A/HRC/40/CRP.1 when there may appear to be periods of calm. 303 The existence of an armed conflict is a question of fact based on legal criteria. The existence of an armed conflict such as the one in South Sudan does not depend on the appreciation of the situation by the government or any non-state actors or organisations. It is worth recalling here the considered words of the ICRC in their 2016 Commentary to the Geneva Conventions: armed confrontations sometimes continue well beyond the conclusion or unilateral pronouncement of a formal act such as a ceasefire, armistice or peace agreement. Relying solely on the existence of such agreements to determine the end of a noninternational armed conflict could therefore lead to a premature end of the applicability of humanitarian law in situations when in fact a conflict continues.304 Despite the signing of the permanent ceasefire and peace agreement, the Commission assesses that hostilities have persisted to a degree that international humanitarian law has continued to apply throughout 2018. In this regard, it notes the outbreaks of fighting that have continued to occur particularly in Western Bahr el Ghazal, Central Equatoria after the signing of the R-ARCSS. South Sudan is a State Party to the four Geneva Conventions of 1949 and the three Additional Protocols of 1977 and 2005.305 Of particular relevance to the non-international armed conflict in South Sudan are Common Article 3 to the Geneva Conventions and Additional Protocol II to the Geneva Conventions. In addition, all parties to the conflict are bound by the relevant rules of customary international law applicable in a non-international armed conflict.306 These include requirements that parties to such conflicts must at all times abide by the principles of distinction, proportionality and precaution in attack. 307 States are responsible for all violations of international humanitarian law committed by their armed forces or those acting under their direction or control. 308 Under customary international law, the Government of South Sudan is obliged to investigate serious violations of international human rights and international humanitarian law and to ensure full reparation for loss or injury caused by the State.309 Certain violations of international humanitarian law can constitute war crimes and engage individual criminal responsibility on the part of their perpetrators.310 Under customary international law, individuals may be criminally responsible for committing, attempting, assisting, facilitating, aiding or otherwise abetting the commission of a war crime, and may be criminally responsibility under command responsibility. 311 South Sudan is obliged to investigate and prosecute gross violations of international human rights law and serious violations of international humanitarian law, in particular those that amount to crimes under international law, and to punish individual perpetrators. 312 303 The ICRC 2016 Commentary on the First Geneva Convention (Cambridge, Cambridge University Press, 2016) on the criteria of intensity and organization required for Article 3 to be applicable, see p. 141, para. 387; pp. 174-175, paras. 414-444, 484. See also Gabriella Venturini, “The Temporal Scope of the Conventions”, in A. Clapham, P. Gaeta, and M. Sassòli, (eds), The 1949 Geneva Conventions: A Commentary, (Oxford, Oxford University Press, 2015) 51-66, at 61. 304 ICRC 2016 Commentary, para. 490. See also Venturini (supra) “The 1995 Tadić Decision held that in the case of internal conflicts, IHL applies until a ‘peaceful settlement is achieved’. In the Haradinaj Decision, the ICTY clarified that once the threshold of violence is met, a decrease in the intensity of fighting (or, one might add, degree of organization of an armed group involved) cannot end the applicability of IHL.” Ibid at pp. 61-62. 305 South Sudan ratified the Four Geneva Conventions and their Additional Protocols on 25 January 2013; they entered into force for South Sudan on 25 July 2013. 306 ICRC, Study on Customary International Humanitarian Law, Rules 1-24. 307 Ibid. 308 Draft Articles on State Responsibility, Article 8; ICRC, Study on Customary International Humanitarian Law, Rule 149. 309 ICRC, Study on Customary International Humanitarian Law, Rules 144, 150, 157, 158. For examples of United Nations practice supporting the obligations of armed groups to make reparations see the ICRC, Study, J.-M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law - Volume 1: Rules, (Cambridge: Cambridge University Press, 2005) at 550 where they also make the point that “in many countries victims can bring a civil suit for damages against the offenders”. 310 ICRC, Study on Customary International Humanitarian Law, Rule 156. 311 ICRC, Study on Customary International Humanitarian Law, Rules 151, 152, 153. 312 The duty to investigate human rights violations arises as a result of the duty of States to provide an effective remedy and provide effective protection of human rights, but is also made explicit in a number of human rights treaties: e.g. CAT, Article 12. The 44