A/HRC/40/CRP.1 acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.”342 The Convention provides individual criminal responsibility for anyone who commits, orders, solicits or induces the commission of, attempts to commit, is an accomplice to or participates in an enforced disappearance as well as superior responsibility for the commission of the crime by subordinates.343 D. 1. Domestic Law Transitional Constitution (2011), Bill of Rights The Bill of Rights contained in the Transitional Constitution of the Republic of South Sudan (2011) provides that all organs of the Government shall respect, uphold, and promote the rights of the people of South Sudan to life, dignity, integrity, liberty and security of persons, non-discrimination and equality before the law, the special rights of women and children, and freedom from arbitrary detention and torture or cruel, inhuman or degrading treatment or punishment.344 Fair trial rights are also protected in the Transitional Constitution (2011) including the rights to be presumed innocent until proven guilty; to be informed of the reasons for arrest and the charges laid; to a fair and public hearing; to be tried in his or her presence; to a defence in person or through a lawyer of choice.345 Article 5 of the Transitional Constitution, which sets out the sources of law does not expressly mention international law as one of the sources in South Sudan. Nonetheless, Article 5(e), which refers to “any other relevant source”, may be construed to include international law. The Transitional Constitution further provides that “All rights and freedoms enshrined in international human rights treaties covenants and instruments ratified or acceded to by the Republic of South Sudan shall be an integral part of this Bill [of Rights].”346 However, it does not state whether ratified treaties can be directly applied by courts or whether they must be incorporated by domestic legislation. The Constitution contains provisions on states of emergency, declaring that while part of the Bill of Rights may be suspended, the protections of the right to life, prohibition on torture, right of non-discrimination, the right to litigation, and right to a fair trial may not be limited.347 For other rights, derogations are permitted only if they are clearly proclaimed in accordance with the law, limited to what is strictly required by the situation, and not discriminatory. 2. Penal Code Act (2008) The rights to life and physical integrity are also protected by South Sudan’s criminal law in several provisions of the Penal Code Act (2008) as amended by the Penal Code (Amendment) Bill, 2015. Ordinary criminal provisions prohibit murder, rape and other sexual offences such as unnatural offences, and gross indecency, kidnapping, abduction, assault, grievous hurt, violations of personal liberty, robbery and damage to or destruction of property, among others. 348 A number of the definitions of crimes in the Penal Code should be reviewed and amended. For example, under section 247(3) explicitly provides that there can be no rape within marriage.349 3. Code of Criminal Procedure Act (2008) Under the Code of Criminal Procedure Act (2008), every accused person is guaranteed a fair and speedy trial without delay, presumed innocent until proven guilty, protected from 342 International Convention for the Protection of All Persons from Enforced Disappearance, Article 2. International Convention for the Protection of All Persons from Enforced Disappearance, Article 6. 344 Transitional Constitution of the Republic of South Sudan (2011), Bill of Rights. 345 Transitional Constitution of the Republic of South Sudan (2011), Article 19. 346 Transitional Constitution of the Republic of South Sudan (2011), Article 9(3). 347 Transitional Constitution of the Republic of South Sudan (2011), Article 188(a). States of emergency are frequently declared, for example on 9 November 2017 in Gogrial, Tonj, Wau and Aweil East (Republican Order No. 28/2017); 11 December 2017 for a three month period in Lakes State (Republican Order No. 35/2017). 348 See, for example, Penal Code (2008), sections 191, 206, 223, 235, 247, 248, 249, 269, 270, 298, 305. 349 Section 247(3): “Sexual intercourse by a married couple is not rape, within the meaning of this section.” 343 49