A/HRC/40/CRP.1 These acts were committed by state agents and amount to serious violations of human rights law under the Transitional Constitution of the Republic of South Sudan (2011), particularly the right to life and human dignity (Article 11), the rights of the child (Article 17), and freedom from inhuman or degrading treatment (Article 18). They also amount to violations of the African Charter on Human and Peoples’ Rights, including in particular the right to life and the integrity of the person (Article 4), to liberty and security of the person (Article 6), and the right to property (Article 14). These acts constitute crimes under South Sudan’s Penal Code (2008), including, among others, murder (section 206), criminal force (section 224), rape (section 247), theft (section 293) and mischief (section 315). Moreover, the Government’s armed forces are also subject to the provisions of the SPLA Act (2009). In particular, section 57 of the SPLA Act establishes the offences of destroying and damaging property, plunder and committing any offence against the property or person of any inhabitant or resident of a country in which he or she is serving. Furthermore, the Commission finds reasonable grounds to believe that there was a nexus between the commission of these violations and the non-international armed conflict ongoing in South Sudan at the time in light of them occurring in retaliation by the SPLA for two ambushes by the SPLA-IO the week before which had resulted in the killing of a number of SPLA soldiers. Furthermore, the stated aim of the SPLA for the attack was to clear “rebels” from the compound. Although the aim of the attack was to search for “rebels”, the Commission does not consider that the fact that one gun, or a very small number of guns, was found at the ECCC deprived the school of its civilian character. In this regard, no evidence indicated that any opposition fighters were found in the premises and one witness testified that the soldiers themselves came to realise that the guns were only for hunting. 1269 Accordingly, these acts are violations of international humanitarian law under Common Article 3 to the Geneva Conventions and Additional Protocol II to which South Sudan is a party and which it has incorporated into its national law in its Geneva Conventions Act 2012. They should also be investigated and prosecuted as war crimes under Articles 4 and 5(e) of the Draft Statute of the Hybrid Court for South Sudan. 6. a) Responsibility Individual Responsibility The Commission has received information regarding a number of SPLA commanders operating on the Yei area of responsibility in 2018 who appear to have been exercising effective control over their troops and to have been in regular communication with their forces.1270 However, further investigations are necessary in this regard. In relation to the violations and crimes committed at Yei military detention facility, numerous witnesses were consistent in attributing responsibility to soldiers under the command of an identified SPLA Intelligence Officer. He was based in Yei since at least mid2016, though further information received by the Commission indicates he may have held other positions in the SPLA too. Witnesses described him organizing systematic arrests, detentions and executions of Kakwa civilian men and boys in Yei town and in the Yei military barracks, giving orders to soldiers under his command and being present at the scene of executions. In relation to the attack at the Emmanuel Christian College in Goli, witnesses were consistent in attributing the violations and crimes committed to the Tiger division based at Tore, which was confirmed by an SPLA Commander in Yei.1271 Accounts are also consistent that the attack was a planned operation undertaken in response to allegations that the ECC 1269 Witness 723, ERN 101454-101461, para. 11. See e.g., Confidential Document, ERN D116653-D116702; Confidential Document, ERN D116542-D116652; Confidential Document, ERN D116474-D116541. 1271 Witness 723, ERN 101454-101461, para. 6; Witness 703, ERN 101470-101475, para. 5; Witness 741, ERN 101417-101457, paras. 9, 23; Witness 717, ERN 101388-101399, para. 23; Witness 764, ERN 101946-101954, para. 11; Witness 700, ERN 101462-101469, para. 4; Confidential Document, ERN D115085-D115171; Confidential Document, ERN D115036 - D115084. See also CTSAMM, Report 2018/23 – Murder and Rape in Goli, Central Equatoria State, 7 July 2018, para. 2.10; Confidential Document, ERN D114962-D114963. 1270 160