A/HRC/45/CRP.4 “If there is a Hybrid Court, people will have to provide answers as to why I was detained and who took me there. I am willing to speak to you because it means justice will be done and if it not done, I will not be able to live with it.”75 102. The AU Commission, R-TGoNU, and their collaborators should ensure that the legislation, guidelines, and proposed design for the operationalisation of the Hybrid Court will enable it to effectively achieve its stated objectives, namely: investigations and prosecutions of individuals bearing responsibility for international and serious crimes under international and South Sudanese law, with the overall aim of facilitating truth, reconciliation, healing, compensation, and reparation. To this end, the AU Commission and the R-TGoNU must expressly include and articulate specific measures for the implementation of core aspects that are central to the Hybrid Court’s mandate, jurisdiction, and operation, as articulated in the R-ARCSS. These core aspects include: (a) Broad investigations and a prosecutorial strategy to incorporate a wide range of serious crimes under international and South Sudanese law, including: patterns of deliberate starvation as a method of warfare and related economic crimes to the conflict that have been documented by the Commission; a broad temporal period including on-going violations until the end of the Transitional Period; and cases that depict a true reflection of the patterns of the conflict, including geographic representation and liability of both State and non-State actors. Furthermore, the requirement for the Hybrid Court to bring cases against “individuals bearing responsibility” provides room for broad accountability, not only against those bearing the highest level responsibility, but may also include those responsible for the most serious, gross, or significant violations in South Sudan.76 (b) Effective and appropriate safety measures, psychosocial support, and legal representation to guarantee meaningful participation of victims in the proceedings of the Hybrid Court without fear of reprisals (5.3.4.1). (c) Even though the existing political and security considerations may necessitate locating the Hybrid Court abroad, deliberate measures should be put in place to promote incountry public awareness, understanding, and engagement. (d) Explicit recognition that amnesties to prevent the prosecution of individuals who may be legally responsible for war crimes, genocide, crimes against humanity, and other gross violations of human rights are inconsistent with the State’s obligations under international law. Even though Article 6(5) of Additional Protocol II of the Geneva Conventions makes provision for the granting of the broadest possible amnesties to “persons who have participated in armed conflicts or those deprived of liberty, whether interned or detained, for reasons related to the armed conflict”,77 the International Committee of the Red Cross has specified that the granting of amnesties within the scope of this article does not extend to persons suspected of, accused of, or sentenced for war crimes.78 Furthermore, the R-ARCSS expressly precludes the possibility of immunity or amnesty from criminal responsibility.79 State cooperation with the Hybrid Court 103. The R-ARCSS requires the R-TGoNU to fully support and facilitate operations of and cooperate with the Hybrid Court.80 However, the experiences of the International Criminal Court and the ad hoc criminal tribunals are illustrative of the challenges associated with investigations and prosecution of political actors who continue to wield significant state power and influence in post-conflict settings. Most critical is often the lack of state cooperation in establishing appropriate mechanisms to guarantee effective investigations, apprehend suspects, and ensure the safety and protection of victims and witnesses. The Nairobi Principles on Accountability assert that, in such situations, accountability ERN 101725 – 101736. See R-ARCSS Article 5.3.1. 77 See Article 6, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of NonInternational Armed Conflicts (Protocol II), 8 June 1977. 78 See Rule 159 of the ICRC Customary IHL study; See also OHCHR Rule of Law Tools for Post Conflict States: Amnesties 2009. 79 R-ARCSS, Article 5. 3.5.4. 80 See R-ARCSS, Article 5.1.4. 75 76 22