A/HRC/45/CRP.3
2.
The Hybrid Court for South Sudan
43. The 2015 Peace Agreement in South Sudan (ARCSS) has been replaced by the
Revitalised Agreement for the Resolution of Conflict in South Sudan (R-ARCSS) of
September 2018, which recommits South Sudan to fully cooperate with the African Union
to establish a Hybrid Court for South Sudan in order to prosecute international crimes that
may have occurred in the country between 15 December 2013 and the end of the
Transition Period.41 Like the ARCSS, the Revitalised Agreement confers on the Hybrid
Court jurisdiction over genocide, crimes against humanity, war crimes, torture, crimes
against persons and property, and other serious crimes under international law. 42
Considering the fact that the Hybrid Court is an integral part of the Peace Agreement
between warring parties, and its implementation a prerequisite for sustainable peace in
South Sudan, the Hybrid Court presents the most realistic and credible chance to address
on-going human rights violations in South Sudan, by the issuing of indictments and the
conducting of eventual prosecutions for related crimes such as the war crime of starvation
and crimes against humanity related to persecution (see paras.47-48, below, for more on
the relevant crimes against humanity).
3.
The East African Court of Justice
44. At the sub-regional level, South Sudan is a State Party to the Treaty establishing the
East African Community (EAC), and its principal judicial organ the East African Court
of Justice. While human rights do not comprise the main thrust of the objectives of the
East African Community, they do constitute governing principles to achieve the
objectives of the EAC Treaty.43 Article 6 of the Treaty provides for fundamental
principles which should be adhered to by member states, and which are necessary for
achieving EAC objectives. These objectives include good governance, democracy, the
rule of law, accountability, transparency, social justice, gender equality, as well as the
recognition, promotion, and protection of human and peoples’ rights in accordance with
the provisions of the African Charter on Human and Peoples’ Rights.44 Among other
requirements, Article 7(2) of the EAC Treaty obligates member states to abide by the
principles of good governance, including adherence to and maintenance of universally
accepted standards of human rights. Collectively, these provisions reflect the implied
commitment of the EAC member states to protect and advance human rights.
45. In the case of Katabazi,45 the Court concluded that “it cannot ‘abdicate’ exercising
its interpretive mandate, even if a matter before it contains allegations of human rights”.46
The Court further noted that national courts have the primary obligation to promote and
protect human rights. If human rights abuses are perpetrated against citizens and the State
in question shows reluctance, unwillingness, or the inability to redress the abuse, the
Court reaffirmed its role to intervene in the wider interests of the EAC Treaty. 47
Consequently, the Court proceeded to determine whether there was a violation of the
fundamental principles of the EAC and found that a state party had breached the principle
of the rule of law, which is a fundamental principle of the community. It especially noted
that, while the principle of the rule of law is not in and of itself a human right, it is a
precondition for the protection of human rights. On-going human rights violations in
South Sudan, and in particular of the right to food, run counter to the objectives and goals
41
Draft Statute of the Hybrid Court for South Sudan, 10 August 2017, at Art. 1(1).
Ibid., at Arts. 2-6.
43 Article 27(2) of the EAC Treaty confers the power upon the Council of Ministers to adopt a protocol that would extend the
current jurisdiction of the EACJ.
44 EAC Treaty, Art. 6(d).
45 James Katabazi and 21 Others vs. Secretary General of the East African Community and Attorney General of the Republic of
Uganda, Reference No. 1 of 2007, 31 October 2007, at para. 39.
46 Ibid.
47 Sitenda Sebalu v Secretary-General of the EAC & Others, Ref 1 of 2010, EACJ First Instance Division 50.
42
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