USAID/SOUTH SUDAN
TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT
AUGUST 2018 This final report was produced for review by the United States Agency for International Development. It was prepared by Management Systems International (MSI), A Tetra Tech Company.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY SOUTH SUDAN
FINAL REPORT
Contracted under IDIQ No: AID-668-I-13-00001, Task Order 1
USAID Monitoring and Evaluation Support Project, South Sudan
DISCLAIMER This final report is made possible by the support of the American people through the United States Agency for International Development (USAID). The contents are the sole responsibility of the MSI and do not necessarily reflect the views of USAID or the United States Government.
CONTENTS
ACRONYMS ...... ii EXECUTIVE SUMMARY ...... 1 INTRODUCTION ...... 3 METHODOLOGY ...... 4 Data Sources and Collection and Analysis Methods ...... 4 Limitations, Constraints and Research Gaps ...... 4 BACKGROUND: SETTING THE STAGE ...... 5 Contextual Background and Conceptualization ...... 5 Defining Transitional Justice ...... 5 Economic and Social Rights in Transitional Justice ...... 6 Transitional Justice in South Sudan ...... 8 Documentation of Human Rights Violations and Abuses for Transitional Justice ...... 18 Truth-seeking ...... 20 Reparations ...... 22 Criminal Accountability ...... 24 Vetting ...... 28 Obstacles and Challenges ...... 32 FINDINGS, CONCLUSIONS AND RECOMMENDATIONS ...... 35 Donors, Actors and Coordination ...... 35 Governmental Donors ...... 35 International and National Civil Society ...... 38 United Nations ...... 42 Others ...... 43 Civil Society Needs, Challenges and Gaps ...... 44 Civil Society Challenges and Needs ...... 44 Gaps ...... 47 Recommendations ...... 50 Recommendations for Strategic and Coordinated Support ...... 50 Strategic Framework: Support for 2018 and the Next 3-5 Years ...... 51 ISSUES...... 56 LESSONS LEARNED AND FUTURE DIRECTIONS ...... 56 REFERENCES ...... 58 Annotated Bibliography ...... 58 Anonymized List of Actors ...... 68 Annex 1: Study Questions ...... 69 Annex 2: 2017 Contours of A Multi-Actor Human Rights Documentation Program for South Sudan ...... 71 Annex 3: 2017 Implementation Model Proposed for Multi-Actor Human Rights Documentation Program ...... 72 Annex 4: Strategic Framework for Coordinated Support to Documentation ...... 73 Annex 5: Example for Guidelines on Documentation of Serious Violations in South Sudan .. 74 Annex 6: List of Tables and Figures ...... 75
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT i ACRONYMS
ACHPR African Charter on Human and Peoples’ Rights ACHPR African Commission on Human and Peoples’ Rights AU African Union AUCISS African Union Commission of Inquiry on South Sudan CEDAW Convention on the Elimination of All Forms of Discrimination against Women CHRSS Commission on Human Rights in South Sudan CNHPR Committee for National Healing, Peace and Reconciliation CTRH Commission for Truth, Reconciliation and Healing CRA Compensation and Reparation Authority CRC Convention on the Rights of the Child CRSV Conflict-Related Sexual Violence CSOs Civil Society Organizations CTSAMM Ceasefire and Transitional Security Arrangements Monitoring Mechanism DRL Democracy, Human Rights and Labor ECOSOC Economic and Social Council ESRs Economic and Social Rights EU European Union FDs Former Detainees GIJTR Global Initiative for Justice, Truth and Reconciliation HCSS Hybrid Court for South Sudan HLP Housing Land and Property HLRF High-Level Revitalization Forum HRWG Human Rights Working Group IACHR Inter-American Court of Human Rights ICC International Criminal Court ICESCR International Covenant on Economic, Social, and Cultural Rights ICTJ International Center for Transitional Justice ICTY International Criminal Tribunal for the Former Yugoslavia IDPs Internally Displaced Persons IGAD Intergovernmental Authority on Development IICI The International Institute for Criminal Investigation ILO International Labor Organization (I)NGOs (International) Non-Governmental Organizations JAG Justice Advisory Group JIP Joint Integrated Police
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT ii JoSS Judiciary of South Sudan MARA Monitoring, Analysis and Reporting Arrangements MRM Monitoring and Reporting Mechanism MoJCA Ministry of Justice and Constitutional Affairs MoU Memorandum of Understanding NPA Norwegian’s People’s Aid NSS National Security Service ODA Official Development Assistance OHCHR Office of the High Commissioner of Human Rights PPCS Platform for Peace and Civic Space PoC Protection of Civilian PTSD Post Traumatic Stress Disorder RoL Rule of Law RoSS Republic of South Sudan SCSL Special Court for Sierra Leone SoA Scope of Assessment SGBV Sexual and Gender Based Violence SOPs Standard Operating Procedures SPLA/M Sudan People’s Liberation Army/Movement SPLA/M-IO Sudan People’s Liberation Army/Movement-in-Opposition SSBC South Sudan Broadcasting Corporation SSCC South Sudan Council of Churches SSHRC South Sudan Human Rights Commission SSHRDI South Sudan Human Rights Documentation Initiative SSLS South Sudan Law Society SSNPS South Sudan National Police Service SSP South Sudanese pound TGoNU Transitional Government of National Unity TOP Task Order Plan UK United Kingdom UNDP United Nations Development Programme UN HRC United Nations Human Rights Council UNHRDDP United Nations Human Rights Due Diligence Policy UNITAR United Nations Institute for Training and Research UNMISS HRD United Nations Mission in South Sudan Human Rights Division UNOSAT United Nations Operational Satellite Applications Programme UPR Universal Periodic Review
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT iii USG United States Government WPS Women, Peace and Security
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT iv EXECUTIVE SUMMARY
This study, made possible by USAID South Sudan, contains analysis and recommendations for future donor strategies and activities to support documentation of human rights violations and abuses for transitional justice purposes in South Sudan. Research for this study was conducted between 15 February – 08 August 2018 in South Sudan. The study aims to facilitate donor deliberations on how to best support human rights documentation for a comprehensive transitional justice process. The findings are based on 177 interviews with 81 actors, 16 joint donor/partner meetings,1 the author’s observations at eight workshops, as well as desk research. The study builds on an earlier detailed study on human rights documentation in South Sudan that was conducted with funding from USAID South Sudan in June – September 2017.
South Sudan has entered the fifth year of its most recent conflict that erupted in December 2013 and which has caused the deaths of tens of thousands of people and internally displaced over 1.8 million people (often multiple times), of which 85% are estimated to be women and children. In addition, the violence has forced over 2.4 million South Sudanese to seek refuge in neighboring countries; more than half of them have fled since the renewed fighting in July 2016.
Transitional justice offers a range of mechanisms that enable societies like the South Sudanese to come to terms with their violent pasts to set the foundations for a peaceful future. Effectively addressing past atrocities through these approaches is an important tool in preventing the recurrence of atrocities. In South Sudan, transitional justice mechanisms are contained in the Agreement on the Resolution of the Conflict in the Republic of South Sudan (ARCSS). Chapter V of the peace agreement provides for transitional justice, accountability, reconciliation and healing in the form of a Hybrid Court for South Sudan (HCSS), a Commission for Truth Reconciliation and Healing (CTRH) and a Compensation and Reparations Authority (CRA). Chapter V also foresees the use of traditional mechanisms of conflict resolution and contains a narrow provision on vetting.
Contrary to public perception, transitional justice in the ARCSS is not restricted to Chapter V. Other chapters include provisions for broader institutional reform processes that include the development of a constitution, land reforms and reforms of judicial, security and financial institutions to prevent the same violations from happening again. While the three Chapter V mechanisms have merit, having a predetermined transitional justice framework as part of a peace agreement that, at the time of writing, is being revitalized, does not mean that other, innovative and homegrown initiatives cannot and should not be pursued outside of the peace agreement. An important principle that drives transitional justice is that it is centered around victims. Unfortunately, the voice of victims continues to be largely missing in conversations about transitional justice in South Sudan and a more participatory process needs to be pursued.
With conflict-related atrocities being committed on a daily basis, the environment in South Sudan is not conducive to start state-centric transitional justice processes. Nevertheless, it is critical that preparatory activities, such as documentation, are undertaken because no transitional justice mechanism can function effectively without high-quality documentation about the abusive past. Documentation is essential to the success of any transitional justice process and forms the basis and lifeline for transitional justice mechanisms and processes. Each transitional justice mechanism has different documentation requirements and collection efforts should meet these requirements.
In South Sudan, there are and have been numerous efforts to document human rights violations and abuses for transitional justice purposes by several actors including the United Nations, the African Union and (inter)national civil society. Support for these documentation efforts have coalesced around Chapter V of the ARCSS (the CTRH, HCSS, CRA) as well as memorialization. With support
1 This does not include the author’s participation during the donor Human Rights Working Group (HRWG) meetings.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 1 from the US State Department, for instance, civil society has started to play a critical role in the documentation of human rights violations and abuses by the formation of the South Sudan Human Rights Documentation Initiative (SSHRDI). However, not without challenges.
The environment in South Sudan is characterized by shrinking civil space and security threats, making it very challenging for civil society activists to safely document violations of human rights law and international humanitarian law. This is exacerbated by the lack of trust at various levels and between various groups including between communities, between documenters and survivors, between authorities and civil society, and within civil society. Especially regarding the latter group, lines of division largely run along perceived political affiliation, ethnicity, and location (based in diaspora or in South Sudan and based in Juba or the states). Victims interviewed by documenters experience research fatigue and skepticism that documenters will make good use of information. Extremely high levels of illiteracy, a plethora of different languages and different concepts of time and space further make accurate documentation a challenging endeavor. Documentation is a technical and complex undertaking and civil society needs more capacity-building. The ‘stop-and-go’ nature of support does not help in this regard and at times negatively affects continuous training for documenters and grants for documentation missions.
The USAID-funded study in 2017 identified four clusters of gaps, namely (1) a lack of overview and analysis of available data; (2) low levels of capacity and lack of quality control; (3) a lack of predictable and structural financial support including a funding gap for documentation in refugee camps; and (4) a lack of coordination between a broad range of actors. In 2018, additional gaps and needs were identified that include: (5) the lack of victim participation in transitional justice conversations and the need to build victim coalitions and networks; (6) the need to expand the conversation about documentation to include non-traditional human rights organizations; (7) a lack of linkage (individual responsibility) evidence required for criminal accountability; (8) whereas several actors document looting and destruction of property, a stronger focus on documentation of starvation as a weapon of war and violations of economic and social rights that are characteristic of the conflict (e.g. right to food), could contribute to a more holistic understanding of the violations and the extent of harm inflicted on communities; (9) whereas some actors document some destruction of property, more focus should be given to issues and claims related to housing, land and property in anticipation of future resettlement; and (10) there is space for open source documentation to play an important role as a starting point for identifying cases and developing investigation strategies.
In response to the gaps and needs, cognizant of the different funding cycles that donors have, and to meet the sensitivity needs of documentation work, this study worked to identify strategic areas for engagement that donors can use as framework to guide their support. If each individual donor’s support stays within this framework, it will still be part of a strategic whole. The following five strategic areas were identified: (1) A comprehensive violations mapping exercise; (2) Continued and improved, financially supported documentation efforts in South Sudan and refugee camps; (3) Continuously understanding needs, demands and priorities of victims; (4) Immediate use of documented information; (5) Learning and continued and expanded conversations about transitional justice documentation. The study identifies several projects that can be implemented by coalitions of organizations that, when connected, together have a larger, strategic impact that matches the current of documentation of human rights violations and abuses for transitional justice purposes in South Sudan. For each project, potential implementing partners and donors have been identified based on their respective strengths, policies and priorities.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 2 INTRODUCTION
This study, made possible by USAID South Sudan, contains analysis and recommendations for future donor strategies and activities to support documentation of human rights violations and abuses for transitional justice purposes in South Sudan. Research for this study was conducted between 15 February – 08 August 2018 in South Sudan. The study aims to facilitate donor deliberations on how to best support human rights documentation for a comprehensive transitional justice process. It is not intended to be a thorough assessment of transitional justice in South Sudan, but rather focuses on documentation efforts. This report is intended for use by all donors and other stakeholders on a need-to basis and for whom the report can be of instrumental value. It is not a public document. Though it is best read as a whole, it can be used as a reference document and readers can use specific (sub)sections that are of interest to them.
The study builds on an earlier detailed study on human rights documentation in South Sudan that was conducted with funding from USAID South Sudan in June – September 2017.2 The findings of this study (actor mapping, gap analysis and areas for engagement) were presented to the donor Human Rights Working Group (HRWG) in September 2017 and at a workshop organized by the European Union (EU) in Nairobi on 20-21 February 2018. Following the first study and the EU workshop, donor interest is coalescing around funding a coordinated approach along the lines of the recommendations generated thus far.
The goal of this study is to enable donors to take strategic and harmonized decisions about programmatic interventions to support human rights documentation within a comprehensive, contextualized, and victim3-centered transitional justice approach in South Sudan. The specific objective4 of the study that this report discusses is: to support donors to coordinate around a shared vision and strategy for human rights documentation for transitional justice in South Sudan. In addition to guidelines, the study also aims to identify concrete projects and practical activities that donors can support. The consultancy also sought to increase meaningful dialogue and build collaboration between actors (local, national, international NGOs, donors, as well as the United Nations).
2 To support improvements in the human rights documentation sector and identify areas for complementary engagement, a 3.5-month research project in South Sudan was undertaken between 12 June – 30 September 2017. Based on 95 interviews with 61 actors as well as desk research on existing frameworks and structures, the study gives insights into the broader landscape of different types of actors, their modes of engagement and how they relate to each other. A programmatic gap analysis was undertaken to identify weaknesses wherein documentation efforts are less effective or useful than they could be as well as gaps that could be filled to strengthen the sector so that human rights documentation can be used in a positive manner. The gaps were clustered into four clusters, namely 1) lack of overview and analysis of available data; 2) low levels of capacity and lack of quality control; 3) lack of structural and predictable financial support; and 4) a lack of coordination. The study then proposes a program composed of four pillars that donor could support to improve the documentation of human rights violations and abuses in South Sudan. The four pillars are: 1) a comprehensive mapping exercise for South Sudan; 2) embedded roving trainers; 3) a small grants mechanism for guaranteed funding; and 4) a program coordinator recruited by a host organization that would implement the program. 3 Throughout the report, the term ‘victim’ will be used. This is not meant to take away agency of those who consider themselves ‘survivors’ rather than ‘victims’, but rather to be consistent with the terminology that is used within a human rights framework. 4 The other two specific objectives of the study that are not central to this report are: (1) to generate prioritized programmatic recommendations for existing and future engagement for USAID; and (2) to generate recommendations for the improvement of the Global Initiative for Justice, Truth and Reconciliation (GIJTR) of the Transitional Justice Consortium.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 3 METHODOLOGY
Data Sources and Collection and Analysis Methods
The research was guided by 23 pre-determined study questions that the consultant divided into four clusters (see annex 1). The findings of the study are based on 177 interviews with 81 actors, 16 joint donor/partner meetings,5 the author’s observations from eight workshops, as well as desk research. The main data sources used for this study included academic literature; grey literature (protocols, reports, guidelines, toolkits, policies and strategies published by the UN, donors and (inter)national organizations); legal documents; experts and stakeholders.
The main data collection and analysis methods used for this study included desk study and online research; available document review; semi-structured interviews with key stakeholders and experts; focus group interviews/meetings personnel of national civil society organizations; continuous actor mapping; identification of synergies as well as potential areas of coordination and complementarity; continuous gap analysis. Coordination between donors and civil society (and other actors) was done through liaison activities and/or facilitation of direct contact, depending on the needs of the actor and contextual conditions. All interviews were conducted with due regard to digital and physical security of the respondents. As a principled security precaution, all references to actors (with exceptions where actors are publicly engaged such as many UN entities) are anonymized through coding.
Limitations, Constraints and Research Gaps
The research was restricted by the sensitivity of the topic. which prevented the consultant from using regular research instruments such as questionnaires to collect data. To reduce the risk of exposing civil society activists through possible digital surveillance, it was decided to collect the information through in-person interviews with trusted actors and their referrals. Due to this working method, the data collection process was time consuming.
The study left several gaps generating the following areas for further research: • Through a broader actor mapping, increase understanding of which actors are involved in data collection that, with adjustments and when safely preserved, could be of use for transitional justice processes. These actors include medical, psycho-social and humanitarian actors in South Sudan and refugee camps as well as actors involved in housing, land and property rights; • Deeper research into community-based civil society actors documenting at state/community level needs to be undertaken; • Assessment (advantages and disadvantages) of the use of technology (digital applications) that would be helpful in the South Sudanese context;6 • Study whether there are examples of situations in other countries where mortality counts have been successful done and how (if at all) these have been linked to documentation initiatives;
5 This excludes consultant’s participation during the donor Human Rights Working Group (HRWG) meetings. The author attended eight meetings of the donor Human Rights Working Group (HRWG) that is chaired by the US State Department. 6 The Department of Human Rights and Labor (DRL) is pursuing an assessment of the use of technology and the gap in security related to technology that can be used for documentation. The assessment will include the South Sudan Human Rights Documentation Initiative (SSHRDI).
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 4 BACKGROUND: SETTING THE STAGE
Contextual Background and Conceptualization
The violence that broke out in December 2013 is just the latest, yet arguably the most violent, in South(ern) Sudan’s long history of violence. This history of violence, and the structures and root causes enabling and fueling it, have not been adequately dealt with, creating a situation in which impunity reigns and people’s rights and dignity continue to be violated in a gruesome and structural manner.
South Sudan has entered its fifth year of its most recent conflict that erupted in December 2013 and which has caused the deaths of tens of thousands of people7 and internally displaced over 1.8 million people (often multiple times), of which 85% are estimated to be women and children. In addition, the violence has forced over 2.4 million South Sudanese to seek refuge in neighboring countries, of which more than half have fled since the renewed fighting in July 2016. Seven million people, over two-thirds of the estimated population, need assistance and protection as hunger and malnutrition have reached unprecedented levels and localized famine has been declared in areas of the country and continues to loom on the horizon. A lack of health facilities and targeted destruction of the few that exist mean that South Sudanese continue to die of preventable diseases.8 South Sudan was ranked the most dangerous country for humanitarian aid workers for three consecutive years. Roughly one third of attacks on humanitarians in the world that took place in 2017 occurred in South Sudan.9 South Sudan’s economy is in crisis with inflation reaching 183 per cent in Juba and a spiraling depreciation of the South Sudanese pound (SSP).10
Defining Transitional Justice Transitional justice offers a range of mechanisms that enable societies to come to terms with their violent pasts to set the foundations for a peaceful future. The UN defines transitional justice as “the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation”.11 According to the UN, “transitional justice consists of both judicial and non-judicial processes and mechanisms, including prosecution initiatives truth-seeking reparations programs, institutional reform or an appropriate combination thereof. Whatever combination is chosen must be in conformity with international legal standards and obligations. Transitional justice should further seek to take account of the root causes of conflicts and the related violations of all rights, including civil, political, economic, social and cultural rights.”12 The concept is still often misunderstood (often misperceived as equating or limited to criminal justice), does not feature prominently or clearly in donor foreign policies and, as a result, is underutilized in efforts to stop cycles of violence.
7 An exact number is unknown, in part due to dispersed information and datasets and underreporting of systematic mortality counts. 8 UNOCHA (16 July 2018). Humanitarian Bulletin South Sudan. Issue 6. Available at https://reliefweb.int/sites/reliefweb.int/files/resources/20180716_OCHA_SouthSudan_Humanitarian_Bulletin%236.pdf 9 Stoddard, A., Harmer, A. & Czwarno, M. (2018). Aid worker security report: Figures at a glance. Humanitarian Outcomes. Available at https://www.humanitarianoutcomes.org/publications/figures-glance-2018 10 UNOCHA. Crisis Overview. Available at http://www.unocha.org/country/south-sudan/crisis-overview 11 Guidance Note of the Secretary General – United Nations Approach to Transitional Justice (March 2010) Available at https://www.un.org/ruleoflaw/files/TJ_Guidance_Note_March_2010FINAL.pdf 12 Guidance Note of the Secretary General – United Nations Approach to Transitional Justice (March 2010). Available at https://www.un.org/ruleoflaw/files/TJ_Guidance_Note_March_2010FINAL.pdf
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 5 Economic and Social Rights in Transitional Justice13 Traditionally, transitional justice programs focused more strongly on civil and political rights. More recently, scholars and practitioners have increasingly questioned transitional justice’s tendency to neglect violations of economic and social rights (ESRs).14 Many ESR violations occur during conflict15 and inclusion of these violations in their own terms, as structural causes of violence and grievances as opposed to considering them as consequences of civil and political violations or the contextual background in which other violations occurred,16 can offer valuable insights into causes of past conflict and addressing socio-economic grievances (e.g. feelings of exclusion, marginalization and discrimination; discontent over resource allocation; poor economic/natural resource management; corruption; unfair land distribution; forced displacement;17 use of mass starvation; use of education for propaganda; and unemployment18) can help resolve and prevent future conflict. Violations of ESRs, especially during times of conflict, can be as devastating for people as violations of bodily integrity (sexual violence, arbitrary arrest, torture, killings, disappearances, etc.) or other civil and political rights.
Where victims express their immediate needs to be food, education and livelihoods, this should not necessarily be assumed to be distinct from the need for justice. Violations of the right to food, health, and work are injustices and usually are the result of adverse human agency and not only daily needs.19 In fact, intentionally using starvation of civilians as a method of war can amount to a war crime and manifest itself as a famine or severe food insecurity.20 Ignoring ESRs risks distorting historical narratives about the violence, leaving certain causes of the conflict unaddressed and in worst case scenarios risks reinforcing socio-economic injustices, impeding stable transitions. Inclusion of (prioritized) types of conflict-related ESRs can contribute to improving State policies, a legal culture that recognizes these rights and a political culture in which the State takes responsibility to meet its obligations to respect, protect and fulfil ESRs. Although South Sudan has not ratified the International Covenant on Economic, Social, and Cultural Rights (ICESCR), these rights can be found in other human rights treaties and conventions that South Sudan has ratified,21 in international customary law and international humanitarian law,22 and in South Sudan’s constitution.
Not all transitional justice mechanisms are equally suited to address violations of ESRs, but government failures to respect and protect ESRs, triggering State responsibility, can be included in several ways. For instance, in the mandate of courts and truth commissions23 (e.g. to include
13 This section on economic and social rights in transitional justice does not reflect United States Government (USG) policy and is not a recommendation by USAID. It is what the research suggests and something that the USG is strongly recommended to consider. 14 This part of the research focused on economic and social rights. This should not be understood as denying the importance of cultural rights. 15 For instance, when armed forces burn houses, destroy crops, loot healthcare infrastructure or poison drinking water. 16 Evelyne Schmid and Aoife Nolan (2014). ‘Do No Harm’? Exploring the Scope of Economic and Social Rights in Transitional Justice. The International Journal of Transitional Justice, Vol. 8. 632 – 382. Available at https://academic.oup.com/ijtj/article/8/3/362/2912086 17 Forced displacement, for instance, violates the right to an adequate standard of living and housing, among others. 18 The civil unrest that lead to the conflicts in Tunisia, Egypt and Yemen all had socioeconomic concerns that played a role in causing the violence. 19 Evelyne Schmid and Aoife Nolan (2014). ‘Do No Harm’? Exploring the Scope of Economic and Social Rights in Transitional Justice. The International Journal of Transitional Justice, Vol. 8. 632 – 382. Available at https://academic.oup.com/ijtj/article/8/3/362/2912086 20 See for instance, United Nations Security Council Resolution 2417 (24 May 2018). Available at: https://www.securitycouncilreport.org/atf/cf/%7b65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7d/s_res_2417.pdf 21 Economic, social and cultural rights also form part of other instruments that South Sudan is party to including the International Labor Organization (ILO) fundamental conventions except number 87 (Freedom of Association and Protection of the Right to Organise), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Rights of the Child (CRC), and the African Charter on Human and Peoples’ Rights (ACHPR). 22 South Sudan has ratified the Geneva Conventions of 12 August 1949 and Additional Protocols I, II and III. 23 For example, Chad’s truth commission uncovered that the State seized assets of political prisoners and gave them to regime loyalists and members of the State’s secret police. Sierra Leone’s truth commission documented looting and
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 6 economic crimes and violations of ESRs in their mandate24) and (decentralized, collective) reparation programs, memorialization initiatives, participatory budgeting as a mechanism,25 and guarantees of non-repetition. In addition to the obligation to ensure the right to know, the right to justice and the right to reparation, States have a duty to prevent recurrence of violation, including ESRs. Especially where violations of ESRs are part of the root causes of the conflict, States cannot artificially separate them from civil and political rights and will have to take measures to guarantee their non- recurrence. Such measures include, but are not limited to disarming non-state armed groups, institutional reforms and the vetting of corrupt public officials or non-State actors (including commercial actors whose operations fueled the conflict).26 In their own way, international human rights bodies,27 constitutional courts,28 and international criminal courts have used crimes such as genocide, persecution, forcible transfer, enslavement, destruction and plunder (looting) to prosecute crimes that include violations of ESRs.29
When considering whether to include ESRs in transitional justice programs, it must be ensured that the endeavor does not become a development program which requires different approaches. There are limits to the ability of transitional justice to, for instance, address widespread poverty and other development issues. Having said that, many development and peace-building actors engage in transitional justice activities such as the reform of public institutions or the demobilization and reintegration of child soldiers without approaching it from a transitional justice lens. Analyzing development programs in light of root causes of conflict and designing them to address grievances that underlie atrocities will help prevent future atrocities.30
extortion and Liberia’s commission established relations between endemic corruption and the limitation of socioeconomic opportunities and considered land issues. In Sam Szoke-Burke (2015). Not Only ‘Context’: Why Transitional Justice Programs Can No Longer Ignore Violations of Economic and Social Rights. Texas International Law Journal Vol. 50 Issue 3. Available at http://www.tilj.org/content/journal/50/16%20SZOKEBURKE%20FINAL.pdf. The truth commission in Timor- Leste dedicated an entire section on violations related to deaths resulting from hunger and illness during the years of conflict and occupation. In Office of the High Commissioner for Human Rights (OHCHR) (2014). Transitional Justice and Economic, Social and Cultural Rights. Available at https://www.ohchr.org/Documents/Publications/HR-PUB-13-05.pdf 24 Article 2.2.1 of Chapter V in the ARCSS gives the CTRH a broad mandate to “inquire into all aspects of human rights violations and abuses, breaches of the rule of law and excessive abuses of power, committed against all persons in South Sudan by State, non-State actors, and or their agents and allies.” The Commission will have to determine specific priorities and areas of focus within this broad mandate. 25 Participatory budgeting was used in Bolivia and Peru to foster economic and social change. In combination with decentralized, collective reparation programs (distribution of public goods or services designed to benefit a collective entity rather than individual victims), it can effectively redress gross violations of ESCRs in marginalized areas or areas most heavily affected by the violence. However, the meaning and symbolism of these programs and the participation must be clearly reparative to distinguish them from regular development projects. In Sam Szoke-Burke (2015). Not Only ‘Context’: Why Transitional Justice Programs Can No Longer Ignore Violations of Economic and Social Rights. Texas International Law Journal Vol. 50 Issue 3. Available at http://www.tilj.org/content/journal/50/16%20SZOKEBURKE%20FINAL.pdf 26 Alexander Mayer-Rieckh (2017). Guarantees of Non-Recurrence: An Approximation. Human Rights Quarterly 39. 416-448. Available at https://muse.jhu.edu/article/657336/pdf 27 For example, in Ituango Massacres vs. Colombia, the Inter-American Court of Human Rights (IACHR) instances of forced labor and, in relation to forced displacements, violation of the right to property. The remedies for these violations that the Court imposed on the State included guarantees of safe conditions for those forcibly displaced, to establish a housing plan to benefit the displaced, to memorialize the violations and to pay compensation to the named victims. In Sam Szoke-Burke (2015). Not Only ‘Context’: Why Transitional Justice Programs Can No Longer Ignore Violations of Economic and Social Rights. Texas International Law Journal Vol. 50 Issue 3. Available at http://www.tilj.org/content/journal/50/16%20SZOKEBURKE%20FINAL.pdf 28 For example, in the case of Internally Displaced Persons (IDPs), the Colombian constitutional court ruled that the internal displacement violated multiple human rights and noted the failure of the State authorities to respect, protect and fulfil the rights of displaced persons. In Office of the High Commissioner for Human Rights (OHCHR) (2014). Transitional Justice and Economic, Social and Cultural Rights. Available at https://www.ohchr.org/Documents/Publications/HR-PUB-13- 05.pdf 29 For example, in Prosecutor vs. Brdanin, the International Criminal Tribunal for the Former Yugoslavia (ICTY) found that Bosnian Serb officials had persecuted Bosnian Muslims and Croats by withholding medical care and denying rights to employment, freedom of movement and judicial process based on their ethnicity. In Sam Szoke-Burke (2015). Not Only ‘Context’: Why Transitional Justice Programs Can No Longer Ignore Violations of Economic and Social Rights. Texas s International Law Journal Vol. 50 Issue 3. Available at http://www.tilj.org/content/journal/50/16%20SZOKEBURKE%20FINAL.pdf 30 Correspondence with international expert on 31 July 2018.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 7
While it is important to include ESRs to address root causes and grievances, it must also be noted that the inclusion of ESRs in transitional justice programs can result in a broader definition of ‘victim.’ Inclusion of ESRs can also increase the budget and work load of mechanisms that are generally already stretched to, or beyond, their limits. Investigating and analyzing ESRs requires a specific skill set that will need to be present. Nevertheless, where violations of ESRs frequently occurred during the conflict (for example destruction of property, looting and forced starvation as is the case in South Sudan), and are a prime grievance of the affected population, it is advisable to include ESRs in the country’s transitional justice program. In addition to measures of non-repetition (and stimulating development actors engaged in these areas to apply a transitional justice lens), it is worth exploring the option to create a separate arm in the truth commission that is envisioned for South Sudan that would be tasked to investigate violations of ESRs, thereby also generating opportunity for a reparations program that addresses violations of ESRs. There will be a need to prioritize the violations because transitional justice mechanisms cannot address all types of violations. Analysis will have to be done to identify those that are large-scale and particularly characteristic of the conflict. Such analysis can inform documentation efforts and ensure that priority ESRs are included. It is crucial not to raise unrealistic expectations by clear messaging that transitional justice measures will not achieve the materialization of ESRs for everyone.31
Transitional Justice in South Sudan
Transitional Justice in the ARCSS The term transitional justice is relatively new in the South Sudanese context and was increasingly used in the post-December 2013 period. The 2015 Agreement on the Resolution of the Conflict in the Republic of South Sudan (ARCSS)32 is the first peace agreement in South Sudan’s history that specifically contains provisions for dealing with the past. The state-centric choice of transitional justice mechanisms is contained in Chapter V of the peace agreement which provides for a Hybrid Court for South Sudan (HCSS), a Commission for Truth Reconciliation and Healing (CTRH) and a Compensation and Reparations Authority (CRA). Chapter V also foresees the use of traditional mechanisms of conflict resolution and contains a narrow provision on vetting.33 A holistic understanding of transitional justice will include provisions in the ARCSS on reforms of judicial,34 security35 and financial36 institutions to prevent the same violations from happening again. This holistic understanding of transitional justice underlines both its past-oriented and future-looking nature. Its integral inclusion in the ARCSS underscores the importance that is attached to it as a fundamental part of the peace process and a necessary requirement for sustainable peace and long- term stability in South Sudan. Despite this, the breadth of what transitional justice can be is often
31 Office of the High Commissioner for Human Rights (OHCHR) (2014). Transitional Justice and Economic, Social and Cultural Rights. Available at https://www.ohchr.org/Documents/Publications/HR-PUB-13-05.pdf 32 The ARCSS was signed by the leadership of the Republic of South Sudan (RoSS), the Sudan People’s Liberation Army/Movement-in-Opposition (SPLA/M-IO), and the Former Detainees (FDs) in August 2015 as parties to the conflict as well as other signatories as stakeholders (Alokiir Malual Aguer for civil society, Bishop Enock Tombe Loro for the faith- based leaders, Amer Manyok Deng for the Women’s Bloc, and Moses Macar as a representative of eminent personalities) and guarantors (Intergovernmental Authority on Development (IGAD) Heads of State, the African Union High-Level Ad hoc Committee for South Sudan and the African Union Commission and a number of International Partners as witnesses). 33 Article 4 of Chapter V of the ARCSS entitled “Ineligibility for Participation in the TGoNU or Successor Governments” reads “Individuals indicted or convicted by the HCSS shall not be eligible for participation in the TGoNU, or in its successor government(s) for a period of time determined by law, or, if already participating in the TGoNU, or in its successor government(s), they shall lose their position in government. Agreement on the Resolution of Conflict in the Republic of South Sudan (ARCSS). August 2015. Available at https://unmiss.unmissions.org/sites/default/files/final_proposed_compromise_agreement_for_south_sudan_conflict.pdf 34 See Article 12.2 in Chapter V of the Agreement on the Resolution of Conflict in the Republic of South Sudan (ARCSS). August 2015. Available at https://unmiss.unmissions.org/sites/default/files/final_proposed_compromise_agreement_for_south_sudan_conflict.pdf. 35 Chapter II of the ARCSS foresees for a Security Sector Transformation (SST) process. ARCSS. August 2015. 36 See Chapter IV. August 2015.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 8 underappreciated in South Sudan where the term tends to be equated to the prosecution of senior political and/or military leaders.
It must be noted that the peace agreement, and choice of transitional justice mechanisms, is not the result of public participation and an expression of the will of the people affected by the violence, but an agreement signed by political elites under strong international pressure. While the three mechanisms have merit,37 having a predetermined transitional justice framework as part of a peace agreement that is being revitalized at the time of writing, does not mean that other, innovative and homegrown initiatives cannot and should not be pursued outside of the peace agreement. Rigidly sticking to the agreement’s mechanisms, if it is unclear whether their shape and design is embraced by the population, risks setting them up for failure from the start. For instance, with the large number of civilians killed, abducted, and arbitrarily detained, as well as with the many missing as a result of the violent conflict, it will be critical that the CTRH or a dedicated body focuses on revealing the fate of the disappeared and the missing in South Sudan. Several transitional justice- related initiatives have developed outside the ARCSS, largely driven by civil society actors and religious institutions. Examples include remembrance initiatives such as Remembering the Ones We Lost38 and the annual ceremony to remember the 1992 Juba Massacre.
With the atrocious nature of the violence, the rampant impunity, and the series of breaches of the peace agreement and numerous ceasefire agreements, there is strong international pressure to establish the HCSS. While seeking criminal accountability is important, it should not overshadow other transitional justice measures that also help overcome the legacy of atrocities and contribute to reconciliation, the rule of law and sustainable peace. For transitional justice to be effective, it must have multiple components. Each type of transitional justice mechanism has its limits and can play a necessary, but partial part. At the same time, care must be taken that the government’s push to establish the CTRH does not result in the CTRH being presented as an alternative to the HCSS in the government’s peace before justice narrative. A concrete example of this is an op-ed in the New York Times submitted on behalf of Salva Kiir and Riek Machar (who – four days after publication – claimed he had not been consulted and disavowed the op-ed) that states: “But bringing South Sudan together can be truly guaranteed only through one route: an organized peace and reconciliation process with international backing. In such a process, everyone in South Sudan might engage in the act of remembering through dialogue, and by so doing affirm the truth of what happened during our bloody civil war…In contrast to reconciliation, disciplinary justice — even if delivered under international law — would destabilize efforts to unite our nation by keeping alive anger and hatred among the people of South Sudan…..That is why we call on the international community, and the United States and Britain in particular, to reconsider one element of the peace agreement to which they are cosignatories: support for a planned international tribunal, the Hybrid Court for South Sudan.”39 Six months after the op-ed, Salva Kiir launched the National Dialogue initiative40. In his speech, he promoted forgiveness for wrongs committed.41
37 See, David K Deng, Belkys Lopez, Matthew Pritchard and Lauren C Ng: Search for a New Beginning: Perceptions of Truth, Justice, Reconciliation and Healing in South Sudan, UNDP (June 2015). Available at http://www.ss.undp.org/content/dam/southsudan/library/Rule%20of%20Law/Perception%20Survey%20Report%20Transition al%20Justice%20Reconciliation%20and%20Healing%20-.pdf. A public survey done on reparations for conflict-related abuses by the South Sudan Law Society (SSLS) in 2017, with support from Norwegian’s People’s Aid (NPA), reveals that 92% of survey participants believe that reparations are required for victims of conflict-related abuses. The same study shows that reparations and other transitional justice programs remain secondary to security, food and shelter. See, Matthew Pritchard (2017). Reparations for Conflict-Related Abuses in South Sudan. SSLS and NPA. On file with author. 38 See http://rememberingoneswelost.com/. This website lists names of people who have died or gone missing during South Sudan’s numerous conflicts. 39 Salva Kiir and Riek Machar, South Sudan needs truth, not trials (7 Jun. 2016). The New York Times. Available at https://www.nytimes.com/2016/06/08/opinion/south-sudan-needs-truth-not-trials.html. 40 For more information about the National Dialogue, see https://www.ssnationaldialogue.org/ 41 South Sudanese President launches national dialogue for forgiveness. 14 December 2016. Sudan Tribune. Available at http://www.sudantribune.com/spip.php?article61110.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 9 When President Kiir launched the National Dialogue on 14 December 2016, a day before his deputy First Vice President Taban Gai Deng launched the technical committee for the establishment of the CTRH on the anniversary of the conflict, the initiative was met with much skepticism and criticism from both national and international commentators.42 Questions were raised related to the process of establishment (it was established by Presidential decree, the vast majority of the individuals appointed to the steering committee had not been consulted prior to their appointment); the independence of the dialogue (it was designed to be state-owned and to fall under the patronage of the President himself); the conduciveness of the environment (characterized by a lack of freedom of expression and a culture of intimidation); and its relations to the CTRH.43 In response to the criticism, the membership of the steering committee was expanded to include more women, youth, faith-based organizations, academics and the media. In an attempt to improve the conduciveness of the environment, President Kiir announced the release of 30 political detainees in May 2017 which the NSS has claimed to have released44. The release of 15 detainees from NSS detention on 10 August 2017 and the release of detainees in August 2018 are positive steps, but many more people are detained without charge or trial.
Since its launch, the National Dialogue has started with its first phase (over 200 local consultations in South Sudan and the region45) that aims to set the agenda for regional conferences which, in turn, are to set the agenda for a national conference to be held in late 2018. The national conference is to produce an integrated report to the President and for final submission to Parliament for adoption and implementation. Ultimately, the process aims to achieve peace, reconciliation and a shared sense of national identity. While the process is arguably better than initially anticipated by many, it is still problematic that the local consultations were only held in government-controlled areas and that the UNMISS Human Rights Division recorded NSS presence in at least two consultations46 (given the high militarized nature of society and the expanded control of the NSS, it is plausible that NSS officers were present during many more, if not all, of the consultations).
While the National Dialogue may provide valuable insights into the grievances of South Sudanese, their perceptions of the root causes of the conflict and ideas for resolving the conflict, UN and civil society scrutiny of the process will be essential to monitor the credibility and inclusiveness of it, the degree of freedom of expression granted to participants, possible redactions to the report and to ensure that recommendations are implemented. The National Dialogue must not be allowed to substitute any of the ARCSS transitional justice mechanisms. Much like the CNHPR process, the notes and documents47 of the National Dialogue could, for instance, be handed over to the CTRH.
42 See, among others, press releases by SPLA-IO dated 15 December 2016 and 22 May 2017; report of the Voluntary Civil Society Taskforce on Implementation of the Peace Agreement, dated 3 March 2017; joint statement dated 30 April 2017 of a grouping of six prominent opposition entities: SPLA in Opposition, the Sudan Peoples’ Liberation Movement Leaders and Former Detainees (SPLM Leaders -FDs), the Federal Democratic Party (FDP), the National Democratic Movement (NDM), the South Sudan National Movement for Change (SSNMC), the National Salvation Front (NAS); Joint Civil Society Communiqué dated 10 May 2017; press releases by SSNMC, dated 24 May and 21 August 2017. 43 See, for instance Transitional Justice Working Group (19 December 2016). Statement from the Transitional Justice Working Group on the Commission for Truth, Reconciliation and Healing and the National Dialogue. Available at http://tjwgsouthsudan.org/wp-content/uploads/2016/12/TJWG-Public-Statement-No-4-CTRH-and-the-National-Dialogue- 19122016.pdf 44 UN Mission in South Sudan and the Office of the High Commissioner for Human Rights (February 2018). Report on the Right to Freedom of Opinion and Expression in South Sudan Since the July 2016 Crisis. Available at https://www.ohchr.org/Documents/Countries/SS/UNMISS-OHCHR_Freedom_of_Expression.pdf 45 Since January 2018, over 200 consultations have taken place in South Sudan and with refugees in neighboring countries. See, UN Mission in South Sudan and the Office of the High Commissioner for Human Rights (February 2018). Report on the Right to Freedom of Opinion and Expression in South Sudan Since the July 2016 Crisis. Available at https://www.ohchr.org/Documents/Countries/SS/UNMISS-OHCHR_Freedom_of_Expression.pdf 46 UN Mission in South Sudan and the Office of the High Commissioner for Human Rights (February 2018). Report on the Right to Freedom of Opinion and Expression in South Sudan Since the July 2016 Crisis. Available at https://www.ohchr.org/Documents/Countries/SS/UNMISS-OHCHR_Freedom_of_Expression.pdf 47 The main documents can already be found on the National Dialogue website: https://www.ssnationaldialogue.org/how- national-dialogue-works/document-library/
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 10 It is important to critically reflect on the processes leading to the establishment48 and sequencing of transitional justice mechanisms so that they are meaningful to the South Sudanese, which goes beyond the scope of this study. It is crucial that actors start involving victim groups in these discussions and processes to have a sustained demand for justice and change that empowers the people affected by the violations.
Pursuing Transitional Justice Goals Through Human Rights Mechanisms for South Sudan The United Nations offers a multitude of channels and mechanisms that can be used to document and report on human rights violations, file complaints, apply for compensation (General Assembly Fund for Victims of Torture), advocate for action and put pressure on governments to cease, address and respond to human rights violations. These include the committees of the human rights treaties that South Sudan has acceded to (such as the Convention Against Torture (CAT), the Convention on the Elimination of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC)). Additionally, the United Nations Human Rights Council (HRC) has several mechanisms at its disposal to monitor Member States’ observance of human rights. These are the Universal Periodic Review (UPR), independent experts who report on specific country situations or thematic issues (special rapporteurs), and complaint procedures.49
During the UPR, human rights observance of all UN Member States is reviewed. This review is done every four years. The review is done by perusing a national report submitted by the State under review, a compilation of information provided by the United Nations, and an Office of the High Commissioner of Human Rights (OHCHR)-prepared summary of other stakeholder submissions such as Non-Governmental Organizations (NGOs), national human rights institutions, academics and human rights defenders. South Sudan has undergone two Universal Periodic Reviews: the first on 10 May 2011 (prior to independence) and the second on 7 November 2016. The second review highlights human rights developments and was used to evaluate the level of implementation of the recommendations that resulted from the first review. The review was done based on three reports:50 a national report by the State,51 a UN report compiled by OHCHR with input from several UN entities,52 and a report by 23 stakeholders including national human rights institutions, regional organizations and (inter)national civil society organizations.53 The State’s report was
48 On 15 December 2016, the Ministry of Justice and Constitutional Affairs (MoJCA) launched a technical committee for the establishment of the CTRH that has been tasked to conduct the national consultations that are to inform the enabling legislation of the CTRH. The committee was composed of 42 members (some have dropped out since) including government officials, religious leaders and civil society organizations. Most South Sudanese do not know what a truth commission is which makes it difficult to give an informed opinion. The committee therefore implemented a sensitization campaign. This was a challenged process however since the committee members themselves have limited technical knowledge about truth commissions, the campaign only reached 13 out of 32 States (none of which were under opposition control) and did not engage refugees. The committee is perceived as a government body which gave rise to resistance amongst some communities. The committee has since embarked on a consultation process which is challenged by the same factors as well as the lack of random sampling, use of only one consultation instrument (a questionnaire with a legalistic focus), a lack of involvement of women in the committee and a lack of financial resources. Source: consultant attendance of a 2-day training for the technical committee to prepare for the national consultations. 11 May 2018, Juba Landmark Hotel. 49 Human Rights Documentation in South Sudan: Findings of an Actor Mapping, Gap Analysis and Recommendations for Engagement (October 2017). On file with author. 50 The three reports can be found here: http://www.lan.ohchr.org/EN/HRBodies/UPR/Pages/SSSession26.aspx 51 General Assembly (23 August 2016). National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21 South Sudan. Human Rights Council. Working Group on the Universal Periodic Review Twenty-sixth session 31 October–11 November 2016. A/HRC/WG.6/26/SSD/1. Available at https://documents-dds- ny.un.org/doc/UNDOC/GEN/G16/187/04/PDF/G1618704.pdf?OpenElement 52 General Assembly. (29 August 2016). Compilation prepared by the Office of the United Nations High Commissioner for Human Rights in accordance with paragraph 15 (b) of the annex to Human Rights Council resolution 5/1 and paragraph 5 of the annex to Council resolution 16/21 South Sudan. Human Rights Council. Working Group on the Universal Periodic Review Twenty-sixth session 31 October-11 November 2016. A/HRC/WG.6/26/SSD/2. Available at https://documents-dds- ny.un.org/doc/UNDOC/GEN/G16/190/52/PDF/G1619052.pdf?OpenElement 53 General Assembly (24 August 2016). Summary prepared by the Office of the United Nations High Commissioner for Human Rights in accordance with paragraph 15 (c) of the annex to Human Rights Council resolution 5/1 and paragraph 5
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 11 produced by the Inter-Ministerial Committee chaired by the Ministry of Justice and Constitutional Affairs and Ministry of Foreign Affairs and International Cooperation with support by the United Nations Development Programme (UNDP) and the UNMISS Human Rights Division. The review shed light on some of South Sudan’s human rights issues including but not limited to the challenges facing South Sudan with the ongoing conflict; the effects of the persistent fighting on the civilian population; the safety of journalists and restrictions to freedom of expression; violence against women and girls; discrimination based on ethnicity and the reluctance of putting an end to the death penalty.
Another reporting mechanism available to the HRC are the so-called Special Procedures which include independent experts (special rapporteurs) and working groups that focus on the human rights situation of a specific country or on a specific theme, such as torture. NGOs can present reports to the experts or working groups, individual cases of alleged human rights violations and abuses and participate in annual meetings. The experts and working groups in turn submit annual reports to the HRC. They also undertake country visits, act on individual cases and systematic concerns by communicating with the States about the alleged violations and abuses.54 There is no special country rapporteur for South Sudan.55 A thematic visit was undertaken by the Special Rapporteur on the human rights of internally displaced persons from 6 – 15 November 2013.56 In September 2017, the Special Rapporteur on minority issues requested to visit South Sudan in August – September 2018. Permission has yet to be granted. In February 2016, the Government invited the Working Group on Enforced or Involuntary Disappearances for a country visit. However, it did not respond to the Working Group’s subsequent letter proposing concrete dates for the visit.57 The Working Group on the Issue of Discrimination Against Women in Law and in Practice also requested a visit which has not yet been granted by the South Sudanese government.58 Donors can help by urging the South Sudanese government to allow these visits to take place.
A third control mechanism is the HRC Complaint Procedure to addresses consistent patterns of gross and verified violations of human rights. Any group, individual or NGO can submit a complaint to the HRC. The complaint procedure thus offers victims a direct channel to have their voice heard by a mechanism and can be undertaken in a confidential manner. If the communication is accepted, it is transmitted to the State concerned to obtain its view about the allegations of the violation(s) in the complaint. While accreditation of an NGO at the UN Economic and Social Council (ECOSOC) is not a requirement, the submission of a complaint must adhere to certain formal and procedural criteria.59 The treaty bodies can also receive complaints.60
At the regional level, the African Commission on Human and Peoples’ Rights (ACHPR, or the African Commission), seated in Banjul, the Gambia, is the region’s principle human rights body. It promotes and protects human rights in the 55 Member States of the African Union (AU). The
of the annex to Council resolution 16/21 South Sudan. Human Rights Council. Working Group on the Universal Periodic Review Twenty-sixth session 31 October–11 November 2016. A/HRC/WG.6/26/SSD/3. Available at https://documents- dds-ny.un.org/doc/UNDOC/GEN/G16/187/93/PDF/G1618793.pdf?OpenElement 54 For more information, see: http://www.ohchr.org/EN/HRBodies/SP/Pages/Welcomepage.aspx 55 All country mandates can be found on: http://spinternet.ohchr.org/_Layouts/SpecialProceduresInternet/ViewAllCountryMandates.aspx 56 The report can be found here: Human Rights Council. (16 June 2016). Report of the Special Rapporteur on the human rights of internally displaced persons. Mission to South Sudan. Available at https://documents-dds- ny.un.org/doc/UNDOC/GEN/G16/122/67/PDF/G1612267.pdf?OpenElement 57 United Nations. Report of the Working Group on Enforced or Involuntary Disappearances (30 July 2018). A/HRC/39/46. Available at https://documents-dds-ny.un.org/doc/UNDOC/GEN/G18/236/81/PDF/G1823681.pdf?OpenElement 58 For more information, see: https://spinternet.ohchr.org/_Layouts/SpecialProceduresInternet/ViewCountryVisits.aspx?Lang=en&country=SSD 59 For more information, see: http://www.ohchr.org/EN/HRBodies/HRC/ComplaintProcedure/Pages/HRCComplaintProcedureIndex.aspx 60 See, for instance art. 22 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (10 December 1984). Available at https://www.ohchr.org/en/professionalinterest/pages/cat.aspx and the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (6 October 1999). Available at https://www.ohchr.org/en/professionalinterest/pages/opcedaw.aspx
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 12 Commission holds two ordinary sessions per year (March/April and October/November) during which it considers reports that State Parties61 to the 1981 African Charter on Human and Peoples’ Rights (also known as the ‘Banjul Charter’) are required to submit every two years. These reviews are public and civil society can submit shadow reports which the Commission may use to question Member States on certain issues. Much like the UN system, the review generates ‘Concluding Remarks/Observations’ that the State under review is expected to implement. The concluding observations are shared with the AU Assembly of Heads of State and Government. Civil Society Organizations (CSOs) are given the opportunity to draft resolutions that may be adopted by the Commission during the Forum on Participation of NGOs that the Commission organizes prior to the ordinary sessions. South Sudan is yet to submit a state report.62 This presents an opportunity for increased South Sudanese civil society interaction with the African human rights system, for which they should be adequately prepared.63 INGO 06 and F01 have supported South Sudanese civil society delegates and members of the national Human Rights Commission to attend the ACHPR sessions. It would be helpful if these efforts were to be strengthened and geared to support civil society engage more effectively and strategically with the African human rights mechanisms.
Aside from offering victims a forum and opportunities to tell their story, using the human rights mechanisms has several other advantages including creating visibility about a specific human rights issue; influencing the discourse around a domestic issue, stressing the government’s obligation and elevating it to a concern for the international community when the domestic system is not adequate; strengthening international legal norms by clarifying and applying the norms; expert nature of the special procedures can enhance the legitimacy and credibility of the human issue; using the mechanisms can also open channels of communication with the State in question. Using the mechanisms can also contribute to building a record around specific human rights issues and may generate evidence and information about others.64
The mechanisms, however, also have limitations. The mechanisms are under-funded, understaffed and the experts work on a volunteer-basis. Consequently, the experts often rely on civil society to provide information for them to carry out their mandate. At the same time, they may not be able to process all the information that they receive and engage in strong follow-up. It is therefore important that NGO reports are of the highest quality and precise to the mandate of the special procedure. Another limitation is the lack of enforcement powers. The mechanisms are ultimately dependent on States to implement the recommendations. The combined lack of resources and enforcement powers means that the mechanisms are not always able to achieve concrete results. This makes it all the more important for civil society and the diplomatic community to urge governments to implement the recommendations provided by the mechanisms. It is also important to use domestic mechanisms and public education as much as possible in order to maximize the work of the UN mechanisms.65 Using the ACHPR as a mechanism must be done with the realization that submitting a case can take four to eight years and thus does not offer a quick remedy.66
61 South Sudan is a State Party. List of Countries Which Have Signed, Ratified/Acceded to the African Charter on Human and People’s Rights. Available at https://au.int/sites/default/files/treaties/7770-sl- african_charter_on_human_and_peoples_rights_2.pdf 62 For more information, see: http://www.achpr.org/states/reports-and-concluding-observations/ 63 Human Rights Documentation in South Sudan: Findings of an Actor Mapping, Gap Analysis and Recommendations for Engagement (October 2017). On file with author. 64 Sara Kayyali, Nawal Maalouf, Paula Mendez, and Ami Shah (July 2015). Engaging UN Special Procedures to Advance Human Rights at Home: A Guide for US Advocates. Human Rights Institute Colombia Law School. Available at https://web.law.columbia.edu/sites/default/files/microsites/human-rights-institute/files/special_rapporteurs_report_final.pdf 64 (1) Administration and Finance; (2) Research, Education and Documentation; (3) Monitoring and Inspections; (4) Complaints and Legal Services; and (5) Directorate of Regional Services. 65 Sara Kayyali, Nawal Maalouf, Paula Mendez, and Ami Shah (July 2015). Engaging UN Special Procedures to Advance Human Rights at Home: A Guide for US Advocates. Human Rights Institute Colombia Law School. Available at https://web.law.columbia.edu/sites/default/files/microsites/human-rights-institute/files/special_rapporteurs_report_final.pdf 66 Stichting Onderzoek Multinationale Ondernemingen/Centre for Research on Multinational Corporations and Natural Justice (nd). The African Commission on Human and Peoples’ Rights. Available at https://www.grievancemechanisms.org/resources/brochures/the-african-commission-on-human-and-peoples2019-rights
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The National Criminal Justice System, Human Rights Mechanism and Using Extra- Territorial Jurisdictions
The South Sudan Human Rights Commission (SSHRC), is a local government body legally endowed to monitor and investigate the compliance with and application of human rights enshrined in the constitution and international legal instruments as well as receive individual complaints of violations. The Commission has five directorates67 and ten thematic committees68 that are divided among the three Commissioners. Each Commissioner also covers one of the three greater regions of South Sudan.69 Due to a lack of financial resources, the Commission has closed its offices in the States and has relocated all staff to Juba. They have documented some violations, but the reports are not accessible. They have recently added a human rights defenders desk tasked to, amongst others, receive and collect information “that impacts human rights defenders.”70 The political space that the SSHRC has and the fact that the Chairperson, Deputy Chairperson and Commissioners are appointed by the President with the approval of the parliament, makes it difficult for the Commission to operate independently as required by the Constitution.
At the national level, the judicial system offers an avenue for redress of victims of violations of human rights law and international humanitarian law and national criminal law. Nevertheless, despite some cautious improvement, South Sudan’s justice system is largely not independent, inefficient and inaccessible.71 At best, there are pockets of capacity to strengthen.72 Given this situation, and where the judicial system of the country is incapable and/or unwilling, investigating and prosecuting cases internationally, including in jurisdictions of third States becomes an important and strategic option to consider when pursuing criminal accountability.
The International Criminal Court (ICC) is a permanent court seated in The Hague endowed with the jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity and war crimes. It was established by the Rome Statute on 1 July 2002 and can only try crimes committed on that day or thereafter. Unless a State has made a declaration, the ICC can only exercise jurisdiction over crimes that were committed after the State became a State Party to the Rome Statute. As a court of last resort guided by the complementarity principle, the ICC can exercise its jurisdiction only when national courts are unwilling or unable to investigate and prosecute crimes committed on their territory. The ICC can exercise its jurisdiction in cases where the accused is a national of a State that has signed the Rome Statute, a crime was committed on the territory of a State Party. For non-State Parties such as South Sudan, the ICC’s jurisdiction can be
67 (1) Administration and Finance; (2) Research, Education and Documentation; (3) Monitoring and Inspections; (4) Complaints and Legal Services; and (5) Directorate of Regional Services. 68 (1) Committee on economic, social and cultural rights; (2) Committee on the rights and protection of environment and public health; (3) Committee against torture; and (4) Committee on the rule of law; (5) Committee on the elimination of discrimination against women; (6) Committee on enforced disappearance; (7) Committee on the rights of the child; (8) Committee on the rights of refugees and IDPs; (9) Committee on the rights of persons with disabilities; (10) Committee on the rights of all migrant workers. 69 Greater Equatoria Region, Greater Bahr-el-Ghazal Region; Greater Upper Nile Region. 70 Hon. Nyuol Justin Yaac (19 July 2018). Structure of the Human Rights Commission. South Sudan Human Rights Commission (SSHRC). Presentation. On file with author. 71 Human Rights Watch (December 2014). Ending the Era of Injustice: Advancing Prosecutions for Serious Crimes Committed in South Sudan’s New War. Available at: https://www.hrw.org/report/2014/12/10/ending-era-injustice/advancing-prosecutions- serious-crimes-committed-south-sudans. American Bar Association Rule of Law Initiative (June 2014). Assessment of Justice, Accountability and Reconciliation Measures in South Sudan. Available at https://www.americanbar.org/content/dam/aba/directories/roli/sudan/aba_roli_sudan_assessment_final_report_0614.authch eckdam.pdf 72 UNMISS Rule of Law Advisory Section and Human Rights Division and UNDP South Sudan (8 October 2017). Preliminary Viability Study on National Mechanisms to Promote Accountability for Serious Conflict-Related Crimes in South Sudan. On file with author.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 14 triggered if a situation is referred to it by the Security Council acting under Chapter VII of the United Nations Charter.73
Grounds for investigating and prosecuting cases in jurisdictions of third States include the active or passive principle of nationality,74 universal jurisdiction and prosecution of violations under immigration laws. Crimes which are considered too serious to be left unaddressed may sometimes be prosecuted based on ‘universal jurisdiction’. Universal jurisdiction allows States to assert criminal jurisdiction over an accused person regardless of where the alleged crime was committed, and regardless of the accused's nationality, country of residence, or any other relation with the prosecuting entity. Universal jurisdiction as an available avenue varies from country to country and in general the decision to prosecute rests with the prosecution authority of the third State. NGOs and individuals can alert a country’s immigration and prosecution authorities and provide them with information. In some countries, prosecution can be initiated through a private complaint filed directly by individual victims as well as CSOs with an investigating judge or prosecutor.75 This can help bring justice, signal an end to South Sudan’s culture of impunity, send messages to high-ranking individuals, and help generate evidence that can later be used in other cases. Nevertheless, there are some limitations on cases brought forth based on universal jurisdiction. For instance, some countries limit the application of universal jurisdiction to persons who are residents or to foreign nationals who are civil servants or members of the armed forces. The decision by the prosecutorial authority of the State to investigate or prosecute may be subject to political considerations.76
At least twenty countries in Europe require the alleged perpetrator to be present in the country during various stages of the proceedings and investigations.77 As such, pursuing criminal prosecution in third States jurisdiction must be based on careful thought and research. This research includes assessing the links between known suspects and countries with favorable legal frameworks for universal jurisdiction in terms of travel interests, property ownership, and dual citizenship.
Violations of immigration laws offer another avenue to hold perpetrators accountable, at least to some measure.78 Immigration authorities79 have the responsibility to screen for potential international criminals and prevent them from entering their territory. Visa applications and other immigration forms require disclosure of certain information related to involvement in international crimes and affiliations with armed groups. False statements and omissions of required or material information can result in criminal prosecution for immigration fraud. Victims in diaspora groups can play an important role in these processes by alerting prosecutors and immigration authorities (often via tip lines) in host countries to the presence of perpetrators on their territory.80
73 Articles 5-21 of the Rome Statute of the International Criminal Court. (July 2002). Available at https://www.icc- cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf 74 The active personality principle provides that States have jurisdiction over the nationals of their State if they commit crimes on the territory of another State (though it will have to be determined by the circumstances of the case whether the principle of territoriality may prevail). The passive personality principle states that a State can have jurisdiction over cases outside their territory when one of their nationals is the victim of a crime. 75 Accountability (nd). Advocates for Human Rights. Available at https://www.theadvocatesforhumanrights.org/uploads/ch_8_2.pdf 76 Amnesty International (2012 Update). Universal Jurisdiction: A Preliminary Survey of Legislation Around the World. Available at https://www.amnesty.org/download/Documents/24000/ior530192012en.pdf 77 Accountability (nd). Advocates for Human Rights. Available at https://www.theadvocatesforhumanrights.org/uploads/ch_8_2.pdf 78 These prosecutions usually do not involve prosecution for the actual human rights violations, but for false statements and omissions. 79 Examples of unit include the U.S. Immigration and Customs Enforcement’s Human Rights Violators and War Crimes Unit; Canada’s Crimes Against Humanity and War Crimes Section in its Border Services Agency; and a joint initiative by the Danish Red Cross and Danish immigration authorities to encourage asylum seekers to help identify perpetrators of international crimes. The Netherlands and Norway also have departments that actively seek suspects of international crimes through immigration screening. In Accountability (nd). Advocates for Human Rights. Available at https://www.theadvocatesforhumanrights.org/uploads/ch_8_2.pdf 80 Accountability (nd). Advocates for Human Rights. Available at https://www.theadvocatesforhumanrights.org/uploads/ch_8_2.pdf
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 15
Other avenues for judicial accountability include civil actions, including the seizure and forfeiture of funds or property obtained by, or as a result of, criminal or fraudulent means, from corruption or war profiteering. An example is Australia’s recent seizure of a $1.5 million house, obtained with apparently illegal funds from a South Sudanese military general, whose son allegedly acquired the property while living on welfare.81 Investigation activities into corruption and economic crimes such as done by INGO 40’s investigation team prove instrumental in these actions and can help end perpetrators to profit from war proceedings. In fact, some civil society members have suggested that ways should be found to recover stolen assets and money, so they can be used for compensation and reparation to victims and survivors of the war.
These international and domestic mechanisms present avenues for CSOs to report on human rights violations that they have documented and for individuals to file complaints for violations they have suffered. This allows victims to have their voice heard as well as gives Member States of the United Nations HRC an opportunity to urge South Sudan to implement recommendations to improve the human rights situation.
Adequateness of the Transitional Justice Mechanisms to Deal with South Sudan’s Violent Past It is clear from the UN’s definition that there is no one-size fits all approach to transitional justice. For transitional justice to be successful, it is critical that it is holistic (meaning to approach impunity from multiple angles that go beyond criminal justice or truth-telling), designed to also address structural and root causes (it often responds only to the ‘extraordinary’, symptomatic forms of violence and overlooks more ‘ordinary’ violence, entrenched inequalities and marginalization), contextualized, and responsive to the priorities expressed by victims of atrocities (the design of transitional justice programs is all too often ‘internationalized’).
Victims should be the most influential actors in transitional justice processes since the processes are intended to help them deal with the violent past. This requires a donor/international community that is willing to allocate their funding for transitional justice in line with the priorities determined by the victims. While involvement of non-governmental organizations is crucial in this endeavor, it is not sufficient to rely only on engagement with NGOs. Efforts must be undertaken to reach victims and marginalized groups who must be empowered to take ownership of the process and express their voice. Transitional justice is not simply a court or a truth commission, but rather a complex, contested political and societal process. In its broadness and need to be inclusive, this process necessarily relies on collaboration amongst actors, including civil society in the broad sense of the term (including victims associations and faith-based groups), the government and donors.
While the choice for South Sudan’s transitional justice mechanisms (the HCSS, CTRH, CRA and institutional reforms) was not the result of nation-wide consultations with victims and the Intergovernmental Authority on Development (IGAD)-led peace process was frequently criticized for being disconnected from the South Sudanese people, a perception study82 about how South Sudanese perceive issues of truth, justice, reconciliation and healing found support for criminal
81 Jacob Polychronis and Charlie Moore (14 May 2018). South Sudanese military general’s son, 22, on welfare benefits, bought a $1.5m Melbourne mansion ‘using five unexplained installments from African companies’. Daily Mail Australia. Available at http://www.dailymail.co.uk/news/article-5724771/How-Melbourne-mansion-bought-son-South-Sudan-military-general.html 82 Between October 2014 to April 2015, the South Sudan Law Society (SSLS) and UNDP interviewed a total of 1,525 individuals (747 men and 778 women) in 11 locations across six states as well as Abyei area. The survey instrument consisted of a series of closed and open-ended questions divided into 9 modules on demographics, peace processes, reconciliation, truth and remembrance, accountability, amnesties, reparations, exposure to trauma, and Post Traumatic Stress Disorder (PTSD). See, David K Deng, Belkys Lopez, Matthew Pritchard and Lauren C Ng: Search for a New Beginning: Perceptions of Truth, Justice, Reconciliation and Healing in South Sudan, UNDP (June 2015). Available at http://www.ss.undp.org/content/dam/southsudan/library/Rule%20of%20Law/Perception%20Survey%20Report%20Transition al%20Justice%20Reconciliation%20and%20Healing%20-.pdf.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 16 accountability,83 vetting,84 compensation and (symbolic forms of) reparation,85 as well as other forms of transitional justice. Whereas this offers grounds for legitimacy of the ARCSS framework, more consultative research needs to be done to understand the priorities of the victims and enable them to own and drive the process and determine the specific design of the mechanisms. The voice of victims continues to be largely missing in conversations about transitional justice in South Sudan and a more participatory process needs to be pursued. Where victims are empowered to express their priorities and needs, it will be more difficult for a government to delegitimize demands for transitional justice. South Sudanese civil society organizations calling for transitional justice are at times criticized to be driving a foreign agenda.
Victims’ needs are neither static nor the same. There are many different types of victims and as the context changes, the needs of victims will change. Transitional justice programming must be responsive to these changes and thus continuously learn about these needs and adapt to them accordingly. Desires may also change as knowledge about mechanisms increase. For instance, as it is made clear to victims that the HCSS (if and when established) will only be able to try a limited number of suspects, and involves lengthy and very costly processes, other mechanism might increase in popularity. A frequently raised issue is the temporal mandate of the CTRH. The ARCSS sets it to be from 2005 – August 2015. In many workshops and debates held on Chapter V in South Sudan, participants question whether this is sufficient since it leaves out incidents such as the 1991 Bor massacre, which at times, is perceived to underlie the December 15th violence that broke out in Juba in 2013. In addition, sticking to this mandate would leave out the upsurge of violence since August 2015. In addition to needs, the agency and capacity of victims may strengthen over time, especially if they are organized and can engage more effectively on policy issues. By involving victims more closely in the discussions on transitional justice, it will become a more victim-centered process that is better tailored to the context.
There are different phases in transitional justice processes that require different types of support and there are minimum contextual conditions that need to be present for transitional justice processes to be effective. Genuine political will and a political transition must be present as well as basic conditions of security. State-centric transitional justice mechanism can hardly be expected to deliver when individuals considered responsible for the violations and abuses are still in power and control their establishment. Caution must be taken that the mechanisms do not become a platform for extension of the conflict and reinforce impunity. Having said that, documentation and criminal investigations must sometimes, and to the fullest extent possible, work around these conditions. Not without difficulties, the International Criminal Tribunal for the former Yugoslavia (ICTY) conducted extensive and important investigations long before there was peace in Yugoslavia.86
While the environment in South Sudan is not conducive to start independent state-centric transitional justice processes, there are essential and urgent goals that can be achieved to set a foundation for future processes. These include efforts to influence the political will, create more civic space, engage and consult victims, and document violations of human rights and humanitarian law and to collect other relevant data (e.g. lists of victims). This study will focus on documentation while maintaining due regard for connections to other preparatory processes such as strengthening and mobilizing victims and community dialogues.87
83 When directly asked whether the individuals responsible for abuses should be prosecuted in courts of law, 93% of respondents said “yes”. 84 81% of respondents for this study said that people responsible for abuses should be removed from public office. 85 Eighty one percent of respondents said that the government should provide any form of compensation to victims of human rights abuses. Expectations around reparation programs will need to be carefully managed as they are unlikely to satisfy all. 86 Interview with criminal prosecution expert 01. 24 July 2018. 87 Community and other types of dialogues (including the National Dialogue and the SSCC’s Action Plan for Peace) and subnational peace processes, offer potent opportunities to capture grievances of citizens and also their versions of the truth, and identify root causes of conflicts. So far, language barriers and illiteracy have challenged the accurate recording of
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 17 Documentation of Human Rights Violations and Abuses for Transitional Justice
Documentation is not the same as evidence-gathering for purposes of prosecution. Rather, it is a broad term that can mean the collection of documents, such as newspaper articles, and storing them in a documentation center, a library or national archives, or the recording of facts about ongoing or past incidents. Essentially it is the process of “identifying, collecting, recording and organizing documents and information.”88 The documentation of human rights violations and abuses is the process of applying the aforementioned documentation steps to information about human rights violations and abuses: identifying which information is necessary, collecting it, recording it, organizing it and storing it.
Documentation is essential to the success of any transitional justice process and forms the basis and lifeline for transitional justice mechanisms and processes. No transitional justice mechanism can function effectively without high-quality documentation about the abusive past. Having said this, it is important to document towards transitional goals and purposes rather than strictly for official mechanisms. For instance, truth can be sought through a truth commission, but also more localized truth-seeking processes facilitated by traditional leaders or faith-based institutions. Even if official mechanisms are never established, documentation (if done well) can still be a valuable way to share victims’ stories, foster their right to truth, influence national discourse, counter denial, ensure that the atrocities are not forgotten and perhaps even create acknowledgement, as long as it gets a platform or vehicle to be publicly used and expectations are carefully managed.
The nature, scale, method and impact of violations also determine the information that is collected. Documentation efforts should ideally mirror the comprehensive nature of transitional justice and should establish the foundation for as many transitional justice mechanisms and processes as possible to cater to the wide variety of needs prevalent in a diverse population of victims. This comprehensive, yet purpose-oriented approach is especially pertinent in situations of ongoing conflict like South Sudan where resources and time are scarce and the details of the mandates and time of establishment of the transitional justice mechanisms are still unclear. It is important that the purposes of documentation are determined by national actors and that they are owned by the local stakeholders. For South Sudan, this means the involvement of civil society and victim(s) (groups) and, where possible, government and political actors.
Very broadly speaking, two approaches can be taken to documentation. The first is the “dragnet approach” which entails the collection of every document that could be of interest or relevance as the utility of documents may only become apparent after analysis and in combination with other documents as part of a larger puzzle. While this might be the approach of choice in very early stages of documentation processes and in situations where transitional justice mechanisms are undetermined, it can be a costly and time-consuming approach. A second approach, which may develop as work goes forward, is to collect categories of documents which are guided by criteria that determine the priorities required for the context (for instance to prioritize the collection of documents produced by National Security Service (NSS) actors who have been implicated in violations over, for instance, traffic police units who have not played such as active role in the conflict, if there is cause to be concerned that they may be destroyed). These criteria can be subject to change as the documentation process matures.89
these dialogues. Moreover, the facilitators of these dialogues do not necessarily have a safe storage for these records that will ensure their preservation for the next generations. 88 Manuel Guzman and Bert Verstappen. (2003). What is Documentation: Human rights monitoring and documentation series. Vol. 2. Available at https://www.huridocs.org/wp-content/uploads/2010/08/whatismonitoring-eng.pdf 89 Louis Bickford, Patricia Karam, Hassan Mneimneh and Patrick Pierce (2008). Documenting Truth. International Center for Transitional Justice. Available at https://www.ictj.org/publication/documenting-truth
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 18 Each transitional justice mechanism has different documentation requirements and collection efforts should meet these requirements. Evidence gathering for criminal accountability requires specific practices and skills and is typically carried out by professional investigators, judges, and prosecutors, depending. Even so, documentation efforts can generate important lead information and starting points for criminal investigations and offers an entry point to engage communities in accountability processes. Documenting for reparations will seek to gather different information than documentation for truth-seeking purposes. Hence, information collected for one mechanism might not be usable by another mechanism. Yet, regardless of the purpose for which documentation is pursued, in order for it to substantiate human rights violations and abuses, it must be thorough, comprehensive and credible and, as a matter of principle, documentation should be done to the highest level of accuracy as possible. At the very beginning of documentation processes, it is not uncommon to collect as much accurate and high-quality information as possible in a dragnet type of approach, to then refine strategies and purposes as efforts mature so that separate documentation activities contribute to a comprehensive transitional justice program without undermining each other. Evidence fades rapidly in tropical and conflict environments90 like South Sudan, so time is of the essence.
Being strategic and investing in high-quality documentation is key. It will not be possible to collect all details of interest. Collecting information that is likely to get lost in times of conflict and that is needed for further investigation or inquiries in post-conflict times must be prioritized. Examples include primary testimonies (since memories fade with time91), details of victims,92 and information about perpetrators (descriptions that go beyond “unknown gunmen” and clearly state how the witness identified the perpetrator.)93 While helpful for most transitional justice mechanisms, it must be noted that this is unlikely to be enough for criminal justice purposes (see also section on criminal accountability below).
In South Sudan, support for documentation efforts have coalesced around Chapter V of the ARCSS (the CTRH, HCSS, CRA) and also memorialization. Aside from the documents collected by CRHSS, some photographs and satellite imagery, documentation efforts rely heavily on testimonies. It could be useful for all actors engaged in documentation in South Sudan to analyze the existing collected information, identify how victims name violations, identify priorities, and develop a set of categories of human rights violations to focus on those that are of particular concern to the victims and characteristic of the conflict.94 The South Sudan Human Rights Documentation Initiative (SSHRDI)95 focuses on violations related to Sexual and Gender Based Violence (SGBV), torture, destruction of
90 Humidity can for instance destroy forensic evidence and amid the chaos of conflict, crime scenes are more difficult to keep uncontaminated. 91 To understand trends over time, it could be of interest to collect primary testimonies of elders, for instance about the colonial period, Anyanya I and II, and SPLA liberation struggle periods. Communication with expert. August 2018. 92 These can include name, gender, ethnicity, (approximated) date of birth, date of event/violation, language, religion, combatant/non-combatant status, location of event/violation, home location/region, occupation, police, military, or other security affiliation and rank. 93 Megan Price and Patrick Ball (January 2014). Data Collection and Documentation for Truth-seeking and Accountability. Syria Justice and Accountability Center (SJAC). Available at https://hrdag.org/wp-content/uploads/2015/07/SJAC-Data- Collection-Documentation-Truth-seeking-Accountability.pdf 94 The HREIB/ND in Burma undertook this process and came up with categories of violations that they focused their documentation efforts on, including: (1) killing; (2) disappearance; (3) torture; (4) forced labor; (5) recruitment and use of child soldiers; (6) rape; (7) other forms of sexual violence; (8) forced marriage; (9) forced prostitution; (10) human trafficking; (11) forced relocation; (12) confiscation/destruction of property; (13) arbitrary arrest/detention. In Louis Bickford, Patricia Karam, Hassan Mneimneh and Patrick Pierce (2008). Documenting Truth. International Center for Transitional Justice. Available at https://www.ictj.org/publication/documenting-truth 95 The SSHRDI is a coalition of approximately 24 national civil society organizations in South Sudan, Uganda and Kenya that document violations of human rights law and international humanitarian law. The initiative was formed in 2015 and has been supported by four (non-South Sudan based) members (INGOs 01, 02, 03, 04) of a global initiative for transitional justice (also known as the Global Initiative for Justice Truth and Reconciliation (GIJTR)). The SSHRDI was established to strengthen and coordinate documentation efforts of national civil society organizations. Members of the SSHRDI have been trained in various aspects of documentation, has collected over 2000 victim and witness testimonies, and have been provided with a secure, electronic, online database.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 19 property, killings and enforced disappearances. This would also allow for further specialization of the documentation techniques (see 4.1.2).
On 20-21 February 2018, the European Union organized a workshop in Nairobi to discuss the requirements of documentation for truth-seeking, criminal prosecutions, reparations and vetting. In the sections below, this study will draw on the discussions and summary note of this workshop.
Truth-seeking Generally speaking, truth commissions are a resource-intensive endeavor and will be greatly helped if existing information can be handed over to them. The type of information that needs to be collected and preserved for truth-seeking processes depends on the mandate and design of the truth-seeking process. Knowing the fate of or locating the missing and disappeared can be part of a truth-seeking process or a separate commission. In addition to official and central truth commissions, truth-seeking can also be pursued unofficially, for instance in refugee camps and locally, providing that security conditions allow it.
Chapter V of the ARCSS has opted for a Commission on Truth, Reconciliation and Healing that “shall inquire into all aspects of [and establish an accurate and impartial historical record of] human rights violations, human rights violations and abuses, breaches of the rule of law and excessive abuses of power, committed against all persons in South Sudan by State, non-State actors, and or their agents and allies”96 from the date of signing of the Agreement (August 2015) to July 2005. Its functions are to investigate and report on the causes of conflict and their circumstances; promote truth, reconciliation and healing; recommend processes for the full enjoyment by victims of the right to remedy, including by suggesting measures for reparations and compensation and receiving applications from alleged victims; identifying perpetrators; recording the experiences of victims (with a specific mention to women and girls); develop detailed recommendations for legal and institutional reforms to ensure non-repetition of the violations and abuses.97 The CTRH will be established by legislation which is to be informed by public consultations led by the Ministry of Justice and Constitutional Affairs (MoJCA) in collaboration with civil society actors and other stakeholders.98
Based on this broad mandate, and information that is typically collected for truth-seeking processes, table 1 below lists the information that needs to be collected and at the same time identifies actors in South Sudan that possess this information or are in the process of collecting this information. The temporal mandate of the CTRH agreed upon in the ARCSS means that the information that is collected for truth-seeking purposes should date back to 2005. It is advisable though that documentation efforts precede 2015. For instance, NNGO 23 still collects information about the 1992 Juba massacre.
TABLE 1: INFORMATION FOR TRUTH-SEEKING PURPOSES AND ACTORS INVOLVED IN ITS COLLECTION99
Information100 Actors involved in its collection
96 Article 2.2.1 of Chapter V of the Agreement on the Resolution of the Conflict in the Republic of South Sudan (ARCSS). August 2015. 97 Article 2.2.2 of Chapter V of the Agreement on the Resolution of the Conflict in the Republic of South Sudan (ARCSS). August 2015. 98 Article 2.1.3 of Chapter V of the Agreement on the Resolution of the Conflict in the Republic of South Sudan (ARCSS). August 2015. See footnote 57 for development on this provision. 99 This table does not claim to capture all initiatives and would be improved by further research. 100 Presentation by an international expert on documenting for truth-seeking during EU workshop in Nairobi. 20 February 2018. Summary note on file with author.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 20 Information100 Actors involved in its collection SSHRDI (a coalition of approximately 24 NNGOs), Accurate and gender-sensitive testimonies (often UNMISS Human Rights Division (MARA), UNMISS about specific violent events or incidents) by victims, Child Protection Division, UNICEF (MRM), CHRSS, witnesses and perpetrators about human rights Ceasefire and Transitional Security Arrangements violations and abuses Monitoring Mechanism (CTSAMM).101 Oral history records (memories and personal Approximately 10 members of the SSHRDI NNGO narratives about the past through recorded 23, AI 01. interviews)102 Official, bureaucratic records and logs (court103 / The South Sudan National Archives104 are government, police, prison, military, intelligence attempting to make an inventory of all files in records / archives, court proceedings; policy government institutions. documents) Committee for National Healing, Peace and Reconciliation (CNHPR) collected over 1,000 audio, Unofficial records ((social) media records, church audio-visual and hand-written statements between records) 2013 and 2016 about the challenges in the country.105 South Sudan Council of Churches (SSCC), INGO 21. Audio-visual records News channels and the SSHRDI Spread out over multiple actors. At the time of Analytical and created documents, reports of writing, UNDP in process of initiating a mapping violations exercise that would likely see the compilation of these reports into one report. SSNPS and medical service providers. Where Information about victims, birth certificates, medical, available and consented to, the SSHRDI collects hospital, police records, land registration, home documents such as medical records and birth and ownership death certificates. Ephemera (e.g., personal records, letters, posters,
pamphlets) Spread out over individual activists (including artists) Photographs; artwork and organizations Technical evidence, such as that generated by forensic anthropology, autopsies, exhumations, UNOSAT, hospitals, medical centers medical examinations of victims, and satellite imagery106 Content of official statements; declassified; leaked internal communication (to determine the existence of an official policy or position)
101 While efforts must be coordinated to avoid soliciting the same sources, having multiple (independent) actors involved in documentation and testimony-taking can help the verification and triangulation of data. 102 Collection of oral histories (memories and personal narratives about the past through recorded interviews) is understood to be a way to preserve the memory of communities or individuals and permit unofficial versions of the past. In Louis Bickford, Patricia Karam, Hassan Mneimneh and Patrick Pierce (2008). Documenting Truth. International Center for Transitional Justice. Available at https://www.ictj.org/publication/documenting-truth 103 For instance, records of judicial proceedings against political opponents of the state. 104 The National Archives have collected documents (related to, amongst others, court cases, roads and boundaries, chiefs, tribes, and political parties) from 1900 – 1983. These documents are currently stored in a house which has reached its full capacity. The archiving team is in the process of digitalizing the documents. They have a registry team that is trying to register all files and documents stored in government institutions (e.g. Presidential decrees, South Sudan Broadcasting Corporation (SSBC)’s audio-visual archive) for historical preservation and with the hope to be allowed to preserve them in their current localities. 105 Article 2.1.4 of Chapter V of the Agreement on the Resolution of the Conflict in the Republic of South Sudan (ARCSS). August 2015 tasks the CNHPR to hand over their files and records within fifteen days after the CTRH becomes operational. 106 Megan Price and Patrick Ball (January 2014). Data Collection and Documentation for Truth-seeking and Accountability. Syria Justice and Accountability Center (SJAC). Available at https://hrdag.org/wp-content/uploads/2015/07/SJAC-Data- Collection-Documentation-Truth-seeking-Accountability.pdf
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 21 Information100 Actors involved in its collection Geographical data; satellite images; geo-referenced
photographs
To be of use, this information should meet a minimal threshold in terms of its relevance, probative value,107 and reliability. In contrast to the criminal standard where proof needs to be ‘beyond reasonable doubt’, truth-seeking processes typically use a ‘balance of probabilities’-test when coming to their findings and conclusions. This is not to say that the investigations of a truth commission and any efforts collection information for truth-seeking purposes should not rigorously scrutinize their information and consider all facts.108
The investigation and analysis of this information by a Truth Commission normally results in reports with official findings, conclusions and recommendations. Other products include “databases and archives; resource centers; web-based resources; exhibits; radio and film documentaries; photographs; artwork; and oral history records.”109 In Sierra Leone, the truth commission produced a specific report whose audience is children.
Reparations The purpose of reparations is to offer victims redress for harm caused to them. Reparations can be individual as well as collective and both material (such as one-off payments, pensions, targeted community reparation funds) as well as symbolic (such as official apologies, memorials, and rehabilitation/restoration projects). An important principle underlying reparation programs is that they are administered by state institutions because the essence is an admission by the State of its failure to fulfill or protect the rights of its citizens and to rectify the situation. They can be an expensive undertaking, so priorities will have to be made based on very careful considerations110 and accurate data.
The type of information that needs to be documented has an overlap with the information that needs to be documented for truth-telling purposes. Both provide an overview of the violations and experiences of victims, but with different nuances. Where truth commissions tend to reveal what happened, reparation programs (and by extension documentation efforts) reveal how what has happened has affected individuals and communities.111
Documentation for reparations purposes is focused on the victim (the future beneficiaries of reparations programs), rather than on the perpetrator as is done with accountability, and the kind of harms they have suffered. It should be as rich in data as possible so that it functions as a baseline for future programs. This includes information about the type of violations as well as the demographic characteristics of the victims, their families and communities. Basic analyses can include information related to victim needs and how their needs might have changed over time. What people feel they need as redress for what they have suffered will change over time. Overall, reparations are among the most important components of transitional justice for victims. This information will help identify categories of the most vulnerable victims. Accurate data is also necessary to get a sense of the numbers of victims which will help determine the costs of reparation programs.
107 Probative value is the value that evidence has to prove or disprove something in trial. 108 Presentation on documenting for truth-seeking by an international expert during EU workshop in Nairobi. 20 February 2018. Summary note on file with author. 109 Presentation on documenting for reparations by an international expert during EU workshop in Nairobi. 20 February 2018. Summary note on file with author. 110 Christalla Yakinthou (April 2014). Syria: Using Data, Documentation and Evidence in Reparation Processes. Syria Justice and Accountability Center (SJAC). Available at https://syriaaccountability.org/library/using-data-documentation-and- evidence-in-reparations-processes/ 111 Presentation on documenting for reparations by an international expert during EU workshop in Nairobi. 20 February 2018. Summary note on file with author.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 22 Table 2 below lists the information that needs to be collected for reparation programs and at the same time identifies actors in South Sudan that possess this information or are in the process of collecting this information.
TABLE 2: INFORMATION FOR REPARATION PURPOSES AND ACTORS INVOLVED IN ITS COLLECTION112
Type/source of information113 Actors involved in its collection Camp management Protection of Civilian (PoC) sites: differs per PoC and data may differ per organization. INGO 36: Juba PoC and Bor PoC Basic details such as: age; gender; original and INGO 37: Malakal, Abrouc, and the beyond Bentiu current listed location; response. violation(s) suffered and consequences; religion; INGO 38: Melut (but reportedly no registration ethnicity; socio-economic over the past couple of years) profile; family structure including dependents; INGO 37: collective sites in Wau education; current and former IOM: Wau and Bentiu. IOM also does biometric employment; and a list of accompanying (and registration at all camps and sites across South missing) documentation. Sudan. The SSHRDI collects information about age, gender, original and current listed locations, violation(s) suffered and their consequences. Where available documentation: birth certificates; land ownership registration; police or military South Sudan National Police Service (SSNPS), records; detainment forms and search documents; hospitals and (I)NGO-operated clinics and hospital admission. Accurate testimonies and victim/survivor stories South Sudan Human Rights Documentation Initiative that can form the basis for individual dossiers (SSHRDI) Official, bureaucratic records and logs (court114 / government, police, prison, military, intelligence National Archives (up till 1983) are attempting to records / archives, court proceedings; policy collect documents) Committee for National Healing, Peace and Reconciliation (CNHPR) collected over 1,000 audio, Unofficial records ((social) media records, church audio-visual and hand-written statements between records) 2013 and 2016 about the challenges in the country.115 South Sudan Council of Churches (SSCC), INGO 21. Spread out over multiple actors. At the time of Analytical and created documents, reports of writing, UNDP is in process of initiating a mapping violations exercise that would likely see the compilation of these reports into one report.
South Sudan has not started designing of a reparations program,116 so it is not clear who will be able to apply and what documents/information will be needed to make a successful claim. Regardless of the design, data from humanitarian agencies can be a useful baseline for designing reparations
112 This table does not claim to capture all initiatives and would be improved by further research. 113 Christalla Yakinthou (April 2014). Syria: Using Data, Documentation and Evidence in Reparation Processes. Syria Justice and Accountability Center (SJAC). Available at https://syriaaccountability.org/library/using-data-documentation-and- evidence-in-reparations-processes/ 114 For instance, records of judicial proceedings against political opponents of the state. 115 Article 2.1.4 of Chapter V of the Agreement on the Resolution of the Conflict in the Republic of South Sudan (ARCSS). August 2015 tasks the CNHPR to hand over their files and records within fifteen days after the CTRH becomes operational. 116 It must be noted that the government made reservations to the provisions for reparations out of fear that a reparations program would be susceptible to abuse.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 23 measures. UN and NGOs records of abuse (for instance victims of torture or sexual abuse) become important in situations (like South Sudan) where police or hospitals may not have been accessed by victims or may not be recorded and preserved adequately.
Criminal Accountability Of all transitional justice processes, collecting and managing evidence for criminal accountability is governed by the highest standards of due process, procedure and proof.117 Rather than documenting human rights violations and abuses, gathering information for criminal accountability is generally done through investigations and is a more complex undertaking than documenting human rights violations and abuses. Criminal prosecution-oriented investigations are usually done by highly-trained and skilled professionals, such as prosecutors, police investigators and forensic experts. It is important to employ (or where lacking, build) national expertise to avoid these investigations from being internationalized. If testimonial, documentary, physical and other evidence is not collected and managed in line with criminal law requirements, it will not be admissible in courts of law. These requirements include proving authenticity, reliability and maintaining a chain of custody.118 In a tropical climate and conflict environment like South Sudan where evidence is rapidly lost, and chances are high that crime scenes are contaminated, or evidence tampered with, it is critical to collect evidence as early as possible in a manner that will be admissible in court.119 This is currently not being done comprehensively. The CHRSS has managed to collect and preserve some evidence that would be admissible in court, but also evidence that would likely be used as lead evidence. Given the restricted time and resources available to the CHRSS, it will not be able to investigate all incidents and further and more investigations will need to be done.
Criminal prosecution seeks to hold specific individuals accountable for specific crimes.120 This requires proving that the suspected individual (in times of conflict often a middle- or high-level political official or military officer) is linked to and legally responsible for the particular crime(s). In order to convict higher-level actors, so-called ‘linkage’ (or individual responsibility) evidence is necessary. In contrast to the crime base (“what happened in a particular village on a particular day”121), sufficient linkage evidence to higher-level actors can rarely be provided by ground-level victims, or only in limited ways.122 Instead, this evidence comes primarily from (a) higher-level witnesses, such as international actors (who, e.g., met and interacted with higher-level actors) and ‘insiders,’123 and (b) from documents and records, such as military orders, government reports, etc.
117 Federica D’Allesandra, Sander Couch, Ilina Georgieva, Marieke de Hoon, Brianne McGonigle Leyh, Jolien Quispel (eds). (2016). PILPG Handbook on Civil Society Documentation of Serious Human Rights Violations. Available at file:///D:/DOCUMENTS/AECOM%2030-09- 17/03.%20Background%20Lit%20HR%20Doc/Documentation%20and%20monitoring%20general/PILPG%20Handbook%20on %20Civil%20Society%20Documentation%20of%20Serious%20Human%20Rights%20Violations_2016.pdf. 118 A chain of custody describes accurately and in detail the whereabouts of a document or piece of information from the moment someone receives it to the moment they hand it over to an investigating authority to the moment that it is used in court. The log records all people who handled the document and the purpose for which they handled it. Although chains of custodies are most important for documenting towards criminal accountability, it is good practice to follow the highest standards regardless of the purpose of documentation. 119 This would also depend on the rules of procedure for the court. 120 In criminal accountability processes, the focus on individuals and the type of crimes often means that corporate actors are likely to be excluded. In South Sudan’s case, this might leave actors involved in natural resource exploitation and their role in fueling the conflict under-investigated. Equally (and except for the Charles Taylor case), international and regional actors are less likely to be prosecuted for their responsibility in war crimes in conflicts. 121 Presentation on documenting for criminal accountability by an international expert during EU workshop in Nairobi. 20 February 2018. Summary note on file with author. 122 Presentation on documenting for criminal accountability by an international expert during EU workshop in Nairobi. 20 February 2018. Summary note on file with author. 123 An “insider” is usually a person who comes from the same side or party to the conflict as the person being investigated or prosecuted, such that they have “inside” information concerning the roles, responsibilities, conduct and/or statements of that person. Deciding which “insiders” to approach and how and when involves a complicated set of considerations. Properly interviewing insiders also requires a specific set of skills and extensive preparation. The high level of fragmentation of armed groups and frequent defections across groups might generate opportunities to obtain evidence from insider witnesses.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 24 All such evidence, in order to be admitted in court, must be carefully collected and managed to due process and criminal law standards.
It is important to add caution that there has sometimes been an erroneous belief or impression that ‘command responsibility’ (the responsibility of a commander or other superior for the conduct of his or her subordinates) is almost a form of strict liability (i.e. as entailing responsibility of a superior for the acts of his subordinates by virtue of his/her position of authority), that is ‘easy’ (or easier) to prove than other forms of individual responsibility. However, in the experience of international courts and tribunals to date, this is often not the case. This form of responsibility is often more nuanced and difficult to prove than widely believed, as demonstrated by the recent ICC acquittal of Jean-Pierre Bemba Gombo. A superior’s culpability in the commission of the crime must be proven which can be difficult. For a prosecutor to prove command responsibility, (s)he must prove that the superior knew or had reason to know that a crime was to about to be or had been committed and failed to take necessary and reasonable measures to prevent the crime or punish the perpetrator. A chain of command and ‘effective control’ (often with many ambiguities) must still be proven linking the persons who committed the crime to the accused (with a possible break in the chain or complicating circumstances at each level or link). Proving a failure to prevent or punish can fairly quickly be muddied by allegations and at least some proof that “some steps” were taken or efforts made. In practical effect, at least some judges still want to see some measure of personal culpability, beyond a failure to act.124
As a general rule of thumb, the further documentation moves away from collecting information about the crimes on the ground and the ground-level victims and more in the direction of individual responsibility and linkage evidence, such documentation (which really becomes investigation) should be left to prosecutors, criminal investigators and similar professionals. These professionals can work for national or international NGOs. The same will be true in terms of working with experts, which often involves a wide range of specific issues and steps that must be taken in order for such evidence to be used in court.
The documentation of human rights violations and abuses can nonetheless be very valuable as “lead” (or beginning) information for criminal investigations, help establish the crime base and provide information about the leadership structure (the role of actors who may be far away from the crime scene but who are linked in some way to the commission of the alleged crimes). The official organizations that have collected information to date such as the African Union Commission of Inquiry on South Sudan (AUCISS),125 the CHRSS and the UNMISS Human Rights Division use different standards of proof (most often reasonable grounds to believe rather than beyond reasonable doubt which is generally used in criminal prosecutions) that, generally speaking, do not meet the requirements for their collected evidence to be directly admissible in court. Like many civil society human rights organizations, these bodies often document acts and events much earlier (in time) than prosecutors and investigators. With proper training, legally-oriented civil society organizations can therefore play an important role in closing the time gap and collecting an important range of evidence in legally-required ways.
124 Article 28 of the Rome Statute of the International Criminal Court. (July 2002). Available at https://www.icc- cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf. Interview with criminal prosecution expert 01. 24 July 2018. See also The Prosecutor v. Jean-Pierre Bemba Gombo, Appeal Judgment, ICC-01/05-01/08 (8 June 2018). 125 The AUCISS report helped increase awareness about the conflict in South Sudan and contains important facts of the early days of the fighting that followed the outbreak of violence in December 2013. At the same time, the report still raises many questions. For concrete questions related to international humanitarian law, see International Committee for the Red Cross, South Sudan, AU Commission of Inquiry on South Sudan. Available at: https://casebook.icrc.org/case-study/south- sudan-au-commission-inquiry-south-sudan
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 25 One thing that civil society actors in South Sudan need to take note of is that using recorders to take statements or asking witnesses to sign statements,126 ‘fixes’ their stories at that moment in time. If those statements are to be used during trials (which could take place years after the recording of the statement), any deviation from that testimony will negatively affect the credibility of the witness, which is something the defense will look for during cross-examination. Not only can this be harmful to the criminal case, but also unnecessarily stressful and potentially traumatic for the witness. Notes may be a better idea than a signed or voice-recorded statement.
Table 3 below lists the information that needs to be collected for criminal accountability and at the same time identifies actors in South Sudan that possess this information or are in the process of collecting this information. Collecting the information in the left-hand column involves different documentation/investigative tasks. There are tasks that a well-trained documenter and experienced can do and there are tasks that should be left to professional criminal investigators (who are gathering evidence in a specific investigation according to a determined strategy with specific identified objectives and due process requirements in mind) so that documentation efforts do not unintentionally harm the investigation process.127
TABLE 3: INFORMATION FOR CRIMINAL ACCOUNTABILITY128 PURPOSES AND ACTORS INVOLVED IN ITS COLLECTION129
Information130 Actors involved in its collection AUCISS; UNMISS Human Rights Division; CHRSS; Crime base and victims (testimonies) CTSAMM; INGOs 06, 12, 15, 16, 19, 20, 25; NI 01; SSHRDI Interested and capable, but still lack funding to carry Insider witnesses and experts out the work: INGO 12, 13, 20, 33.131 CHRSS. Documentary evidence: official documents such as Most of this will need to be left to professional military or administrative orders, diplomatic cables, criminal investigators. Some human rights logbooks (For instance, documenters, on an exceptional basis, may do some shifts of prison guards and duty officers, equipment of this work. Interested and possibly capable (with or vehicle logs), communication interceptions (audio training), but still lack funding to carry out the work: files), financial and personnel records NNGO 12, NNGO 17. See above concerning experts. NNGO 20 is looking for funding to log GPS coordinates of mass graves in Forensic evidence: exhumation and DNA analysis, the Equatoria region for memorialization purposes ballistic evidence, medico-legal evidence (autopsy and future exhumations. NNGO 10 project in reports, clinical examination reports) pipeline that can log GPS coordinates of (mass) graves in Unity State.
126 This concerns the signing of the substance of the statement which is not to be confused with the signing of a consent form. It is important that consent is proven, for instance, through signatures or thumbprints. This is something that SSHRDI do consistently and well. 127 Interview with criminal prosecution expert 01. 24 July 2018. 128 Each crime is composed of unique components that need to be proven. This table does not specify this. 129 This table does not claim to capture all initiatives and would be improved by further research. 130 Beyond Reasonable Doubt: Using Scientific Evidence to Advance Prosecutions at the International Criminal Court (October 2012). Workshop Report. Human Rights Center, School of Law, University of California, Berkeley. Available at https://www.law.berkeley.edu/files/HRC/HRC_Beyond_Reasonable_Doubt_FINAL.pdf 131 These are INGOs with in-house legal professionals skilled in criminal investigations.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 26 Information130 Actors involved in its collection - Various South Sudanese individuals spread out across the country have photographic and video evidence on their phones, laptops and USB-sticks (some of this is stored safely in online databases, but not everything)132 - Videos, photos and messages posted on social media133 - Individuals in the army and armed groups (these may be “insiders” -- see above) - UNMISS Photographic and video evidence (including satellite - CTSAMM imagery, for instance of - INGO 30 exploring options to get involved in troop and armed vehicle movements, destruction of South Sudan with a digital application to use villages) photographs and videos for criminal accountability - INGO 35 has funding to train local activists to use their digital application to capture evidence of violations. At the time of writing still in recruitment phase. - OHCHR and UNMISS collaborate with the Operational Satellite Applications Programme (UNOSAT) of the United Nations Institute for Training and Research (UNITAR) to research human rights violations using imagery analysis and satellite solutions. Contextual information: war crimes are committed AUCISS; UNMISS Human Rights Division; CHRSS; in contexts of international or non-international CTSAMM; INGOs 06, 12, 15, 16, 19, 20, 25; NI 01; armed conflict. As such, it must be proven that SSHRDI prohibited acts are connected to the conflict. War crimes: linkage evidence (military or
administrative orders, communication interceptions) Crimes against humanity (requires proof of the widespread and systematic nature of prohibited
acts); proof of governmental or organizational policy. INGO 01 and NNGO 12 (and likely more Open source (newspapers, social media, online organizations) monitor and store media articles. It is media) unclear however whether this is done in a systematic way that makes it of use.
The jurisdiction of the HCSS as outlined in the ARCSS includes individuals bearing responsibility for “genocide; crimes against humanity; war crimes and other serious crimes under international law and relevant laws of the Republic of South Sudan, including gender-based crimes and sexual violence.”134 Functional immunities or amnesties shall not stand in the way of this.135 The temporal jurisdiction extends from 15 December 2013 until the end of the Transitional Period,136 which, according to the timeline of the ARCSS would have been June/July 2018. However, with the collapse of the peace agreement, the efforts of the High-Level Revitalization Forum (HLRF) and the Khartoum peace process, the “end of the Transitional Period” has become ambiguous. In December 2017, the
132 These would require authentication. 133 These would require authentication. 134 See Article 3.2.1 in Chapter V of the Agreement on the Resolution of Conflict in the Republic of South Sudan (ARCSS). 135 “No one shall be exempted from criminal responsibility on account of their official capacity as a government official, an elected official or claiming the defense of superior orders.” Article 3.5.5 in Chapter V of the Agreement on the Resolution of Conflict in the Republic of South Sudan (ARCSS) and “The Hybrid Court shall not be impeded or constrained by any statute of limitations or the granting of pardons, immunities or amnesties.” Article 3.5.4 in Chapter V of the Agreement on the Resolution of Conflict in the Republic of South Sudan (ARCSS). 136 See Article 3.1.1 in Chapter V of the Agreement on the Resolution of Conflict in the Republic of South Sudan (ARCSS).
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 27 Cabinet of Ministers reportedly approved a Memorandum of Understanding (MoU) and Statute for the HCSS (inspired by the Statute of the Special Court for Sierra Leone (SCSL). At the time of writing, their signing is still pending. The African Union in 2017 recruited a team to work on the establishment of the HCSS. Unfortunately, even three years after the ARCSS, the promised Hybrid Court is not yet in place, and it is not clear when (or whether) it ever will be.
Table 3 shows that, while there appear to be enough actors involved in collecting information to establish the crime base, collection of linkage (or individual responsibility) evidence, in compliance with criminal procedural standards, and in-depth research into suspects and their networks constitutes a gap in documentation efforts in South Sudan. One or two of the most capable NNGOs and who have access to important documents have been unable to secure funding for this work, as have a few INGOs. Several renowned INGOs are considering seeking legal redress (including prosecutions) in jurisdictions of third States, strategic use of UN special procedures and the ACHPR. Some have moved ahead with various pieces of scoping research to identify cases and jurisdictional hooks. It is time to bring these actors together to share their findings, deliberate the practicalities of using these avenues for accountability in the South Sudanese context and to design a diligent and coordinated action.
Vetting In the context of transitional justice, vetting processes facilitate personnel and institutional reforms. Vetting processes screen the individuals in (semi)public institutions (whether continued or potential) to verify that they have the capacity and integrity137 to fill the positions. As such, they can focus on both perpetrators (to exclude them from public office) and victims (to promote them into public office). Vetting helps to prevent recurrence by removing those responsible or involved in serious abuses from public positions, reaffirming the validity of human rights norms, dismantling criminal networks and “re-peopling” State institutions (for instance, often the judiciary, police or specific army/security sector units and other institutions that were responsible for upholding the rule of law) with individuals not implicated in abuses and therewith re-establishing trust in these institutions,138 and in South Sudan’s situation a safe environment for the return and resettlement of Internally Displaced Persons (IDPs) and refugees since many have fled due to the predatory behavior of the SPLA and the NSS.
An operational challenge, aside from the high level of resources required in vetting processes, is that post-conflict environments are often already characterized by a lack of qualified personnel in State institutions. Rigorous vetting procedures may create further capacity gaps and, especially when removing a large number of security personnel from their positions, could create a group of disgruntled, unemployed, often male, individuals that may resort to criminal activity139 so must be done with care.
Since vetting procedures assess people’s suitability for a specific position of employment, vetting criteria (which determine the type of information that needs to be documented and stored) generally assess both competence and integrity of personnel. The design of the vetting process (and with-it clarity about the required information) will also depend on the type of institution that is to be vetted. For instance, vetting the judiciary will include due consideration for their independence.
137 In light of vetting, the United Nations refer to integrity as “an employee’s adherence to international standards of human rights and professional conduct, including a person’s financial propriety.” In Vetting Public Employees in Post-Conflict Settings: Operational Guidelines (2006). United Nations Development Programme and the International Center for Transitional Justice. Page 20. Available at https://www.ictj.org/sites/default/files/ICTJ-UNDP-Global-Vetting-Operational- Guidelines-2006-English.pdf Integrity is measured by someone’s conduct. 138 Presentation on documenting for vetting purposes by an international expert during EU workshop in Nairobi. 20 February 2018. Summary note on file with author. 139 Cynthia M. Horne (nd). Transitional Justice: Vetting and Lustration. Forthcoming in Dov Jacobs (ed.), Research Handbook on Transitional Justice (E. Elgar). Available at https://cynthiamhorne.weebly.com/uploads/8/9/9/8/8998042/horne-- vetting_and_lustration-preprint.pdf
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 28 There are different types of vetting processes. All or certain positions can be vetted. A softer form, for instance, could include “requiring candidates for election to publish their curriculum vitae, their war-time activity records or their financial records, to provide financial statements and to testify under oath to the completeness and veracity of the statements made.”140 If, at a later stage, the published information proves to be false, the person would have to step down from office. Regardless of the form, the evidentiary standards for vetting procedures (usually ‘balance of probabilities’ or ‘reasonable grounds to believe’) are less rigorous than in criminal proceedings since vetting is generally an administrative process.141 Normally, the vetting procedures will be enshrined in a parliamentary or legislative act and bound by due process requirements.142
While the environment is not yet ripe for a full reform process, registration of public employees (which is also an exercise that must be done prior to vetting) could still be done. Such a process could be used to register information about the employees’ experience and skills, and basic data on their activities during the conflict. Although less time-consuming and less resource-intensive than the vetting process itself, registration is still a time-consuming process that generally requires a lot of resources, especially since the registration requires updating.143 INGO 34 has a component in their project that involves a country-wide mapping of the formal judicial structure and judges. Though mapping is not the same as registration, this offers a potential entry point for (an initial) registration of judiciary personnel.
As with other forms of transitional justice, vetting depends heavily on the availability and quality of information. Incomplete or flawed information could result in biased transitional justice processes which would defeat their transformative power. During times of conflict, personnel files are often not properly maintained, possibly even manipulated and/or destroyed. The data used to vet individuals must be accurate and corroborated and the process must be transparent, non- discriminatory and ensure equal access to public office. After regime changes, procedural and legal safeguards must be in place to avoid the vetting process taking the form of (politically motivated) purges of individuals based on their affiliation to certain groups. Vetting processes look at individual responsibility of human rights violations.144
While the specific criteria are clarified during the design process and dependent on the sector, positions and possibly individuals to be vetted, as a general rule, individuals who were involved in gross violations of human rights or serious crimes under international law145 should always be
140 Email correspondence with international expert on civil society’s role in vetting processes. 22 May 2018. On file with author. 141 Presentation on documenting for vetting purposes by an international expert during EU workshop in Nairobi. 20 February 2018. Summary note on file with author. 142 Cynthia M. Horne (nd). Transitional Justice: Vetting and Lustration. Forthcoming in Dov Jacobs (ed.), Research Handbook on Transitional Justice (E. Elgar). Available at https://cynthiamhorne.weebly.com/uploads/8/9/9/8/8998042/horne-- vetting_and_lustration-preprint.pdf 143 Office of the High Commissioner for Human Rights (2006). Rule of Law Tool for Post-Conflict States. Vetting: An Operational Framework. Available at https://www.ohchr.org/Documents/Publications/RuleoflawVettingen.pdf 144 Presentation on documenting for vetting purposes by an international expert during EU workshop in Nairobi. 20 February 2018. Summary note on file with author; Cynthia M. Horne (nd). Transitional Justice: Vetting and Lustration. Forthcoming in Dov Jacobs (ed.), Research Handbook on Transitional Justice (E. Elgar). Available at https://cynthiamhorne.weebly.com/uploads/8/9/9/8/8998042/horne--vetting_and_lustration-preprint.pdf. In case the USG wishes to explore public sector vetting further, it is recommended to refer to the ICTJ and UNDP operational guidelines which also include several case studies on vetting exercises in post-conflict countries. See, United Nations Development Programme and the International Center for Transitional Justice. Vetting Public Employees in Post-Conflict Settings: Operational Guidelines (2006). Page 20. Available at https://www.ictj.org/sites/default/files/ICTJ-UNDP-Global-Vetting-Operational- Guidelines-2006-English.pdf 145 In particular genocide, war crimes, crimes against humanity, extrajudicial execution, torture and similar cruel, inhuman and degrading treatment, enforced disappearance and slavery.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 29 removed from public employment.146 Several international codes provide for norms that can guide the development of context-specific integrity criteria. These include “the United Nations professional codes, in particular the Basic Principles on the Independence of the Judiciary, the Guidelines on the Role of Prosecutors and the Code of Conduct for Law Enforcement Officials, the United Nations Convention against Corruption, and international criminal, human rights and humanitarian law.”147
Based on the above-mentioned general rule, civil society has a role to play to document for vetting purposes. Efforts to document human rights violations and abuses often collect some information on suspected perpetrators, but this is not always enough to identify an individual within a large pool of individuals awaiting vetting. A name, for instance, will not suffice in vetting procedures as there might be multiple people with the same name, the names might be misspelled148 during the documentation exercise, or suspected perpetrators may only be known by their nom de guerre.149
Existing efforts in South Sudan could be encouraged to capture as many details about the suspected perpetrator as possible. Taking it a step further, a separate project150 could be supported that would aim to collect information about perpetrators. This needs to be done in line with the minimal evidentiary standards and ensure that this data is safely stored in a database (ideally categorized by perpetrator rather than by incident). This data can then feed into public national vetting processes,151 but could also be useful as lead information criminal prosecutions, for human rights due diligence processes152 as well as vetting processes such as the US obligation to implement the Leahy Laws.153 The Leahy Laws prohibit the USA to provide military assistance to units of foreign security forces that have violated human rights. In 2012, the US Embassy in Juba vetted more than 9,000 applicants for US military support. Lack of detailed information on alleged human rights violations greatly complicates Leahy vetting154 and reputable national NGOs can play a critical role in providing the mission information.
If there is strong resistance against vetting procedures, as is not unlikely to expect in South Sudan, civil society organisations can initiative softer forms of vetting processes. An example of this could be to require candidates running for public office to make their resumes, war-time activity records and/or their financial records public. They would then be asked to attest to the completeness and authenticity of these records under oath. If later they are found to have made false statements, they
146 Vetting Public Employees in Post-Conflict Settings: Operational Guidelines (2006). United Nations Development Programme and the International Center for Transitional Justice. Page 20. Available at https://www.ictj.org/sites/default/files/ICTJ- UNDP-Global-Vetting-Operational-Guidelines-2006-English.pdf 147 Office of the High Commissioner for Human Rights (2006). Rule of Law Tool for Post-Conflict States. Vetting: An Operational Framework. Available at https://www.ohchr.org/Documents/Publications/RuleoflawVettingen.pdf. Pg. 22. 148 Names in South Sudan are often spelled in several different ways, at times because the local language is not written. Communication with INGO 01. 149 Presentation on documenting for vetting purposes by an international expert during EU workshop in Nairobi. 20 February 2018. Summary note on file with author. 150 NNGO 12 has conceptualized an actor analysis project that focuses on collecting information about individuals already implicated in violations. This presents an opportunity to create perpetrator dossiers and map out networks and relations. They are still seeking funding. 151 In Argentina, a NNGO fed information into public parliamentary hearings of the promotion of senior military officials. The hearings risked becoming so embarrassing for certain senior commanders that they preferred retirement over promotion. Email correspondence with international expert on civil society’s role in vetting processes. 22 May 2018. On file with author. 152 The 2011 UN Human Rights Due Diligence Policy (HRDDP) on UN support to non-UN security forces out measures that all Member States must take to ensure that any support provided to non-UN security forces is consistent with the UN Charter and international humanitarian, refugee and human rights law. The policy also applies to UN entities. Secretary General. (5 March 2013). Human rights due diligence policy on United Nations support to non-United Nations security forces. Available at http://www.ohchr.org/Documents/HRBodies/SP/AMeetings/20thsession/IdenticalLetterSG25Feb2013_en.pdf 153 This would however require willingness of these institutions and governments to share their information with each other, which is not a given. 154 In, Office of Inspector General (May 2013). Inspection of Embassy Juba, South Sudan. Available at https://oig.state.gov/system/files/211153.pdf
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 30 would have to leave office.155 Knowing which data to collect and doing so in line with the requirements, can also help civil society monitor the appointment of Commissioners and judges for transitional justice mechanisms. Table 4 below lists the information that needs to be collected for vetting purposes and at the same time identifies actors in South Sudan that possess this information or are in the process of collecting this information.
TABLE 4: INFORMATION FOR VETTING PURPOSES AND ACTORS INVOLVED IN ITS COLLECTION156
Information157 Actors involved in its collection Basic information about perpetrators from accurate testimonies by victims, witnesses and possibly other Some SSHRDI members. NNGO 12 was piloting a perpetrators, including: full and correctly spelt name, data collection form to collect information about gender, geographic origin, citizenship, age, ethnicity, perpetrators. Currently in search of funding. religion, political affiliation, membership of (armed) groups, rank/position held, human rights record - INGO 34 may in the future have more insight into personnel of the Judiciary of South Sudan (JoSS) as they are about to embark on a project that maps the country-wide court structure and judges (note Official documents: bureaucratic records, logs and that this is not the same as registration). personnel files/ professional conduct (court158 / - Human resource departments of the government government, police, prison, military, intelligence institutions (though it is not beyond the bounds of records / archives, court proceedings; party files; credibility that these are improperly stored and election registers. incomplete). - UNDP has implemented a project to issues members of the SSNPS with ID-cards (human rights due diligence was not part of the project). This may present the start of a personnel census. Unofficial records: media reports Analytical and created documents: United Nations Spread out over multiple actors. UNDP in process reports, NGO reports, truth commission reports, of initiating a mapping exercise that would likely see and independent investigation reports. the compilation of these reports into one report. Public: security situation and political environment permitting, a list with the names of individuals to be vetted could be published with the opportunity for NA the public to come forth with background information on the listed individuals. Financial propriety INGO 40 Individual/private documents: school and academic
certificates; birth certificates
Chapter V of the ARCSS contains a narrow provision for vetting that prevents individuals indicted or convicted by the HCSS to participate in the “Transitional Government of National Unity (TGoNU) or in its successor government(s) for a period of time determined by law”.159 Since the HCSS is not expected to be able to indict all individuals responsible for violations, the ARCSS leaves a gap for individuals implicated in violations to still hold public positions. This leaves space for civil society
155 Email correspondence with international expert on civil society’s role in vetting processes. 22 May 2018. On file with author. 156 This table does not claim to capture all initiatives and would be improved by further research. 157 Largely drawn from: Vetting Public Employees in Post-Conflict Settings: Operational Guidelines (2006). United Nations Development Programme and the International Center for Transitional Justice. Available at https://www.ictj.org/sites/default/files/ICTJ-UNDP-Global-Vetting-Operational-Guidelines-2006-English.pdf 158 For instance, records of judicial proceedings against political opponents of the state. 159 Article 4 in Chapter V of the Agreement on the Resolution of Conflict in the Republic of South Sudan (ARCSS).
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 31 efforts to advocate and, where possible, initiative a broader vetting process. This research has not encountered any NNGO that focuses on vetting. Instead, most of the efforts concentrate on advocacy and documentation for the CTRH, HCSS and – to a much lesser degree – the CRA.
Obstacles and Challenges For documentation to be of value for transitional justice purposes, a general rule of thumb160 is that it needs to be credible, reliable and impartial.161 If the data collection process is judged, for instance, to be politically motivated, it will be easily discredited and become useless. In South Sudan, rumors and politically and/or ethnically-biased narratives are very common162 and documentation efforts need to be very aware of this.163 These are inherent challenges to documentation everywhere, especially in times of conflict and can, in part, be addressed through capacity-building (increasing professionalism) and self-awareness.
Credibility refers to the truthfulness of the information as honestly perceived. Reliability refers to the factual accuracy. The information needs to be verified and impartial which can in part be done by taking a consistent and independent (i.e. document violations and abuses by all parties to the conflict) approach and use information from a variety of sources. Objectivity is key in documentation which implies that documenters should be aware of their own personal bias and histories (especially if they are also affected by the conflict and are documenting in their own communities and/or tribes) and how this could affect the perceived credibility of their documentation work. It is never possible to fully detach oneself from political considerations (this is equally true for donors supporting documentation work), so it is extra important to strive for professionalism. It helps to invest in attaining high professional standards and work with Standard Operation Procedures (SOPs) for all steps of the documentation process and also keep detailed records of how the information is obtained. Especially in times of conflict, biases can also be introduced by external conditions such as restricted access to certain areas in the country (which could also be the result of poor logistics and impassable areas during the rainy season). It is therefore important to recognize and acknowledge the (inherent) biases in the work and take measures to rectify them. Where eliminating biases is not possible, recognizing and acknowledging them can greatly enhance the perceived objectivity of the documentation work. With the restricted geographical access in South Sudan and the decades of violence that has affected and continues to affect the whole nation, extra attention needs to be paid to ensure the credibility of documentation efforts.
Credibility and reliability also pertain to the interview subjects.164 If documentation is conducted according to the highest standards (again, this is good practice to do regardless of the purpose for documentation), this means developing a full profile of the interviewee in terms of who they are (political views, social standing, familial and tribal affiliations, etc.), how they obtained the information (victim, eyewitness, secondary account, insider witness, perpetrator, etc.), and why they are sharing the information (what is their motive and/or agenda?). When assessing the interviewee, the
160 Especially when documenting for truth commissions (that can establish multiple truths of the conflict), identity-based and politically-biased versions of events can serve a purpose by, for instance, challenging dominant (or as held by the majority of the population) versions of history that might otherwise be removed for ideological reasons. Correspondence with expert, 31 July 2018. On file with author. 161 The SSHRDI has received five trainings to address the challenges raised in this section. It is advisable that the third-party evaluation assess the retention and application of the acquired knowledge and skills. 162 Presentation on understanding contextual factors in South Sudan by an international expert during EU workshop in Nairobi. 20 February 2018. Summary note on file with author. 163 This is not to say that politically-partisan documentation cannot be of value, so long as it is contrasted with other sources of information. For instance, documentation by the human rights group linked to the Karen National Union in Myanmar has been used as a source of information on violations such as forced labor and displacement in contested areas. Correspondence with expert, 31 July 2018. On file with author. 164 The International Institute for Criminal Investigation (IICI) offers a very good five-day investigative interviewing course in The Hague, The Netherlands. For more information, see https://iici.global/course/investigative-interview-skills-course/. As part of the GIJTR, INGO 01 offers trainings on interviewing skills to the members of the SSHRDI and INGO 03 builds their capacity related to psycho-social support.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 32 documenters must consider the mental state of the interviewee: whether the interviewee has a history of problems, trauma,165 any past and/or current (psychological) treatment, what their emotional condition is, what their physical state is (how good is their sight and hearing, do they have a drinking or drugs-related problem, what was the context of the incident: day or night?). All this and more could affect the interviewee’s credibility.
Ultimately documentation is done to benefit the victims and so their needs and concerns should be central to the process.166 With the large universe of victims in and outside167 of South Sudan, this inevitably means that documentation efforts must pursue a wide range of purposes and meet the requirements of those purposes. As is evident from the four tables in the previous chapter, this requires a plethora of actors to collect and preserve data in a way that it can be used for future transitional justice purposes. While some documenters may intentionally collect information for transitional purposes, others do not. The challenge will be to mainstream a transitional justice lens to data collection. For instance, the PoC camp management organizations and humanitarian organizations may already be collecting valuable data for future compensation and reparation schemes, without realizing it because they (understandably) do not look at their data collection from a transitional justice perspective. This challenge is an opportunity and underscores the need to start engaging other actors (including the churches168) and seeing whether they are amenable and able to adjust their data collection so that it serves a dual purpose.169 For instance, when registering new entries into the camps, INGOs could ask several additional demographically-focused questions that would greatly help generate a baseline for future compensation and reparation programs. The second challenge is then to ensure that the data is stored in such a way that it will be preserved and accessible in the future. At the moment, this demographic data is kept by different organizations and it is unclear whether this is done in a secure manner. For this type of data to be of future use, it would greatly help if it could be centrally stored online in a secure way and that it would still be accessible in the future. This would however require consent to be obtained and recorded.
An additional challenge that this raises, and that was discussed during the workshop in Nairobi in February 2018, is one of access to and sharing of information. While the (civil society) actors have all expressed a desire to ultimately share information with official transitional justice mechanisms170 (if and when established), sharing of information for more immediate action to take place (e.g. feed into the CHRSS investigations, for criminal prosecution in other States’ jurisdictions, or to have it immediately accessible for the public, for instance to counter denial or for reconciliation activities with communities, or for lobbying and advocacy purposes) remains a challenge, in part due to security concerns.
There are inconsistencies amongst the actors when it comes to sharing information. For instance, UNMISS has different rules than the CHRSS and the CHRSS had difficulty accessing the existing pool of information already documented by UNMISS and its own predecessor, the 2015 OHCHR
165 In an ideal situation, a professional psycho-social worker would be present for interviews with individuals exposed to traumatic incidents. However, this is not always possible in practice. It is therefore important that interviewers are trained in recognizing and responding to signs of trauma and to be aware of mental health (as well as other) services accessible to the interviewee. If the interviewee consents to it, the interviewer can refer them to these services for further care. As part of the GIJTR, INGO 01 and 03 offer trainings and best practices to interview individuals that show symptoms of trauma. 166 See ‘Civil Society Working with Victims for Transitional Justice Purposes’ and ‘strategic framework’ below for a project that proposes to strengthen engagement with victims. This is not to say that, for instance, a victim will determine the charges that are brought by a prosecutor. 167 The violence has forced over 2.4 million South Sudanese to seek refuge in neighboring countries, of which more than half have fled since the renewed fighting in July 2016. 168 In South Sudan, the churches are often credited to have the largest network at the grassroots level and therefore able to access many different communities. In some areas (including refugee camps), faith-based leaders have helped civil society activists access victims and helped build the trust necessary for the victim to provide their testimony. However, in a few instances, “DRL has found that SGBV crimes are not as openly reported when church groups are involved in transitional justice documentation.” Correspondence with DRL. 169 See the fifth strategic area in ’strategic framework’ below. 170 Clear agreement about the fate of the archives of these mechanisms must be made the start of their operation.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 33 assessment mission.171 While some information was shared by civil society organizations with the CHRSS, there is still a sense of reluctance and discomfort in doing so which requires further trust building and an improvement in the security environment. The Committee for National Healing, Peace and Reconciliation (CNHPR); a government-initiated reconciliation process that brought over 11,000 people at Payam level together between 2013 and 2016 to speak about the challenges in the country, collected over 1,000 audio, audio-visual and hand-written statements.172 While Chapter V obliges the CNHPR to hand over all files to the CTRH,173 having access to that information now and by other actors and initiatives would be beneficial.
Sharing information is crucial for effective and meaningful action, but it must ensure confidentiality, respect for people’s privacy, and be done with informed consent. The sensitive nature of documentation work and the potential risk it can have on interviewees and interviewers demand that confidentiality should be addressed at all times. Confidentiality should primarily serve to provide security to the person giving the information, to protect their privacy, and to encourage others to step forward.174 Information protection measures can be taken to provide confidentiality while sharing information such as standard codes that protect anonymity of sources. Organizations should have SOPs in place regarding sharing of information with third parties.175 Documenters should clearly explain the levels of confidentiality offered to the interviewee, understand and record what the interviewee wants and explain that all reasonable steps will be taken to guarantee confidentiality.
Sharing information also raises questions about ownership of data and collected documents. Unfortunately, assertions of “confidentiality” can often have as much or more to do with a particular organization trying to control information or assert its “ownership” than genuinely protecting a witness, who may in fact be happy to have his or her evidence used in an effort to achieve justice. In some cases, this can become complicated and tensions can exist over ownership among the actors involved in documentation, the end users and the victims and witnesses provided the information and documents. These issues should be clearly addressed and agreed on from the start of the documentation process. 176
Table 5 below sums up the key obstacles and challenges and proposes mitigations to them. For more challenges and solutions facing human rights documenters in South Sudan (lack of civic space, lack of trust, extremely high levels of illiteracy, a plethora of different languages and different concepts of time and space further complicate documentation efforts), please see ‘civil society challenges and needs’ below.
TABLE 5: KEY OBSTACLES AND CHALLENGES TO DOCUMENTATION IN SOUTH SUDAN AND CORRESPONDING MITIGATIONS
Key Obstacles and Challenges Mitigations
171 In 2015, the United Nations HRC requested OHCHR to dispatch an assessment mission to undertake a comprehensive assessment of the alleged violations and abuses aimed at achieving accountability. The results were presented during the HRC session in March 2016 during which the UNHRC decided to establish the Commission on Human Right in South Sudan (CHRSS). The report identifies violations since December 2013. OHCHR (10 March 2016). Report of the High Commissioner for Human Rights on the Assessment mission by the Office of the United Nations High Commissioner for Human Rights to improve human rights, accountability, reconciliation and capacity in South Sudan (A/HRC/31/49). Available at http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session31/Documents/A-HRC-31-CRP-6_en.doc 172 Presentation on understanding contextual factors in South Sudan by an international expert during EU workshop in Nairobi. 20 February 2018. Summary note on file with author. 173 Article 2.1.4 of Chapter V of the Agreement on the Resolution of the Conflict in the Republic of South Sudan (ARCSS). August 2015. 174 International Centre for Transitional Justice. (June 2016). Guidelines on the Documentation of Serious Human Rights Violations for Human Rights Defenders in Kenya. On file with author. 175 INGO 01 supports the members of the SSHRDI to formulate these SOPs to facilitate sharing of information with third parties and taking necessary confidentiality measures. 176 Louis Bickford, Patricia Karam, Hassan Mneimneh and Patrick Pierce (2008). Documenting Truth. International Center for Transitional Justice. Available at https://www.ictj.org/publication/documenting-truth
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 34 Ensuring high quality standards while documenting - (Continued) effective capacity-building programs to achieve credibility and reliability. for civil society and enhanced self-awareness. - Training more community-based documenters, enabling them with phones and digital applications.177 - Partner with (I)NGOs who can operate in A degree of inherent bias in terms of restriction of opposition-held territories. places where documentation can be done (can be - Documentation in refugee camps.178 due to security, poor logistics and/or the rainy - Where eliminating biases is not possible, season). recognizing and acknowledging them can greatly enhance the perceived objectivity of the documentation work. Other actors collect data that could be of use for - Start engaging other actors (including the transitional justice purposes if adjusted (slightly) and churches) and seeing whether they are amenable stored in a way that it would be accessible in the and able to adjust their data collection so that it future. serves a dual purpose. - Support CSOs to develop SOPs for information sharing with third parties179 Sharing of information in a way that adheres to - Always obtain informed consent principles of confidentiality. - Start discussions, especially with UN actors, on (Future) tensions over ownership of data and improved information sharing documents - Have clear protocols and agreements on ownership of data and documents180
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS
Donors, Actors and Coordination181
The consultancy sought to support donor efforts to coordinate182 around a shared vision and strategy for the documentation of human rights violations and abuses for transitional justice in South Sudan. To achieve this, the consultant engaged in a continuous actor mapping, facilitated the creation of partnerships and initiated projects that, together, contribute to a strategic whole.
Governmental Donors Transitional justice poses several challenges to donors: it is a long-term endeavor that spans across generations and requires long-term thinking and commitment and whose immediate effect is impossible to measure. It is a term often not quite understood which at times makes donors hesitant to engage on it. In addition, the sensitive nature of documentation work is sometimes perceived as a risk to donor programs and/or political engagement and shied away from in spite of the needs and rights of communities to truth, justice, and reparations. In addition, the term ‘transitional justice’
177 Examples of digital application include eyeWitness to Atrocities or Whistler (currently in development). Prior to use in South Sudan, it is recommended to do an assessment of the various available digital applications by a technology and human rights expert familiar with the South Sudanese context. The Department of Human Rights and Labor (DRL) is pursuing such an assessment. 178 While refugee camps, like PoC sites, offer relatively easy access to people affected by the violence, documentation in refugee camps is not without challenges. Political dynamics and inter/intra-community conflict can negatively affect the security situation in camps. 179 See footnote 186. 180 At the time of writing, the SSHRDI was in the process of developing a MoU on ownership of data and documents. 181 This section builds forth on the actor mapping conducted in June – September 2017. See, Human Rights Documentation in South Sudan: Findings of an Actor Mapping, Gap Analysis and Recommendations for Engagement (October 2017). On file with author. 182 In this study, understood to organize different projects or activities (supported by different donors) so as to enable them to work together effectively.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 35 generally does not feature in donor government’s policies or internal guidelines. As a result, Official Development Assistance (ODA) donors have a variety of approaches to transitional justice.
Switzerland is the only country that has transitional justice as a focal theme in its foreign policy and development cooperation and maintains a dedicated inter-departmental ‘Dealing with the Past’ Taskforce. The European Union Action Plan on Human Rights and Democracy for 2015-2019 commits the EU, an important transitional justice donor,183 to develop and implement an EU policy on transitional justice to enhance the EU’s ability to play a more active and consistent role. Norway and Sweden give transitional justice a prominent role in their governance and peacebuilding strategies. The United Kingdom’s (UK) engagement on transitional justice is part of the UK’s work on governance and conflict, in particular peace building and conflict prevention. Like Germany, The Netherlands’s support to transitional justice is part of its rule of law and human rights work.184 In May 2016, USAID and the US State Department published a series of policy papers on transitional justice185 officially acknowledging transitional justice as part of its foreign policy.
The study focused on donor engagement in documentation for transitional justice purposes at Embassy level in South Sudan, and by extension on some engagement in the respective capitals. For donors who are interested in supporting transitional justice, Public Action Research has developed a website (http://fundingtj.org/) specifically for embassy staff and ministries. This website was developed with funding from the Democracy, Human Rights and Labor (DRL) department of the United States Department of State in order to inform transitional justice funding in the multilateral space.
Actively Involved Donors There are four donors who are actively involved in the sector: the D01-A and D01-B, D02, D03 and D04. D01-A has secured an additional 300,000 USD to spend on activities related to the documentation of human rights violations and abuses between July 2018 – May 2019 through INGO 23. Activities include: documentation grants to civil society actors (including, embedded trainer to build civil society organization capacity, training on use of digital application (including purchase of mobile phones), purchase of equipment for South-Sudan based members of the South Sudan Human Rights Documentation Initiative (SSHRDI).186 If funds are sufficient, INGO 23 may also support an actor analysis pilot project proposed by NNGO 12. On the heels of funding a three-year documentation program focused on advancing transitional justice interventions, D01-B will continue in the Fall of 2018 with a two-year South Sudan Human Rights Documentation Initiative (the $2M SSHRDI). The SSHRDI is implemented through a technical global Transitional Justice Consortium (the GIJTR, the Global Initiative for Justice, Truth and Reconciliation) with partial funding from D01- C. This latter office provides funding for the African Union to establish the HCSS. D01 also supports the Ceasefire and Transitional Security Arrangements Monitoring Mechanism (CTSAMM).
D02 has some funding available (an estimated 100,000 USD) that they are considering using to support the strengthening of victims’ project (see below for more information on the project). D02 has also expressed interest in supporting a violations mapping exercise and any engagement around archiving.
183 The EU can support transitional justice initiatives both through the ‘Common and Foreign Security Policy’ pillar (through crisis management measures) and through development and cooperation policy (particularly through ‘Instrument for Stability’). In Christoph Sperfeldt (February 2015). Transitional Justice in International Development Assistance. Presentation at Australasian Aid Conference, Canberra, Australia. Available at http://devpolicy.org/2015-Australasian-aid- conference/presentations/2d/Christoph-Sperfeldt.pdf 184 Christoph Sperfeldt (February 2015). Transitional Justice in International Development Assistance. Presentation at Australasian Aid Conference, Canberra, Australia. Available at http://devpolicy.org/2015-Australasian-aid- conference/presentations/2d/Christoph-Sperfeldt.pdf 185 To read the policy papers, please visit: https://www.state.gov/j/gcj/transitional/index.htm 186 Pending agreement, submission and approval.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 36 D03 will prioritize human rights in their upcoming multi-year plan for South Sudan. They have approved funding for the recruitment of a consultant to develop the methodology and implementation plan for a violations mapping exercise for South Sudan through UNDP’s Access to Justice and Rule of Law Project (for more information, please see below) and have expressed interest to support the subsequent mapping. They are supportive of accountability and have welcomed INGO 12’s proposal for a round-table on avenues for redress and are open to support joint action that may result from the round-table (please see strategic framework below for more information). D03 has a strong preference for multi-donor engagement in the sector. They are likely to continue their support to a human rights defenders’ project in collaboration with D06.
D04 received an estimated 256,000 USD from a centralized fund for two years (year two would be dependent on year one) for transitional justice-related projects. They are currently reviewing the strengthening of victims’ project (see below for more information on the project) for their support and have had several rounds of discussions with the lead implementing organizations. D04 also supports CTSAMM.
Donors with Interest to Get Involved Two donors (D07 and D08) have expressed interest in getting involved but are still in the early stages. The documentation of human rights violations is of interest to D07 and a potential area for their programming in South Sudan. The Embassy staff appreciate the value of the work and will have a conversation with their colleagues in the capital. D08 has recently (July 2018) adopted a new strategy for development cooperation in South Sudan with two focus areas: (1) Peaceful and inclusive societies and (2) Basic social services and livelihoods. The strategy has a five-year time span with a significant increase in the annual allocations. Building blocks of the first area are: (1) More inclusive processes for peace, state-building and accountability and (2) Improved conditions for women’s and girls’ empowerment; and for the second: (1) Improved conditions for health, with a focus on SRHR, (2) Improved access to quality education and (3) Improved conditions for sustainable livelihoods.
Donors Interested to Remain Informed Two other donors (D05 and D06), who are active on human rights, rule of law and transitional justice, have expressed interest to remain involved in the conversations and to be kept informed of developments. As part of a research project on transitional justice in South Sudan, D06 organized a workshop on transitional justice and is considering a follow-up phase to continue this work. D06 funds INGO 34 to implement a project called “Strengthening the Rule of Law in South Sudan” which aims to enhance the legal capacity of judges, lawyers and rule of law sector professionals at national and state levels in South Sudan. D05’s engagement in the human rights sector focuses on engaging the MoJCA on the UPR process as well as on normative aspects of family law and the death penalty. South Sudan is a priority country in their Women, Peace and Security (WPS) portfolio. Within this framework, D05 supports the secondment of one of the Gender Advisors to CTSAMM. D05 also supports human rights defender initiatives (this is not actively coordinated with D03 and D06) and their Embassy in Addis Ababa has put aside funds in case the HCSS is established. In addition, D05 supports the South Sudan National Archives.
Other Donors D09 and D10 are both not large donors in South Sudan but do offer an opportunity to support documentation. D09 is not actively engaged in activities related to transitional justice or the documentation of human rights violations and abuses. Instead, their focus is on humanitarian assistance. At Embassy level in Addis Ababa however, they are interested in a degree of diversification. They are interested in, among others. the long-term effects of humanitarian assistance, peacebuilding and youth engagement. They have funded INGO 27 to conduct a pilot study about diaspora that includes tracing money flows. In their experience, reports such as the Sentry report have been helpful to respond to economic crimes. They have the discretion to provide small grants of up to 50,000 USD to South Sudanese NGOs. INGO 20 and NNGO 17 have
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 37 applied for this grant together. Lastly, D12’s support to transitional justice is focused on security sector reform, in particular the Joint Integrated Police (JIP) through UNDP. The police sector is a familiar area for them. They are new to the conversation about documentation for transitional justice and it is worth to continue including them.
International and National Civil Society This section builds forth on the actor mapping that was conducted in the preceding USAID-funded study in 2017. This 2018 consultancy sought to use the understanding of the playing field to establish connections and nurture partnerships. Several new actors were identified during the 2018 study which are included below. No vetting of national actors was done. Any support to CSOs should be done after a background check of the organization and individuals involved.
Documentation of Human Rights Violations and Abuses Four (non-South Sudan based) members (INGOs 01, 02, 03, 04) of a global initiative for transitional justice (also known as the Transitional Justice Consortium – the GIJTR) continue to work together to support a coalition of approximately 24 South Sudanese civil society organizations (called the South Sudan Human Rights Documentation Initiative (SSHRDI)) in South Sudan, Kenya and Uganda187 to document human rights violations for transitional justice purposes. The program started in 2015 and is very likely to continue for the next two years with support from D01-B and D01-C. Moving forward, they intend to continue training (with a focus on the legal framework, continuous evaluation and improvement of interviewing methodology, and the use of the information for immediate and longer term transitional justice efforts); facilitate comparative learning; support to the coalition or members to establish data sharing protocols and put in place a longer-term management structure; data collection (through additional documentation missions); improvements to secure database; have a stronger focus on data analysis and support to report-writing, including with on-the-ground, one-on-one support to member organizations for this purpose; and provide hardware that is necessary for this work (computers for the data entry coordinators and encrypted recorders).188 In their interview questionnaires, they include questions about survivor needs, which offers an interesting thematic topic for an initial analysis exercise. INGO 02 will expand their support for memorialization and oral history projects to more NNGOs, and, with INGO 01, train the HRDI members on mass grave digital mapping.189 This would include training of trainers and small grants to organize exhibits of body mappings190 created in a previous phase of the project and that bring people together in community dialogues. Moving forward, they will also start discussions around cataloguing and archiving. INGO 03 will continue to build capacity related to psycho-social aspects and the mental health of both the documenters (often themselves affected by the violence) and the victims.
The Transitional Justice Consortium (GIJTR) and the SSHRDI offer an interesting entry point for other actors interested in supporting or otherwise getting involved in the documentation of human rights violations and abuses for transitional justice purposes. Throughout the consultancy, the start of several partnerships has been forged that have the potential to strengthen this existing initiative.
187 Since the SSHRDI General Assembly that took place in May 2018, the steering committee consist of NNGOs 02, 36, 12, 20, 13, 09, and 37. 188 INGO 01 and the consultant collaborated to compile a list of equipment for the SSHRDI which has been submitted to INGO 23 for funding. 189 An example of an oral history project is NNGO 18 which aims to capture the conflict-related experiences of women and girls. Their underlying thinking is to add voice to the numbers that are featured in some reports. They have collected 18 oral histories thus far. They will organize a drama with traditional dance in Juba Protection of Civilian (PoC) Site and use radio to share these experiences and disseminate information about referral pathways. 190 A technique in which one tells a story through a life-sized drawing of her or his body, that provides an alternate language for victims to capture the trauma of their experiences and can assist victims in coming to terms with past conflict and atrocities.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 38 For instance, an initial conversation between INGO 01 and the UNMISS HRD might signify the start of a capacity-building partnership for the SSHRDI. INGO 01’s trainings started off broadly and have increasingly become more specialized. INGO plans to have additional specialized trainings for the next two years. There are many different human rights violations in South Sudan that the SSHRDI can document. Partnering with the HRD presents an opportunity for more specialized trainings191 (for instance on documenting Conflict-Related Sexual Violence (CSRV)192) and on-the-ground follow-up support. An additional benefit would be to build trust and strengthen relations between civil society actors and UNMISS.
There is a bigger interest amongst members of the SSHRDI to conduct missions than this INGO can financially support, which leaves a funding gap that could be filled by other donors. In fact, the GIJTR members have encouraged the NNGOs to reach out to other donors to supplement their support since there are several members left without sufficient financial resources for their work.193 The support should be coordinated with the GIJTR so that it is complementary and reinforces existing types of support. The support can make use of the standardized methodology, interview tools and secure database developed for the SSHRDI. A concrete example are grants by INGO 23 to two of the SSHRDI members (NNGOs 10 and 11).194 This support will include the embedding of a human rights documentation trainer195 and support to several documentation missions, primarily for advocacy purposes,196 but with the view to document to the highest possible standards. If the capacity-building needs of NNGO 10 and 11 are satisfied, the trainer can (in close consultation with NNGO 10 and 11) be embedded with other NNGOs who document in South Sudan.197 The embedded trainer will need to liaise with the Transitional Justice Consortium and INGOs 05 and 06 to ensure a degree of harmonization of methodology and training. INGO 23 is also looking into the possibility to support the SSHRDI members based in South Sudan with equipment required for them to carry out their documentation work.198 Mobile phones are included to enable HRDI members who are interested to use digital applications.199 INGO 01 is in touch with INGO 30 (the designer of the app) and discussing possible collaboration. NNGO 13, a new member and part of the steering committee of the SSHRDI since May 2018 and with funding from F02, has partnered with INGO 20 and 19 since mid-2017 to document for advocacy purposes. INGO 20 has trial lawyers from
191 This approach to specialized trainings through partnering with organization with field presence can help strengthen and deepen the SSHRDI capacity. UNMISS HRD’s in-house expertise includes but is not limited to freedom of opinion and expression and arbitrary arrest and detention. INGO 10 has in-house expertise on digital and physical security training. 192 NNGO 03 is a women-focused member of the SSHRDI that intends to document (CRSV) and expressed the need to have more specialized training on documenting CRSV to build on the basic training in human rights documentation that they have already received. 193 NNGO 20 is in the process of designing a memorialization project related to burials and the (GPS) mapping of mass burial sites and is still in search of financial support. NNGO 12 is seeking funding for an actor mapping and perpetrator profiling project and for continued lobbying for the implementation of Chapter V. 194 INGO 23 has chosen to support NNGOs 10 and 11 (August 2018 – March 2019) who are existing partners that have received documentation and other grants from INGO 23 in the past. The chosen approach is to focus on a small number of trusted partners and to do a deep investment in building their capacity. This is to ensure that the collected data is of high and reliable quality and to further build the credibility of the two organizations. In addition to the Transitional Justice Consortium, these NNGOs have also been trained by INGO 05 and 06. Together, the two organizations have a wide geographical spread the ability to reach government-held and opposition-held areas. The combination of these two organizations furthermore brings three necessary aspects of documentation to the table that the CSOs already have in- house capacity for: gender, psycho-social support (both for the documenters and the victims) and operating an electronic database for safe storage of the data. 195 Implementation of a recommendation from Human Rights Documentation in South Sudan: Findings of an Actor Mapping, Gap Analysis and Recommendations for Engagement (October 2017). On file with author. 196 There is an existing level of trust and collaboration in other transitional justice related areas between NNGOs 10, 11 and 13 that the results of NNGOs 10’s and 11’s documentation missions could feed into the periodic reports of the Human Rights Monitor. The presence of the embedded trainer (who would need to closely liaise with INGO 20) would be sufficient guarantee for quality control. 197 Candidates include NNGOs 13, 18, 02, and 14. 198 This has been done in consultation with the HRDI members based in South Sudan and INGO 01. 199 Examples of digital application include eyeWitness to Atrocities or Whistler (currently in development). Prior to use in South Sudan, it is recommended to do an assessment of the various available digital applications by a technology and human rights expert familiar with the South Sudanese context. The Department of Human Rights and Labor (DRL) is pursuing such an assessment.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 39 international tribunals who provide guidance and training to NNGO 13 whereas INGO 19 assists with the dissemination of the report (since early 2018, the partnership has produced two ‘Human Rights Monitor Reports.’)200 NNGO 13 will receive another round of funding from F02 and have requested additional funding from D09. At the time of writing, the technical support by INGO 20 remains unfunded.
Documentation for Human Rights Mechanisms and Criminal Prosecution There are several INGOs (including 01, 06, 13, 24, 25, 33, 40) who have done preliminary research, work or are thinking about strategic use of the regional and UN human rights mechanisms (see strategic framework), are exploring options to initiate criminal cases in jurisdictions of other States and/or conduct investigations that can support civil actions. INGO 12 has submitted a project proposal to D03 to organize a round-table discussion that would bring together the above listed INGOs as well as relevant UN representatives and other experts to discuss strategic use of avenues for redress for victims of atrocities in South Sudan. INGO 12 has prepared a case that is almost ready to be lodged with one of the UN human rights mechanisms in relation to South Sudan that resulted from a round-table discussion on reducing impunity that they organized in November 2017.
Human Rights Defenders INGO 10 partners with INGO 26 and NNGO 12 (also a SSHRDI member) to provide support for South Sudanese human rights defenders. This support primarily takes the form of temporary relocations outside of South Sudan, referrals for psycho-social support, the provision of digital and physical security trainings (which is also done by INGOs 05 and 06) and capacity building to a network so that it can operate independently). These trainings are recently supplemented by practical one-on-one support to help defenders install and operate the digital protection measures. INGO 10 also highlighted trust between partners and activists to be a challenge to their work. They have cautiously started thinking on how to document violations against human rights defenders and preserve this information in a safe manner. INGO 05 might also get involved in digital and physical security trainings.
Individuals, State-Level Civil Society and Other CSOs Two field trips were undertaken during the study: one to Yei and one to Wau. NNGO 22 in Yei appears to have access to women groups and showed interest in victim-led advocacy and strengthening of community-based documentation. The latter would require training and as well as equipment to enable them to do so in a safe manner. NNGO 24 in Wau used to document violations, especially against women, but this has been made difficult by the increased insecurity. It is plausible that these organizations, and likely many individual activists, are two of many that are involved in very basic documentation at the community-level who would benefit from more technical support, the ability to safely store data in the same model database used by the SSHRDI. These organizations generally have a good grasp of the local dynamics, well-established networks and trusted relations with victims and witnesses.
NNGO 17 does not actively document violations but have expressed an interest to do so. They are a relatively new organization that conducts legal aid in (military) prisons and are interested in pursuing cases of public concern in the national judicial system. Thus far, they have filed four constitutional cases. Their work has focused on Juba, but they are planning to expand to other areas in the country.
200 South Sudan Human Rights Monitor: November 1, 2017 – 30 January 2018 (23 May 2018). Available at http://www.acjps.org/wp-content/uploads/2018/05/SShumanrightsmonitor.pdf; South Sudan Human Rights Monitor: February 1, 2018 – 31 May 2018 (4 July 2018). Available at http://www.acjps.org/wp-content/uploads/2018/07/20180704_SS-Human- Rights-Monitor_v3.pdf. Dependent on the level of trust and inter-SSHRDI dynamics, the periodical Human Rights Monitor Reports present an advocacy avenue for the other 23 SSHRDI members to feed their respective documentation work into. This would however, most likely require a level of quality control/review by INGO 20 which could present a challenge given the sensitivities of sharing information.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 40 They have submitted a proposal for funding to D01-B and have been connected to INGO 33 and INGO 30 for possible partnerships.
New Civil Society Actors Getting Involved in South Sudan At least three new INGOs are in the early stages of getting actively involved on documentation of human rights violations in South Sudan. In June 2018, INGO 33 undertook a short trip to Juba to explore areas for engagement. They have expertise in building digital security capacity and provide trainings for human rights defenders to strengthen their organizational capacity as well as their capacity to document and report on grave human rights violations. In addition, they have an emergency fund through which they already provide support to South Sudanese human rights defenders in collaboration with INGO 26. Based on their expertise and the gaps in the sector, there are two key areas where they can be of added value: (1) their personal alarm system can strengthen the already existing protection mechanisms for human rights defenders and (2) they have a database specifically developed to document and store information about attacks on human rights defenders.201 Potential partners include INGO 10 (connections have already been made) and NNGO 12. INGO 33 also has expertise in documenting (offline) hate speech – a thematic gap area that has been identified by the previous study on the documentation of human rights violations and abuses funded by USAID as well as the UNMISS Human Rights Division and that CTSAMM faces as a challenge. Lastly, they have expertise and interest in pursuing criminal cases in jurisdictions of other States and have been actively seeking funding to do this for South Sudan.202
In 2017, INGO 18 was approached as host for the human rights documentation program proposed in the 2017 USAID-funded study. Whereas they are unable to take on this role (for more information, see 4.2.5), they are still interested in getting involved and have since conducted a training on transitional justice for the UNMISS HRD as well as on national consultations for the technical committee for the establishment of the CTRH. Their strengths lie in their in-house expertise, ability to provide detailed (often first-hand experience/researched) comparative knowledge. They have offices in Kenya and Uganda.
INGO 35 (still in the starting phase of their project) is responsible for the human rights documentation component of a larger project in collaboration with INGO 07. It collects data, conducts research, and trains representatives from different sectors to securely document rights abuses for advocacy and legal purposes (even if to generate lead information for the latter). They use digital technology for data collection and raised the challenge of data sovereignty, data security, transnational data flows, and data ownership of international and national actors.
Civil Society Working with Victims for Transitional Justice Purposes While there are numerous organization that work with people affected by violence, only a few do so from a (conscious) transitional justice perspective. Those that stand out include a coalition of NNGOs supported by an international expert who are in the process of developing a project that responds to the apparent203 scarcity of such groups and aims to strengthen victim groups. This project is designed around three main components, namely (1) raise awareness about transitional justice among victims; (2) increasing understanding of what the victims’ transitional justice needs and priorities are and (3) victim-led advocacy. Potential funders of this project include D02, D04, INGO 29 and F01. INGO 31 is looking to engage further on transitional justice in South Sudan and is
201 As with digital applications, the advantages, disadvantages and risks of using this alarm system would need to be assessed in light of the context in South Sudan. It is recommended include this in the assessment planned by DRL. This assessment could also look into the various databases and how they could (or could not) be linked together to avoid further proliferation of databases for South Sudan. 202 They have been connected to INGO 12 who has proposed to organize the round-table on strategic use of avenues for redress, including criminal prosecution in other States’ jurisdiction, and have been added to the list of participants. 203 It may well be that victims do organize themselves organically around shared incidents or issues, but that this is not very visible.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 41 considering supporting the strengthening victims project. They already support NNGO 23204 that represents the widows and orphans of the 1992 Juba massacre and organizes an annual remembrance prayer. INGO 31 support extends to (training for) collection of testimonies, a learning visit to a memorial museum in the region and organizational capacity-building (financial management, reporting, etc.). This is envisioned as the starting point of acknowledgement for the victims and their surviving relatives and possibly the creation of a Memorial Centre in Juba. South Sudanese academic institution 01 works with NNGO 23 to collect testimonies.
There are important connections to be made between this work and documentation efforts including: (1) awareness-raising could also include raising awareness about the importance of documentation for transitional justice,205 encourage and refer victim to trained documenters; (2) structurally asking interviewees of documentation efforts about their needs and desires and then sharing that information with the survivor’s project is a way of connecting the projects and continuously shaping purpose for documentation in line with victims’ needs; (3) documentation actors can recommend victims who are willing to engage in advocacy to the victims project for further support.
Example of Non-traditional Human Rights Organizations INGO 36 is an example of a non-traditional human rights organizations that collects data that might be of use for transitional justice purposes, provided informed consent is obtained. INGO 36 is one of the organizations responsible for camp management collects demographic data at the gate for entries and exits (flow monitoring), records the place of origin, ages, ethnicities, reasons for arrival or exit. Reports (not mentioning ethnicity) are then released every week or month. If made more comprehensive and stored structurally, this type of data could be beneficial as baseline data for future compensation and reparation schemes (see ‘reparations’ sub-chapter above). The actor mapping needs to be expanded to start involving non-traditional human rights organizations that could help collect and store information – even if through more robust referral mechanisms to human rights organizations that actively document violations – that could be valuable for transitional justice purposes, as long as it is done in line with the requirements and standards.
United Nations Key actors within the United Nations system for documentation of human rights violations include the UNMISS Human Rights Division, the Commission on Human Right in South Sudan (CHRSS), the UNICEF/UNMISS Child Protection Division’s Monitoring and Reporting Mechanism (MRM), which collects data about six grave violations against children, and the Monitoring, Analysis and Reporting Arrangements (MARA) for conflict-related sexual violence. These actors were considered in the first study and only those who have undergone notable changes (namely the CHRSS and the UNMISS HRD) will be discussed in this report again. In addition, it will discuss UNDP’s and the UNMISS Rule of Law (RoL) Advisory Section’s contribution to documentation efforts that have become more active since the last study.
The CHRSS launched their 132-page report on 23 February 2018 and discussed it in the UN Human Rights Council on 13 March 2017 during the interactive dialogue on South Sudan. The Commission has identified more than forty senior military officials who may bear individual responsibility for war crimes and crimes against humanity in South Sudan. They managed to collect 10,000s of documents and approximately 1000 statements; much of which now needs analysis. The Commission’s mandate was extended by the United Nations HRC in March 2017 and it has a larger (now 16 team members) new (but similar) structure (the team now includes an analyst).
204 The chair of this association is also one of the Commissioners of the South Sudan Human Rights Commission. 205 This could help counter the research fatigue that exists among communities as well as to increase appreciation for the long-term impact of documentation in comparison to the immediate relief of humanitarian services.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 42 At time of writing, the United Nations Development Programme (UNDP) is in the final stages of recruiting a consultant to develop a methodology and implementation plan for mapping (including risk assessment and mitigation strategies) based on lessons learned from mapping exercises in other countries. The implementation plan would include a budget that would clarify if any additional funding needs to be secured (see indications of donor interest above in section ‘donors’).
The UNMISS HRD underwent a restructuring process that resulted in four thematic teams and three operational teams in the Division. The four thematic teams are: 1) conflict-related violence; 2) conflict-related sexual violence; 3) freedom of expression and prolonged and arbitrary detentions; and 4) justice including transitional justice, death penalty cases and accountability. The three operational teams: 1) reporting; 2) rapid response; and 3) capacity building and international mechanisms. The rapid response team played a major role in the most recent report on the April – May 2018 offensive in southern Unity State.206 With the restructuring process having taken place and the arrival of a Deputy Director, the Division has decided it needs to be involved in projects related to the documentation of human rights violations and abuses in South Sudan, including an active role in the proposed mapping exercise for South Sudan.207 In other countries (for instance DR Congo, Central African Republic and Mali), the human rights component of the peace-keeping mission/OHCHR played a leading role in mapping exercises. Initial discussions have started with INGO 01 on how the HRD can play a supporting capacity-building role for the SSHRDI.
The UNMISS Rule of Law Advisory Section is currently drafting a guidance note on the importance of preserving formal and informal (or alternative forms of) evidence related to Housing Land and Property (HLP) rights. This is necessary to prepare for the return of IDPs and refugees to their places of origin and to peacefully settle land disputes. The note reflects on ways that HLP rights related questions can be mainstreamed into rapid appraisals and intention surveys by humanitarian actors. The note identifies this type of data collection as an opportunity to also preserve IDP’s documentary evidence (for instance, tax receipts, photographs, tokens, agreements, deeds) by scanning and digitalizing this evidence which can be with KoBo Toolbox. The note stresses the importance of awareness raising campaigns prior to such data and evidence collection.208 In addition to this work, the UNMISS RoL Advisory Section works on transitional justice (for instance, they have drafted a paper on a proposed strategy for advancing mutually-reinforcing transitional justice mechanisms in South Sudan) and aim to strengthen the national justice system in an attempt to close the impunity gap that would be left by the HCSS.
Others The Ceasefire and Transitional Security Arrangements Monitoring Mechanism captures evidence of violations by the SPLA, SPLA-IO and other armed groups. CTSAMM currently stores their data in MS Access and Excel and could improve by employing an online database. In addition, CTSAMM staff members have welcomed the idea of more technical assistance on the documentation of human rights violations and abuses to strengthen their monitoring and reporting on attacks on civilian populations and respect of human rights as well as humanitarian access, especially to displaced people. To achieve this, an initial conversation has been facilitated between INGO 32 and CTSAMM that will hopefully be the start of a partnership in which INGO 32 provides CTSAMM with technical assistance on human rights monitoring and the design of an online database for CTSAMM so that the information they collect can be securely preserved.
INGO 21 and faith-based institutions have partnered to conduct community conversations. Interactions such as the community conversations offer opportunities to systematically record
206 UN Mission in South Sudan and the Office of the High Commissioner for Human Rights (July 2018). Indiscriminate Attacks Against Civilians in Southern Unity, April – May 2018. Available at https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23351&LangID=E 207 At the time of writing, the UNMISS HRD is yet to have this conversation with OHCHR in Geneva. 208 UN Mission in South Sudan (2018). Evidence of HLP Rights. Draft Guidance Note. On file with author.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 43 grievances, (perceived) root causes of the conflict and issues that can be used for reconciliation purposes as well as feed into future (localized) transitional justice processes such as truth-telling or analyses to inform institutional reform. However, according to the interviewed person, the proceedings and results of the conversations are insufficiently documented, and the facilitators need more trainings to do so. The idea of systematically documenting the (perceived) root causes of conflict raised during (community) dialogues (also organized by other actors) deserves further thought and requires expansion of the conversation to include non-traditional human rights actors. Since truth commissions aim to understand the root causes of conflict, these documents can help their research and investigation efforts.
The National Archives have collected documents (related to, amongst others, court cases, roads and boundaries, chiefs, tribes, and political parties) from 1900 – 1983. This includes materials from the British colonial period as well as the period after Sudan’s independence. These documents are currently stored in a house which has reached its full capacity. The archiving team is in the process of digitalizing the documents. They have a registry team that is trying to register all files and documents stored in government institutions (e.g. Presidential decrees, South Sudan Broadcasting Corporation (SSBC’s) audio-visual archive) for historical preservation209 and with the hope to be allowed to preserve them in their current localities. Their main challenge is the lack of political will and financial resources to carry out their work and a lack of access to the documents.
Academic institution 01 has organized series of lectures on transitional justice in the past and intends to continue this work. They have founded a Justice and Peace Department and are developing an academic curriculum. They work on oral histories and memorialization as part of transitional justice. They are well-placed to – with the right support – become an institute that offers critical analysis and contextualizes transitional justice, with a long-term engagement and capacity to conduct research. One of their biggest challenges is their inability to compete with (inter)national civil society organizations in terms of salary scales.
Civil Society Needs, Challenges and Gaps
Civil Society Challenges and Needs High levels of insecurity and lack of civic space present serious obstacles to document violations in South Sudan.210 A recent study suggests that, while still able to operate with a degree of freedom, South Sudanese human rights defenders face an increasingly difficult environment to work in, including direct threats to them and their families for the human rights work that they do. The civic space has significantly changed since the outbreak of violence in 2016 that has prompted a wider government crack-down on civil society and journalists.211 The context in South Sudan is characterized by restrictions to the freedom of expression, security threats against people speaking critically or discussing topics that are considered to be sensitive, ultimately leading to violations of several rights, including the rights to freedom of opinion and expression, life, personal security and liberty, and also to self-censorship.212 Both the 2015 National Security Service (NSS) Act and the 2016 NGO Act have contributed to the shrinking of the space by giving the NSS broad powers of arrest and making registration and operation increasingly difficult and expensive for NGOs. NSS, for instance, now requires organizations to request their approval to hold public events and will attend
209 Documentation for historical is not included in many of the USG State Department’s transitional justice documentation programs. 210 Presentation on constraints to documentation in South Sudan by an international expert during EU workshop in Nairobi. 20 February 2018. Summary note on file with author. 211 David Meffe, Thomas Kleinveld, and Estella Kabachwezi (April 2018). “This is Our Freedom. These are Our Rights” Human rights defenders in South Sudan since July 2016. DefendDefenders (the East and Horn of Africa Human Rights Defenders Project). Available at https://www.defenddefenders.org/wp-content/uploads/2018/04/This-is-our-freedom.pdf 212 OHCHR and UNMISS Human Rights Division (February 2018). Report on the Right to Freedom of Opinion and Expression in South Sudan Since the July 2016 Crisis. Available at https://unmiss.unmissions.org/sites/default/files/unmiss- ohchr_freedom_of_expression_report_-_final.pdf
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 44 the workshops and meetings. A meeting with NNGO 22 operating in Yei revealed that in some localities women have more space to speak up than men do because men are more easily “charged,” likely because they are then perceived to have sided with an opposing armed group.
Lack of trust at various levels and between various groups including low levels of trust between communities, between documenters and victims, and between authorities and civil society presents another set of challenges. The fluidity of the context, quick change of alliances and fragmentation of armed groups contributes to an atmosphere of distrust and makes local political realities challenging to predict.213 On at least one occasion, an interviewee (who supported a then recently defected politician) reported documenters to the authorities. CSOs have reported that it is challenging for them to document in locations where they are not known to the community or do not have established networks because they are perceived as ‘outsiders’ and distrusted. Especially in PoC sites where many organizations and researchers find their interviewees, research fatigue leads some victims to be skeptical that documenters will make good use of information.214 This makes it difficult for organizations to openly document violations and discuss the work they do.
High levels of illiteracy, a plethora of different, at times unwritten, languages and different concepts of time and space further complicate documentation efforts. Translation increases the risk of misinterpretation and incorrectly capturing a person’s account. It is not uncommon for interviewees to speak of distance in terms of number of days it takes them to walk, or of time in terms of seasons rather than months and days. These dynamics pose challenges for the accuracy of the information and for documentation to be of use, it needs to be accurate. Documenters must be trained to pose follow-up questions that help extract the details of units of time and distance. It can also help to use other sources of information such as maps, other individuals and documents (e.g. climate assessments by humanitarian actors,215 news articles216) to retrieve more specific information. They can also log GPS coordinates to map location217 or ask interviewees to sketch maps. While improvements continue to be made, it is still a challenge for civil society to document up to a level of guaranteed usage of the information and there is still a need for strengthening existing capacities.
The lack of structural and sustained funding (especially for documentation work in refugee camps) remains an obstacle to systematic documentation efforts. In addition, the length of time and bureaucracy of obtaining funding presents a big challenge to CSOs working on documentation and transitional justice (though this is not unique to this sector). A series of short-term projects interrupted with renewed calls for proposals are disruptive to any progress made and relationships formed during the short implementation period. The lack of funding also makes it difficult to invest in equipment that is needed to carry out documentation work. If the international community wishes to support civil society to play a strong role in representing South Sudanese voices and to create impactful and positive change, support (technical, political as well as financial) to documentation efforts will need to correspond better to the long-term nature of transitional justice processes. Donors (including the UN) should also be aware that detailed pre-defined calls for proposals risk placing civil society actors in a position where they – out of the sheer need to survive – become donor-oriented and more responsive to donor priorities rather than responding to the needs and priorities of their civic constituencies.
213 Presentation on constraints to documentation in South Sudan by an international expert during EU workshop in Nairobi. 20 February 2018. Summary note on file with author. 214 Presentation on constraints to documentation in South Sudan by an international expert during EU workshop in Nairobi. 20 February 2018. Summary note on file with author. 215 For instance: “the months of the famine this year” can be found by reviewing assessments by humanitarian agencies. 216 For instance: “the day that John Garang died” can easily be found by searching news articles that can provide information about the date of his death. 217 Coordinated documentation efforts can come up with an agreed upon list of spellings for names, locations, etc. This list can be coded into the database. Communication with INGO 01.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 45 TABLE 6: KEY CHALLENGES AND CIVIL SOCIETY NEEDS AND POSSIBLE MITIGATIONS
Key Challenges and Needs Mitigations - Obtain required permission from government authorities - Alternative ways to present documentation activities to the authorities, using terms such as ‘research’, ‘sensitization’, ‘outreach’, awareness- raising’, ‘trainings’, ‘oral histories’, ‘memorialization’, etc. Shrinking civil space and security threats (taking into - Cautious selection of interviewees (with due consideration that confidentiality is very difficult in regard to the independence of the documentation the South Sudanese context218). mission), especially in PoC sites where politics and quickly shifting alliances pose threats to documenters. - Strengthened capacity building (digital and physical security training). - Strengthened emergency protection mechanisms. - Having a designated person available for targeted individuals to provide ongoing advice. - Build sufficient time into plans for trust to be built with local stakeholders. - Undertake trust-building activities between documenters by an impartial third-party. - Careful vetting of organizations and individuals Lack of trust at various levels and between various (with their consent) who are engaged in higher-risk groups including low levels of trust between documentation activities. communities, between documenters and survivors, - Continue investing into organizations that have and between authorities and civil society. good relationships with communities. - Cultivate a network of trusted points of contact / community-based monitors (where possible, train them up to a level of documenter). - Start small and nurture gradual growth. - Diversify the sources of information that is collected. - Find ways that the information provided by the survivors is used (e.g. UN and regional human rights mechanisms) and report back to the victim(s) where possible. Research fatigue and skepticism that documenters - Ensure that messages about the long-term nature will make good use of information. of transitional justice processes and importance of early documentation are an integral part of an awareness-raising effort around transitional justice.219 - Careful management of expectations by documenters. Extremely high levels of illiteracy, a plethora of - Use of trained and vetted translators different languages and different concepts of time - Use of encrypted recorders (this can have negative and space. effects for criminal trials).
218 Presentation on understanding contextual factors in South Sudan by an international expert during EU workshop in Nairobi. 20 February 2018. Summary note on file with author. 219 This is where the proposed project to strengthening victims (see third strategic area in the strategic framework) can play a role.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 46 Key Challenges and Needs Mitigations - Support capacity-building and transfer of knowledge, including exchange with documenters from other contexts. - It is advisable to take a varied approach to Civil society need more capacity-building. capacity-building that combines multiple learning methods including: workshops inside and outside of the country, in-house training/mentoring, online/video trainings and training-of-trainers. ‘Stop-and-go’ nature of support (negatively affects - Commit to longer-term documentation projects, continuous training for documenters, grants for rather than grants lasting one year. short missions) to documentation work; - Provide stable and structural financial support to bureaucracy civil society (for more, see recommendations below) - Embassy staff in South Sudan can proactively reach out to their colleagues in the region to discuss Very challenging to secure funding for critical options for support. documentation efforts in refugee camps - Civil society could approach foundations220 rather than government donors for funding. Lack of equipment: scanning of handwritten testimonies without a scanner that can process multiple pages at once has created a backlog of - Equip civil society with technology required to uploading information into databases; hard copy support their documentation work. documents still kept in file cabinets (rather than safes) and left vulnerable to theft, fire or other causes of destruction.
Gaps While some efforts are underway to fill them, the gaps identified during the 2017 study (see box 1) remain. The Nairobi workshop identified additional gaps, of which the most prominent include:
• The lack of victim participation in transitional justice conversations and the need to build victim coalitions and networks; • The need to expand the conversation about documentation to include non-traditional human rights organizations (including church-led initiatives and humanitarian actors or other first-responders who often have immediate access to information about violations and can play a role in documentation);221 • The lack of linkage (individual responsibility) evidence required for criminal accountability. The collection of this evidence must be done by professional investigators. It is important to employ (or where lacking, build) national expertise to avoid these investigations from being internationalized.
This study has identified the following additional gaps that need to be filled:
• Whereas several actors document looting and destruction of property, a stronger focus on documentation of economic and social rights that are characteristic of the conflict (e.g. right to food), could contribute to a more wholesome understanding of the violations and the extent of harm inflicted on communities. An example project is the ‘Save Syrian Schools project’ which is a collaboration between the International Center for Transitional Justice (ICTJ) and ten Syrian organizations that document the destruction of and damage to schools.
220 This website provides an overview of available charities and foundations for civil society actors working on, among others, human rights: https://www2.fundsforngos.org/ 221 These conversations should include deliberations on the risks involved for these organizations, their programs and their beneficiaries.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 47 By doing this, they show the immediate as well as the long-term harm and impact on the Syrian communities. By hosting a public-hearing style event outside of the country where victims can share their stories with an international audience, the coalition offers acknowledgement to the victims which can help alleviate their suffering.222 Similar projects can be conceptualized for South Sudan especially when human rights organizations (for instance members of the SSHRDI) partner with development or protection partners working on economic and social rights (see point 2 above). • Whereas some actors document some destruction of property, more focus should be given to issues and claims related to housing, land and property in anticipation of future resettlement. The large displacement crisis and current lack of information on property titles (whether through collection, preservation (digitalization) of title deeds and associated documents or documenting customary claims and procedures223) promises to be a major post-conflict challenge and a key condition for the return of IDPs and refugees. • Documentation efforts should also focus on civil status which can have heavy consequences for women in terms of marriage, divorce and/or the death of their husbands. For example, it is conceivable that future reparation/compensation program would contain ‘widows’ as a category of victims.224 Depending on the criteria used for assessing claims to reparation, death and marriage certificates could become valuable documents of proof. • Open source documentation can play an important role, much like the result of a mapping exercise, as a starting point for identifying cases for criminal investigations. It can encompass a range of activities ranging from selection and digitization of hard copy news articles, to online (social) media monitoring and online investigation.225 To be of use, it needs to be done systematically and methodically (to avoid bias in selection of information) and the information stored and categorized in an organized manner. Information about the collection process (source, date and means of collection) must also be recorded. Aside from criminal accountability, analysis of verified open source can also be of value to other transitional justice purposes such as vetting. Reportedly INGO 01 and NNGO 12 are working on this, but further research is needed to find out how systematically this is being done as well as further understanding of other actors (INGO 06 has the capacity do conduct open source research) who might be involved in this area.
222 For more information see: https://www.ictj.org/news/justice-syria-must-go-beyond-courtroom and Nousha Kabawat and Fernando Travesí (February 2018). Justice for Syrian Victims Beyond Trials: The Need for New, Innovative Uses for Documentation of Human Rights Violations in Syria. Available at https://www.ictj.org/sites/default/files/ICTJ-Briefing-Syria_Documentation- 2018.pdf 223 This work requires strong conflict-sensitivity analysis and application of the do no harm principle. 224 In the SSLS/NPA perception survey on reparations, 66% of the sample group identified ‘widows’ as a key vulnerable group that should be given priority for reparations. See, Matthew Pritchard (2017). Reparations for Conflict-Related Abuses in South Sudan. SSLS and NPA. On file with author. 225 See, for instance https://www.bellingcat.com/
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 48 Box 1: Gaps identified in Human Rights Documentation Study in 2017
1. Lack of overview and analysis of available data: Data is kept by numerous entities without a comprehensive overview of all violations that have taken place over a set period. Without this, it is difficult to analyze patterns and trends and gain full insight into the impact of the violations. This also hampers the development of evidence-based strategies and determination of priorities for (already scarce) resource allocation for transitional justice mechanisms. This can be addressed by compiling and analyzing all available data through a comprehensive violations mapping exercise as was done in the Democratic Republic of Congo and the Central African Republic.
2. Low levels of capacity and lack of quality control: The average level of capacity is still too low to meet the high standards and different methodologies that documentation and the operational environment in South Sudan demand. Capacity-building efforts need to focus on knowledge of legal frameworks and mastery of the full documentation cycle. Unnecessary risks are taken without guarantees that the collected data can be used for the intended purpose(s). This situation can be rectified by embedding roving trainers with the national CSOs in South Sudan and neighboring countries.
3. Lack of predictable and structural financial support including a funding gap for documentation in refugee camps, leaving this ‘low-hanging fruit’ unpicked. This overall lack of funding creates uncertainty and adds to the existing difficult environment for civil society to do proper, systematic and consistent documentation. Guaranteed and predictable financial support can be provided through a small grants mechanism to CSOs who have benefitted from embedded technical assistance.
4. Lack of coordination: Coordination amongst and between all actors is still left wanting. Coordination between documenters and service providers, in the form of referral pathways also needs to be strengthened. A lack of coordination leads to geographical gaps, wasted resources and opportunities, duplication of efforts. Lack of coordination also misses opportunities to forge partnerships that maximize impact. Coordination can be strengthened by recruiting a coordinator who can continuously network for coordination (ideally around a common vision) in an informal manner and through the organization of periodic documentation conferences.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 49 Recommendations
This section offers recommendations to guide donors to support documentation efforts for a holistic approach to transitional justice in South Sudan. The recommendations respond to the political and operational context of South Sudan and are in line with civil society needs, the needs expressed by victims (to the degree that these are known through the UNDP/SSLS 2015 perception survey on transitional justice), and other gaps identified in the sector. This section also offers recommendations on how to coordinate support.
Recommendations for Strategic and Coordinated Support In September 2017, the contours of a comprehensive human rights documentation program were presented to the donor Human Rights Working Group. Broadly speaking, these areas were: (1) violations mapping exercise; (2) embedded capacity-building program for civil society organizations based on civil society needs; (3) structural financial support for documentation efforts; and (4) strengthened coordination226 (see annex 1).
At the time, it was proposed that the UN would take ownership of the first pillar and that INGO 18 host the remaining three (or four227) pillars of the program in partnership with (a) national NGOs. INGO 18 would be able to manage the pool of trainers and a grant mechanism and ensure that actors remained connected and the work coordinated (see annex 2). Having one actor for all donors to fund would greatly enhance coordination and decrease the administrative burdens of having to manage several projects. Discussions were ongoing with INGO 18 who had expressed interest but, for several reasons including the inability to receive funding from two of four tier 1 donors, this did not materialize. It is strongly recommended to still involve INGO 18 in documentation work, particularly because they can combine this with comparative knowledge and technical assistance on (discussions and research on) designing, timing and sequencing of transitional justice processes.
Donors briefly discussed the option of a pooled fund, but this idea was quickly dismissed. Indeed, the establishment of a pooled fund requires a lot of time to set up, political will, and would likely jeopardize the low-visibility of the work.
Strategic Framework Given the above developments, the different funding cycles that donors have, and to meet the sensitivity needs of documentation work, this study worked to identify five strategic areas for engagement that are concretized by several projects to be implemented by coalitions that, when connected, together have a larger, strategic impact that matches the current state of affairs of documentation of human rights violations and abuses for transitional justice purposes in South Sudan. For each project, potential implementing partners and donors have been identified based on their respective strengths, policies and priorities. Through facilitation by the consultant, some of these coalitions have already materialized. Moving forward, donors, through the Human Rights Working Group, can work together to further operationalize the strategic framework. The strategic areas and projects are described below (see ‘Strategic Framework: Support for 2018 and the Next 3-5 Years) and a visual of the strategic framework is included in annex 4.
When dealing with a sensitive subject matter like documentation of human rights violations in an ongoing conflict, fostering cooperation and coordination is an ongoing, low-profile undertaking that is largely based on building mutually-beneficial relationships of trust. Part of the consultancy was to promote such synergies and identify and facilitate collaboration between the right partners at the right time. In South Sudan, a principle to guide support to documentation efforts amongst national
226 The SSHRDI was, in part, started to improve coordination of national civil society organizations involved in documentation. However, the coordination gap extends to other actors as well. 227 In case the UN would be unwilling or unable to take ownership of the first pillar.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 50 NGOs can be to start with a handful of (ideally vetted) trusted, committed individuals and to build this steadily and gradually.
Options for continued coordination include:
• Recruitment of another consultant to continue the coordination work and fill research gaps that this study left. • Form a working group of implementing partners (the leads of each coalition) that meet on a periodical basis (for instance quarterly) with the HRWG to discuss progress of the implementation of the strategic framework and make necessary adjustments. It is highly recommended (in close consultation with the implementers of the Strengthening Victim Groups project) to include the JAG in this (if established). • The organization of periodical coordination conferences twice a year to gather all actors involved in documentation. • USAID South Sudan’s contract holders could include a transitional justice (documentation) coordinator in their bid for the new program. • If there is sufficient will and interest, D03 has the possibility to second an expert from their roster to a multilateral institution. The UNMISS Human Rights Division, if interested in coordinating the sector, could be an option. This can be done for a maximum of two years.
As a general principle, any coordination and implementation done around documentation should build the capacity of national actors to lay a foundation for engagement in and implementation of future transitional justice processes when the environment is more conducive and timing more appropriate.
Strategic Framework: Support for 2018 and the Next 3-5 Years Based on the 2017 study, the Nairobi workshop and this study, the framework consists of five strategic areas for engagement. These five strategic areas include: (1) A comprehensive violations mapping exercise; (2) Continued and improved, financially supported documentation efforts in South Sudan and refugee camps; (3) Continuously understanding needs, demands and priorities of victims and strengthening of victim groups in South Sudan; (4) Immediate use of documented information; (5) Coordination, learning and expanded conversations about documentation for transitional justice.
Each strategic area is operationalized by several projects which are implemented by coalitions that each contribute to the strategy in the way that best fits their organizational strengths and track record. When connected, these coalitions have a larger, strategic impact that fills the gaps related to the documentation of human rights violations and abuses for transitional justice purposes in South Sudan.
A Comprehensive Violations Mapping Exercise: Responds to the lack of overview and comprehensive analysis of collected data. Expected impact includes: an overview of the violations, identify systemic nature, trends and patterns, the start of a database of perpetrators helpful for vetting and human rights due diligence purposes, it will be of strategic relevance for multiple transitional justice processes and (inter)national programming and strategies, and help identify further thematic gaps and specialize specific NNGOs in certain thematic areas. Implementing partner: UNDP228 (with possible involvement of UNMISS HRD/OHCHR). • Phase 1 (estimated: March – December 2018): Recruitment of an expert (40-day consultancy) to develop the methodology and implementation plan for violations mapping in South Sudan. Implementing partner: UNDP. Donor: D03.
228 At the time of writing, UNDP was in the process of recruiting a consultant to design the methodology which would determine the composition of the required research team and budget to carry out the actual mapping.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 51 • Phase 2 (estimated start: 2019): Conduct of mapping (budget and implementation depends on result of phase 1). Implementing partner(s) and funding needs: depend on implementation plan and budget resulting from the consultancy. Interested donors: D01, D03, D02, D04, D08.
Continued and Improved, Financially Supported Documentation Efforts in South Sudan and Refugee Camps: Supplementary support to the SSHRDI and also other ongoing/planned projects. Responds to the need for continued support to this initiative as it moves to the next phase (two years) and other efforts. Expected results: increased data analysis, increased number of documentation missions, improved archiving of existing collected materials and data, strengthened capacity and improved quality of data. • INGOs 01, 02, 03, 04 and an estimated 24 NNGOs: More focus on data analysis, more documentation missions (ranging between 2-15 days) in South Sudan and the region, further capacity-building/digital application training/legal framework guidelines and avenues. Funding: D01-B and D01-C. • INGO 23 in collaboration with NNGOs 10 and 11 (and close coordination with INGO 01): Embedded human rights documentation trainer and grants to conduct documentation missions. Given the context of South Sudan (plethora of ethnic groups, high levels of distrust amongst (ethnic) communities, poor communication networks, logistical and travel challenges, high levels of illiteracy), it is advisable that the(se) trainer(s) build both mobile documenters capacity as well as community-based monitors (where possible train these monitors up to the level of documenters). D01-A in 2018 and scaled up in 2019-22/24 based on lessons learned from 2018. • NNGO 13 and INGO 20: Continued support for documentation for the Human Rights Monitor. Donors approached: D09 and F02. D01-A for 2019-22/24 for longer-term support and consistent publication of the Human Rights Monitor (conditional on quality control). • INGO 23 and INGO 01: (In-kind) procurement of equipment for South Sudan-based members of the SSHRDI. This includes the purchase of mobile phones to employ the use of digital applications for documentation work. Funding: D01-A in 2018.229 Possibly to be expanded in 2019-22/24 to benefit SSHRDI members based in Kenya and Uganda as well as new SSHRDI members in South Sudan. • Consultancy / INGO 18230/INGO 01231: Development of tailored guidelines on documentation of serious violations in South Sudan. This can include notes that build on the tables in ‘Documentation of Human Rights Violations and Abuses for Transitional Justice) of this report (see annex 4). Funding: D01-A.
Continuously Understanding Needs, Demands and Priorities of Victims and Strengthening Victims Groups in South Sudan: • A coalition of eight NNGOs, in collaboration with INGO 29 and a South Sudanese transitional justice expert. Responds to the lack of victim participation and voice in transitional justice debates. This project proposes the formation of a Justice Advisory Group (JAG).232 Without this, transitional justice in South Sudan risks being driven by internationals and elites without having much meaning for the victims. Expected impact includes:
229 Throughout the study, the consultant collaborated with INGO 01 to compile a list of equipment for the SSHRDI that was submitted to INGO 23. 230 Yet to be discussed with INGO 18. 231 During the time of writing, this recommendation started to be implemented by INGO 01 who is in the process of developing a handbook with guidelines of elements of violations and crimes that need to be proven. 232 “The Transitional Justice Advisory Group, supported by [INGO 29], would bring together South Sudanese and international justice actors to provide strategic advice and support to civil society organizations working on issues of transitional justice in a consistent and regularized forum (efforts which have been ad hoc and pro bono to date), to support the integration of victim’s voices into efforts to promote transitional justice, and to help elevate the voices of South Sudanese in international and regional policy forums (e.g. in Addis, New York, Washington DC, etc.).” Excerpt from: Transitional Justice Working Group (March 2018). Strengthening Victim Groups in South Sudan. Concept Note. On file with author.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 52 strengthened victims groups to increase their voice to shape the transitional justice process and help prioritize and specify the purposes of documentation, victim-led advocacy. Funding needs: 300,000 USD per year for 3 years. Donor interest: D02, D04, F01 and INGO 29. • Request all documentation grantees (see strategic area II) to use documentation as a continuous feedback loop to better understand the transitional justice priorities and views of victims. Short analysis briefs should be shared with the coalition implementing the ‘Strengthening Victims Groups’ project. • Update the 2015 Perception Survey on Truth, Justice, Reconciliation and Healing. This should enhance understanding what victims of violations in South Sudan understand the concept of justice to be. Possible area for D01-A support in 2019-22/24.
Immediate Use of Documented Information: A set of pilot projects implemented by several coalitions of INGOs and NNGOs that collaborate to (document and) make immediate use of collected information related to accountability, vetting and compensation/reparation. Responds to a perception study233 on transitional justice undertaken in 2014-2015 that found support for criminal accountability,234 vetting,235 compensation and (symbolic forms of) reparation,236 as well as -truth.237 While this study offers some insights into the needs of those affected by the violence and therewith grounds for immediate use of documentation, the voice of victims continues to be missing in conversations about transitional justice in South Sudan and a more participatory process needs to be pursued (see strategic area III). Expected results: increased capacity of national actors, more immediate results from documentation efforts that are meaningful to victims, reduced impunity. Pilot projects include: • INGO 02 and an estimated 10 NNGOs: using testimonies about violations for memorialization projects and community dialogues in South Sudan and refugee camps, further training on oral history projects. Funding: D01-B. • INGO 23 and NNGO 12: pilot project (with short-term embedded trainer) on actor analysis (building of perpetrator dossiers) and mapping networks and relations that could feed into vetting processes. Funding: D01-A 2018.238 Scaled up in 2019-22/24 based on lessons learned from 2018. • INGO 12: Round-table to bring together actors to discuss strategic use of alternative mechanisms for accountability/ redress for victims of atrocities in South Sudan. Funding interest: D03. • Coalition of I(N)NGOs to strategically use identified mechanisms for accountability and redress identified during the round-table. If criminal prosecution is pursued, experienced
233 Between October 2014 to April 2015, the South Sudan Law Society (SSLS) and UNDP interviewed a total of 1,525 individuals (747 men and 778 women) in 11 locations across six states as well as Abyei area. The survey instrument consisted of a series of closed and open-ended questions divided into 9 modules on demographics, peace processes, reconciliation, truth and remembrance, accountability, amnesties, reparations, exposure to trauma, and Post Traumatic Stress Disorder (PTSD). See, David K Deng, Belkys Lopez, Matthew Pritchard and Lauren C Ng: Search for a New Beginning: Perceptions of Truth, Justice, Reconciliation and Healing in South Sudan, UNDP (June 2015), available at http://www.ss.undp.org/content/dam/southsudan/library/Rule%20of%20Law/Perception%20Survey%20Report%20Transition al%20Justice%20Reconciliation%20and%20Healing%20-.pdf. 234 When directly asked whether the individuals responsible for abuses should be prosecuted in courts of law, 93% of respondents say “yes”. 235 81% of respondents for this study say that people responsible for abuses should be removed from public office. 236 Eighty one percent of respondents said that the government should provide any form of compensation to victims of human rights abuses. 237 Seventy six percent of survey respondents did not know what a truth commission was. Out of those that knew, 96%, supported the establishment of one. It could be inferred from the data that an increase in awareness on truth commissions could create a large support base for the creation of one. However, the survey reflects a fairly even split between those who think it would be helpful for South Sudanese to talk openly about human rights abuses (50%) and those who would prefer to forgo the public discussion (46%) and “put it behind us”. See, David K Deng, Belkys Lopez, Matthew Pritchard and Lauren C Ng: Search for a New Beginning: Perceptions of Truth, Justice, Reconciliation and Healing in South Sudan, UNDP (June 2015), available at http://www.ss.undp.org/content/dam/southsudan/library/Rule%20of%20Law/Perception%20Survey%20Report%20Transition al%20Justice%20Reconciliation%20and%20Healing%20-.pdf. 238 Draft proposal made in collaboration with NNGO 12. Pending finalization and submission to INGO 23.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 53 investigators will need to be involved. These individuals could serve as (remote or embedded) resource persons for selected NNGOs who claim to have access to relevant information but are not trained to collect in accordance with criminal procedural standards. Possible funding: D03 and D07. If there is a funding gap, this area could benefit from D01 support.
Coordination, Learning and Expanded Conversations About Documentation for Transitional Justice: Responds to the lack of coordination and limitation of conversation with traditional human rights organizations. Expected results: more effective use of information; efficient use of resources; sharing of best practices for documentation models; making optimal use of comparative strengths; more strategic coalitions; more actors (including the media) engaged to document for transitional justice purposes; discussions and more insight into context-specific issues. • Coordinator/coordination mechanism (for options see ‘Recommendations for Strategic and Coordinated Support’). D01-A. • INGO 18 / AI 01: Series of workshops to broaden the spectrum of actors and discuss issues that are particular to the South Sudanese context.239 Table 2 has identified actors that could be approached in first instance. Funding possibility: D06 • Periodical conferences: the organization of a documentation conference twice a year to gather all major players. Unfunded. In need of implementers. D01-A. • Create learning experiences for all stakeholders (not only focused on civil society) from other countries. Unfunded. In need of implementers (could be INGO 18 in collaboration with the TJWG). D01-A.
Additional Ideas and Guidelines for Capacity-building Support: • Facilitate further interaction/partnerships between subject-matter experts and documenters to ensure all requirements are met to ensure the collected data is meaningful. Based on further consultations with NNGOs,240 the HRWG can facilitate a (monthly or quarterly) series of restricted, with handpicked trusted participants (including the SSHRDI and GIJTR), and closed 2-hour discussions/Q&As/virtual panel discussions on Embassy compounds (where necessary facilitate this learning experience using video calls) with national and international experts (in consultation with the implementing partners of the ‘Strengthening of Victim Groups’, the JAG could play a role in this). This does not require any financial resources expect for some basic refreshments and offering a safe environment. • Suggestions for topics include: (1) What can documenters realistically do to collect information for criminal accountability purposes and what should be left for professional investigators?241 (2) The advantages and disadvantages of using digital technology in the South Sudanese context;242 (3) How can open source investigation/documentation be applied in South Sudan and what is required to do so effectively?243 • Support and technical assistance to NNGOs should avoid “internationalizing” and “expertizing” the process by giving enough space for national actors to contextualize the expert input. ‘Local context’ here refers to the site where violations took place and where the injustices remain and thus goes deeper than contextual background information about the country and conflict. • Documentation and human rights work require dedication and intrinsically motivated people that have a firm belief in human rights-related work. Building capacity of such individuals will contribute to sustainability of the work.
239 For instance (1) Discussion on the question of access to information (including from previous initiatives) and questions of confidentiality; (2) Historic timeframe of transitional justice: how far back should efforts to address past violence go? 240 Participants can be mobilized via INGO 01 and NNGO 02 (the host of the HRDI steering committee). 241 Recommendation to involve expert 01 for this. 242 Recommendation to involve INGOs 30, 32, and 35 for this. 243 Recommendation to involve Bellingcat: https://www.bellingcat.com/
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 54 • Civil society have in the past used media channels to disseminate information about Chapter V and demystify the concept of transitional justice. However, South Sudanese journalists have in general had a lack of exposure to the concept and its mechanisms. The media plays a strong role in shaping perceptions about these institutions and processes, so attention ought to be given to increasing their understanding of transitional justice. • Technical support to civil society organizations should ensure that collection of meta-data244 is also done, and that documenters formulate and apply an ethics statement and code of conduct that guides all of their work. These documents should guide the proper treatment of people and documents, establish a protocol for access to information, and ensure the upholding of moral values.245
Notes on stable and structural financial support to civil society: • Avoid pre-defining calls for proposals too narrowly. At least, allow for strong NNGOs to influence the grant through their project proposal. • Grants to NNGOs documenting for/preparing and promoting transitional justice, require support (technical, political as well as financial) that it is not short-term (e.g. one-year projects) so that it corresponds better with the long-term nature of transitional justice and documentation processes. Expectations for quick results should be tempered from the outset. It is therefore recommended that any documentation/transitional justice grant schemes for civil society span at least three years and the thematic area then continue to be included in successive programs. • Guarantee structural and sustained funding to enable systematic documentation efforts. • Make funding schemes responsive to the refugee crisis and allow for projects for South Sudanese to be implemented in regional countries, especially in the refugee camps.246 • Balance funding international actors and NNGOs to avoid unintentionally promoting an internationalized approach to documentation for transitional justice. When funding international actors, encourage the formation of respective partnership with South Sudanese NGOs.247 • Support CSOs that have a clear vision and long-term strategy rather than those who propose one-off projects. Incentivize this by also providing core support rather than only project/activity support and support processes over products. This means accepting the reality that it will be difficult to show immediate impact. • Avoid (unintentionally) fueling competition over limited resources by stimulating (further) coalition building and supporting joint actions.
Other recommendations: • Be ready to use political and diplomatic pressure to support CSOs. This can be as important as financial support. • Transitional justice is a social process and comprehensive documentation for it will require a diverse set of actors. Avoid exclusive support to human rights NGOs to prevent (further) marginalization of other stakeholders (most notably victims).
244 Meta data is “the contextual information around the data collection process: what group collected the information, how they found it, [where and when they found it], what technology they used to preserve it, how corrected information was introduced when errors were detected [if at all], how they identified duplicated information and what they did with the duplicates.” In Louis Bickford, Patricia Karam, Hassan Mneimneh and Patrick Pierce (2008). Documenting Truth. International Center for Transitional Justice. Available at https://www.ictj.org/publication/documenting-truth 245 Louis Bickford, Patricia Karam, Hassan Mneimneh and Patrick Pierce (2008). Documenting Truth. International Center for Transitional Justice. Available at https://www.ictj.org/publication/documenting-truth 246 See, for instance work done on Syria by the International Center for Transitional Justice in refugee camps in Jordan and Lebanon in: Rim El Gantri and Karim El Mufti (2017). Not Without Dignity. Views of Syrian Refugees in Lebanon on Displacement, Conditions of Return, and Coexistence. ICTJ Research Report. Available at: https://www.ictj.org/sites/default/files/ICTJ_Report_Syria_NotWithoutDignity.pdf 247 A high-potential partnership for long-term technical engagement and ownership of transitional justice processes in South Sudan could be between INGO 18 and the South Sudanese Transitional Justice Working Group.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 55 • Consult with national civil society actors (including academic institutions) when designing programs. • Include gender-sensitive components in programs from the onset. Ensure that women’s experiences, the ways they have been targeted and the consequences they have suffered are also documented. Similarly, documentation efforts should be sensitive to the experiences and of boys and girls affected by violence.248 • Help CSOs network with (international) CSOs, peers, State actors and multi-lateral institutions. • Ensure that civil society has a meaningful seat and chance to participate in official peace and transitional justice processes and bodies.
ISSUES
The study did not encounter significant technical and/or administrative issues. In addition to the limitations elaborated on in sub-chapter ‘Limits, Constraints and Research Gaps’, two encountered challenges are:
• Turnover of diplomatic staff slows down progress and affects momentum. • Transitional justice portfolio generally managed by non-subject matter experts and diplomatic staff covering a large range of portfolios ranging from rule of law to health.
LESSONS LEARNED AND FUTURE DIRECTIONS
Some overarching lessons learned by a variety of stakeholders include:
• The importance of high-quality and accurate documentation and pursuing a purpose- oriented approach to transitional justice documentation. • For capacity building support to civil society actors: the importance of engaging trainers who are familiar with the context and operational challenges and can give capacity-building support throughout the course of the project, preferably in-country. There needs to be a level of proximity to the country. • Importance of full awareness and mastery of digital and physical security measures before commencing with actual documentation work. • The best strategy to start documentation efforts is for them to be low-profile, temper excitement and levels of ambition and be realistic as to what can be achieved given the complexity of the work and environment. • Allow documenters to conduct interviews in their native language and come up with a translation mechanism rather than asking the documenters to conduct the interview in another language. • Deployment of documenters at border crossings has generated rich information when it was conducted in 2017. Repeating this strategy would require a security assessment given that borders can be sensitive areas and the NSS has been known to expand its reach into Kenya and Uganda. • Ask interviewees whether they have been interviewed by another actor; • The need to start small when building coalitions and include a vetting process for new members. • The importance of managing expectations of all stakeholders (civil society documenters as well as donors) and instilling (if not already present) the understanding that documenting
248 Actors working on children affected by conflict include UNICEF, UNMISS Child Protection Division, the National Demobilization, Disarmament and Reintegration Commission, NNGOs 26, 27, 29-35, INGOs 41-43.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 56 human rights violations and abuses for transitional justice purposes is a long-term endeavor that necessitates long-term commitments. Some overarching lessons learned by the South Sudan Human Rights Documentation Initiative and the Global Initiative for Justice, Truth and Reconciliation include:
• Importance of building a nationally-led and owned initiative • Coordinating GIJTR Consortium Partner expertise for project activities helps to build a more holistic documentation initiative, where information gathered can be used for a variety of different transitional justice purposes, psycho-social support can be integrated throughout, and partners can draw from NNGOs from other countries who started a similar process 20 years ago. • Balancing legalistic approach with more space for managing psycho-social issues, including self-care, memorialization and truth-telling activities. • “The success of South Sudanese documenters in gathering narratives during the documentation missions—especially in contrast to the difficulties faced by international documenters—demonstrates the necessity of training and supporting local documenters who have the trust of communities and are not viewed as outsiders.”249 • “Participants in the pilot missions reported that many victims of sexual and gender-based violence only felt comfortable sharing their experiences with female documenters.”250 • Partner with church leaders who can sensitize the community on the importance of documentation prior to the documentation missions to encourage victims and witnesses to tell their stories. • Training HRDI member in oral histories helped documenters appreciate the value of documenting multiple truths and people’s experiences and can be more nuanced. This requires a different methodology than documenting towards accountability which tends to focus on one truth.251 • HRDI members found it especially useful to learn from comparative experiences and visit other sites of violence and documentation centers that are further in their process.252 • Continuously building trust among the initiative members is of crucial importance given the high level of distrust in South Sudan. • Continuously assess the security risks and put in place strong protection measures.
249 Tiffany Sommadossi & Bridget Rutherford, South Sudan Human Rights Documentation Initiative in Global Initiative for Justice, Truth, and Reconciliation (2017). Building a Learning Community – Lessons for a Holistic and Sustainable Approach to Transitional Justice. pp. 19-36. Available at https://www.sitesofconscience.org/wp-content/uploads/2017/12/TJ- Toolkit_Online.pdf 250 Tiffany Sommadossi & Bridget Rutherford, South Sudan Human Rights Documentation Initiative in Global Initiative for Justice, Truth, and Reconciliation (2017). Building a Learning Community – Lessons for a Holistic and Sustainable Approach to Transitional Justice. pp. 19-36. Available at https://www.sitesofconscience.org/wp-content/uploads/2017/12/TJ- Toolkit_Online.pdf 251 Interview with INGO 02 on 5 April 2018. 252 Interview with INGO 02 on 5 April 2018.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 57 REFERENCES
Annotated Bibliography
Literature
Accountability (nd). Advocates for Human Rights. Available at https://www.theadvocatesforhumanrights.org/uploads/ch_8_2.pdf
• This chapter, written for civil society actors, contains practical information about accountability mechanisms (including domestic and internationalized criminal prosecutions, civil lawsuits, truth commissions, ombudsmen, national human rights commissions, and intergovernmental body actions). It is a helpful document to support civil society actors chose the most appropriate mechanism for their situation and country. It offers valuable information about logistics, requirements as well as contact details.
Agreement on the Resolution of Conflict in the Republic of South Sudan (ARCSS). August 2015. Available at https://unmiss.unmissions.org/sites/default/files/final_proposed_compromise_agreement_for_south_s udan_conflict.pdf
• The ARCSS was signed in August 2015 and contains provisions on transitional justice mechanisms for South Sudan. It collapsed in July 2016 when fighting broke out in Juba between government and opposition forces. Since then efforts were taken to revive the ARCSS, culminating in the High-Level Revitalization Forum (HLRF) in June 2017.
Beyond Reasonable Doubt: Using Scientific Evidence to Advance Prosecutions at the International Criminal Court (October 2012). Workshop Report. Human Rights Center, School of Law, University of California, Berkeley. Available at https://www.law.berkeley.edu/files/HRC/HRC_Beyond_Reasonable_Doubt_FINAL.pdf
• This report combines insights from experienced practitioners and discusses how the ICC can improve its use of scientific evidence, how it can relate to and collaborate with external actors such as NGOs and the United Nations, and forensic institutions. It is useful to read to gain more insight about the relations between human rights organizations engaged in documentation work and criminal prosecutors.
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (10 December 1984). Available at https://www.ohchr.org/en/professionalinterest/pages/cat.aspx
Human Rights Documentation in South Sudan: Findings of an Actor Mapping, Gap Analysis and Recommendations for Engagement (October 2017). On file with author.
• Study on human rights that was conducted in June – September 2017 with USAID funding and contains a mapping of actors involved in the documentation of violations of international human rights and humanitarian law in South Sudan. The report also contains a programmatic gap analysis that identifies weaknesses wherein documentation efforts are less effective or useful than they could be as well as gaps that could be filled to strengthen the sector so that the documentation of human rights violations and abuses can be used in a positive manner. Based on the gap analysis, the study proposes a program composed of four pillars that donor could support to improve the documentation of human rights violations and abuses in South Sudan. This study precedes the current study.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 58 Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (6 October 1999). Available at https://www.ohchr.org/en/professionalinterest/pages/opcedaw.aspx
Rome Statute of the International Criminal Court. (July 2002). Available at https://www.icc- cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf
• The statute of the International Criminal Court contains key definitions for important legal concepts in international criminal law such as ‘command responsibility,’ ‘crimes against humanity’ and ‘war crimes.’
South Sudan Human Rights Monitor: November 1, 2017 – 30 January 2018 (23 May 2018). Available at http://www.acjps.org/wp-content/uploads/2018/05/SShumanrightsmonitor.pdf; South Sudan Human Rights Monitor: February 1, 2018 – 31 May 2018 (4 July 2018). Available at http://www.acjps.org/wp- content/uploads/2018/07/20180704_SS-Human-Rights-Monitor_v3.pdf.
• A periodical publication that contains information about violations of international human rights and humanitarian law in South Sudan. The data collection is conducted by South Sudanese monitors who have been trained by an international expert. The collectors are dispersed throughout the country but are insufficient in numbers to cover the entire country. The organization uses the ‘reasonable grounds to believe’ standard that the incidents contained in the report took place.
Alexander Mayer-Rieckh (2017). Guarantees of Non-Recurrence: An Approximation. Human Rights Quarterly 39. 416-448. Available at https://muse.jhu.edu/article/657336/pdf
• Good article to gain a conceptual understanding of guarantees of non-recurrence as measures of prevention and their relation to development projects.
American Bar Association Rule of Law Initiative (June 2014). Assessment of Justice, Accountability and Reconciliation Measures in South Sudan. Available at https://www.americanbar.org/content/dam/aba/directories/roli/sudan/aba_roli_sudan_assessment_fin al_report_0614.authcheckdam.pdf • Useful research, though somewhat outdated since it was published in 2014, to gain insights into the workings and structures of the justice sector in South Sudan.
Amnesty International (2012 Update). Universal Jurisdiction: A Preliminary Survey of Legislation Around the World. Available at https://www.amnesty.org/download/Documents/24000/ior530192012en.pdf • Useful reference document to get concrete information about specific jurisdictions when pursuing cases based on universal jurisdiction. This publication also discusses the advantages and limitations of universal jurisdiction.
Christalla Yakinthou (April 2014). Syria: Using Data, Documentation and Evidence in Reparation Processes. Syria Justice and Accountability Center (SJAC). Available at https://syriaaccountability.org/library/using-data-documentation-and-evidence-in-reparations- processes/
• In addition to giving conceptual information about reparations, this publication details the types of information needed for effective reparations programs and offers guiding principles for data collection.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 59 Cynthia M. Horne (nd). Transitional Justice: Vetting and Lustration. Forthcoming in Dov Jacobs (ed.), Research Handbook on Transitional Justice (E. Elgar). Available at https://cynthiamhorne.weebly.com/uploads/8/9/9/8/8998042/horne--vetting_and_lustration- preprint.pdf
• This chapter unpacks the concepts of vetting and lustration and sheds light on the operational challenges involved. For practical information on vetting procedures, the UNDP and ICTJ publication on operational guidelines is more useful.
David K Deng, Belkys Lopez, Matthew Pritchard and Lauren C Ng (June 2015). Search for a New Beginning: Perceptions of Truth, Justice, Reconciliation and Healing in South Sudan. South Sudan Law Society and UNDP. Available at http://www.ss.undp.org/content/dam/southsudan/library/Rule%20of%20Law/Perception%20Survey%2 0Report%20Transitional%20Justice%20Reconciliation%20and%20Healing%20-.pdf.
• Between October 2014 to April 2015, the South Sudan Law Society and UNDP interviewed a total of 1,525 individuals (747 men and 778 women) in 11 locations across six states as well as Abyei area. The participants were asked a series of closed and open-ended questions on demographics, peace processes, reconciliation, truth and remembrance, accountability, amnesties, reparations, exposure to trauma, and Post Traumatic Stress Disorder.
David Meffe, Thomas Kleinveld, and Estella Kabachwezi (April 2018). “This is Our Freedom. These are Our Rights” Human rights defenders in South Sudan since July 2016. DefendDefenders (the East and Horn of Africa Human Rights Defenders Project). Available at https://www.defenddefenders.org/wp- content/uploads/2018/04/This-is-our-freedom.pdf
• This publication reports on the shrinking space for civil society, in particular human rights defenders, to operate. It discusses changes pre and post the July 2016 violence as well as the differences in how CSOs operate in urban and rural areas.
Evelyne Schmid and Aoife Nolan (2014). ‘Do No Harm’? Exploring the Scope of Economic and Social Rights in Transitional Justice. The International Journal of Transitional Justice, Vol. 8. 632 – 382. Available at https://academic.oup.com/ijtj/article/8/3/362/2912086
• Useful publication to better understand economic and social rights in a transitional justice context by, amongst others, addressing commonly held misunderstandings.
Federica D’Allesandra, Sander Couch, Ilina Georgieva, Marieke de Hoon, Brianne McGonigle Leyh, Jolien Quispel (eds). (2016). PILPG Handbook on Civil Society Documentation of Serious Human Rights Violations. Available at https://www.vu.nl/nl/Images/PILPG_Handbook_on_Civil_Society_Documentation_of_Serious_Huma n_Rights_Violations_Sept_2016_tcm289-785328.pdf
• Valuable handbook on documentation of serious human rights violations with practical guidelines, principles and recommendations that can help civil society actors improve their documentation work.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 60 General Assembly (23 August 2016). National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21 South Sudan. Human Rights Council. Working Group on the Universal Periodic Review Twenty-sixth session 31 October–11 November 2016. A/HRC/WG.6/26/SSD/1. Available at https://documents-dds- ny.un.org/doc/UNDOC/GEN/G16/187/04/PDF/G1618704.pdf?OpenElement
• South Sudan’s report for the UPR drafted by the Ministry of Justice and Constitutional Affairs with support from UNDP and the UNMISS Human Rights Division.
General Assembly (24 August 2016). Summary prepared by the Office of the United Nations High Commissioner for Human Rights in accordance with paragraph 15 (c) of the annex to Human Rights Council resolution 5/1 and paragraph 5 of the annex to Council resolution 16/21 South Sudan. Human Rights Council. Working Group on the Universal Periodic Review Twenty-sixth session 31 October–11 November 2016. A/HRC/WG.6/26/SSD/3. Available at https://documents-dds- ny.un.org/doc/UNDOC/GEN/G16/187/93/PDF/G1618793.pdf?OpenElement
• The United Nation’s summary report for the UPR drafted by UNMISS and various UN agencies. Useful to get more information about South Sudan’s human rights legislative framework and human rights situation in general.
General Assembly (29 August 2016). Compilation prepared by the Office of the United Nations High Commissioner for Human Rights in accordance with paragraph 15 (b) of the annex to Human Rights Council resolution 5/1 and paragraph 5 of the annex to Council resolution 16/21 South Sudan. Human Rights Council. Working Group on the Universal Periodic Review Twenty-sixth session 31 October-11 November 2016. A/HRC/WG.6/26/SSD/2. Available at https://documents-dds- ny.un.org/doc/UNDOC/GEN/G16/190/52/PDF/G1619052.pdf?OpenElement
• The United Nation’s report for the UPR drafted by UNMISS and various UN agencies. Useful to get more information about South Sudan’s human rights legislative framework and human rights situation in general.
Human Rights Council (16 June 2016). Report of the Special Rapporteur on the human rights of internally displaced persons. Mission to South Sudan. Available at https://documents-dds- ny.un.org/doc/UNDOC/GEN/G16/122/67/PDF/G1612267.pdf?OpenElement
• This report by the Special Rapporteur is useful to understand the plight of IDPs in South Sudan.
Human Rights Watch (December 2014). Ending the Era of Injustice: Advancing Prosecutions for Serious Crimes Committed in South Sudan’s New War. Available at: https://www.hrw.org/report/2014/12/10/ending-era-injustice/advancing-prosecutions-serious-crimes- committed-south-sudans. • Good report to understand the limitations of the national justice sector in ensuring accountability for, in particular, conflict-related crimes. The uniqueness of the report lies in the inclusion of personal experiences of South Sudanese professionals working in the justice sector.
International Centre for Transitional Justice. (June 2016). Guidelines on the Documentation of Serious Human Rights Violations for Human Rights Defenders in Kenya. On file with author.
• Whereas this handbook for human rights defenders focuses on the documentation of human rights violations in Kenya (in particular violations involved in police brutality), it offers a concrete example of what could be made for South Sudanese human rights defenders. It
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 61 very effectively breaks down components of the crimes/rights and offers practical questions aimed at obtaining the information necessary to help prove the occurrence of the crime/violation.
International Committee for the Red Cross, South Sudan, AU Commission of Inquiry on South Sudan. Available at: https://casebook.icrc.org/case-study/south-sudan-au-commission-inquiry-south-sudan
• This analysis of the AUCISS report raises interesting questions from an international humanitarian law perspective.
Louis Bickford, Patricia Karam, Hassan Mneimneh and Patrick Pierce (2008). Documenting Truth. International Center for Transitional Justice. Available at https://www.ictj.org/publication/documenting-truth
• This publication draws on comparative experiences of documentation efforts around the world that document for truth-telling purposes. It offers guidelines and practical tips.
Management Systems International. (January 2018). Human Rights and Transitional Justice Evaluation in South Sudan. Task Order Plan for USAID. Pg. 1. On file with author.
• The contractual document between MSI and USAID that contains the scope of this study.
Manuel Guzman and Bert Verstappen. (2003). What is Documentation: Human rights monitoring and documentation series. Vol. 2. Available at https://www.huridocs.org/wp- content/uploads/2010/08/whatismonitoring-eng.pdf
• This publication that extensively discusses the concepts and approaches to monitoring and documenting human rights violations.
Matthew Pritchard (2017). Reparations for Conflict-Related Abuses in South Sudan. SSLS and NPA. On file with author.
• This is the report of a public survey done on reparations for conflict-related abuses by the South Sudan Law Society in 2017, with support from Norwegian’s People’s Aid. The report contains very interesting findings that are relevant to the shape and design of the CRA. It also contains an analysis of the CRA provisions.
Megan Price and Patrick Ball (January 2014). Data Collection and Documentation for Truth-seeking and Accountability. Syria Justice and Accountability Center (SJAC). Available at https://hrdag.org/wp- content/uploads/2015/07/SJAC-Data-Collection-Documentation-Truth-seeking-Accountability.pdf
• This article offers an insight into how documentation has been done in another conflict environment.
Nousha Kabawat and Fernando Travesí (February 2018). Justice for Syrian Victims Beyond Trials: The Need for New, Innovative Uses for Documentation of Human Rights Violations in Syria. Available at https://www.ictj.org/sites/default/files/ICTJ-Briefing-Syria_Documentation-2018.pdf
• This briefing underlines the necessity and importance of pursuing a comprehensive approach to transitional justice documentation and gives examples of how the collected data can be used in absence of official transitional justice mechanisms.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 62 Office of the High Commissioner for Human Rights (2014). Transitional Justice and Economic, Social and Cultural Rights. Available at https://www.ohchr.org/Documents/Publications/HR-PUB-13-05.pdf
• This reference material clearly sets out the importance and place of economic, social and cultural rights in transitional justice.
Office of the High Commissioner for Human Rights (2006). Rule of Law Tool for Post-Conflict States. Vetting: An Operational Framework. Available at https://www.ohchr.org/Documents/Publications/RuleoflawVettingen.pdf
• This tool contains best practices, criteria and concrete guidelines for the preparation and implementation of vetting processes.
Office of the High Commissioner for Human Rights (10 March 2016). Report of the High Commissioner for Human Rights on the Assessment mission by the Office of the United Nations High Commissioner for Human Rights to improve human rights, accountability, reconciliation and capacity in South Sudan (A/HRC/31/49). Available at http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session31/Documents/A-HRC-31-CRP- 6_en.doc
• This report reports on allegations of violations and abuses of human rights and international humanitarian law that were committed since the start of the conflict in December 2013. This assessment mission is considered the predecessor to the CHRSS.
Office of the High Commissioner for Human Rights and UNMISS Human Rights Division (February 2018). Report on the Right to Freedom of Opinion and Expression in South Sudan Since the July 2016 Crisis. Available at https://unmiss.unmissions.org/sites/default/files/unmiss- ohchr_freedom_of_expression_report_-_final.pdf
• This report contains information about the state of the right of freedom of opinion and expression in South Sudan after the July 2016 crisis. It reports on threats and harassment against media and journalists, civil society actors, human rights defenders, public servants and elected officials. It also contains a chapter on hate speech.
Office of the High Commissioner on Human Rights. (2001). Training Manual on Human Rights Monitoring. Available at http://www.ohchr.org/Documents/Publications/training7Introen.pdf
• This manual is used to train UN human rights officers and offers practical tips and best practices in line with the UN methodology.
Office of Inspector General (May 2013). Inspection of Embassy Juba, South Sudan. Available at https://oig.state.gov/system/files/211153.pdf
• Report of an inspection of the US Embassy in Juba. This report refers the challenges in obtaining sufficient and accurate information for the US to implement the Leahy Laws.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 63 Rim El Gantri and Karim El Mufti (2017). Not Without Dignity. Views of Syrian Refugees in Lebanon on Displacement, Conditions of Return, and Coexistence. ICTJ Research Report. Available at: https://www.ictj.org/sites/default/files/ICTJ_Report_Syria_NotWithoutDignity.pdf
• While not specifically on documentation, this ICTJ research report is an interesting example of research undertaken to better understand the needs and views of people affected by conflict.
Sam Szoke-Burke (2015). Not Only ‘Context’: Why Transitional Justice Programs Can No Longer Ignore Violations of Economic and Social Rights. Texas International Law Journal Vol. 50 Issue 3. Available at http://www.tilj.org/content/journal/50/16%20SZOKEBURKE%20FINAL.pdf.
• This is a very useful article with many examples drawn from transitional justice contexts around the world and gives concrete examples of how transitional justice mechanisms elsewhere have incorporated economic and social rights.
Sara Kayyali, Nawal Maalouf, Paula Mendez, and Ami Shah (July 2015). Engaging UN Special Procedures to Advance Human Rights at Home: A Guide for US Advocates. Human Rights Institute Colombia Law School. Available at https://web.law.columbia.edu/sites/default/files/microsites/human-rights- institute/files/special_rapporteurs_report_final.pdf
• A helpful guidebook with practical tips on utilizing the UN special procedures.
Stichting Onderzoek Multinationale Ondernemingen/Centre for Research on Multinational Corporations and Natural Justice (nd). The African Commission on Human and Peoples’ Rights. Available at https://www.grievancemechanisms.org/resources/brochures/the-african-commission-on-human- and-peoples2019-rights
• A brochure developed to help civil society understand the ACHPR and use it as a channel to bring about positive change in their countries.
Stoddard, A., Harmer, A. & Czwarno, M. (2018). Aid worker security report: Figures at a glance. Humanitarian Outcomes. Available at https://www.humanitarianoutcomes.org/publications/figures-glance-2018
• A one-page overview of statistical data of attacks on humanitarian aid workers in 2017.
Tiffany Sommadossi & Bridget Rutherford, South Sudan Human Rights Documentation Initiative in Global Initiative for Justice, Truth, and Reconciliation (2017). Building a Learning Community – Lessons for a Holistic and Sustainable Approach to Transitional Justice. pp. 19-36. Available at https://www.sitesofconscience.org/wp-content/uploads/2017/12/TJ-Toolkit_Online.pdf
• This publication contains a chapter with reflections and general lessons learned from the first years of the SSHRD.
Transitional Justice Working Group (March 2018). Strengthening Victim Groups in South Sudan. Concept Note. On file with author.
• This concept note was developed by the TJWG with support from the Ferencz Initiative of the Unites States Holocaust Memorial Museum. It proposes a three-year project that aims to increase victim participation in transitional justice in South Sudan.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 64 United Nations. Report of the Working Group on Enforced or Involuntary Disappearances (30 July 2018). A/HRC/39/46. Available at https://documents-dds- ny.un.org/doc/UNDOC/GEN/G18/236/81/PDF/G1823681.pdf?OpenElement • In this publication, the Working Group on Enforced or Involuntary Disappearances reports on their work. It clarifies that they have not been able to visit South Sudan.
United Nations Development Programme and the International Center for Transitional Justice. Vetting Public Employees in Post-Conflict Settings: Operational Guidelines (2006). Page 20. Available at https://www.ictj.org/sites/default/files/ICTJ-UNDP-Global-Vetting-Operational-Guidelines-2006- English.pdf
• This handbook contains case studies of vetting processes from different countries as well as very practical and useful guidelines and criteria to operationalize vetting processes.
UN Mission in South Sudan and the Office of the High Commissioner for Human Rights (July 2018). Indiscriminate Attacks Against Civilians in Southern Unity, April – May 2018. Available at https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23351&LangID=E
• In response to the South Sudanese government’s offensive in opposition-held areas in southern Unity State that started in April 2018, the UNMISS HRD investigated and documented numerous serious violations of human rights law and humanitarian law.
UNMISS Rule of Law Advisory Section and Human Rights Division and UNDP South Sudan (8 October 2017). Preliminary Viability Study on National Mechanisms to Promote Accountability for Serious Conflict-Related Crimes in South Sudan. On file with author.
• Useful to read in addition to the assessment of the justice sector done by the American Bar Association in 2014. The assessment leans towards the side of optimism and would need to be read in conjuncture with more critical analyses of the workings of the national justice system and perceptions held by its users.
UNOCHA. Crisis Overview. Available at http://www.unocha.org/country/south-sudan/crisis-overview
• Snapshot overview with statistics and figures of the humanitarian crisis in South Sudan.
UNOCHA (16 July 2018). Humanitarian Bulletin South Sudan. Issue 6. Available at https://reliefweb.int/sites/reliefweb.int/files/resources/20180716_OCHA_SouthSudan_Humanitarian_ Bulletin%236.pdf
• Overview of the humanitarian crisis in South Sudan.
United Nations Security Council Resolution 2417 (24 May 2018). Available at: https://www.securitycouncilreport.org/atf/cf/%7b65BFCF9B-6D27-4E9C-8CD3- CF6E4FF96FF9%7d/s_res_2417.pdf
• Security Council resolution on the harmful impact of armed conflict on food security.
United States Department of State Transitional Justice Initiative (May 2016). Transitional Justice Overview. Available at https://www.state.gov/documents/organization/257771.pdf.
• Documents that set out the USG policy on transitional justice.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 65 United Nations Secretary General (March 2010). Guidance Note of the Secretary General – United Nations Approach to Transitional Justice (March 2010) Available at https://www.un.org/ruleoflaw/files/TJ_Guidance_Note_March_2010FINAL.pdf
• Document that set out the UN principles and policy on transitional justice. The guidance note contains the definition of transitional justice that is commonly referenced,
United Nations Secretary General (5 March 2013). Human rights due diligence policy on United Nations support to non-United Nations security forces. Available at http://www.ohchr.org/Documents/HRBodies/SP/AMeetings/20thsession/IdenticalLetterSG25Feb2013 _en.pdf
• The 2011 UN Human Rights Due Diligence Policy (HRDDP) on UN support to non-UN security forces out measures that all Member States must take to ensure that any support provided to non-UN security forces is consistent with the UN Charter and international humanitarian, refugee and human rights law. The policy also applies to UN entities.
USAID South Sudan. Human Rights and Transitional Justice (HR/TJ) Evaluation in South Sudan. (December 2017). Scope of Assessment. Pg. 1. On file with author.
• The initial document in which USAID requests MSI to draft the outline and scope of this study.
News South Sudanese President launches national dialogue for forgiveness. 14 December 2016. Sudan Tribune. Available at http://www.sudantribune.com/spip.php?article61110 Jacob Polychronis and Charlie Moore (14 May 2018). South Sudanese military general’s son, 22, on welfare benefits, bought a $1.5m Melbourne mansion ‘using five unexplained installments from African companies’. Daily Mail Australia. Available at http://www.dailymail.co.uk/news/article-5724771/How- Melbourne-mansion-bought-son-South-Sudan-military-general.html
Salva Kiir and Riek Machar, South Sudan needs truth, not trials (7 Jun. 2016). The New York Times. Available at https://www.nytimes.com/2016/06/08/opinion/south-sudan-needs-truth-not-trials.html.
Presentations Christoph Sperfeldt (February 2015). Transitional Justice in International Development Assistance. Presentation at Australasian Aid Conference, Canberra, Australia. Available at http://devpolicy.org/2015-Australasian-aid-conference/presentations/2d/Christoph-Sperfeldt.pdf Hon. Nyuol Justin Yaac (19 July 2018). Structure of the Human Rights Commission. South Sudan Human Rights Commission (SSHRC). Presentation. On file with author.
Presentation on constraints to documentation in South Sudan by an international expert during EU workshop in Nairobi. 20 February 2018. Summary note on file with author.
Presentation on documenting for criminal accountability by an international expert during EU workshop in Nairobi. 20 February 2018. Summary note on file with author.
Presentation on documenting for reparations by an international expert during EU workshop in Nairobi. 20 February 2018. Summary note on file with author.
Presentation on understanding contextual factors in South Sudan by an international expert during EU workshop in Nairobi. 20 February 2018. Summary note on file with author.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 66 Presentation by an international expert on documenting for truth-seeking during EU workshop in Nairobi. 20 February 2018. Summary note on file with author.
Presentation on documenting for vetting purposes by an international expert during EU workshop in Nairobi. 20 February 2018. Summary note on file with author.
Consultant attendance of a training for the technical committee to prepare for the national consultations. 11 May 2018, Juba Landmark Hotel.
Consultant attendance of a workshop by the South Sudan National Human Rights Commission. 19 July 2018, Juba Landmark Hotel.
Websites http://www.sitesofconscience.org/en/global-initiative-for-justice-truth-and-reconciliation/
https://iici.global/course/investigative-interview-skills-course/
http://www.lan.ohchr.org/EN/HRBodies/UPR/Pages/SSSession26.aspx
http://www.ohchr.org/EN/HRBodies/SP/Pages/Welcomepage.aspx
http://spinternet.ohchr.org/_Layouts/SpecialProceduresInternet/ViewAllCountryMandates.aspx
https://spinternet.ohchr.org/_Layouts/SpecialProceduresInternet/ViewCountryVisits.aspx?Lang=en&c ountry=SSD
http://www.ohchr.org/EN/HRBodies/HRC/ComplaintProcedure/Pages/HRCComplaintProcedureInde x.aspx
List of Countries Which Have Signed, Ratified/Acceded to the African Charter on Human and People’s Rights. Available at https://au.int/sites/default/files/treaties/7770-sl- african_charter_on_human_and_peoples_rights_2.pdf
http://www.achpr.org/states/reports-and-concluding-observations/
To read the policy papers, please visit: https://www.state.gov/j/gcj/transitional/index.htm
This website provides an overview of available charities and foundations for civil society actors working on, among others, human rights: https://www2.fundsforngos.org/
https://www.ictj.org/news/justice-syria-must-go-beyond-courtroom
https://www.bellingcat.com/
https://www.ssnationaldialogue.org/
http://rememberingoneswelost.com/
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 67 Anonymized List of Actors
Interviews and meetings (most actors were interviewed on more than one occasion) were held with: National (Non-Governmental) Organizations • 01, 02, 03, 10, 11, 12, 13, 15, 17, 18, 20, 21, 22, 24, 25, 26, 27 • National initiative 02 • Academic institution 01
International Non-Governmental Organizations • 01, 02, 03, 06, 07, 10, 12, 13, 18, 20, 21, 22, 23, 24, 25, 26, 28, 29, 30, 31, 32, 33, 34, 35, 36, 43, 45, 46
Donor Community • 01, 02, 03, 04, 05, 06, 07, 08, 09, 10, 12
United Nations • United Nations Commission on Human Rights in South Sudan • United Nations Development Programme • United Nations Mission in South Sudan – Human Rights Division • United Nations Mission in South Sudan – Rule of Law Advisory Section
Independent Experts 01, 02, 03, 04
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 68 Annex 1: Study Questions
The 23 study questions posed to the consultant in the Scope of Assessment (SoA) and Task Order Plan (TOP) by the USG were divided into four clusters that correspond to the objectives: (0) setting the stage; (1) generating programmatic recommendations; (2) improving coordination in the sector, and (3) reviewing an ongoing human rights documentation initiative. Table 7 below provides an overview of the clustered study questions.
TABLE 7: STUDY QUESTIONS Generate prioritized programmatic Setting the stage recommendations for existing and future engagement for USAID 1.1 What are USAID’s comparative strengths, 0.1 What are the potential human rights and restraints and strategic interests254 in the human transitional justice mechanisms to address issues rights documentation for transitional justice in South Sudan? sector? 0.2 To what extent are these transitional justice 1.2 How can USAID’s intervention in the HRTJ mechanisms functionally adequate to deal with sector respond to the political, economic and the human rights issues and past violence in South operational context in South Sudan? Sudan? 1.3 How can USAID complement the work being 0.3 How can economic, social and cultural rights be done by other USG agencies, donors and actors? connected to transitional justice processes and (See also objective 2). what principles should guide the inclusion of 253 1.4 What needs are expressed by civil society needs these rights? and survivors that USAID should respond to? 0.4 What are the different human rights 1.5 What are the gaps in the sector that USAID documentation requirements for the various could respond to? transitional justice purposes? How, when, and 1.6 What are the challenges and solutions facing how narrowly should documentation efforts be human rights documenters in South Sudan? defined to support a comprehensive transitional 1.7 How should USAID and the Department of State justice program? strategically implement activities over the next 3- 0.5 What key obstacles and challenges should be 5 years to achieve impact in this sector? overcome for human rights documentation to be 1.8 What specific opportunities should be prioritized valuable for transitional justice purposes? for supporting existing activities, piloting new
activities, and/or scaling existing activities? Support donor efforts coordinate around a Generate recommendations for the shared vision and strategy for human rights improvement of the Global Initiative for documentation for transitional justice in South Justice, Truth and Reconciliation (GIJTR) of Sudan. the Transitional Justice Consortium.
253 Even though this question was not included in the Scope of Assessment, it is proposed to include this question because economic, social and cultural rights are often overlooked in transitional justice programs whereas they often find great resonance with those affected by the violence and are connected to reparations. 254 USAID South Sudan. Human Rights and Transitional Justice (HR/TJ) Evaluation in South Sudan. (December 2017). Scope of Assessment. Pg. 3. On file with author.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 69 3.1 What lessons has the GIJTR learned from their 2.1 What are other donors and actors doing to engagement in South Sudan thus far and how have address human rights and transitional justice in these been applied? this sector? 3.2 How have the national beneficiaries been selected 2.2 What is the best model to coordinate and how does the GIJTR in South Sudan documentation efforts and increase meaningful implement the do-no-harm principle? dialogue and build collaboration between actors 3.3 How does the GIJTR ensure that it is responsive (local, national, international NGOs, donors, as to the civil society dynamics and context in South well as the United Nations? Sudan? 2.3 Which projects/interventions by different actors, 3.4 To what extent does the collected data meet the when connected, become mutually reinforcing documentation requirements to be used by future and contribute to a coherent, strategic and multi- formal and informal transitional justice actor engagement to support human rights mechanisms in a comprehensive manner? documentation for transitional justice? 3.5 To what extent is the GIJTR driven by survivor’ 2.4 What is the best implementation modality to needs and participation? operationalize a shared vision and strategy for 3.6 How effective, sustainable and secure is the human rights documentation for transitional structure that is being used to carry out joint justice in South Sudan? documentation efforts in a sustainable, professional, consistent and internationally credible manner?
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 70 Annex 2: 2017 Contours of A Multi-Actor Human Rights Documentation Program for South Sudan
Figure 1: The Positive Impact of a Multi-Actor Human Rights Documentation Program in Response to the Negative Consequences of the Gaps
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 71 Annex 3: 2017 Implementation Model Proposed for Multi- Actor Human Rights Documentation Program
Figure 2: Implementation Modality Proposed for Multi-Actor Human Rights Documentation Program in 2017
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 72 Annex 4: Strategic Framework for Coordinated Support to Documentation
Figure 3: Strategic Framework
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 73 Annex 5: Example for Guidelines on Documentation of Serious Violations in South Sudan255
The legal framework of the main violations with guiding questions (see table below256); an interview protocol (including a checklist); tips and tricks for drafting a case report and analyzing the information; a sample security and communication protocol; and the institutional framework with the requirements and sample forms for avenues of redress available to South Sudanese victims.
TABLE 8: TABLE FROM A KENYAN MANUAL WITH RIGHTS, THEIR CONSTITUTIVE ELEMENTS AND GUIDING QUESTIONS TO FACILITATE IDENTIFICATION OF VIOLATIONS
Right Elements Guiding questions • Did the death result from lawful • Right not to be killed but does not application of the death penalty? extend to: death penalty pronounced • Did the police use disproportionate by a competent court; accidental death force (e.g. shoot a victim running away, Right to Life resulting from self-defense (fatal shoot an unarmed protestor)? (Article 26 of the response to an imminent threat to life • Did the perpetrator police officer face Kenyan and limb) and death resulting from imminent threat to life? Constitution) proportional use of force by police. • Did the victim die while in police • State has an obligation to prosecute custody? perpetrators and compensate victim’s • family Did death result from injuries sustained from assault by police?
As a starting point, documenters should know the relevant laws and constitutive elements of the rights that are protected. In South Sudan, this is still a technical area in need of deeper capacity building and it is questionable whether they are collecting all information needed to prove a violation. Interviewees can narrate accounts of killings, sexual violence and torture which are serious violations in and of itself, but only when they are committed in a specific context and when other elements are introduced, can they amount to crimes against humanity or war crimes. This requires asking specific questions. To achieve the goals of documenting violations of human rights and humanitarian law, it is essential that documenters know the difference as well as the specific elements of each violation. This manual tailored to the South Sudanese context would be a useful resource that could help improve existing documentation efforts to generate lead information for criminal accountability purposes. Equally important for a balanced approach to transitional justice, manuals (including statement-taking forms) could be made for documentation for other transitional justice purposes too. For instance, statement-taking forms for truth-telling and reparations may include more questions related to socio-economic violations that may enable capturing cases that may otherwise not be documented. Given their track record, INGO 18 would be well-positioned to be commissioned to develop these manuals.
255 INGO 01 is now in the process of developing such guidelines. 256 The table is an example taken from International Centre for Transitional Justice. (June 2016). Guidelines on the Documentation of Serious Human Rights Violations for Human Rights Defenders in Kenya. On file with author. The guidelines were developed to help human rights activists document violations by the Kenyan police.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 74 Annex 6: List of Tables and Figures
Tables
Table 1: Information for Truth-seeking Purposes and Actors Involved in its Collection
Table 2: Information for Reparation Purposes and Actors Involved in its Collection
Table 3: Information for Criminal Accountability257 Purposes and Actors Involved in its Collection
Table 4: Information for Vetting Purposes and Actors Involved in its Collection
Table 5: Key Obstacles and Challenges to Documentation in South Sudan and Corresponding Mitigations
Table 6: Key Challenges and Civil Society Needs and possible Mitigations and Responses
Table 7: Study Questions
Table 8: Table from a Kenyan Manual with Rights, Their Constitutive Elements and Guiding Questions to Facilitate Identification of Violations.
Figures
Figure 1: The Positive Impact of a Multi-Actor Human Rights Documentation Program in Response to the Negative Consequences of the Gaps
Figure 2: Implementation Modality Proposed for Multi-Actor Human Rights Documentation Program in 2017
Figure 3: Strategic Framework
257 Each crime is composed of unique components that need to be proven. This table does not specify this.
USAID/SOUTH SUDAN TRANSITIONAL JUSTICE DOCUMENTATION STUDY FINAL REPORT 75