20TH SESSION OF THE ASSEMBLY OF STATES PARTIES
6 December 2021
Name of the Event: Survivors’ Pathways to Accountability: Legal Avenues for South Sudanese Survivors of Conflict-Related Sexual Violence (Hosted by: Legal Action Worldwide (LAW), The Netherlands)
Report by: Guillermo Ferrer Hernáez, Junior Research Associate PILPG-NL, and Marielotte van Ballegooijen, Research Associate PILPG-NL
Highlights:
The panelists called on the South Sudanese Government to further the establishment of the Hybrid Court of South Sudan (HCSS) which has been a contentious issue in South Sudan.
The panelists compared the road to accountability and justice in South Sudan with the transitional justice process in Uganda.
The panelists emphasized the need for the victims to participate in trials, allowing their voices to be heard and their testimonies to be shared in order to achieve justice.
Speakers:
Susan Okalany: Judge, High Court of Uganda & ICC Prosecutor Candidate
Jackline Nasiwa: Executive Director, Centre for inclusive Governance, Peace and Justice and Senior Peace Fellow, PILPG
Kenneth Scott: Prosecutor & International Human Rights Lawyer
Antonia Mulvey: Executive Director, LAW
Bahia Tahzib-Lie: Human Rights Ambassador, Ministry of Foreign Affairs, The Netherlands
Jehanne Henry: Moderator of the event
Summary of the Event:
The first speaker, Bahia Tahzib-Lie, Human Rights Ambassador at the Ministry of Foreign Affairs of The Netherlands, opened the event by highlighting that victims of conflict-related sexual violence do not feel that perpetrators are held accountable for their crimes. This is a pattern that most human rights organizations find when interviewing victims. The victims feel that the perpetrators will never be prosecuted under state's authorities considering the Government’s unwillingness to prosecute. Tahzib-Lie highlighted that victims in South Sudan are demanding their right to justice and that this process needs to start with providing adequate justice reparations in order to achieve accountability. Tahzib-Lie emphasized that certain steps are being made in the right direction, as the Netherlands, in particular, supports this transitional justice process in South Sudan. However, there are still limitations as South Sudan unwillingness, and potentially inability, to start investigations provide for an obstacle to the process.
The second speaker Jackline Nasiwa, PILPG Senior Peace Fellow and Executive Director at Centre for inclusive Governance, Peace and Justice, contextualized the reality of victims of conflict-related sexual violence by pointing out the presence of violence in major areas in South Sudan. She highlighted three reasons why victims may not be willing to speak out. The first is that many of the survivors have other major concerns related to their basic necessities, such as their livelihood, health, or even being able to eat. Nasiwa provided examples of witnesses who had physical injuries and/or suffered mental trauma which should be addressed first before having them participate in trials.
The second reason, Nasiwa discussed, is that some of the victims might feel reluctant to talk because there is still intercommunal violence. Considering that there is not enough protection for the victims to speak to authorities or courts, victims may not feel comfortable sharing their testimonies. This safety issue is also caused by the committees that recollect victim testimonies who are made up of politicians or leaders that were part of the conflict. These figures might claim that victims advocate for a political reason.
The third reason Nasiwa mentioned is that survivors are not mentally prepared to do so. In order to help victims speak about their experiences, trauma healing training is necessary for those who are conducting investigations in South Sudan.
The third speaker, Susan Okalany, Judge at the High Court of Uganda and ICC Prosecutor candidate, drew some comparisons with the South Sudanese conflict and the Ugandan conflict. She claimed that the lack of comprehensive legal framework in domestic courts hinders the justice process. Several amnesty laws passed by the Ugandan Government make it impossible to prosecute major perpetrators of sexual violence, leaving them impune. In addition, Geneva Conventions could not be applied to the conflict because the conflict cannot be considered an international armed conflict. Despite this, Judge Okalany considered that perpetrators could still be charged with national and international core crimes under customary international law, following judicial cases from Commonwealth tribunals.
Another issue brought by Judge Okalany, and agreed upon by the other panellists, was the victim's participation in trials. Okalany argued that the victims should be able to participate throughout the trial as opposed to when the trial is done and reparations are made. This ensures that the victims participate in their own justice process. In order to ensure their participation from the beginning till the end of the trial, she applied mutatis mutandi the Rules of Procedure and Evidence of the International Criminal Court.
The fourth speaker Antonia Mulvey, Executive director of LAW, reiterated that the victim's participation in justice processes is crucial for the achievement of peace. Documenting the names of victims and the locations where the crimes have been committed needs to take place to ensure there is evidence for future trials. With this, however, she argues that the victims must be offered enough protection if the victims cannot stay anonymous, as this could cause serious problems for their safety. Through Mulvey’s role as an interviewer of victims during the Rohingya crisis, she concluded that most of the victims wanted the ICC to start an investigation. Six months after Mulvey conducted these interviews, ex-ICC Prosecutor Bensouda decided to open an investigation in the Bangladesh border with Myanmar.
The fifth speaker Kenneth Scott, prosecutor and international human rights lawyer, emphasized the necessity to establish a hybrid court in South Sudan. Scott condemned the UNSC unwillingness to refer the case to the ICC as well as South Sudan's refusal to accept the ICC jurisdiction. Scott concluded the discussion by providing that the ICC could claim jurisdiction based on the Bangladesh/Myanmar case considering that most of the South Sudanese survivors were displaced to Uganda, a neighboring state that has ratified the Rome Statute.