A/HRC/40/CRP.1 requirement for ensuring at least 35 percent representation of women on these bodies should be observed.1473 This allocation should therefore be applied to the CTRH, the HCSS and the CRA. The responsibility initiating legislation for the establishment of these three transitional justice institutions now rests with the yet to be established Revitalized Transitional Government, which is expected to take office in May 2019. Regarding the HCSS, there is a revision in the prosecutorial mandate of the Court, which now states that the HCSS shall be established by the African Union, to investigate “and where necessary” prosecute individuals bearing responsibility for violations of international law and applicable South Sudanese law committed from 15 December 2013 through the end of the Transitional Period.1474 Some civil society representatives have expressed their concern to the Commission that the insertion of the term “where necessary” might indicate a deviation from the commitment to prosecute, and a limitation on prosecutorial discretion.1475 While these concerns are legitimate, the Commission expects this article to be interpreted, in line with Article 5.3.2.2, to respect the independence and discretion of the court and its prosecutor. The Commission considers that the provision merely acknowledges that any prosecutions in the HCSS will be based solely on prosecutorial discretion which takes account of the outcome of investigations, and the sufficiency of the evidence. Another change relates to the provisions on the selection of the commissioners of the CTRH, where national commissioners are now to be selected entirely by the R-TGoNU, without the requirement under the ARCSS to consult or take account of the views of the AU and the UN. As observed by the UN Special Rapporteur, the “truth commissions derive their power to a large extent from the moral authority and competence of commissioners”1476 and therefore it remains paramount that the process of selecting commissioners is independent from the political pressure, credible, transparent and ideally, consultative.1477 The credibility of the future CTRH will also depend on the representativeness of the commissioners who should ideally ensure a fair balance in the representation of ethnic, regional or religious groups, gender, and political views. 1478 Even in the Pre-Transitional Period, the parties to the agreement have a duty to protect and contribute towards the objectives of the agreement. With regard to the HCSS, the Commission has continued to call upon IGAD and the AU to set clear timelines for the Court’s establishment. b) The Hybrid Court for South Sudan Under the R-ARCSS, the HCSS is to be established by the AU to among other things investigate and prosecute “individuals bearing the responsibility for violations of international law and/or applicable South Sudanese law, committed from 15 December 2013 through the end of the Transitional Period”1479. The AU’s prominent role in the establishment and operationalization of the Hybrid Court is no accident. It derives from the work of the AU Commission of Inquiry established in 2014 to investigate the human rights violations and other abuses committed during the armed conflict in South Sudan and make recommendations on the best ways and means to ensure accountability, reconciliation and healing among all South Sudanese communities. 1480 The findings of the investigation pointed to large scale abuses committed with impunity, leading the AU to call for a process of national healing and reconciliation, as well as political justice and reparations for victims. 1481 The report further reiterated that accountability must be pursued as part of a wider process of societal reconciliation if sustainable peace is to be achieved in South Sudan. 1473 R-ARCSS, Article 5.1.1. R-ARCSS, Article 5.3.1.1 1475 Confidential Meeting, Juba, 7 December 2018. 1476 UN Human Rights Council, Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Pablo de Greiff, 28 August 2013, A/HRC/24/42, para. 53. 1477 OHCHR, The Rule of Law Tools for Post-Conflict States: Truth Commissions, HR/PUB/06/1, 2006, p. 13. 1478 OHCHR, The Rule of Law Tools for Post-Conflict States: Truth Commissions, HR/PUB/06/1, 2006. 1479 ARCSS, Chapter V, Article 3. 1480 African Union Peace and Security, Final Report of the AU Commission of Inquiry on South Sudan, 27 October 2015. 1481 African Union Peace and Security, Final Report of the AU Commission of Inquiry on South Sudan, 27 October 2015. 1474 183