A/HRC/40/CRP.1 b) Extra-Judicial Killings The Commission finds reasonable grounds to believe that members of the NSS and the SPLA Military Intelligence have carried out extra-judicial killings of people in their custody, as described above. This is a violation of the right to life under Article 12 of the Transitional Constitution (2011) as well as under Article 4 of the African Charter on Human and Peoples’ Rights. It constitutes murder under section 206 of the Penal Code Act (206). Furthermore, some of these extra-judicial killings have taken place in the context of rounding up and killing people perceived to be supporting opposition forces in the conflict. As such, there is a nexus between some of these killings and the non-international armed conflict that has been ongoing in South Sudan since December 2013. As such, they 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 implemented in its Geneva Convention Act (2012). They should be investigated and prosecuted as war crimes, including under Article 4(a) of the Draft Statute of the Hybrid Court for South Sudan. c) Enforced Disappearance As set out above, the Commission finds reasonable grounds to believe that a significant number of those arrested and detained by the NSS and the SPLA Military Intelligence Directorate are effectively subjected to enforced disappearance as they are taken into custody by state security officials and never heard from again, with no acknowledgement from the state. In this regard, the Commission notes the lack of consistent registration of detainees at many of the detention facilities, detainees’ lack of contact with lawyers and family members, the threats made during interrogations that detainees can be made to disappear as there was no paper trail to trace them, as well as the disposition of bodies in unmarked mass graves and the river. The Commission notes with particular concern that when it raised with the Government the cases of Dong Samuel Luak and Aggrey Izbon Idris, who were members of the opposition and reportedly detained in Nairobi, Kenya and unlawfully transferred to NSS headquarters in Juba in January 2017. When the Commission raised the issue of the transfer and removal of Dong Samuel Luak and Aggrey Izbon Idris from Kenya, however, the Deputy Minister of Foreign Affairs and International Cooperation denied having any knowledge of their whereabouts, stating that the Commission should make inquiries of the Government of Kenya.455 However, at least eight witnesses the Commission spoke to indicated that they saw Aggrey Izbon Idris and Dong Samuel Luak in NSS custody in South Sudan shortly after they disappeared in Nairobi. The International Convention for the Protection of All Persons from Enforced Disappearance, defines “enforced disappearance” as the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to 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. 456 South Sudan is not a party to the International Convention for the Protection of All Persons from Enforced Disappearance. However, there are a number of domestic legal provisions which provide protection against enforced disappearance. In particular, the Code of Criminal Procedure Act (2008) provides that an arrested person has the right to inform and contact his or her family,457 a right which is consistently violated. As noted above, the Code of Criminal Procedure Act (2008) requires that a register of all arrests be kept at every police station.458 While this applies to police stations, it should apply equally to all detention facilities. Furthermore, the Commission recalls the United Nations General Assembly’s Declaration on the Protection of all Persons from Enforced Disappearance which states that: 455 Meeting with the Deputy Minister of Foreign Affairs and International Cooperation, Juba, 7 December 2018. International Convention for the Protection of All Persons from Enforced Disappearance, Article 2. 457 Code of Criminal Procedure Act (2008), section 93(4). 458 Code of Criminal Procedure Act (2008), section 96(1). 456 71