A/HRC/34/63
63.
The timelines and milestones for the establishment of the hybrid court were removed
from the final, signed peace agreement, leaving the entire process open-ended, with no
deadlines; as a result, (few, if any) efforts were made to establish the court between August
2015 and the spring of 2016. Valuable time was lost, and possibly, important evidence of
major war crimes and human rights abuses. The African Union informed the Commission
that, as at early October 2016, it had managed to raise the funds to commence work on the
establishment of the court. It also stated that its timeline for operationalizing the court was
approximately three years (autumn of 2019), more than four years after the signing of the
peace agreement.
64.
The Office of Legal Counsel of the African Union Commission also informed the
Commission that a draft statute and a memorandum of understanding for the establishment
of the hybrid court had been submitted to the Government of South Sudan for its
consideration. The Commission was informed by the Minister for Justice of South Sudan
that the responsibility for the establishment of the court lay with the African Union.
65.
A large number of non-governmental organizations have called for the establishment
of an investigative mechanism before the hybrid court becomes fully operational, as well as
the setting-up of a witness protection programme and a transparent and credible selection
process for judges. On 20 January 2017, a coalition of civil society organizations engaged
in transitional justice initiatives, the Transitional Justice Working Group for South Sudan,
delivered a briefing paper to African Union officials in which it argued that the
establishment of a hybrid court “[could not] in and of itself resolve the ongoing conflict”,
but would contribute to breaking, or at least slowing, the cycle of violence and revenge.
B.
Commission for truth, reconciliation and healing
66.
Chapter V of the Agreement on the Resolution of the Conflict in the Republic of
South Sudan provides for the establishment of a commission for truth, reconciliation and
healing. The Government of South Sudan, supported by the United Nations Development
Programme (UNDP), has advanced the process of establishing the commission by
compiling two papers, on the national consultation process required by the peace
agreement, and on best practices for truth commissions. The survey conducted in 2014/15
(see para. 57 above) found that respondents emphasized the importance of a nationally
owned process for documenting human rights abuses and publicly acknowledging the role
of both State and non-State actors in committing violent acts against civilians in the current
and past conflicts. Proponents of the commission argued that a truth-seeking process could
be an opportunity for the State to demonstrate its commitment to building a culture of
respect for human rights and the rule of law in South Sudan, and that a public dialogue
about the legacy of violence in the country could help to dispel the fear resulting from
decades of civil conflict.
67.
National consultations in the context of South Sudan are critical for incorporating
the views of victims, and are an intrinsic component of a holistic transitional justice
framework. A major challenge for the people of South Sudan lies in whether national
consultations can be held or any truth-seeking process implemented, given that the country
is in the midst of an ethnic civil war.
68.
The Minister for Justice established a technical committee, comprising
representatives of diverse sectors including government, civil society and the faith
communities, that is responsible for the process of establishing the commission for truth,
reconciliation and healing. The committee, launched by the First Vice-President on 15
December 2016, had the goal of hosting national consultations between February and
March 2017 to produce draft legislation by April/May 2017.
14
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