A/HRC/43/56
Rights. While there is no express provision in the African Charter on Human and Peoples’
Rights which guarantees the right to food, the African Commission on Human and Peoples’
Rights has stated that the “Right to food is implicitly protected under the African Charter on
Human and Peoples’ Rights through the right to life, the right to health, and the right to
economic, social and cultural development”. In one of its decisions on Sudan, the
Commission concluded that: “even if Sudan is going through a civil war, civilians in areas
of strife are especially vulnerable and the state must take all possible measures to ensure that
they are treated in accordance with international humanitarian law”.284 Further, in its earlier
decision on Chad, the Commission had also noted that “the African Charter, unlike other
human rights instruments, does not allow for state parties to derogate from their treaty
obligations during emergency situations. Thus, even a civil war in Chad cannot be used as
an excuse by the state violating or permitting violations of rights in the African Charter”. 285
15.
At the national level, the right to food may be construed by Articles 9(3) and 11 of the
Constitution which guarantee both the domestic application of international human rights
instruments to which South Sudan is a state party and the right to life and human dignity,
respectively. The interdependence, indivisibility and interrelated nature of all human rights
form another basis of the recognition of the right to food. It can therefore be inferred that
both the state of South Sudan and armed opposition groups are bound to respect and fulfil
their human rights and humanitarian law obligations under national, regional and
international instruments and especially those that guarantee access to food, prohibit
starvation of civilians and denial of access to humanitarian assistance in armed conflict.
D.
Sexual and gender-based violence
16.
Incidents of sexual and gender-based violence and conflict-related sexual violence
with respect to South Sudanese women and girls have rarely been investigated and
prosecuted with women and girls being left without extremely limited redress, not being able
to bring perpetrators to justice and unable to obtain reparation for harm suffered. Access to
justice for victims of rape and other forms of sexual violence remains a challenge as rape
cases rarely find their way before the statutory courts and are usually brought before
customary courts which have an inherent gender bias and seldom hold male perpetrators
sufficiently accountable for crimes committed.286 In general, there is a trust deficit among
women towards government institutions including the police, the statutory and the customary
law courts, which are considered prejudiced against females. 287 Sentences meted out in these
institutions including but not limited to compensation in the currency of cattle or monetary
compensation are in most cases unsatisfactory and disproportionate to the crimes committed.
While perpetrators may be fined for these serious crimes, in some instances victims are
compelled by both families to marry the perpetrator, increasing trauma and suffering of the
victims.288
17.
Despite this lack of serious commitment by the government of South Sudan and armed
opposition groups to prevent, investigate and punish sexual and gender-based crimes, the
Republic of South Sudan and armed opposition groups are both under national and
international obligations to prevent and punish such crimes. Article 3 to the Geneva
Conventions, while it does not explicitly mention specific forms of sexual violence, prohibits
“violence to life and person” including cruel treatment and torture and “outrages upon
personal dignity”.289
284
Amnesty International & Others v Sudan (2000) AHRLR 297 (ACHPR 1999). Para 50.
Commission Nationale des Droits de l'Homme et des Libertés v Chad (2000) AHRLR 66 (ACHPR
1995) para 21.
286 Justice Africa, “Justice in Practice: South Sudan”, Spring 2015.
287 What Works to Prevent Violence against Women and Girls consortium, “No safe Place: A lifetime of violence for
conflict-affected women and girls in South Sudan”, 2017; Justice Africa, “Justice in Practice: South Sudan”, Spring
2015.
288 What Works to Prevent Violence against Women and Girls consortium, “No safe Place: A lifetime of violence for
conflict-affected women and girls in South Sudan”, 2017.
289 See also Rule 93 of Rape and other forms of sexual violence
285
49
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