A/HRC/40/CRP.1
necessary to building transparency, credibility and legitimacy and will go a long way to
address the enormous mistrust among vulnerable groups towards the Government and other
armed actors, whom they associate with having perpetrated gross violations of human rights
and serious violations of humanitarian law.1443 Meaningful engagement of civil society is
therefore paramount to provide for an independent oversight, while the involvement of other
constituencies to create the ownership over the process.
South Sudan is obliged to respect, protect, promote, and fulfil the human rights of all
persons within its territory or under its control,1444 without discrimination. South Sudan must
therefore ensure that victims’ rights to truth, justice, reparations and non-recurrence of
violations are respected and realized. Chapter V of the ARCSS establishes a transitional
justice framework for South Sudan in which criminal prosecutions is accompanied by other
strategies of truth-seeking and investigations of past violations and reparations. This should
be further accompanied by traditional, indigenous and religious approaches to justice and
healing,1445 as well as institutional reforms in order to create an environment conducive to
building democracy.
Under international law, South Sudan has a duty to promptly and thoroughly
investigate any allegations of gross human rights violations and serious violations of
international humanitarian law, and to prosecute and punish those found responsible for these
violations.1446 The UN Security Council, on a number of occasions stressed an urgent need to
“end impunity in South Sudan and to hold accountable and bring to justice all perpetrators
for violations of international humanitarian law and violations and abuses of human
rights”1447 and emphasized its hope that the allegations would be dealt effectively by the
transitional justice mechanisms. Similarly, the UN Security Council also expressed concerns
about the delays in establishing the HCSS.1448
South Sudan must also ensure that victims are able to realize the right to an effective
remedy. A number of human rights treaties and instruments refer to the right of victims to an
effective remedy, including African Charter on Human and Peoples’ Rights, to which South
Sudan is a State Party.1449 Moreover, as confirmed by the African Commission of Human
Rights in Jawara v. The Gambia, remedies must be available, effective, and sufficient. 1450
The Maputo Protocol on the Rights of Women in African further requires South Sudan to
take appropriate and effective measures to “establish mechanisms and accessible services for
effective information, rehabilitation and reparation for victims of violence against
women.”1451 The right to an effective remedy has two facets, namely the right to a fair trial
1443
See e.g., Witness 162, ERN D101222-D101225.
In a complaint brought by Democratic Republic of Congo against Burundi, Rwanda and Uganda before the African Commission,
the Commission considered the control exercised by the Respondent States and “Recommend[ed] that adequate reparations be
paid, according to the appropriate ways to the Complainant State for and on behalf of the victims of the human rights by the
armed forces of the Respondent States while the armed forces of the Respondent States were in effective control of the provinces
of the Complainant State, which suffered these violations.” 227/99 Democratic Republic of Congo / Burundi, Rwanda, Uganda,
33rd Ordinary Session of the African Commission on Human and Peoples’ Rights, 29 May 2003, Meeting in Niger, Holding,
p. 14. See also paras. 7, 72, 88, 90.
1445 Bassiouni, “Assessing Conflict Outcomes: Accountability and Impunity”, in M C Bassiouni (ed), The Pursuit of International
Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice, Volume 1, (2010), at 5.
1446 See e.g. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, Article 7. The majority of international
human rights treaties and other documents of international character contain provisions related to the right of victims to an
effective remedy. International bodies have pronounced that the duty to genuinely investigate and prosecute gross human rights
violations derives from the victims’ right to an effective remedy (e.g. IACtHR, Case of Trujillo Oroza v. Bolivia, Judgment, 27
February 2002, Series C No. 92, §99.).
1447 E.g. UN Security Council Resolution 2406 (2018), S/RES/2406, 15 March 2018, p. 3.
1448 UN Security Council Resolution 2406 (2018), S/RES/2406, 15 March 2018, p. 3.
1449 While the African Charter does not explicitly provide for the right to an effective remedy, the latter might be interpreted from
two relevant provisions of the Charter. In this regard see Articles 7 and 26 of African [Banjul] Charter on Human and Peoples’
Rights 1982, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58.
1450 African Commission on Human and Peoples’ Rights, Jawara v. The Gambia, May 11, 2000, No. 147/95-149/96, § 32: “A
remedy is considered available if the petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of
success, and it is found sufficient if it is capable of redressing the complaint.”
1451 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, Article 4(2)(f).
1444
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