A/HRC/40/CRP.1 In accordance with the terms of the 2015 Agreement, the HCSS should have been fully operational by April 2017. As noted above and discussed below, at a high level meeting, the AU Peace and Security Council in September 2015 made a firm decision mandating the AU Commission to establish the Court. Yet three years since the signing of the ARCSS, the court is yet to be established, and that agreement has now given way to the R-ARCSS with new timelines and new approval mechanisms. Negotiations for the establishment of the court between the AU and the Government of South Sudan reached a stalemate in December 2017, despite the completion of the drafting of the Statute for the Court and a draft memorandum of understanding, which the Government has failed to sign. In April 2018, following a visit to South Sudan by a high-level AU Peace and Security Council delegation, the AU announced that it had reached an agreement with the Government for setting up the court. However, no progress was made thereafter, and the government has continued to give mixed signals of its commitment to the court. Various government ministers, including the Minister of Information, have publicly declared their reservations about the operationalization of the Court, arguing that it would undermine peace efforts. 1482 With the reiteration in the R-ARCSS of the parties’ commitment to the Court, it should be expected that no further impediments will be cited in the way of its establishment. However, the Commission has also been informed by other officials that the Government has reservations in signing the memorandum of understanding with the AU. 1483 While these reservations have not been disclosed, it is believed the government has two primary concerns. First, that signing the Memorandum of Understanding could trigger the immediate establishment of HCSS, which it is not ready for―the R-ARCSS has now clarified that the Court is to be established by the R-TGoNU. Secondly, officials may be concerned about the prospect an indictment by the court which would, even in the absence of a conviction, preclude them from holding office in the transitional or subsequent governments as prescribed in the R-ARCSS1484. In discussions with the Commission in December 2018, officials further indicated that the government intended to domesticate all the relevant legal instruments pertaining to the HCSS, in order for the Court to become operational in the country.1485 This will inevitably entail further delays in the setting up the court. Bearing in mind the enormous deficits in the rule of law and the domestic justice system in South Sudan engendered by the conflict, it is evident that although the HCSS has primacy over domestic courts in pursuing those responsible for violations of international law and relevant South Sudanese law,1486 the HCSS is likely to have limited capacity and therefore may not be able to hold to account a large number of perpetrators. Consequently, the prosecutorial policy once developed by HCSS will ultimately clarify the way in which HCSS prosecutors will exercise their powers and discretion. Given the practice of other hybrid and international tribunals, the HCSS is likely to focus on emblematic cases or high level perpetrators alleged to bear the greatest responsibility for the most serious crimes. It is unlikely that the Hybrid Court will have a capacity to deal with all the crimes that have been committed during the conflict, it is essential to build and strengthen the capacity of the national justice system, to play a complementary role in ensuring accountability. Reforming and capacitating the judicial system would also fundamentally bolster the confidence of general public in rule of law institutions and more generally in the state, thus contributing to the rebuilding of sustainable peace and stability. c) Commission on Truth, Reconciliation and Healing The CTRH is to inquire into all aspects of human rights violations, abuses, breaches of the rule of law and excessive abuses of power, and to investigate, document and report on the causes of conflicts and recommend processes for victims to enjoy a full right to remedy, including reparations and compensation.1487 The CTRH is to make sustained efforts of public- See e.g., Sudan Tribune, “South Sudan says establishing Hybrid Court undermines peace”, 31 January 2017; VOA, “South Sudan Government Objects to War Crimes Court”, 3 October 2018. 1483 Meeting with a governmental delegation headed by the Minister of Justice, Juba 23 August 2018. 1484 R-ARCSS, Article 5.5.1. 1485 Meeting with the Minister of Cabinet Affairs and the Minister of Defence and Veteran Affairs, 6 December 2018. 1486 R-ARCSS, Article 5.3.2.2. 1487 R-ARCSS, Article 5.2.2.1. 1482 184