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2017 | Amnesty International Report - Do Not Remain Silent

This report focuses on conflict-related sexual violence in South Sudan perpetrated by government and opposition forces and various other armed groups. Researchers interviewed 168 survivors of and 14 witnesses to sexual violence that has occurred since the start of South Sudan’s internal armed conflict in December 2013. The victims state that they were sexually targeted because of their gender, ethnicity, and perceived political allegiance.

Relying on the 2014 Guidance Note of the United Nations (UN) Secretary General on reparations for conflict-related sexual violence, the report considers “conflict related sexual violence” as incidents or patterns of sexual violence against women, men, girls or boys occurring in a conflict or post-conflict setting that have direct or indirect links with the conflict itself.

The report describes how, from the start of the conflict, South Sudanese women, men, girls and boys have been subjected to sexual violence on a massive scale. Although exact numbers fail, the few available statistics are alarming: a survey conducted in 2015 shows that 72% of women living in UN protected sites in the capital of Juba, reported having been raped since the conflict broke out, mostly by police and soldiers. And in April 2017, the UN reported that compared to 2015, 2016 shows a 32% increase in the number of cases of gender-based violence perpetrated by men in uniform, while “cases of abduction for the purpose of sexual slavery more than doubled”.

The report highlights that sexual violence is facilitated predominantly by the unequal status of women and girls in the South Sudanese society as subordinate to men, the patriarchal structures, the insufficient orders or sanctions from military commanders, and the general context of lawlessness and impunity allowing soldiers to do as they please.

Prohibition of sexual violence under South Sudan’s domestic law and international law

Based on the information provided by the interviewees, the report argues that many of the acts of sexual violence described constitute war crimes or crimes against humanity. But although South Sudan’s Penal Code criminalizes the acts of sexual violence described in this report (but at the same time criminalize less forms of rape than international law does), its domestic legal framework does not define and criminalize rape and other forms of sexual violence as crimes under international law. As a result, sexual violence cannot be prosecuted within South Sudan as torture, war crimes, genocide or crimes against humanity. Neither does South Sudan’s domestic law entails liability modes for the commission of crimes under international law, including military command and superior responsibility.

Nevertheless, South Sudan is party to several human rights treaties and is bound to customary law protecting the right to physical integrity and to be free from torture and other cruel, inhuman or degrading treatment, including rape and sexual exploitation. Consequently, South Sudan indeed is required to take effective measures to prevent violations of these rights and to conduct prompt, independent and impartial investigations into reports of rape and other forms of sexual violence, hold perpetrators accountable and provide fair and adequate reparations to victims.

Accountability

Absent political will and falling short of their legal obligations, South Sudanese authorities have repeatedly failed to conduct thorough, effective and impartial investigations into crimes of sexual violence or to hold those responsible accountable. Another issue is that, although victims call for justice and want perpetrators held accountable and be punished for their crimes, they refrain from reporting the crimes committed against them since they experience feelings of shame, social stigma and are outcasted by their communities when they becomes publicly known as a rape victim. Those who do, face hurdles accessing the formal courts that are perceived as being biased, located too far away, or travelling there is too dangerous. Moreover, in South Sudan most disputes are resolved through customary legal systems governed by the laws of South Sudan’s various ethnic groups. But these customary courts lack criminal jurisdiction and their public hearings withhold victims from stepping forward. As a result, unaccountability and chronic impunity continue to exist.

Reparations

While criminal accountability can serve to acknowledge the harm suffered by victims of sexual violence and ensure perpetrators are held responsible and punished, victims of sexual violence have a right to prompt, effective and adequate reparation, including restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition for the crimes committed against them. The South Sudan authorities should therefore ensure that victims of sexual violence have access to adequate medical and psychological services, to facilitate the return of women and girls who have been abducted or are subject to sexual slavery, to publicly acknowledge the role of government actors in perpetrating sexual violence and make public apologies to victims.

Unfortunately, unruly practice shows that adequate physical or physiological care is problematic: the nearest functional health facility may be too far, the roads to reach it too insecure, the healthcare systems in rural areas has collapsed and specialized treatment is unavailable. Dramatically enough, in fear of stigmatisation of out of shame, victims often neglect to fully disclose to medical staff the nature of abuse they have suffered.

The work stipulates that reparative measures to be taken by the South Sudan government, should address root causes and (thus) end the structural gender inequality, address the political and interethnic fissures that continuously drive the cycle of sexual violence and the stigma associated with sexual violence and its impacts in order to ensure that survivors live with dignity and respect, and that they can access justice and reparations.

In view of the guarantees of non-repetition, the South Sudanese government should issue to its military forces clear orders prohibiting sexual violence, provide them with appropriate training, and putting in place mechanisms to adequately monitor the conduct of forces.