A/HRC/31/49
58.
Also according to the Agreement, the hybrid court for South Sudan, to be
established by the African Union Commission, will investigate and prosecute individuals
responsible for violations of international law and/or applicable South Sudanese law,
committed from 15 December 2013 through to the end of the transitional period.
59.
Once established, the hybrid court will probably only have capacity to investigate
and prosecute a limited number of those responsible, most likely the political and military
leadership that orchestrated the violence. The work of the court would therefore necessarily
need to be complemented by a national judicial process in order to provide all the many
victims and their families with redress. The local justice, however, is barely operational and
does not currently appear to have the capacity to investigate effectively, impartially and
independently gross and systematic human rights violations and abuses, violations of
international humanitarian law and other international crimes; nor is there a realistic role for
customary processes, which, particularly with regard to sexual and gender-based violence,
have no experience in addressing crimes on this scale.
60.
In such a context, OHCHR recommends the creation within the national judiciary of
a specialized judicial structure that would be responsible for the investigation, prosecution
and adjudication of violations and abuses amounting to international crimes. Consideration
should be given to United Nations experiences and lessons learned with similar courts to
envisage the participation of international prosecutors and judges, supported by
international investigators, who could serve in the national judicial system alongside
national counterparts.24
61.
In the meantime, it is critical to ensure that those responsible for violations and
abuses of human rights or international humanitarian law outlined by OHCHR in the
present report do not become part of the transitional Government of national unity. A
comprehensive vetting process must therefore be set up to ensure that all those responsible
are removed from office or precluded from appointment.
V. Technical assistance
62.
The United Nations and international donors have been engaged in technical
assistance in South Sudan since 2005, in particular with regard to the reform of criminal
justice institutions, with a focus on police, prosecutors, judges and prisons and training in
combating sexual and gender-based violence. Despite the considerable human and financial
investments made and the fact that international police and prison experts have been colocated and mentored their national counterparts, success in these areas has been modest.
Furthermore, members of the police force have themselves been implicated in the killing of
civilians in December 2013.
63.
In May 2014, in the light of the deteriorating situation, the Security Council, in its
resolution 2155 (2014), amended the mandate of UNMISS, re-prioritizing the protection of
civilians, human rights monitoring and investigation, creating the conditions for delivery of
humanitarian assistance, and supporting the implementation of the Cessation of Hostilities
Agreement. In this context, capacity-building was suspended.
64.
More than two years since the beginning of the conflict, there is considerable
pressure from the Government for the international community to resume capacitybuilding. Given the findings made by OHCHR, however, it is not timely to re-introduce
assistance by the United Nations in the form of training or other support to government
24
12
See OHCHR, Rule-of-Law Tools for Post-conflict States: Maximizing the legacy of hybrid courts
(United Nations publication, Sales No. E.08.XIV.2).
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