A/HRC/45/CRP.4
mechanisms should proceed with “no expectation of good faith cooperation”. 81 This
approach necessitates a thorough assessment of potential barriers likely to result from
conflicting political interests, and the establishment of a legal framework, and investigative,
prosecutorial, and witness protection strategies that anticipate and provide mechanisms to
mitigate a lack of political will, political interference, or sabotage for accountability
processes through state officials and political actors.
Dealing with residual cases at the domestic level
104. The prolonged period of conflict in South Sudan, the wide range of violations
involving millions of casualties, and overlapping roles and experiences of affected
individuals and communities both as victims and perpetrators, has created a complex web of
potential criminal liability that cannot be addressed exclusively through the Hybrid Court.
As has been the case in many post-conflict and post-authoritarian contexts, ad hoc
international and hybrid criminal tribunals often pursue emblematic trials against individuals
who bear the highest level or greatest responsibility for mass atrocities and most serious or
grave crimes committed during the conflict. This approach is often informed by the
complexities involved in obtaining convictions for international and other serious crimes,
high costs of operation, and limited resources and capacity to cover the full scope of
violations, balanced against the primary aim of sending a strong message against impunity
for atrocity crimes.82
105. Inevitably, even with the successful implementation of the Hybrid Court, it will still
be necessary for the R-TGoNU to develop a clear and effective strategy to deal with the
broad layer of other high, middle, and lower level individuals involved in perpetrating gross
violations and serious crimes during the conflict. Accountability for individuals bearing the
highest or greatest responsibility for mass atrocities could deter their mid- and lower-level
foot soldiers from perpetrating future violence. Nonetheless, failure to deal with the wider
scope of the violations has the potential to leave intact a broad base of affected individuals
who could easily be ignited to engage in revenge attacks or be exploited by emerging factions
to perpetuate the conflict and related crimes.
106. This reality brings into focus the complementary role that the Commission on Truth,
Reconciliation, and Healing (CTRH) is intended to play in comprehensively identifying
underlying causes, patterns, affected victims, and perpetrators of conflict-related violations
in South Sudan. The CTRH’s findings could form a basis for further investigations and
prosecution of cases and individuals falling within the mandate of the Hybrid Court or future
domestic accountability processes against an extensive number of perpetrators.
107. The AU Commission and R-TGoNU should explore the potential benefits of adopting
a structure that will support anticipated reforms that can strengthen the prospects for future
accountability within the domestic justice sector. This could, for instance, include
mechanisms for the Hybrid Court to progressively refer cases, transfer its data/evidence base,
and provide capacity building and technical assistance to domestic courts in South Sudan.
Compensation and Reparation Authority
108. In its earlier reports, the Commission underscored established international human
rights law, norms, and standards, which note that material compensation constitutes only one
element of holistic reparations. Reparations provided to conflict-affected communities and
individuals in South Sudan should be holistic, consisting of both material and non-material
elements, including restitution, compensation, rehabilitation, and guarantees of nonrecurrence. The Commission is of the view that priority should be given to building the
institutional and policy frameworks required for the smooth implementation of a long-term
reparations programme, as well as an interim reparations programme to address the
immediate needs of victims.
81
Kenyans for Peace with Truth and Justice & Ulster University Transitional Justice Initiative, Nairobi Principles on Accountability,
2019, Principle 5, available at http://kptj.africog.org/wp-content/uploads/2019/01/Nairobi-Principles-on-Accountability-ONLINEversion.pdf.
82 International Center for Transitional Justice, Committing to Justice for Serious Human Rights Violations: Lessons from Hybrid
Tribunals, 2018.
23
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents