A/HRC/40/CRP.1 The R-ARCSS confers on the Hybrid Court primacy over the national judiciary, such that it will be empowered to assert jurisdiction over cases whether or not investigations and prosecutions are being conducted in the courts of South Sudan.326 The Hybrid Court will have jurisdiction over genocide, crimes against humanity, war crimes and other serious crimes under international law, and relevant laws of South Sudan including torture, gender-based crimes and sexual violence, crimes against children, and other serious crimes against persons or property.327 It will have jurisdiction over these crimes where they were committed in the territory of South Sudan between 15 December 2013 and the end of the Transition Period. 328 Under the Draft Statute of the Hybrid Court, individuals, both civilian and military, regardless of rank and affiliation, may be held criminally responsible. Individual criminal responsibility under the Statute covers those who “planned, instigated, ordered, committed aided and abetted, conspired or participated in a joint criminal enterprise in the planning, preparation or execution of a crime” under the Statute.329 The official position of any accused person shall not relieve that person of criminal responsibility nor mitigate punishment, and no immunities shall bar the Court from exercising its jurisdiction.330 Under the Statute, a superior is criminally responsible: if he or she knew or had reason to know that the subordinate was about to commit [acts referred to in the statute] or had done so and the superior had failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.331 3. Jurisdiction of the International Criminal Court South Sudan is not a State Party to the Rome Statute of the International Criminal Court (ICC). Nonetheless, the ICC may still exercise jurisdiction in respect of crimes relating to a non-state party in certain circumstances. It may do so through a referral of the situation by the United Nations Security Council.332 In addition, if South Sudan were to accept jurisdiction of the Court;333 the alleged perpetrator is a national of a State Party or a State accepting jurisdiction of the ICC; or the crime was committed in the territory of a State Party or a State accepting jurisdiction of the ICC,334 then the preconditions for the exercise of the ICC’s jurisdiction would be met. Once these preconditions for jurisdiction are satisfied the Court may exercise its jurisdiction where a State Party refers the situation or the ICC Prosecutor initiates an investigation proprio motu.335 The Commission notes that many South Sudanese also hold dual nationality in State Parties to the Rome Statute and consequently the ICC may exercise jurisdiction over crimes committed by these individuals. Similarly, in its recent decision on jurisdiction over the deportation of Rohingya people from Myanmar, which is not a State Party, to Bangladesh, which is, the ICC Pre-Trial Chamber took the position that it could exercise jurisdiction over the crime of deportation and possibly other crimes within the jurisdiction of the ICC if it is established that at least an element of the crime is committed in a territory of a State Party. 336 As the Pre-Trial Chamber explained: “an element of the crime of deportation is forced displacement across international borders, which means that the conduct related to this crime necessarily takes place on the territories of at least two States. What is more, the drafters of the Statute did not limit the combating impunity, reiterated condemnation of the violence and abuses committed by armed actors in South Sudan, and agreed to the establishment of an independent hybrid court pursuant to the 2015 Peace Agreement. 326 R-ARCSS, Article 5.3.2.2. 327 Draft Statute of the Hybrid Court for South Sudan, 10 August 2017, Articles 2, 3, 4, 5 and 6. 328 Draft Statute of the Hybrid Court for South Sudan, 10 August 2017, Article 1(1). 329 Draft Statute of the Hybrid Court for South Sudan, Article 8(1). 330 Draft Statute of the Hybrid Court for South Sudan, Article 8(2). 331 Draft Statute of the Hybrid Court for South Sudan, Article 8(4). 332 Rome Statute, Article 13(b). 333 Rome Statute, Article 12(2) and (3). 334 Rome Statute, Articles 12(2), 13(a) and (c), 14. 335 Rome Statute, Articles 12(2), 13(a) and (c), 14. 336 ICC, “Decision on the ‘Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute’”, ICC-RoC46(3)01/18-37, 6 September 2018, para. 72. 47