A/HRC/40/CRP.1 C. International Criminal Law International criminal law governs situations in which individuals can be held individually criminally responsible for violations of international human rights law and serious violations of international humanitarian law, which amount to crimes under international law. South Sudan has the primary obligation to ensure accountability for these crimes. To comply with this obligation, the State must ensure that its domestic legislation incorporates the necessary legal basis to enable domestic courts to duly exercise jurisdiction over such crimes, in accordance with applicable principles of customary and treaty law. 313 1. Incorporation of International Crimes into Domestic Law South Sudan’s Geneva Convention Act (2012), which incorporated the provisions of the Four Geneva Conventions and its Additional Protocols into domestic law, provides for prosecutions before the South Sudanese courts for grave breaches of the Geneva Conventions, including grave breaches of Common Article 3 which applies to the noninternational armed conflict in South Sudan, as well as for “other breaches” of the Geneva Conventions and its Additional Protocols, which could include breaches of Additional Protocol II. The Act provides jurisdiction over those who aid, abet or procure any other person to commit any grave breach of the Geneva Conventions or their Protocols in the territory of South Sudan.314 Jurisdiction also extends to South Sudanese nationals who aid, abet or procure any other person to commit for breaches outside the country.315 The Commission welcomes reports that work is in progress to incorporate the international crimes of genocide, crimes against humanity, and war crimes into domestic law which could be prosecuted and punished at the national level. The Commission encourages the Government, when incorporating international crimes into domestic law, to adopt definitions of the crimes in conformity with international definitions of these crimes found in the Geneva Conventions, the Genocide Convention, the Draft Statute of the Hybrid Court, the Statute of the International Criminal Court, and the International Law Commission’s Draft Articles on Crimes Against Humanity. It also encourages the Government to make relevant amendments to national law, including the Penal Code and the Code of Criminal Procedure, in order to ensure that national law can be used to investigate and prosecute these crimes effectively in line with developments in international criminal law. In particular, as international crimes are already criminalized under customary international law, the legislation may incorporate them into domestic law with retroactive effect. In this regard, the Universal Declaration of Human Rights foresees that: “No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed.”316 Such amendments would not violate the Transitional duty to prosecute attaches to human rights violations amounting to crimes under either national or international criminal law and is explicitly referred to in a variety of treaties, including CAT, Articles 4 and 7, to which South Sudan is a party. The duty to investigate and prosecute serious violations of international humanitarian law is recognised in customary international law: see ICRC Study on Customary International Humanitarian Law, Rule 158; United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, and the United Nations Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity. 313 United Nations Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, principles 20, 21. 314 South Sudan Geneva Convention Act (2012), section 6(1). 315 South Sudan Geneva Convention Act (2012), section 7(1). 316 Universal Declaration of Human Rights, Article 11(2) (emphasis added). In this regard, the Commission notes that the International Covenant on Civil and Political Rights, though not binding in South Sudan, confirms the position. Article 15 of the ICCPR states the following: (1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed; (2) Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations. 45