability in South Sudan, the core causes of violence and CRSV must be addressed holistically and victim-centered.
Promoting Accountability
Assigning accountability is crucial in attributing responsibility for human rights violations and CRSV crimes to individuals, groups, and institutions. Implementing judicial measures within the HCSS against perpetrators of CRSV is essential to reinforce the rights of victims and acknowledge that their rights were violated and ‘affirm their understanding as someone who is entitled to make claims based on rights, and not simply as a matter of empathy, or any other type of consideration’.[16]
By putting the needs of the victims first, accountability efforts can be perceived as more effective and sustainable in the long run. Truth commissions can also promote accountability by providing an accurate account of events and assisting with the proper apportioning of blame to perpetrators instead of an entire ethnic group.[17]
Community engagement is also a critical component of promoting accountability. Involving community leaders can help them recognize and address the community’s role in perpetuating CRSV. Traditional accountability measures such as ‘pug’ among the Dinka tribe of South Sudan demonstrate how the community can participate in holding perpetrators accountable by paying compensation for their crimes. [18] Community engagement not only promotes accountability but also cultivates ‘greater understanding, cohesion, and unity’ in situations where there is division.[19]
This will also help create awareness in educating the community on the importance of accountability and the need to combat CRSV. Accountability efforts can be effective and sustainable in the long run by applying judicial procedures and including community involvement. Overcoming implementation obstacles, and ensuring inclusiveness are critical to the success of these endeavours.
Conclusion
While South Sudan has made some headway towards long-term peace, there is still a long way to go. It is critical to approach CRSV from a victim-centered and gender sensitive perspective, and its implementation should be actively supported by the political leaders. To restore peace and faith in the rule of law, a well-organized truth commission, efficient reparation systems and accountability measures are required. With the right approach and commitment, South Sudan can move towards a brighter future.
[1] Intergovernmental Authority on Development (IGAD), ‘Revitalised Agreement on the Resolutions of the conflict in the Republic of South Sudan (R-ARCSS)’ Intergovernmental Authority on Development (IGAD) (Addis Ababa, 12 September 2018).
[2] United Nations High Commissioner for Refugees, ‘Policy on a Victim-Centered Approach in UNHCR’s response to Sexual Misconduct’[on Sexual Exploitation and Abuse and Sexual Harassment], December 2020, UNHCR/HCP/2020/04.
[3] Alexander L. Boraine, Transitional Justice: A Holistic Interpretation (2006) 60(1) The Journal of International Affairs pp. 19-24.
[4] Kara Andrieu, ‘Political Liberalism after Mass Violence’ in Susanne Buckley and others (ed), Transitional Justice Theories (1st edn, Taylor & Francis 2014).
[5] Ibid 23, p.5.
[6] Taban Romano, ‘Implementation of the transitional Justice Mechanisms in South Sudan: Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan: Prospects and Challenges’ p.10.
[7] European External Action Service ‘The European Union and South Sudan’ European Union External Action < tinyurl.com/4wmxudtr > accessed April 12 2023.
[8] Ibid 29, p.11.
[9] Roman David, ‘Prague to Baghdad: Lustration Systems and their Political Effects’ (2006) Government and Opposition 41(3) p. 348.
[10] Ibid 32, p.357.
[11] Allan Ngari and Jame David Kolok, ‘Citizens’ Perception on Transitional Justice Process in South Sudan’(2019) Institute For Security Studies P.9.
[12] UN Security General, ‘Guidance Note of the Secretary-General: Reparations for Conflict-Related’Sexual Violence’ United Nations Digital Library (New York, June 2014) < https://rb.gy/p2etx> accessed April 10 2023.
[13]Stephen Oola & Luke Moffett, ‘Reparations in South Sudan: Prospects and Challenges’ (2019) <https://rb.gy/j4k6w> accessed April 12 2023.
[14] Alex De Waal,‘ When Kleptocracy Becomes Insolvent: Brute Causes of The Civil War in South Sudan’ (2014) African Affairs 113(452)p.350.
[15] Jeremy Sarkin & Sarah Ackermann, ‘Understanding the Extent to which Truth Commissions are Gender Sensitive and Promote Women’s Issues: Comparing and Contrasting these Truth Commission Roles in South Africa, Guatemala, Peru, Sierra Leone, and Liberia’ (2019) Georgetown Journal of International Law 50(2) p.503.
[16] Ibid 24, para 29.
[17] Ibid 3, p.21.
[18] Ibid 15, p. 6.
[19] David Taylor, ‘Victim Participation in Transitional Justice Mechanism: Real Power or Empty Ritual?’ (2014) Impunity Watch p.12.
A Contrario ICL 