Introduction

Finally, 10 months after AUCISS completed its investigations and seven months after it initially tabled one of its reports, the time has arrived to make the AUCISS report public. At a summit level meeting held in New York on 26 September 2015, on the sidelines of the 70th meeting of the UN General Assembly, the Peace and Security Council (PSC) answered the call from civil society organizations and AU partners for the release of the AUCISS report.

There are actually two reports. The ‘main’ report, which was prepared under the leadership of the Chairperson of the AUCISS, former Nigerian President Olusegun Obasanjo, is 304-pages long (excluding annexes). Professor Mahmood Mamdani, one of the members of the AUCISS, singlehandedly authored the other report, also described as the dissenting report. The AU Commission submitted to the PSC and the PSC considered and decided to release ‘for public information purposes only’ both the ‘Final Report of the African Union Commission of Inquiry on South Sudan’ (Final AUCISS Report) and ‘A Separate Opinion’.

The two documents were released on 27 October 2015, a month after the PSC took decision for their release. The press statement announcing the release of the documents indicated that the documents are meant for ‘public information’ purposes and hence suggesting that may not be used as evidence for legal action.

As outlined in the PSC decision of 30th December 2013, the mandate of the AUCISS was to ‘investigate the human rights violations and other abuses committed during the armed conflict in South Sudan and make recommendations on the best way and means to ensure accountability, reconciliation and healing among all South Sudanese communities’. While it is clear from these terms that the mandate of the AUCISS involves two broad parts of investigation and proposing recommendations, the two components of the mandate of the AUCISS were further elaborated in the Terms of Reference (ToRs) that the AUCISS adopted following its establishment on 7 March 2014.

The first component of the mandate of the AUCISS is elaborated in the ToRs to include: the establishment of the immediate and remote causes of the conflict; investigate human rights violations and other abuses committed during the armed conflict; establish facts and circumstances that may led to and that amount to such violations and of any crimes that may have been perpetrated; compile information based on these investigations and in so doing assist in identifying perpetrators of such violations and abuses with a view to ensuring accountability; and compile information on institutions and processes or lack thereof that may have added or aggravated the conflict resulting in violations of human rights and other abuses.

The second component of the mandate was elaborated in the TORs to involve the submission of recommendations on: appropriate mechanisms to prevent a recurrence of the conflict; mechanisms to promote national healing and cohesiveness; modalities for nation-building, specifically focused on building democratic institutions and post-conflict reconstruction; and accountability mechanisms for gross violations of human rights and other egregious abuses to ensure that those responsible for such violations are held to account.

The report (as well as the separate opinion) makes a heart wrenching reading. The main AUCISS report contains incidents of excessive brutality not only gruesome details but also in pictures mirroring haunting images. Even so, the report as well as the separate opinion has understandably captured only a portion of the events that constitute the civil war and the violations it inflicted the entire affected population. Indeed, the main AUCISS report indicates that the number of the dead remains unknown.

The broader historical and institutional roots of the conflict

The final AUCISS report traces the antecedents of the armed conflict that broke out in South Sudan in mid December 2013 to divisions, infighting and violations that emerged among Southern political and armed forces in the course of the North-South civil wars, most notably in the context of the second North-South civil war that broke out in 1983. As the report put it, the dissolution of the regional assembly of Southern Sudan and the division of ‘the South into three administratively weak regions – Equatoria, Upper Nile and Bahr el Ghazal … effectively introduced a new dynamic to the war in Sudan: it also became a South-South conflict, which the successive regimes in Khartoum would encourage and exploit from then on, beginning with the Anyanya II – SPLM/A divide in the mid 80s.’ The report stated that while the ‘1983 insurgency’ at the initial years involved ‘five disparate formations’, they coalesce to form the SPLM/A under John Garang which, after weathering further storms, emerged to be the dominant rebel force.

According to the AUCISS report the original sin, so to speak, that led to South Sudan’s eventual fall to disaster in 2013 was the 1991 SPLM/A split, which, in the words of the AUCISS, ‘stand out as defining moment in the life of the movement’. The AUCISS found that the instability, violations and animosity that the 1991 split precipitated was not properly investigated and dealt with. This suggests that the events of 1991 laid the seeds of the current violence. Indeed the AUCISS concluded that ‘[f]rom our consultations with South Sudanese, it emerged that events surrounding the split in 1991 continue to define and order relations within the movement.’ Accordingly, as far as truth, reconciliation and healing is concerned, the Commission suggests the need for confronting what it called ‘the ghosts of 1991’.

The AUCISS report also attributed a significant amount of blame on the design and (problematic) implementation of the CPA as a major factor that contributed to South Sudan’s eventual descent into the civil war.

‘The Commission takes the view’, reads the report, ‘that the current conflict can be attributed, in part, to the flaws of the CPA (in terms of process and outcomes) as well as its implementation. Most notably, the Commission blames, in one notable line, the inevitability of the eruption of the conflict on the failure of the CPA to address longstanding South-South grievances and problems. Related to this was also the SPLM/A monopolization of the peace process to the exclusion of other South Sudanese actors.

The separate opinion brought out other legacies of the CPA that created the conditions for the eventual eruption of South Sudan. ‘[T]he Comprehensive Peace Agreement (CPA), held the opinion, ‘was responsible for setting up an unchallenged armed power in South Sudan, and thereby legitimizing both anyone holding a gun and the rule of the gun.’ It further states that ‘[t]he CPA introduced an armed power into South Sudan, but not a civil service. Ministries were occupied rather than run by generals and their relatives.’

The broader institutional framework of the South Sudan state that facilitated the eruption of conflict has been interrogated in great depth in the main AUCISS report. ‘It is widely accepted’, according to the AUCISS, ‘that the crisis in South Sudan is primarily attributable to the inability of relevant institutions to mediate and manage conflicts, which spilt out into the army, and subsequently the general population.’ The AUCISS thus interrogated the various dysfunctions afflicting the institutions constituting the South Sudan state (the system of government, the executive, the legislative, judiciary, army, political parties, the media and civil society) leading to their failure to detect and peacefully resolve the issues that precipitated the violence.

According to the report what obtained in South Sudan was something akin to an all too powerful imperial presidency. It thus established that ‘the President has extraordinarily wide and apparently all-pervading powers, with very limited checks and balances in place.’ (para. 159) Apart from the problems it identified in their constitution and functioning, the structural causes that this extensive review established included the lack of accountability and authoritarianism, rampant corruption and the militarization politics and the ethnicization of politics and the security establishment that operated as an amalgam of disparate militias answerable to various political figures.

The separate opinion of Prof Mamdani took a much stronger view on the state of the institutional setup of South Sudan. ‘The state called South Sudan exists more as a juridical fiction than as an institutional reality.’ Elaborating this point, the opinion stated, ‘[i]t is wrong to think of South Sudan as a failed state – for the simple reason that South Sudan never was a state. There was no bureaucracy, no judiciary, there was nothing to fail.’ Whatever existed ‘were only fighting forces, most of the times fighting one another and a make believe state whose leadership was propped up and fated by important sections of the international community, key being the Troika.’

It further states that ‘[t]o think of South Sudan as a failed state is to overlook the simple fact that the very political foundation for the existence of a state – a political compact – has yet to be forged, either within the elite or between the communities that comprise South Sudan.’

Immediate causes and triggers of the civil war – no attempted coup

The divisions and issues that resulted from the 1991 split survived during and after the transitional period. During the CPA, this evolved into rivalry and division between the President Salva Kiir and his deputy Machar. As the AUCISS report pointed out, the recent origin of the conflict was the tension that resulted from the 2010 elections during which ‘the two leaders are said to have supported rival candidates in a number of key electoral positions, particularly the governorships of several states.’

A series of political developments within the SPLM and in government in the months prior to the eruption of the conflict have also been cited as the main circumstances that precipitated the eruption of the conflict. These developments emerged in the context of the emergence of open power struggle in the leadership of the SPLM and hence the government. In anticipation of and as part of the jostling for the party and national elections expected in 2015, leading political figures, namely Vice President Dr. Riek Machar, SPLM Secretary General Pagan Amun, and Madam Rebecca Garang, the widow of the late Dr. John Garang, publicly announced their intention to run for the post of Chair of the SPLM, and thus President of the country.

The resultant perceived challenge that this presented to the current chair of the SPLM and President of the country, the split in the SPLM descended into fierce power struggle. In April Riek was stripped off his executive powers. In July, President Kiir dissolved the cabinet. As documented in the AUCISS main report ‘[t]he consensus among the ex-officials (former detained senior SPLM figures) was that the genesis of the conflict in South Sudan began from an intra-party disharmony specifically between President Salva Kiir and Dr. Riek Machar.’ (para. 420)

As both reports highlighted, while the foregoing set the political background for the conflict, the immediate precipitating event was the confrontational atmosphere that prevailed during the meeting of the National Liberation Council (NLC), the legislative organ of the SPLM, the failure of the NLC to resolve the major issues of disagreement and stories of Nuer members of the presidential guard being disarmed. The separate opinion of Prof Mamdani puts it thus ‘[t]he meeting of the NLC took place against a rumor-laden, crisis atmosphere. A sense of a protracted crisis had permeated the public sphere ever since the dismissal of most of the cabinet. The atmosphere was rife with rumors, with talk of a possible breakdown leading to a split in the army and civil war.’ (para. 20)

While both reports noted the existence of divergent narratives over what triggered the conflict, the main AUCISS report concluded ‘from all information available to the Commission, the evidence does not point to a coup. We were led to conclude that the initial fighting within the presidential guard arouse out of disagreement and confusion over the alleged order to disarm Nuer members’. (para. 68)

After the AUCISS examined what was alleged to be intelligence evidence indicating the moment when Taban Deng and Riek Machar ordered fighting (for ousting President Kiir’s government) to start, it concluded that ‘it could not detect information relating to a coup from the intercepted conversation they (members of the AUCISS) listened to.’ (para. 418)

On the question of how the violence in the army spread to the public, while the main AUCISS report offers a structural analysis whereby the divisions in the political arena finds expression in the army and in the general public, the separate opinion put the focus mostly on who carried out the attacks against civilians in Juba on 16 and 17 December 2013. While noting three explanations to the question of who carried out the killings of Nuer civilians in Juba, the separate opinion pointed out that the ‘most widespread explanation was that the body of killers was a body of irregulars recruited in two districts of Bahr el Gazal by the current Chief of Staff who was then Governer of Northern Bahr al Gazal and ran the party branch in the district.’ Various testimonies contained in Chapter III of the main AUCISS report also lend strong support to this version of events.

Human rights violations and other abuses

The scale of the violations that engulfed South Sudan is unprecedented in so many ways. As the AUCISS main report pointed out ‘[w]hilst the crimes committed during the on-going violence are thus not new, the rate at which people have been killed during this conflict could be higher, according to some estimates, than during the (22 years of Sudan – Southern Sudan) civil war.’

As both documents show, the level of brutality that the violations revealed during the course of the war that broke out in December 2013 has also been unprecedented. ‘The stories and reports of the human toll of the violence and brutality have been heart-wrenching’ stated the AUCISS main report’. It went on to note ‘reports of people being burnt in places of worship and hospitals, mass burials, women of all ages raped; both elderly and young, women described how they were brutally gang raped, and left unconscious and bleeding, people were not simply shot, they were subjected, for instance, to beatings before being compelled to jump into a lit fire. The Commission heard of some captured people being forced to eat human flesh or forced to drink human blood.’ In the words of Prof. Mamdani’s separate opinion, ‘[g]ratuitous degradation was a marked feature in many of the incidents of brutality narrated to us.’

Civilians were the main target of the violations perpetrated in the conflict.The AUCISS noted thus ‘[w]hat is evident that civilians bore the brunt of the atrocities and that the conflict played out primarily amongst the civilian population and civilian targets. Indeed, specific identifiable groups within the civilian population were targeted on the basis of their ethnicity, and gender, as an integral part of the armed conflict.’ Various institutions of refuge such as hospitals and religious sites such as churches turned into sites of atrocities. There were also the use of hate speech and incitement to violence.

Perhaps, the most distinct aspect of the violations against civilians was the targeting of women and hence the prominence of the gendered dimension of the violence. As the AUCISS main report put it ‘[g]ang rape was (and continues to be) a common feature of the atrocities committed during the on-going conflict in South Sudan.’ The violations stand out not only for their targeting of women but also the brutality with which they victimized them. The AUCISS report thus noted ‘the wide use of objects such as stones, guns and sticks to rape women.’

The violations as documented in the two documents also involved strong mobilization and organization. As such, the AUCISS main report concluded that the ‘investigations reflect that violations documented were committed in a systematic manner and in most cases with extreme brutality.’ (para. 358) Similarly, the separate opinion of Prof Mamdani held that the violence ‘was intense and brutal, and targeted specific groups: Nuer in Juba; and Dinka, Nuer and Shiluk in the three states of Jonglei, Unity and Upper Nile.’

As the separate opinion pointed out, the violence that propelled South Sudan to a full-scale war ‘was unleashed in two phases. The first was over three days, from the 16th to the 18th of December, in Juba. The second phase covered three states in the provinces and was centered around three towns: Bor, Bentiu, and Malakal.’

On events in Juba, the main AUCISS report established that the ‘evidence gathered by the Commission suggests that there were killings committed by elements of security forces from 16th December 2013 in residential areas like Muniki 107, Khor Williams, New Site, Gudele one, Mangaten, Mio Saba, Customs, Nyakuren.’ (para. 464) According to the separate opinion, ‘[o]f the Nuer who remained in Juba, few survived the killing spree of December 16-18, 2013’.

Apart from killings, other violations documented in the AUCISS main report include torture and ill treatment (para. 475) and rape (475). The AUCISS accordingly held that ‘acts of torture and rape were committed in Juba by elements of security forces aligned to the government’.

The violations were well organized and targeted. Check points were established on the roads in various areas of Juba. The perpetrators of the violations undertook house-to-house searches.

The events in Juba triggered violent response in Jonglei State. Here the response mobilized the Nuer. As the separate opinion put it ‘Nuer mobilization began on the 17th and 18th of December. It took two forms, a rebellion and an uprising.’ ‘The rebellion’ according to the separate opinion, ‘followed a mutiny by Nuer in the army, led by Peter Gatdet, commander of 8th Division of SPLA’. The uprising involved what the separate opinion called ‘a more spontaneous response’ that came from ‘county level youth fighting formations known as the White Army (the name refers to white ash from cow dung with which the youth smear their bodies).’

According to the AUCISS main report ‘[f]rom the evidence on record, Peter Gatdet defected on the night of 17th December 2013 with mostly Nuer soldiers. In the process of defecting, the general ordered the killing of his deputy in Command Brigadier Ajak Yen. The evidence also suggests that on 18th December 2013, soldiers under his command killed a prison warden called Lt. Manguak in Block 4. On the same date, mass killings were committed … The killings targeted civilians of Dinka ethnicity who were trying to cross the river fleeing the impending war.’

The separate opinion registered that the White Army mobilized spontaneously to go to Juba following the arrival of news that the Nuer in Juba were targeted. Explaining the context that led to their speedy mobilization, Prof Mamdani’s separate opinion observed that they ‘were fresh from campaign against David Yau Yau‟s Murle militias, they mobilized with relative ease and speed.’

As the separate opinion put it, the ‘White Army left a trail of pillage, carnage and destruction in the towns and villages they swept through in their march to Juba.’ According to the AUCISS main report, mass killings were recorded in various parts of Bor town including ‘at St Andrew Cathedral, at Bor State Hospital, Bor Market place, at the CID compound (river bank), at the Police barracks. Other areas where massive killings took place within Bor town are Panjak, Malou and Marol areas’.

The use of rape as weapon of war was one of the characteristic feature of the violations in Jonglei as it was in Juba. As the AUCISS main report pointed out the ‘majority of women stated that the rapists consistently uttered verbal references to be reiterated against Dinka, thus confirming that women were being targeted not only because of their gender but also because of their ethnicity.’

The AUCISS report and Prof Mamdani’s report took completely divergent position on the relationship between the SPLM-IO and the White Army. The AUCISS main report held that there existed an institutionalized tie between the two including based on claims by Riek Machar that he was in command of the White Army (see para. 571). By contrast, after providing details of testimony in his separate opinion Prof Mamdani concluded

The White Army is not an army. It is not even a collection of militias. These are not soldiers but civilians with arms. The difference is in motivation and discipline. The White Army is motivated by a deep sense of grievance – revenge – and the promise of plunder. Unlike with soldiers, its members lack any sense of military discipline, command or hierarchy.

On Unity State, the AUCISS main report documents the violations and destruction that befallen its capital Bentiu. As the report noted, although other parts of Unity such as Rubkona have been severely affected, Bentiu was the epicenter of the fighting and the human rights violations and other abuses. ‘As is the case for Malakal in Upper Nile as well as Bor in Jonglei, noted the AUCISS report, ‘Bentiu town is largely destroyed.’

AUCISS’s report held that ‘the Commission heard testimony that civilians were killed, houses burned, and sexual violence committed against women. It further stated that ‘[t]he Commission was actually provided with a list of people killed during a visit to Bentiu POC Site; including women who had simply disappeared when collecting wood, presumably abducted.’ The violations were committed both by the SPLM in opposition and government forces.

On events in Upper Nile, one of the three major centers of the conflict in South Sudan, the AUCISS documented similar violations. Unlike the events documented for Jonglie and Unity, which mostly report testimonies of witnesses, on the violations in Upper Nile the AUCISS offers a synthesis of violations that took place there. It thus stated ‘[r]eported violations and crimes committed include: extrajudicial killings and rape.’

On how the violations were committed, it held that ‘[b]oth sides have reportedly targeted civilians, often conducting extensive house-to-house searches for individuals from rival ethnic communities, mostly Dinka and Nuer. Individuals from other communities, notably Shilluk, the third largest in South Sudan, have also been targeted.’

Regarding the scale of the violence, the AUCISS report noted that Malakal, having been the most contested of the various areas changing hands between the SPLM-IO and government forces, witnessed the most destruction. In the words of the report, ‘the majority of buildings and infrastructure have been destroyed. This includes government buildings and installations, civilian property.’

War Crimes

After treating the situation in South Sudan as a case of internal armed conflict falling within the rule of common Article 3 of the Geneva Conventions, the AUCISS found that war crimes were committed by both sides. In the words of the report, ‘considering the applicable law and case law, and the evidence and testimony the Commission has before it, the Commission believes that war crimes were committed in Juba, Bor, Bentiu and Malakal.’ The crimes include war crimes of unlawful killings or civilians and those believed to be hors de combat, rape, torture, and forced recruitment of children.

Crimes against humanity

Holding that ‘crimes such as murder, extermination, torture, rape, persecutions on political grounds as well as inhuman and degrading treatment were committed against civilians in various parts of South Sudan’ and that they were committed in a widespread or systematic manner, the AUCISS stated that it is reasonable to conclude that these crimes amount to crimes against humanity. It concluded the existence of a planning element with respect to some of the violations that took place in Juba. In terms of organization and specific targeting, it held that ‘[r]oadblocks or checkpoints were established all around Juba and house to house searches were undertaken by security forces. During this operation male Nuers were targeted, identified, killed on the spot or gathered in one place and killed.’

The AUCISS held that the evidence suggests that these crimes were committed in furtherance of state policy. In the words of the AUCISS ‘t[]he evidence also shows that it was an organized military operation that could not have been successful without concerted efforts from various actors in the military and government circles.’

Importance of the report/s

The AUCISS report together with the separate opinion presents a detailed account of the causes & immediate trigger of the civil war and the atrocities perpetrated by both sides of the conflict. In recording the details of violations, it offers a comprehensive account for helping South Sudan build a shared memory that will serve to fight impunity. It sought to give voice to the views and concerns of affected communities and various sections of South Sudanese society both about the war and its resolution. It has also laid down the foundation for the transitional justice processes envisaged in the IGAD sponsored peace agreement including the proposed hybrid court and the commission on truth, healing and reconciliation. In documenting and availing to the public the events constituting the civil war and the violations it inflicted on the civilian population, the AUCISS report as well as the separate opinion gives strong impetus for the implementation of the parts of the Comprehensive Peace Agreement on the Resolution of the Conflict in South Sudan relating to accountability and truth, reconciliation and healing.

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