United Nations A/HRC/40/CRP.1 Distr.: Restricted Advance unedited version 20 February 2019 ! Original: English Human Rights Council Fortieth session 25 February – 22 March 2019 Agenda item 4 Human Rights Situations that require the attention of the Council Report of the Commission on Human Rights in South Sudan* * The information contained in this document should be read in conjunction with the report of the Commission on Human Rights in South Sudan (A/HRC/40/69). GE. CRP on the Report of the Commission on Human Rights in South Sudan in English Contents The table of contents is empty because you aren’t using the paragraph styles set to appear in it. !2 CRP on the Report of the Commission on Human Rights in South Sudan in English I. Introduction 1. In its resolution 31/20 of 23 March 2016, the Human Rights Council established the Commission on Human Rights in South Sudan for a period of one year, and requested the Commission to, inter alia, monitor and report on the situation of human rights in South Sudan to make recommendations for its improvement, and to assess past reports on the situation of human rights since December 2013, in order to establish a factual basis for transitional justice and reconciliation. 2. On 14 June 2016, the President of the Human Rights Council appointed Yasmin Sooka, Kenneth R. Scott and Godfrey M. Musila to serve as the three members of the Commission, with Ms. Sooka as its Chair. Mr. Scott was replaced by Professor Andrew Clapham as Commissioner on 21 September 2017. Mr. Musila was replaced by Barney Afako on 14 June 2018. 3. On 14 December 2016, the Human Rights Council convened a special session on South Sudan to discuss the deteriorating situation of human rights, which was attended by the Chair of the Commission. The Commission submitted its first report on 6 March 2017.1 The Council has extended the mandate of the Commission twice. At its 34th Session on 24 March 2017, the Council extended the Commission’s mandate in Resolution 34/25 for a period of one year, and the Commission submitted its second report on 13 March 2018.2 At its 37th Session on 23 March 2018, the Human Rights Council again extended the Commission’s mandate in Resolution 37/31 for another year. The Commission provided an oral update to the Human Rights Council at its 39th Session on 17 September 2018. 4. The Commission was supported by a secretariat of 13 professional staff based in Juba and Addis Ababa, consisting of human rights investigators, legal, gender, and transitional justice advisors, military and forensic experts, a coordinator, a case manager, and security and administrative officers as well as three national language assistants. The first member of the secretariat was deployed on 16 June 2018 and the secretariat was fully deployed as of 3 September 2018. 5. In light of the Revitalized Agreement for the Resolution of the Conflict in South Sudan (R-ARCSS) signed on 12 September 2018, the Commission has chosen to focus on human rights issues which will likely remain of concern as the country moves forward in implementing the agreement and establishing peace such as the rights of women and children. Although the conflict may be drawing to an end, many of its effects will continue to be felt for years to come. In this regard, the Commission has also chosen to explore a number of patterns and trends at play in the South Sudan conflict which if left unaddressed and unresolved, might continue to trigger conflict and the commission of human rights violations in South Sudan. Such potential triggers include the administrative restructuring of governance institutions, the control of economic resources, and the increasing securitization of the state repressing public discourse. 6. The Commission has investigated a number of incidents that are emblematic of crimes and violations committed primarily in 2018, covering the period since its last report. This report examines recent incidents in the states of Western Bahr el Ghazal, Central Equatoria, and Unity and seeks to clarify responsibility, to the extent possible, for alleged gross violations and abuses of human rights and related crimes. II. Mandate/Methodology A. Mandate 7. When the Human Rights Council extended the Commission’s mandate in Resolution 34/25 on 24 March 2017, it expanded the scope of the Commission’s mandate, reaffirming it when the Council extended the Commission’s mandate on 23 March 2018 in Resolution 37/31. 8. The Council mandated the Commission to include “determin[ing] and report[ing] the facts and circumstances of, collect[ing] and preserv[ing] evidence of, and clarify[ing] 1 Report of the Commission on Human Rights in South Sudan, A/HRC/34/63, 6 March 2017. 2 Report of the Commission on Human Rights in South Sudan, A/HRC/37/71, 13 March 2018. 3! CRP on the Report of the Commission on Human Rights in South Sudan in English responsibility for alleged gross violations and abuses of human rights and related crimes, including sexual and gender-based violence and ethnic violence, with a view to ending impunity and providing accountability, and to make such information available also to all transitional justice mechanisms, including those to be established pursuant to chapter V of the Agreement on the Resolution of the Conflict in the Republic of South Sudan, including the hybrid court for South Sudan, once established in cooperation with the African Union.”3 9. The Council further requested in Resolutions 34/25 and 37/31 that the Commission continue to monitor the human rights situation in South Sudan and make recommendations to prevent its further deterioration. The Commission is also to report on the factual basis for transitional justice and reconciliation and to provide guidance on transitional justice, including accountability and reconciliation and healing, as appropriate, and – once the Government of South Sudan commits to cooperating with the African Union on establishing the hybrid court for South Sudan – to make recommendations on technical assistance to the Government to support accountability, reconciliation and healing. 10. The Commission is further mandated to engage with the Government of South Sudan, international and regional mechanisms, including the United Nations, the United Nations Mission in South Sudan, the African Union, including by building upon the work of its Commission of Inquiry on South Sudan and its African Commission on Human and Peoples’ Rights, the Intergovernmental Authority on Development, including the Partners Forum, the Chair of the Joint Monitoring and Evaluation Commission, and civil society, with a view to providing support to national, regional and international efforts to promote accountability for human rights violations and abuses. 11. Furthermore, the Commission is mandated to make recommendations on technical assistance and capacity-building, as appropriate, including to law enforcement institutions, on the promotion and protection of human rights and fundamental freedoms, including on addressing sexual and gender-based violence. B. Methodology 1. Standard of Proof 12. Consistent with the practice of other United Nations fact-finding bodies, the Commission employed a “reasonable grounds to believe” standard of proof in making factual determinations on individual cases, incidents, and patterns of conduct. These factual determinations provided the basis for the legal qualification of incidents and patterns of conduct as human rights violations and, where appropriate, war crimes and crimes against humanity. 13. However, the Commission’s mandate to collect and preserve evidence to be provided to various accountability mechanisms including the Hybrid Court for South Sudan and the other transitional justice mechanism set out in Chapter V of the R-ARCSS also provided guidance for the secretariat’s working methods. The Commission thus sought to collect and preserve evidence to a standard that will support future accountability mechanisms. This included collecting detailed witness statements and official documentation, while preserving a clear chain of custody, and cataloguing and organizing evidence in a database which can support future criminal investigations and accountability processes. 14. The Commission is satisfied that there are “reasonable grounds” to believe that an incident or pattern of conduct has occurred only when it has obtained a reliable body of information, consistent with other material, upon which a reasonable and ordinarily prudent person would believe that the incident or pattern of conduct has occurred. While this standard of proof is lower than the standard required in criminal proceedings to achieve a conviction, it is sufficiently high to justify further investigations into the incident or pattern of conduct. The findings may also constitute prima facie grounds to initiate a possible prosecution. The findings of the Commission appearing in this report are therefore based on the “reasonable grounds” standard of proof. 15. Individual cases and incidents reflected in this report are therefore based on at least one credible direct source of information, which was independently corroborated by at least one or more credible source(s) of information. 3 Resolution adopted by the Human Rights Council on 23 March 2018, A/HRC/RES/37/31, para. 15(b). !4 CRP on the Report of the Commission on Human Rights in South Sudan in English 16. Where the report describes patterns of conduct, these are based on several credible direct sources of information, which are consistent with, and corroborated by, the overall body of credible information collected. In the few instances where this standard of proof could not be met, but the Commission still considered it appropriate to reflect the incident or pattern, identifying the underlying sources, and nothing the requirement for further investigations. 17. The Commission considered the following to be sources of direct information: • Interviews of victims, their families, and eyewitnesses with direct knowledge of the issues, incidents, and trends, who were assessed by the Commission to be credible and reliable and the information valid; • Medical examinations of witnesses who alleged torture, ill-treatment or injury during detention or military operations.