A/HRC/40/CRP.1 Constitution’s prohibition on non-retroactivity which states that “No person shall be charged with any act or omission which did not constitute an offence at the time of its commission”.317 In the same vein, the Commission encourages the Government to make the statute of limitations set out in Code of Criminal Procedure Act (2008) inapplicable to international crimes.318 The Commission recalls the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (1968) under which States parties agree not to apply statutory limitations to such crimes irrespective of their date of commission. The Commission further notes that there is currently no provision in South Sudanese domestic criminal law for holding commanders responsible for failing to prevent or punish crimes committed by subordinates under their effective control. The new legislation regarding international crimes should incorporate such provisions on command and superior responsibility. Similarly, while the Penal Code (2008) already contains most of the other modes of liability set out in the Statute for the Hybrid Court 319 and the R-ARCSS,320 it does not include the equivalent modes of planning and ordering. The adoption of these modes of liability, as well as those of command and superior responsibility, will be of particular relevance if South Sudan is to be able to exercise concurrent jurisdiction to the Hybrid Court and to receive referrals from the Hybrid Court as foreseen in its Statute.321 Failure to incorporate these modes of liability could result in the Hybrid Court being unwilling to refer a case to the national jurisdiction. The domestic legislation should also ensure that responsibility may accrue regardless of a person’s official position as foreseen in the R-ARCSS in relation to the Hybrid Court which states: ‘No one shall be exempted from criminal responsibility on account of their official capacity as a governmental official, an elected official or claiming the defence of superior orders’.322 2. Statute of the Hybrid Court of South Sudan In 2015, the African Union’s Peace and Security Council agreed to: “the establishment by the AU Commission of an independent hybrid judicial court, the Hybrid Court of South Sudan (HCSS), in accordance with Chapter V(3) of the Agreement reached by the South Sudanese parties, as an African-led and Africa-owned legal mechanism.”323 South Sudan and the African Union thereafter negotiated a Memorandum of Understanding on the establishment of the Hybrid Court and a Statute for the court. However, the Memorandum of Understanding still awaits South Sudan’s signature. In the R-ARCSS, South Sudan recommitted itself to fully cooperating with the African Union to establish a Hybrid Court for South Sudan to prosecute international crimes.324 The members of the UN Security Council most recently in December 2018 called on South Sudan’s leaders “to take all necessary steps for the establishment of the Hybrid Court for South Sudan and the Commission for Truth Reconciliation and Healing.” 325 Transitional Constitution (2011), Article 19(5). Similarly, the Code of Criminal Procedure (2008), section 6(d) states that “no punishment shall be inflicted upon any person exceeding that prescribed by the law in force at the time such an offence was committed.” 318 Section 47(2)(a) of the Code of Criminal Procedure Act (2008) sets a statute of limitations of 10 years for crimes punishable with death of over 10 years. The inapplicability of statutes of limitations to international crimes would be consistent with customary international law, as defined by the ICRC. See ICRC Customary International Humanitarian Law Database, Rule 160, “Statutes of Limitation”, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule160. 319 Draft Statute of the Hybrid Court for South Sudan, Article 8(1). 320 R-ARCSS, Article 5.3.5. 321 Draft Statute of the Hybrid Court for South Sudan, Articles 10, 11. 322 R-ARCSS, Article 5.3.5.5. 323 African Union Peace and Security Council communiqué dated 26 September 2015, 324 R-ARCSS, Articles 5.1.5, 5.3. The 2018 R-ARCSS replicates the 2015 ARCSS provisions on the establishment of the Hybrid Court with the exception of the addition of the words “where necessary” to the Hybrid Court’s mandate “to investigate and where necessary prosecute individuals bearing responsibility for violations of international law and/or applicable South Sudanese law, committed from 15 December 2013 through the end of the Transitional Period.” See R-ARCSS, Article 5.3.1.1. 325 Security Council Press Statement on Sexual Violence in South Sudan, 7 December 2018. See also the African Union Peace and Security Council communiqué dated 26 September 2015, which, inter alia, reaffirmed the commitment of the African Union to 317 46