A/HRC/40/69
to gross violations of human rights and serious violations of international humanitarian law,
the amnesty raised serious concerns as it remained incompatible with the obligations of
South Sudan under international law. Amnesties do not constitute a bar from prosecution
before the hybrid court for South Sudan.
Transitional justice
111. In 2018, the Revitalized Agreement reaffirmed the commitment to the transitional
justice framework adopted in the 2015 Agreement. The framework reflects a holistic
approach, emphasizing transformative goals to which accountability, truth-telling,
reparations and processes of reconciliation and healing contribute. However, the hybrid
court for South Sudan, the commission for truth, reconciliation and healing and the
compensation and reparation authority, which are to be complemented by customary and
other community-centred mechanisms, are yet to be established. Although the Peace and
Security Council of the African Union endorsed the hybrid court in September 2015, in line
with the recommendations of the African Union Commission of Inquiry on South Sudan,
little progress in setting up transitional justice institutions has been made since then.
Revitalized agreement
112. The Revitalized Agreement introduces new implementation timelines for the
transitional justice mechanisms, to be established from May 2019. Women’s participation
in the mechanisms must now meet the 35-per-cent general threshold of the 2015 Agreement.
A gender perspective in the implementation of the transitional justice framework will be
essential to account for the different experiences and needs of men and women as a result
of the conflict. The women and girls of South Sudan have faced discrimination and
disadvantage as well as economic and political marginalization, exacerbated during the
conflict through unspeakable levels of violence against them, including sexual and genderbased violence. The special status of women and girls must be assured in the design and
implementation process, especially with respect to reparations.
113. Concerns about new provisions of the Revitalized Agreement include the sole power
granted to the Government to select national commissioners for the commission for truth,
reconciliation and healing, and the suggestion that, following investigations, the hybrid
court should prosecute only “where necessary”. Furthermore, the Government states that
the three mechanisms can be set up only once national legislation has been enacted. The
Government should enact the legislation forthwith, ensuring that the process is credible,
transparent, inclusive and consultative.
114. The African Commission on Human and Peoples’ Rights indicated that it would
activate its role under the Revitalized Agreement in monitoring and reporting on new
human rights issues in South Sudan, and deepen its collaboration with other African Union
and United Nations human rights and peace and security bodies, including this Commission.
All entities assigned specific roles in the 2015 Agreement, particularly the
Intergovernmental Authority on Development and the African Union, must discharge their
obligations towards the people of South Sudan.
The hybrid court for South Sudan
115. The process of establishing the hybrid court for South Sudan has stalled. Lack of
political will and uncertainty about the future of government contributed to this. Officials
continued to cite two undisclosed outstanding issues preventing the completion of the
memorandum of understanding to establish the court. The hybrid court will have primacy
over domestic courts and will likely focus on emblematic cases and high-level perpetrators.
The national justice and legal system must be strengthened in order to play its
complementary role, and national prosecutorial policy must be developed. This process
would bolster the confidence of the public in justice and in State institutions generally.
Commission for truth, reconciliation and healing
116. Despite official efforts to hold consultations on the commission for truth,
reconciliation and healing, a recent survey by the South Sudan Civil Society Forum found
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