A/HRC/40/CRP.1
of temperature, denial of privacy and forced nakedness.”464 In particular, the Commission
recalls that solitary confinement may constitute torture or cruel, inhuman or degrading
treatment, particularly if it exceeds 15 days or for indefinite periods of time. 465 The
Commission finds reasonable grounds to believe that in many cases, the conditions in which
detainees are held, including in particular solitary confinement of more than seven months
amounts to torture or cruel, inhuman or degrading treatment.
These acts of torture and cruel, inhuman or degrading treatment are violations of
Article 18 of the Transitional Constitution (2011).466 They are also violations of the Code of
Criminal Procedure Act (2008) which provides that “An arrested person shall not be
subjected to any treatment against human dignity nor shall he or she be physically or morally
abused.”467 Such acts also amount to crimes under South Sudan’s Penal Code (2008),
including criminal force (section 224).
In addition to being violations of the Convention Against Torture, these acts of torture
and cruel, inhuman or degrading treatment are also violations the Universal Declaration of
Human Rights,468 and the African Charter on Human and Peoples’ Rights. 469
The Commission also finds reasonable grounds to believe that there was a nexus
between the commission of some of these instances of torture and cruel, inhuman or
degrading treatment and the non-international armed conflict has been ongoing in South
Sudan since December 2013, as many of these acts occurred in the context of interrogating
detainees about their knowledge and support of opposing armed groups. As such, they are
violations of international humanitarian law under Common Article 3 to the Geneva
Conventions and Additional Protocol II to which South Sudan is a party and which it has
implemented in its Geneva Convention Act (2012). They should also be investigated and
prosecuted as war crimes, including under Article 4(a) (violence to life, health and physical
or mental well-being of persons, in particular murder, as well as cruel treatment such as
torture, mutilation or any form of corporal punishment) and 4(e) (outrages upon personal
dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and
any form of indecent assault), as well as Article 6 (which covers serious crimes under the
Relevant Laws of South Sudan, including torture, and gender-based crimes) of the Draft
Statute of the Hybrid Court for South Sudan.
11.
a)
Responsibility
Individual Responsibility
The violations and crimes described in this section were perpetrated in both official
and unofficial detention facilities by officers and officials of the National Security Services
and the SPLA Military Intelligence Directorate, many of whom were identified by their
names, ranks and functions by witnesses interviewed by the Commission, especially
witnesses who were detained for lengthy periods of time and therefore came to know the
464
Office of the United Nations High Commissioner for Human Rights, Istanbul Protocol Manual on the Effective Investigation and
Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, para. 145(m), Professional
Training Series No. 8, Rev. 1 (2004).
465 “[T]he Special Rapporteur concurs with the position taken by the Committee against Torture in its General Comment No. 20 that
prolonged solitary confinement amounts to acts prohibited by article 7 of the Covenant, and consequently to an act as defined in
article 1 or article 16 of the Convention. For these reasons,[…] any imposition of solitary confinement beyond 15 days
constitutes torture or cruel, inhuman or degrading treatment or punishment, depending on the circumstances.” Special Rapporteur
on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Interim Rep. of the Special Rapporteur on Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, para. 76, U.N. Doc. A/66/268 (Aug. 5, 2011) (by Juan
Mendez). “Furthermore, [the Committee] is concerned about the use of solitary confinement for indefinite periods of time. [...]
Full isolation of 22 to 23 hours a day in super maximum security prisons is unacceptable (art. 16).” Comm. against Torture
[CAT], Concluding observations on the combined third to fifth periodic reports of the United States of America, para.20, U.N.
Doc. CAT/C/USA/CO/3-5 (19 December 2014). See also Torture and other cruel, inhuman or degrading treatment or punishment
(2013) G.A. Res 68/156, para. 28, (18 December 2013).
466 Transitional Constitution (2011), Article 18.
467 Code of Criminal Procedure Act (2008), section 93(1).
468 Universal Declaration of Human Rights, proclaimed by the United Nations General Assembly in Paris on 10 December 1948
(General Assembly resolution 217 A), Article 5.
469 African Charter on Human and Peoples’ Rights, Article 5.
73
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents