Victimized Twice. Promoting Accountability and Justice for Survivors of Wartime Rape in South Sudan


Doctoral Thesis / Dissertation, 2016

71 Pages, Grade: A


Free online reading

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Contents
INTRODUCTION ... 4
I.
Overview of the South Sudan Civil War and the Use of Rape as a Tool of Warfare ... 6
A.
Causes and Consequences of the Civil War in South Sudan ... 6
1.
Causes of the Civil War in South Sudan ... 6
2.
Consequences of the Civil War in South Sudan ... 8
B.
Systematic Use of Rape as a Weapon of War in South Sudan ... 11
1.
Definition of Wartime Rape ... 12
2.
Defining victims of wartime rape ... 13
3.
Elements of Rape as a War Crime ... 14
4.
Consequences of Wartime Rape ... 14
5.
Understanding Rape in the Context of South Sudan's Social and Political Situation 15
II.
International, Regional and National Legal and Institutional Frameworks on Wartime
Rape ... 17
A.
International Legal and Institutional Frameworks ... 17
1.
Convention on the Elimination of Discrimination against Women (CEDAW) and
the Corresponding Committee ... 17
2.
The Rome Statue of the International Criminal Court ... 22
3.
The United Nations Security Council Resolution 1325 ... 23
B.
Regional and Sub-Regional Legal and Institutional frame works ... 26
1.
African Charter on Human and People's Rights, the African Court and the African
Commission on Human and People's Rights ... 26
2.
Optional Protocol to the African Charter on Human and People Rights on
Women's Rights (Maputo Protocol) ... 27
3.
Inter-Governmental Authority on Development (IGAD) ... 30
4.
Implementation Challenges of the Regional and Sub-Regional Frameworks ... 32
C.
South Sudan's Legal and Institutional Frameworks ... 32
1.
Legislative Frameworks ... 33

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2.
The Substantive Jurisdiction of South Sudan Judiciary ... 34
III.
Promoting Accountability by Developing theHybrid Court for South Sudan (HCSS) ... 35
A.
Elements of Developing the Hybrid Court for South Sudan ... 37
1.
Specialized Teams on Rape cases vs Integrated Approach ... 38
2.
Rationale for Specialized Teams on Rape Cases in the Context of South Sudan ... 39
B.
Promoting Institutional Inclusiveness for Survivors of Rape ... 39
1.
The Role of Women in Setting up a Hybrid Courtin South Sudan ... 39
2.
Platforms for Including Women in the Establishment of the South Sudan
Hybrid Court ... 40
C.
Integrating a Gender Lens in the Investigation and Prosecution of Wartime Rape ... 43
1.
Integrating a Gender Approach in the Investigation of Wartime Rape ... 43
2.
Integrating a Gender Approach in the Prosecution of Wartime Rape ... 59
IV.
Structural Recommendations to Promote Accountability ... 67
A.
The Government of South Sudan ... 67
B.
The African Union Commission ... 68
C.
The United Nations ... 68
D.
The United States of America ... 68
CONCLUSION ... 70

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INTRODUCTION
I was in Benitu. Ten women were shot through the vagina because they refused to be
raped. One was 10 months pregnant.
Interview with a women's group representative, Juba, 25 April 2014 cited in the draft report
of the AU Commission of Inquiry for South Sudan
In December 2013, South Sudan plunged into a massive scale of violence because of
the outbreak of conflict between the Sudan Liberation Army and the Sudan People Liberation
Movement.
1
The fight took an ethnic turn as soldiers from the country's largest groups, the
Dinka, and Nuer, divided their loyalties to either President Kiir or Mr. Machar respectively.
While some civilians were caught in the cross fire, others were deliberately targeted along
ethnic lines. Women are the immediate victims of this conflict because of rampant sexual
abuse perpetrated against them.
2
The gender discrimination South Sudanese women were subjected to in their society
before the conflict contributed to their victimization during the conflict. Women suffered in
the areas of educational access, domestic violence, non-recognition of marital rape, and
forced marriage. Even though South Sudan's constitution, particularly under Article 16,
provides full and equal dignity with men, women survivors of rape are still victims of gender-
based discrimination due to the prevailing weak justice framework, and thus, victimized
twice.
Wartime sexual violence including rape, gang rape, and sexual slavery remains a
shocking reality in South Sudan today. Women who survive rape face threats and experience
trauma including a desire to kill themselves and Post Trauma Stress Disorder (PTSD). They
also experience stigma. As a result, many women are very reluctant to report rape. Old
women from the enemy's ethnic group are raped in order to make it clear to the enemy that
they are incapable of protecting their mothers. The goal is to make the enemy feel
emasculated, but women suffer the direct consequence. Women who refuse to be raped are
shot through their private parts, and even those who are pregnant are forced into sexual
intercourse. Some women become pregnant by their rapist. Afterwards they suffer from
1
Recent information indicates that the South Sudan government and its opposition have agreed to share power
and establish a Unity Government. Given the previous failed promises, however there is still doubt that this can
be sustained. The African Union Commission still believes that the hybrid court will take care of the
accountability issues for women rights violations that occurred during the Civil war.
2
African Union Commission of Inquiry on South Sudan, Draft Report and Contribution to the Africa Union
Commission of Inquiry on South Sudan (Nov. 30, 2015,11:30 AM),
http://www.nyamile.com/2015/03/07/draft-report-of-the-au-commission-of-inquiry-on-South-Sudan.

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limited support systems including only a few counseling centers and temporary placements
that can only serve a small percentage of the survivors. These centers have also been targets
of warfare.
3
In the current context of South Sudan, the infrastructure for justice and
accountability is weak and fragile to support the rule of law. So far, reports indicate that
South Sudan's government has not provided accountability for wartime rape committed by its
forces, not demonstrated the will to hold them accountable. The opposition has not
investigated or punished any abusive forces. Though a presidential committee was formed in
January 2015 to investigate killings and abuses,
4
it has made no public update on its findings
including on wartime rape. Women are reluctant to provide information to this particular
committee because of its lack of independence, and because there are no clear mechanisms
for survivors of rape and witness protection.
5
This lack of mechanisms is exacerbated by the
acute shortage of legal personnel in the judiciary whose decisions are influenced by one
party, the South Sudan People Liberation Movement (SPLM).
6
There is a lack of due process
of law. As it exists now, the justice system only tilted to certain groups particularly that of the
ruling party's. This, combined with the application of customary justice that is not favorable
to women in South Sudan, placed addressing wartime rape at the center of the justice and
accountability process.
7
I argue that through the integration of gender responsive standards
8
into the
investigation and prosecution of wartime rape by the proposed Hybrid Court for South Sudan,
perpetrators of wartime rape can be held legally accountable.
9
Part I of the paper gives an
overview of the conflict in South Sudan and the impact of wartime rape on women. Part II
discusses the international, regional and national legal and institutional frameworks regarding
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The writer believes that a gender lens can contribute to dismantling the systematic discrimination against South
Sudan's women in the context of the civil war. The gender lens can also contribute to addressing the special
interests of women in terms of justice and accountability that could be hidden if a blanket justice and
accountability framework is to be developed.
9
For full information on the Hybrid Court for South Sudan, see the Inter-Governmental Authority for
Development, Agreement on the Resolution of the Conflict in the Republic of South Sudan(August.17,2015,4:00
PM),
http://www.sudantribune.com/IMG/pdf/final_proposed_compromise_agreement_for_south_sudan_conflict.pdf.

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wartime rape and argues that South Sudan has domestic, regional and international
obligations to protect women from wartime rape. Part III discusses promoting accountability
through the establishment of the Hybrid Court for South Sudan. It presents gender responsive
standards that need to be integrated within the hybrid court to address the needs of victims of
wartime rape. Part IV provides the significant structural tools that can be utilized towards
promoting accountability and justice for wartime rape in South Sudan.
I.
Overview of the South Sudan Civil War and the Use of Rape as a Tool of Warfare
A.
Causes and Consequences of the Civil War in South Sudan
1.
Causes of the Civil War in South Sudan
South Sudan has experienced a number of atrocious conflicts. The main source of
these conflicts is disgruntled promises made to southerners by the leaving British and
northern elites.
10
Southern self-determination concerns including challenging "Islamisation
and Arabisation"
11
were basic issues for the civil war between the North and South until the
coming into effect of the Comprehensive Peace Agreement (CPA) in 2005.
12
This accord
granted autonomy to the South under "a federal pact" though the request of the southerners
was beyond a federal structure but to an absolute separation.
13
Understanding the North-South
clash, including the way it was attempted to be resolved under the CPA, is the basis to better
comprehend the ongoing South-South conflict and to provide better guidance to how it also
needs to be resolved.
14
For example, there has never been a strong accountability mechanism
in place to bring all parties to the table and address what the people of South Sudan want.
The present conflict can relate, in part, to the defects of the CPA in the context of
what it tries to achieve. It also relates to the procedures it adopted towards implementing the
outcomes it set out. The process voiced the views of few parties such as the National
Congress Party (NCP) and theSouth Sudan People Liberation Movement in Opposition
(SPLM/A) and there were those who were felt left out from this process. These groups
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included the South Sudan Defense Forces (SSDF), and parties established in the North as
well as civil society. For many South Sudanese, this was discriminatory and hence
contributed to the reappearance of similar actions that the South originally fought for in the
context of the civil war between the North and South.
15
The environment for peaceful coexistence and unity in South Sudanstarted to vanish
starting from 2009.
16
There were disagreements within the party that forecast hostility among
members of SPLM. An election was planned in South Sudan during this period. Many urged
for the unity of vision for South Sudan in the context of the referendum that took place in
2010.
17
The conflict also connects to the personal relationship between the President and his
Vice President. There were disagreements between the two before the election took place.
Despite the existence of disagreements between these two high officials, it was deliberately
left unrecognized aiming at keeping the harmony within the party from 2005 - 2011.
18
The
SPLM split in 1991 and the accommodation of the SPLM leadership including receiving
RiekMachar on his arrival were in part to blame for the negative relationship that passed to
the South Sudan government after the country became independent.
19
It appears that for some time, there were two equally positioned governments and that
the already existing political disparity within SPLM simply accentuated the emerging
hostility between the two leaders. This was made worse when the government removed the
cabinet in July 2013, which for others was a manifestation of the government's exclusion of
some sections of the South Sudanese society from contributing to the country's agenda and
further benefiting from the fruits of the country's independence.
20
During the meeting, SPLM held in December 2013 in South Sudan, many people
believed that the tension that existed within the party including at a personal level was
growing into one that could jeopardize the security of South Sudanese people.
21
It was also
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particularly clear that the Dinka and the Nuer would fight.
22
The conflict that began as
political unrest then turned into more of a personal conflict with an ethnic dimension.
23
Here
it needs to be clear that the conflict is a response to many of the issues that persisted
beginning from the civil war between South Sudan and North Sudan.
24
2.
Consequences of the Civil War in South Sudan
a)
Humanitarian Implications of the Civil War in South Sudan
The civil war had an overall impact on South Sudan in many aspects. According to
recent data's about 2.4 million people are subjected to harsh starvation and 2.3 million South
Sudanese were relocated.
25
The humanitarian consequences that have been reported so far
also include people "being burnt" in "worship places and hospitals." It also resulted in "mass
burials."
26
Many people who were shot experienced physical abuse including being forced to
"jump into a lit fire." Some detained people were forced to "eat human flesh" or "forced to
drink human blood."
27
The war also resulted in "extrajudicial killings (murder), including
slaughter in conditions that are against the right to life."
28
The war further resulted violations of rights including the right to freedom of
expression, and the right to equality as the conflict is of an ethnic type, which discriminated
against civilians based on their race and ethnic origin. There was also enforced
dislocation/removal of populations, the abduction of children connected with the war and
used in "servitude and beaten," raiding, embezzling, and destruction of property. Properties
belonging to humanitarian personnel were taken forcefully. The security of their person was
violated and they were prevented from operating peacefully.
29
Many people were also
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25
United States Institute for Peace, US Special Envoy for South Sudan Donald Booth Testimony Before the
Senate Committee(Dec10,2015),http://www.usip.org/publications/2015/12/10/independent-south-sudan-failure-
of-leadership.
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forcefully taken away from where they were living particularly during the beginning of the
war.
30
b)
Economic Implication of the Civil War in South Sudan
Internally Displaced Persons (IDPs) in the Protection of Civilian (POC) site of the
United Nations' mission in South Sudan in Bor and Juba were incapable of undertaking
economic activities and their right to look for opportunities for employment and to
contribute to economic activities without restraint was violated because of the war.
31
The
structure of the state in South Sudan also had a paramount significance in terms of
safeguarding economic justice as the issue of power sharing that includes delegation of
power and decentralization was a fundamental issue of disagreement in the context of the
war.
32
During the course of the war, private property was seized and damaged including
homes of targeted Nuers by security forces and some other civilians.
33
Soldiers and civilians
stole most business organizations run by nationals from abroad and international
organizations.
c)
Political Implication of the Civil War in South Sudan
Looking into the political dimension of the war it is important to relate it to what
existed among party members after the passing away of John Garang in 2005.This was soon
after the endorsement of the Comprehensive Peace Agreement (CPA) and after he was
nominated as Sudan's first Vice-President and President of South Sudan. He was replaced by
the second in command within the SPLM, Salva Kiir Mayardit, who was not at the time of
his election a politician but only a soldier. With regard to Salva Kiir, there were negative
thoughts about his capacity to run South Sudan as a president. Garang was the mastermind
behind the SPLM's "New Sudan' Platform" which is an expression for a better Sudan.
30
U.N Mission in South Sudan, Interim Report on Human rights Crisis in South Sudan (Dec 15, 2013- January
31,
2014),http://unmiss.unmissions.org/Portals/unmiss/Documents/PR/Reports/HRD%20Interim%20Report%20on
%2.
31
U.N Mission in South Sudan, Interim Report on Human rights Crisis in South Sudan(Dec 15, 2013- January
31,
2014),http://unmiss.unmissions.org/Portals/unmiss/Documents/PR/Reports/HRD%20Interim%20Report%20on
%2.
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¶670(2014). Amanda Sperber, South Sudan's Next Civil War is
Starting (Jan 25, 2016), http://foreignpolicy.com/2016/01/22/south-sudan-next-civil-war-is-starting-shilluk-
army/.

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When Salva Kiir was nominated as president for South Sudan, what John Garang
initiated as a dream for new Sudan was somehow left out.
34
The president was considered as
discouraging the New Sudan Project when he initially began to replace those individuals
close to Garang with his own people.
35
This was made worse when those who replaced the
Garang members of the SPLM were replaced in exchange for members belonging to the
National Congress Party that is affiliated to Khartoum Sudan. This has contributed to the
failure of South Sudan's Comprehensive Peace Agreement from the intended outcome
politically. Hence, the political challenges for the government were multifaceted. He was
facing challenges from those who supported John Garang and another from his Vice
President Rich Machar who was promoting his own agenda.
36
Many South Sudanese and
external friends of South Sudan were calling for the government to go back to what it
originally planned to achieve which included democracy, equality and human rights by
embarking on a new constitutional regime.
37
This was much aggravated when the ruling president indicated his intention to run for
president in the 2015 election. What has been the political question for many South Sudanese
was the absence of clear political direction by the ruling government, and the absence of any
discourse with regard to unity and prosperity for people of South Sudan.
38
By clearly
rejecting the president's intention for the 2015 election, Rich Machar was himself hoping to
be elected. This was what finally resulted in the dissolution of the entire cabinet in 2013
including the vice president. The absence of clear guidance by the president recently resulted
in labelingten existing states as "defunct" and replacing them with twenty-eight new ones.
This restructuring has been viewed as a move towards systematically decentralizing powerful
majorities of the Dinka tribe. It endangers the peace deal his government reached with
Machar'sopposition and the establishment of the transitional government through the existing
the ten states.
39
34
Amanda Sperber, South Sudan's Next Civil War is Starting (Jan25, 2016),
http://foreignpolicy.com/2016/01/22/south-sudan-next-civil-war-is-starting-shilluk-army/.
35
Amanda Sperber, South Sudan's Next Civil War is Starting (Jan25, 2016),
http://foreignpolicy.com/2016/01/22/south-sudan-next-civil-war-is-starting-shilluk-army/.
36
Amanda Sperber, South Sudan's Next Civil War is Starting (Jan25, 2016),
http://foreignpolicy.com/2016/01/22/south-sudan-next-civil-war-is-starting-shilluk-army/.
37
Amanda Sperber, South Sudan's Next Civil War is Starting (Jan25, 2016),
http://foreignpolicy.com/2016/01/22/south-sudan-next-civil-war-is-starting-shilluk-army/.
38
Amanda Sperber, South Sudan's Next Civil War is Starting (Jan25, 2016),
http://foreignpolicy.com/2016/01/22/south-sudan-next-civil-war-is-starting-shilluk-army/.
39
Amanda Sperber, South Sudan's Next Civil War is Starting (Jan25,
2016),http://foreignpolicy.com/2016/01/22/south-sudan-next-civil-war-is-starting-shilluk-army/.

11 |
P a g e
There is a belief from the ruling government they have succeeded in the civil war and
that the international community has imposed a peace deal on them. Through the proposition
to establish twenty-eight states, the government wanted to validate its own guidance and
political influence over how the peace deal ought to be implemented.
40
B.
Systematic Use of Rape as a Weapon of War in South Sudan
The type of sexual violence differs from one war to another and includes a form of
sexual slavery in one conflict.
41
In some wars, state agents engaged in "sexualized torture" of
women who are believed to be supporting insurgents. Again, in someconflicts, combatants
use women of particular ethnic groups if there is an ethnic or political sanitization.
42
There
were also wars where soldiers are involved in wartime rape by accident and use the
opportunity to entertain themselves though their intention is not to use rape as a tool of
warfare. In some settings, wartime rape exacerbates already existing patriarchal beliefs.
43
During the civil war, rape was used to instigate fear and degrade the public. Through
wartime rape,soldiers were able to do whatever they want including burn houses, loot and
manifest their control over the other ethnic group. The cultural and predominant view of
women as her husband's property in South Sudan clearly reflects that when a woman is raped
during a conflict the act is intended to have an impact on the male counterpart or her
community in general and not so much as a direct injury to her.
44
However, despite this
biased view of women subjected to wartime rape, whether it occurs during wartime or
peacetime,rape isa violent crime that also affects any women's self-respect and autonomy.
The extent and ruthlessness of sexual violence increased with the outbreak of the
current conflict between the Sudan People's Liberation Army (SPLA) and the Sudan People's
Liberation Movement/Army in Opposition on 15 December 2013.
45
Frequent use of violence
and its counter use have led to acts of vengeance attacks and rapes, often ethnically
40
Amanda Sperber, South Sudan's Next Civil War is Starting (Jan25,
2016),http://foreignpolicy.com/2016/01/22/south-sudan-next-civil-war-is-starting-shilluk-army/.
41
Elisabeth Jean Wood, Sexual Violence during War: Towards an Understanding of variation, in O
RDER
C
ONFLICT
A
ND
V
IOLENCE
13,
13(Ian Shapiro, StathisKalyvas&TarekMasoud eds., 2008).
42
Elisabeth Jean Wood, Sexual Violence during War: Towards an Understanding of variation, in O
RDER
C
ONFLICT
A
ND
V
IOLENCE
13,
13(Ian Shapiro, StathisKalyvas&TarekMasoud eds., 2008).
43
Elisabeth Jean Wood, Sexual Violence during War: Towards an Understanding of variation, in O
RDER
C
ONFLICT
A
ND
V
IOLENCE
13,
13(Ian Shapiro, StathisKalyvas&TarekMasoud eds., 2008).
44
Elisabeth Jean Wood, Sexual Violence during War: Towards an Understanding of Variation, in O
RDER
C
ONFLICT
A
ND
V
IOLENCE
13,
13(Ian Shapiro, StathisKalyvas&TarekMasoud eds., 2008).
45
UN Secretary-General, Report on Conflict-related sexual violence: Rep. of the Secretary-General, ¶48,
U.N.Doc. S/2015/20323 (March 2015).

12 |
P a g e
motivated.
46
"Armed elements" have also raped women from adjacent countries because of
their nationalities and alleged alliances with parties to the conflict.
47
According to the United Nations, in South Sudan167 occurrences of conflict-related
sexual violence affecting 236 persons were documented, including seventy-five affecting 116
minors.
48
Women and girls were under attack in ninety five percent of these cases.
49
Sexual
violence including wartime rape has been reported in ten states to be a part of the military
strategy used by both parties, mainly in "Unity, Upper Nile, Lakes, Jonglei, Central, Eastern
and Western Equatorial and Western Bahr el Ghazal States."
50
Reported cases consist of rape
including "penetration with objects."
51
Suspected perpetrators are affiliated to the Sudan People's Liberation Army (SPLA),
South Sudan National Police Services (SSNPS) and opposition forces.
52
Civilians of both
Nuer and Dinka were made the subject of these incidences.
53
1.
Definition of Wartime Rape
The definition of wartime rape mainly depends on cases entertained by the
International Criminal Tribunal for the former Yugoslavia(ICTY) and the International
Criminal Tribunal Rwanda (ICTR). Both of these courts have a distinct way of viewing
wartime rape despite their commonality in what constitutes wartime rape. The definition
applied by the ICC, which elaborates wartime rape in a document entitled "Rules of
Procedure and Evidence "includes a combination of the elements of crime used in ICTY and
ICTR cases. These are the Akayesu
54
and Furundzija cases.
55
The definition provided by the
Akayesu case is broader whereas the one presented in Furundzija case is a more specific
definition of wartime rape. For the purpose of this paper, the researcher choose to use the
46
UN Secretary-General, Report on Conflict-related sexual violence: Rep. of the Secretary-General, ¶48,
U.N.Doc. S/2015/20323 (March 2015).
47
UN Secretary-General, Report on Conflict-related sexual violence: Rep. of the Secretary-General, ¶48,
U.N.Doc. S/2015/20323 (March 2015).
48
UN Secretary-General, Report on Conflict-related sexual violence: Rep. of the Secretary-General, ¶48,
U.N.Doc. S/2015/20323 (March 2015).
49
UN Secretary-General, Report on Conflict-related sexual violence: Rep. of the Secretary-General, ¶48,
U.N.Doc. S/2015/20323 (March 2015).
50
UN Secretary-General, Report on Conflict-related Sexual Violence: Rep. of the Secretary-General, ¶48,
U.N.Doc. S/2015/20323 (March 2015).
51
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
,
F
INAL
R
EPORT OF
T
HE
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
¶659(2014).
52
UN Secretary-General, Report on Conflict-related sexual violence: Rep. of the Secretary-General, ¶50,
U.N.Doc. S/2015/20323(March 2015).
53
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
,
F
INAL
R
EPORT OF
T
HE
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
¶536(2014).
54
Prosecutor v. Jean-Paul Akayesu, Case No.ICTR-96-4-T, Judgment,(September 2, 1998).
55
Prosecutor v. AntoFurundzija, Case No.IT-95-17/1-T, Judgment, (Int'7LCrim.Trib.For the Former Yugoslavia
December 10,1998).

13 |
P a g e
definition used by ICTR as it has provided the widest definition of rape in international law
and could result in better protection for women in the context of armed conflicts due to the
nature of the crime. In Akayesu, the ICTR defined rape as:
Physical invasion of sexual in nature, committed on a person under
circumstances that are coercive, sexual violence, which includes rape,
is considered any act of a sexual nature which is committed on a
person under circumstances which are coercive. This act must be
committed: (a) as part of a widespread or systematic attack; (b) on a
civilian population; (c) on certain catalogued discriminatory grounds,
namely: national, ethnic, political, racial, or religious grounds.
56
2.
Defining victims of wartime rape
Defining victims of wartime rape in the context of South Sudan requires an
understanding of two aspects of injury women experienced both ethnic and patriarchal.
During and after any civil war women within selected groups are subjected to injustice and
violence including discrimination from public life and denial of access to services because of
rape.
57
The first step towards understanding victimhood hence should be the recognition of
the multilayer impact of rape for women in South Sudan.
58
There is also a need to understand
the linkage between patriarchy and wartime rape.
The fact that discrimination against women with regard to protecting them from
sexual violence is socially accepted particularly will have an additional impact for women
who are raped in the context of conflicts. Wartime rape leads to greater fear and a sense of
subordination. Hence, any justice and accountability mechanism while defining victim hood
for women who are subject to wartime rape should encompass both "baseline patriarchy and
targeted violence against ethnic groups."
59
56
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgment,(September 2, 1998).
57
David C. Gray and Benjamin A. Levin, Feminist Perspectives on Extraordinary Justice,
in 13 S
ERIES
O
N
T
RANSITIONAL
Justice, F
EMINIST
P
ERSPECTIVES ON
T
RANSITIONAL
J
USTICE
:
F
ROM
I
NTERNATIONAL AND
C
RIMINAL TO
A
LTERNATIVE
F
ORMS OF
J
USTICE
77-78 (Martha Albertson Fineman& Estelle Zinsstag eds.,
2013).
58
David C. Gray and Benjamin A. Levin, Feminist Perspectives on Extraordinary Justice,
in 13 S
ERIES
O
N
T
RANSITIONAL
Justice, F
EMINIST
P
ERSPECTIVES ON
T
RANSITIONAL
J
USTICE
:
F
ROM
I
NTERNATIONAL AND
C
RIMINAL TO
A
LTERNATIVE
F
ORMS OF
J
USTICE
77-78 (Martha Albertson Fineman& Estelle Zinsstag eds.,
2013).
59
David C. Gray and Benjamin A. Levin, Feminist Perspectives on Extraordinary Justice,
in 13 S
ERIES
O
N
T
RANSITIONAL
Justice, F
EMINIST
P
ERSPECTIVES ON
T
RANSITIONAL
J
USTICE
:
F
ROM
I
NTERNATIONAL AND
C
RIMINAL TO
A
LTERNATIVE
F
ORMS OF
J
USTICE
77-78 (Martha Albertson Fineman& Estelle Zinsstag eds.,
2013).

14 |
P a g e
3.
Elements of Rape as a War Crime
For wartime, rape to happen there needs to be an abuse against the individual that is
targeted through a forceful insertion of a sexual organ. It is important to note that wartime
time rape can be committed even in the absence of a major incident if there is a minor sexual
approach using the perpetrator's sexual organ or an object. In addition, there are requirements
to present evidence including proving the incident happened as well as the existence of an
imminent threat to force including fear of abuse and imprisonment.
60
Evidence should also show the existence of psychological threats related to the use of
one's superior power over others, including situations by which existing circumstances
actually facilitate rapeas that of protracted violence and conflicts. It also includes abuse using
a person's situation such as his/her vulnerability, disability and incapacity hindering his/her
free and full consent.
61
4.
Consequences of Wartime Rape
a)
Physical Consequences of Wartime Rape
Because of wartime rape, an unidentified number of women victims died. Some
victims becamepregnant andmutilated.
62
Wartime rape also resulted in miscarriages caused
by the severity of the abuse, as well as illness or death from unauthorized abortions. Women
were also subject to sexually transmitted diseases.
63
b)
Psychological Consequences of Wartime Rape
Wartime rape results in significant psychological impact on women. Victims
experienced insomnia, depression, post-traumatic stress disorder, and further developed
suicidal interests.
64
All of these symptoms are exacerbated by the absence of appropriate
support services including health centers and counseling programs.
65
Women who passed
60
International Criminal Court .[ICC], Elements of Crimes, Article 8,UNDoc.PCNICC/2000/1/Ass 2(2000)
61
International Criminal Court .[ICC], Elements of Crimes, Article 8,UNDoc.PCNICC/2000/1/Ass 2(2000)
62
UN Secretary-General, Report on Conflict-related sexual violence: Rep. of the Secretary-General, ¶45,
U.N.Doc. S/2015/20323(March 2015).
63
Naomi R. Cahn, Women in Post conflict Reconstruction: Dilemmas and Directions, 12 W
M
.
M
ARY
J.
W
OMEN
L.335, 359-360(2006) (discussing the impacts of wartime rape on women).
64
Naomi R. Cahn, Women in Post conflict Reconstruction: Dilemmas and Directions, 12 WM. MARY J.
WOMEN L.335, 359-360(2006) (discussing the impacts of wartime rape on women).
65
Naomi R. Cahn, Women in Post conflict Reconstruction: Dilemmas and Directions, 12 WM. MARY J.
WOMEN L.335, 359-360(2006) (discussing the impacts of wartime rape on women).

15 |
P a g e
through wartime rape also hesitate to report their rape. They are afraid of exclusion from their
homes and communities.
66
c)
Relational/Communal Consequences of Wartime Rape
During any armed conflict, women's movement is lesser than that of men, since their
role is mainly at home taking care of their children and the elderly. This lack of mobility
subjects them to greater abuse by solders coming to their village.
67
Women become unable to
escape. In the context of South Sudan's civil war, due to the high number of men dying
during the conflict women were obliged to take the roles played by their husbands such as
supporting their family economically.
68
Unfortunately, women who conceived a baby through rape are completely left out by
their families with no support for their day-to-daylife. This contributed to trauma associated
with the crimes and women's exclusion from public-decision making processes.
69
In addition
to this, women who are not married and who actually become pregnant because of wartime
rape tend not to be able to get husbands in the future. What is worse is the fact that mothers
themselves will reject their children for being a reminder to what happened to them during
the civil war.
70
5.
Understanding Rape in the Context of South Sudan's Social and
Political Situation
Within Southern Sudanese society the role and status of women is directly related to a
culture that puts women as the coreof the strength of the family. The male is the
acknowledged master of his family. Marriage is on the other hand viewed as a means of
strengthening the link between families and ethnic groups.
71
The role of women in this
society is that of cementing family ties through `bride-wealth' and of producing
66
Naomi R. Cahn, Women in Post conflict Reconstruction: Dilemmas and Directions, 12 WM. MARY J.
WOMEN L.335, 359-360(2006) (discussing the impacts of wartime rape on women).
67
Naomi R. Cahn, Women in Post conflict Reconstruction: Dilemmas and Directions, 12 WM. MARY J.
WOMEN L.335, 359-360(2006) (discussing the impacts of wartime rape on women).
68
DuniaTegegn, Results of the Accountability Mechanisms and Women's Role in South Sudan's Peace building
Survey (unpublished summary of data collected from the Accountability Mechanisms and Women's Role in
South Sudan Survey conducted from Jan 2016-March 2016) (on file with author).
69
African Union Commission (AUC), Final Draft Transitional Justice Framework (Feb 5, 2014) (unpublished
AU Draft Transitional Justice Framework) (on file with the African Union Commission Department of Political
Affairs).
70
Naomi R. Cahn, Women in Post conflict Reconstruction: Dilemmas and Directions, 12 WM. MARY J.
WOMEN L.335, 359-360(2006) (discussing the impacts of wartime rape on women).
71
W
ORLD
V
ISION
I
NTERNATIONAL
T
HE
S
OUTH
S
UDAN
S
ECRETARIAT OF
L
EGAL AND
C
ONSTITUTIONAL
A
FFAIRS
,
A
S
TUDY ON
C
USTOMARY
I
NTERNATIONAL
L
AW IN
C
ONTEMPORARY
S
OUTH
S
UDAN
R
EPORT
6 (2004).

16 |
P a g e
children.
72
For many external audiences who believe in the equality of men and women,the
status of women in this region is that of property.
73
Despite their positive values and their
legacies, the cultural practices placed women in a subordinate position and their effects upon
the women's dignity and equality is repugnant and clamor for change.
74
Customary law has been the main source of governance and for the community to live
together within the region.Over 90% of criminal disputes, including wartime rape,are
executed under customary law.
75
In the context of South Sudan, due to women status as only
the property of their husband, even young girls are married at an early age. The number of
wives a man can marry in the region can go as high as 100.
76
Moreover, in decision-making,
current or previous administrations did not consider women as partners to the New South
Sudan. This was clear from the 2005 Comprehensive Peace Agreement and during the
appointment of governors for the newly established twenty-eight states in 2015.
77
If women
had been given a position in South Sudan, they could have contributed to the situation of
other women and children.
78
In understanding the civil war, all groups followed no rule and
for this reason, the HybridCourt can be a good solution.
79
72
W
ORLD
V
ISION
I
NTERNATIONAL
T
HE
S
OUTH
S
UDAN
S
ECRETARIAT OF
L
EGAL AND
C
ONSTITUTIONAL
A
FFAIRS
,
A
S
TUDY ON
C
USTOMARY
I
NTERNATIONAL
L
AW IN
C
ONTEMPORARY
S
OUTH
S
UDAN
R
EPORT
6 (2004).
73
W
ORLD
V
ISION
I
NTERNATIONAL
T
HE
S
OUTH
S
UDAN
S
ECRETARIAT OF
L
EGAL AND
C
ONSTITUTIONAL
A
FFAIRS
,
A
S
TUDY ON
C
USTOMARY
I
NTERNATIONAL
L
AW IN
C
ONTEMPORARY
S
OUTH
S
UDAN
R
EPORT
7 (2004).
74
W
ORLD
V
ISION
I
NTERNATIONAL
T
HE
S
OUTH
S
UDAN
S
ECRETARIAT OF
L
EGAL AND
C
ONSTITUTIONAL
A
FFAIRS
,
A
S
TUDY ON
C
USTOMARY
I
NTERNATIONAL
L
AW IN
C
ONTEMPORARY
S
OUTH
S
UDAN
R
EPORT
7 (2004).
75
W
ORLD
V
ISION
I
NTERNATIONAL
T
HE
S
OUTH
S
UDAN
S
ECRETARIAT OF
L
EGAL AND
C
ONSTITUTIONAL
A
FFAIRS
,
A
S
TUDY ON
C
USTOMARY
I
NTERNATIONAL
L
AW IN
C
ONTEMPORARY
S
OUTH
S
UDAN
R
EPORT
54 (2004).
76
DuniaTegegn, Results of the Accountability Mechanisms and Women's Role in South Sudan's Peace building
Survey (unpublished summary of data collected from the Accountability Mechanisms and Women's Role in
South Sudan Survey conducted from Jan 2016-March 2016 ) (on file with author).
77
DuniaTegegn, Results of the Accountability Mechanisms and Women's Role in South Sudan's Peace building
Survey (unpublished summary of data collected from the Accountability Mechanisms and Women's Role in
South Sudan Survey conducted from Jan 2016-March 2016 ) (on file with author).
78
DuniaTegegn, Results of the Accountability Mechanisms and Women's Role in South Sudan's Peace building
Survey (unpublished summary of data collected from the Accountability Mechanisms and Women's Role in
South Sudan Survey conducted from Jan 2016-March 2016 ) (on file with author).
79
DuniaTegegn, Results of the Accountability Mechanisms and Women's Role in South Sudan's Peace building
Survey (unpublished summary of data collected from the Accountability Mechanisms and Women's Role in
South Sudan Survey conducted from Jan 2016-March 2016 ) (on file with author).

17 |
P a g e
II.
International, Regional and National Legal and Institutional Frameworks on Wartime
Rape
A.
International Legal and Institutional Frameworks
1.
Convention on the Elimination of Discrimination against Women
(CEDAW) and the Corresponding Committee
a)
Relevant Provisions of CEDAW on Wartime Rape
The most authoritative gender specific law, the Convention on the Elimination of
Discrimination against Women (CEDAW) is ratified by South Sudan in April 2015. CEDAW
defines discrimination against women to include gender-based violence, that is, violence
directed against a woman because she is a woman, or if an act affects women excessively. It
includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts,
coercion and other deprivations of liberty.
80
In the context of the definition provided under
Article 1 of CEDAW, wartime rape is a discrimination against women as it adversely
affected women in the context it happened in South Sudan.
(i)
Article 2 of CEDAW on State
Responsibility
While considering accountability in the context of sexual violence or any women
rights issues, Article 2 of CEDAW is significant. Under Article 2, states parties are required
to address all aspects of their legal obligations under the Convention to respect, protect and
fulfill women's right to non-discrimination and to the enjoyment of equality.
81
The
obligation to respect obliges state parties to refrain from enacting laws, policies, regulations,
programs, administrative procedures and institutional structures that directly or indirectly
contribute to the denial of their right to equality. The obligation to protect also obliges state
party's todefend women from discrimination by third parties, including during civil wars, in
the context of acts by actors other than government forces. In addition to this, it also includes
taking measurestowards the eradication of harmful traditional practices.
82
The obligation to
80
Convention on the Elimination of All Forms of Discrimination against Women, art.1, G.A. res.34/180, U.N.
GARO Supp. (No. 46) at 193, U.N. Doc A/34/180, entered in to force September 3, 1981,Available at
http://www.un.org/womenwatch/daw/cedaw/(hereinafter CEDAW).
81
Convention on the Elimination of All Forms of Discrimination against Women, art.2, G.A. res.34/180, U.N.
GARO Supp. (No. 46) at 193, U.N. Doc A/34/180, entered in to force September 3, 1981,Available at
http://www.un.org/womenwatch/daw/cedaw/(hereinafter CEDAW).
82
Committee on the Elimination of Discrimination against Women, General Recommendation No28, Core
Obligations of State Parties, (47
th
session, 2010)¶9 U.N. Doc. CEDA W/C/GC/28 (2010)[hereinafter CEDAW
General Rec. 28]available athttp://www2.ohchr.org/english/bodies/cedaw/comments.htm.

18 |
P a g e
fulfill which is also guaranteed under Article 2 of CEDAW requires States parties to take a
wide range of steps and guarantee that women and men benefit from equal rights in law and
in fact.
83
The CEDAW Committee further affirmed that implicit in CEDAW and, in
particular,Article 2(c) there is a right to an effective remedy. It explained that for a remedy to
be effective, adjudication of a case involving rape should be dealt with in a fair, impartial,
timely and expeditious manner.
84
(ii)
Article5 of CEDAW on Sex Roles
Stereotyping and Prejudice
One of the problems women are subjected to in the context of an armed conflict is the
stereotype they face when they rejoin their society in the aftermath of a given conflict. They
are discriminated and excluded if information that they are victims of wartime rape is
disclosed. CEDAW under Article 5 in this regard discussed that state parties should take all
measures to fight social and cultural patterns of men and women to eliminate social
prejudice and stereotyped roles. to protect women from the abuse of any kind that happen
within family, in work and in the context of Armed conflict including through laws that
implement protection from sexual violence and also by facilitating services to those who are
subject to sexual violence.
85
All parties to the South Sudan conflict hence had an obligation to
take measures to protect women and girls from wartime rape by eliminating sex stereotypes
in armed conflict.
(iii)
Article 7 of CEDAW on Women's
Participation in Post ConflictProcess
The need for women's effective political participation as an expression of the
equality of gender principle is provided under Article 7 of CEDAW, which elaborates
on women's political participation. It also promotes women's role in post conflict
83
Committee on the Elimination of Discrimination against Women, General Recommendation No28, Core
Obligations of State Parties, (47
th
session, 2010)¶9 U.N. Doc. CEDA W/C/GC/28 (2010)[hereinafter CEDAW
General Rec. 28]available athttp://www2.ohchr.org/english/bodies/cedaw/comments.htm
84
TayagVertido v.The Philippines,CEDAW committee, Judgment(2008) available at
http://www2.ohchr.org/english/law/docs/CEDAW.C.46.D18.2008_en.doc
85
Convention on the Elimination of All Forms of Discrimination against Women, art.5, G.A. res.34/180, U.N.
GARO Supp. (No. 46) at 193, U.N. Doc A/34/180, entered in to force September 3, 1981,Available at
http://www.un.org/womenwatch/daw/cedaw/(hereinafter CEDAW).

19 |
P a g e
interventions including that of the justice and accountability process relevant to the
investigation and prosecution of wartime rape.
86
b)
General comments
(i)
General Comment 30of CEDAW
Non-State Actors such as opposition forces in the context of armed conflict are also
responsible for women rights violation. In the context of the civil war in South Sudan,
although non-state actors cannot become parties to CEDAW, the CEDAW Committee
discussed that under certain circumstances, in particular where an armed group with an
identifiable political structure exercises significant control over territory and population,
Non-State Actors are indebted to respect international women's rights laws. The Committee
underscored that the massive violations of women's rights laws including those enshrined
under the international humanitarian law could contribute to individual criminal
responsibility, including for those who are members of Non-State Armed Groups and
Private Military Contractors.
87
(ii)
General Comment 19 CEDAW
General Comment 19 elaborates what constitutes Violence against Women (VAW)
including obligations of means or conduct and obligations of results. It highlights that
ending violence against in all contexts requires efforts that include for instance state's duty to
abstain from invading the right of women. It also includes actions that are positive towards
fulfilling and realizing women's rights through the provision of relevant services. It calls for
the development of policies, programs and institutional frameworks that focus on fulfilling
the special needs of women important to the full expansion of their potential on an equal
basis with men.
88
86
Convention on the Elimination of All Forms of Discrimination against Women, art.7, G.A. res.34/180, U.N.
GARO Supp. (No. 46) at 193, U.N. Doc A/34/180, entered in to force September 3, 1981,Available at
http://www.un.org/womenwatch/daw/cedaw/(hereinafter CEDAW).
87
Committee on the Elimination of Discrimination against Women, General Recommendation No30, On women
in conflict prevention, conflict and post-conflict situations, (57
th
session, 2o13)¶ 20U.N. Doc. CEDA
W/C/GC/30 (2013)[hereinafterCEDAWGeneral Rec. 30]available
athttp://www2.ohchr.org/english/bodies/cedaw/comments.htm
88
Committee on the Elimination of Discrimination against Women, General Recommendation No19, Violence
Against Women,( 11
th
session,1992 ) ¶16U.N. Doc. A/47/38 (2010)[hereinafter CEDAW General Rec.
19]available athttp://www2.ohchr.org/english/bodies/cedaw/comments.htm

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(iii)
General Comment 28 CEDAW
This recommendation promotes what are discussed asObligations of States
underArticle 2 of CEDAW. These are the Obligation to Respect, the Obligation to Protect
and the Obligation to Fulfill.
89
The Obligation to Respect under Article 2 of CEDAW as
elaborated by the CEDAW Committee is a negative obligation of the government and
prohibits the government from intervention in the exercise of rights recognized under the
convention. This intervention includeslegislation that threatens the exercise of the rights or
through institutional structures that do not respect the rights recognized in the convention.
90
The second obligation, the Obligation to Protect, is the obligation of a government to
protect the infringement of women's rights by third parties including private companies. This
also extends to protecting women from harmful traditional practices and religious dogmas
that have adverse effects on women.
91
Finally yet importantly, governments have an
Obligation to Fulfill women's rights enshrined under the convention .This is sometimes
referred as Positive Obligation.
92
It entails affirmative and temporary measures to bring
women to an equal footing with men.
93
General Comment 28 of CEDAW further underscores the importance of both
Obligation of Conduct and Obligation of Means. The convention requires governments to
facilitate ways where rights in the convention are respected, fulfilled as well as implemented
through some important programs and projects that directly benefit women.
94
The government
in South Sudan,using wartime rape as a tool for warfareviolated Article2 of CEDAW.
89
Convention on the Elimination of All Forms of Discrimination against Women, art.5, G.A. res.34/180, U.N.
GARO Supp. (No. 46) at 193, U.N. Doc A/34/180, entered in to force September 3, 1981,Available at
http://www.un.org/womenwatch/daw/cedaw/(hereinafter CEDAW).
90
Committee on the Elimination of Discrimination against Women, General Recommendation No28, Core
Obligations of State Parties,( 47
th
session,2010 )¶9U.N. Doc. CEDA W/C/GC/28 (2010). [hereinafter CEDAW
General Rec. 28]available athttp://www2.ohchr.org/english/bodies/cedaw/comments.htm
91
Committee on the Elimination of Discrimination against Women, General Recommendation No28, Core
Obligations of State Parties,(47
th
session,2010 )¶ 9 U.N. Doc. CEDA W/C/GC/28 (2010) [hereinafter CEDAW
General Rec. 28]available athttp://www2.ohchr.org/english/bodies/cedaw/comments.htm
92
Committee on the Elimination of Discrimination against Women, General Recommendation No28, Core
Obligations of State Parties, (47
th
session, 2010 )¶ 9 U.N. Doc. CEDA W/C/GC/28 (2010) [hereinafter CEDAW
General Rec. 28]available athttp://www2.ohchr.org/english/bodies/cedaw/comments.htm
93
Committee on the Elimination of Discrimination against Women, General Recommendation No28, Core
Obligations of State Parties, (47
th
session, 2010 )¶ 9 U.N. Doc. CEDA W/C/GC/28 (2010) [hereinafter CEDAW
General Rec. 28]available athttp://www2.ohchr.org/english/bodies/cedaw/comments.htm
94
Committee on the Elimination of Discrimination against Women, General Recommendation No28, Core
Obligations of State Parties(47
th
session,201)¶ 9 U.N. Doc. CEDA W/C/GC/28 (2010) [hereinafter CEDAW
General Rec. 28]available athttp://www2.ohchr.org/english/bodies/cedaw/comments.htm

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Thiswas exacerbated by the absence of protective measures, and through the government's
direct involvement in the mass rape.
95
(iv) GeneralComment 12 CEDAW
General Comment 12 of CEDAW is very specific particularly as far as government's
obligation to provide full comprehensive services to contribute to Gender Equality and
Women Empowerment is concerned. These services include, medical and shelter to those
who are subject to sexual violence.
96
The obligation of states to provide support services also
extends to both during and in a post conflict scenario.
c)
Jurisprudence Relevant to Wartime Rape
One of the well-known cases before CEDAW that has directly touched up on wartime
rape as a violation of the convention is the case against Bosnia and Herzegovina.
97
In
relation with this, the CEDAW Committee in May 2006while recognizing the exceptional
characteristics of sexual violence that also includes wartime rape, noted that the typical
characteristics of women 's suffering in this regard was not taken into account in the
legislative frameworks that promoted protection for all civil victims of war. The CEDAW
committee has also made its observation that there is a lack of coherence for extending
assistance to women victims of wartime rape including health and counseling services.
Thecommittee elaborated its deep concern to the threats to eviction against women who were
victims of sexual violence including wartime rape.
98
The CEDAW committee has also
requested the allocation of adequateresources for health insurance andcalled up for review of
laws that do not take into account women who are civilian victims of war.
99
95
Despite the ratification of CEDAW in April 2015, the retrospective application of the law should be
considered together with international humanitarian law and the non-application of statutory limitation to crimes
against humanity and war crimes. This is also confirmed under the final proposed compromise agreement for
South Sudan.
96
Committee on the Elimination of Discrimination against Women, General Recommendation No12, Violence
against women (8
th
session, 1989)¶3U.N.Doc.U.N.Doc.A/44/38 (1990)[hereinafter CEDAW General Rec.
12available athttp://www2.ohchr.org/english/bodies/cedaw/comments.htm
97
TayagVertidov.The Philippines,CEDAWcommittee,Judgment(2008) availableat
http://www2.ohchr.org/english/law/docs/CEDAW.C.46.D18.2008_en.doc
98
TayagVertidov.The Philippines,CEDAWcommittee,Judgment(2008) availableat
http://www2.ohchr.org/english/law/docs/CEDAW.C.46.D18.2008_en.doc
99
TayagVertidov.The Philippines,CEDAWcommittee,Judgment(2008) availableat
http://www2.ohchr.org/english/law/docs/CEDAW.C.46.D18.2008_en.doc

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2.
The Rome Statue of the International Criminal Court
a)
Jurisdiction of the International Criminal Court
The jurisdiction of ICC to see cases related to wartime rape is based upon the
RomeStatute. The Rome Statute of the ICC ­ Article 7 (1)(g) lists rape, sexual
slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other
form of sexual violence of comparable gravity as a crime against humanity.
100
In
addition to Article 7, Article 8(2) (b)(xxii) indicates that rape, sexual slavery,
enforced prostitution, forced pregnancy, enforced sterilization or any other form of
sexual violenceconstitute gross violations of the laws and customs applicable to
international armed conflict. Moreover, Article 8(e) (VI) lists rape, sexual slavery,
enforced prostitution, forced pregnancy, enforced sterilization or any other form of
sexual violence as a serious violation of Article 3 common to the four Geneva
Conventions on International Armed Conflict, andNon International Armed
Conflict.
101
b)
Representation of Women in the International Criminal Court
Recognizing the importance of women in justice structures, the Rome Statute under
Article 42(9) enshrined the equal representation of women in all sections of the Court's
operations including when there are vacant posts and when there is a need to have more staffs
within the courts' composition.
102
In addition to this,Article 68(3) of the Rome Statute
underscores the right of victims to participate in the justice process, directly or through legal
representatives, by presenting their views and concerns at all stages.
103
The Rome Statute
strongly addressed theneed for victims of wartime rape to be heard and represented.
c)
Challenges
The International Criminal Court's Draft Policy Paper on Sexual and Gender-Based
Crimes indicates that investigating and prosecuting wartime rape have unique
challenges.
104
These include lack of reporting due to cultural, religious or societal factors,
100
Statute of the International Criminal Court art.7, Jul.1, 2002, UN Doc.A/ CONF.183 /9
101
Statute of the International Criminal Court art.7, Jul.1,2002, UN Doc.A/ CONF.183 /9
102
Statute of the International Criminal Court art.7, Jul.1, 2002, UN Doc.A/ CONF.183/9
103
See ICC Rules of Procedures and Evidence at
http://www.icc-cpi.int
. Rule 90(4) of the Rules of Procedure
of the ICC discusses the need for legal representatives that are well equipped as far as gender and sexual
violence issues are concerned. Similarly, rule 16(1) (d) states the need for the registrar of the Court to
incorporate `gender-sensitive measures' to facilitate the participation of victims of sexual violence at all stages
of the proceedings.
104
I
NTERNATIONAL
C
RIMINAL
C
OURT
(
ICC
),
D
RAFT
P
OLICY
P
APER ON
S
EXUAL AND
G
ENDER
B
ASED
C
RIMES
,
3
(2014).

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limited domestic investigation and lack of incriminating evidence, which is possibly due to
the length of time since rape, is committed. This is also accompanied by discrimination
against victims of wartime rape and lack of both forensic and documentary evidence. This is
made worse due to the absence of support or referral services.
105
The major challenge the Court is currently facing relates to the integration of sexual
and gender-based crimes into its jurisdiction.
106
In addition to this, funding and staffing have
always had negative impact given the workload due to the increase in the number of cases
that it is adjudicating.
107
3.
The United Nations Security Council Resolution 1325
The United Nations Security Council Resolution 1325identifiesthe increased number
of women who are targeted by groups involved in any armed conflict.It also indicates that
they are specifically made the center of conflict through wartime rape.
108
The UN Security
Council Resolution (UNSCR) 1325 is an important document in terms of being very specific
to violence against women in the context of armed conflictand underscores the need to
protect women and ensure their participation while also recognizing the need to prevent
conflict. It provides broader protection for women both before and after a conflict.
109
The
resolution also calls for the development and implementation of national action plans.
110
Relevant to the case this paper is focusing on is also the Security Council Resolution
1820 (2008). This resolution obliges states to bring to justice individuals who have
committed wartime rape that constitutes war crime and/or a crime against humanity. This
resolution makes the implementation of Resolution 1325 much easier, as its focus is more on
accountability and justice that should follow every civil war including the civil war in South
Sudan.
111
Another important resolution of the UN security council with a focus on impunity is
resolution 2106(2013), that requires states to include a specific provision about wartime rape
in their penal code and further guarantees victims of wartime rape access to justice while at
105
I
NTERNATIONAL
C
RIMINAL
C
OURT
(
ICC
),
D
RAFT
P
OLICY
P
APER ON
S
EXUAL AND
G
ENDER
B
ASED
C
RIMES
,
3
(2014).
106
I
NTERNATIONAL
C
RIMINAL
C
OURT
(
ICC
),
D
RAFT
P
OLICY
P
APER ON
S
EXUAL AND
G
ENDER
B
ASED
C
RIMES
,
3
(2014).
107
Currently there are eight active situations under investigation by the ICC (as one of the cases, for DRC has
recently been resolved setting a very good precedent for wartime rape cases); seven of the remaining cases
involve gender crimes, namely Uganda, the CAR, Darfur, Kenya and Côte d'Ivoire. The increase in situations
has had a negative impact on the court's available technical and financial resources.
108
S.C.Res1325,¶4,U.N.Doc.S/RES/1325 (Oct 31, 2000).
109
S.C.Res1325,¶4,U.N.Doc.S/RES/1325 (Oct 31, 2000).
110
S.C.Res1325,¶4,U.N.Doc.S/RES/1325 (Oct 31, 2000).
111
S.C. Res 1820,U.N.Doc.S/RES /1820(June 19, 2008).

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the same timeinsuring the prosecution of those who have committed wartime rape .
112
The
Security Council, in its Resolution 2106 (2013),
113
encouraged Member States to include the
full range of crimes of sexual violence in national penal legislation to enable prosecutions for
such acts and recognized that effective investigation and documentation of sexual violence in
armed conflict is instrumental both to bringing perpetrators to justice and ensuring access to
justice for survivors.
a)
Relevant Provisions on Wartime Rape
Resolution 1325 is based mainly upon four major pillars. The first one, being the
prevention aspect, calls for early investigation and attention for issues and countries that are
susceptible to violence and armed conflict, including that, which is manifested by the
subjugation of women. The second pillar of resolution 1325 is recognizing that conflicts tear
communities apart. The other aspect of resolution 1325 recognizes the fact that women have
been paying the costs of many armed conflicts as conflicts influence their day-to-day lives
.This aspect focuses on how women should be involved in terms of bringing justice and
peace. For instance, in the context of South Sudan previous efforts and peace building
initiatives did not factor in women. They ended up guaranteeing amnesty to those who were
believed to commit war crime and crimes against humanity. The last component of the
resolution is about women's role in post conflict including benefiting from designed
development initiatives.
114
b)
Challenges
After its coming into force,Resolution 1325 together with other Resolutions discussed above
began to be implemented in peace negotiationsand in the adjudication of cases. However, the
implementation of these resolutions also had its own negative impacts.
115
Women were still
not fully represented in peace deals in terms of number and the quality of their representation
when they can be present was not significant. Moreover, participation by civil societies
involvedparticularly during the whole process of peace negotiation has been very few. Civil
112
S.C. Res 2106,U.N.Doc.S/RES /2106 (June 24, 2013).
113
S.C. Res 2106,U.N.Doc.S/RES /2106 (June 24, 2013).
114
Ambassador Melanie Verveer, Executive Director, Georgetown Institute for Peace and Security, Keynote
Address during a Gender and US Foreign Policy class: Women, Peace, and Security (March. 4, 2016).
115
U.N. Department of Peace Keeping Operations, 10 year Impact Assessment Implementation of UN Security
Council Resolution 1325 (2000) on Women, Peace and Security in Peacekeeping, June2010,
http://www.un.org/en/peacekeeping/documents/10year_impact_study_1325.pdf.

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society Organizations are mainly involved with the peace building and accountability process
in the aftermath.
116
In some situations consultation with women's groupsshow that only those who
support the government are involved in the peace building and negotiation process with no
regard to other members.
117
Moreover, the gaps in the capacity of women delegates to
participate in peace building and justice is another challenge, as that requires additional
focus.
118
Economic issues including that, which relate to the financial inaccessibility of
transport and housing concerns, have precluded women from becoming active participants in
many peace deals.
119
Cultural issues and stereotypes that power belongs to men have also
excluded women from being politicallyactive. This is visible when both women and men
incline to vote for men despite the existence of some qualified women in politics.
4. The Beijing Declaration and Platform for Action
Though the Beijing Platform relied initially on the definition of violence provided
under the Declaration on Ending Violence Against Women (DEVAW), it also raised
concerns only to specific situations where women were destructively impacted by violence,
such as in the context of armed conflict.
120
It bans acts of violence against women, and
includes protection of women's rights in situations of armed conflict including through
systematic rape.
121
The protection of women from wartime rape is underlined under strategic objective E.
3 of the Beijing Platform that promotes and demands states to adopt non-violent forms of
conflict resolution and reduction of incidences of human rights violation.
122
116
U.N. Department of Peace Keeping Operations, 10 year Impact Assessment Implementation of UN Security
Council Resolution 1325 (2000) on Women, Peace and Security in Peacekeeping, June.2010,
http://www.un.org/en/peacekeeping/documents/10year_impact_study_1325.pdf.
117
DuniaTegegn, Results of the Accountability Mechanisms and Women's Role in South Sudan's Peace building
Survey (unpublished summary of data collected from the Accountability Mechanisms and Women's Role in
South Sudan Survey conducted from Jan 2016-March 2016 ) (on file with author).
118
DuniaTegegn, Results of the Accountability Mechanisms and Women's Role in South Sudan's Peace building
Survey (unpublished summary of data collected from the Accountability Mechanisms and Women's Role in
South Sudan Survey conducted from Jan 2016-March 2016 ) (on file with author).
119
DuniaTegegn, Results of the Accountability Mechanisms and Women's Role in South Sudan's Peace building
Survey (unpublished summary of data collected from the Accountability Mechanisms and Women's Role in
South Sudan Survey conducted from Jan 2016-March 2016 ) (on file with author).
120
Mary Pat Treuthart, No Woman, No Cry - Ending the War on Women Worldwide and the International
Violence Against Women Act(i-vawa),33 B.U. Int'l L.J. 73,90(2015)(discussing the meaning of sexual violence).
121
Mary Pat Treuthart, No Woman, No Cry - Ending the War on Women Worldwide and the International
Violence Against Women Act(i-vawa),33 B.U. Int'l L.J. 73,90(2015)(discussing the meaning of sexual violence).
122
The Fourth World Conference on Women, Sept.4-15, 1995, Beijing Declaration and Platform for
Action,U.N.Doc A/CONF.177/20/Rev.1 (1996), Article 114 available at
http://www.un.org/womenwatch/daw/beijing/pdf/Beijing%20full%20report%20E.pdf
.

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B.
Regional and Sub-Regional Legal and Institutional frame works
1.
African Charter on Human and People's Rights, the African Court and
the African Commission on Human and People's Rights
The African Charter on Human and People's Rights demands the eradication of
discrimination against women, and calls for the protection of women's rights as guaranteed
under international human rights frameworks. The Charter's clear reference to international
women rights instruments is very strong and provides more protection to women in Africa
including their protection from wartime rape. More specific to wartime rape is, Article 5 of
the Charter that prohibits all forms of exploitation and degradation including slavery, slave
trade, torture, cruel, inhuman or degrading punishment and treatment.
123
Interpretations
provided by the African Charter have directly refereed to the application of Article 5 not only
to physical and psychological harm but also to those, which relate to the individual's
personhood. Therefore, Article 5 of the Charter and the interpretation followed by the
commission guarantee protection of women from wartime rape.
124
a)
Jurisprudence Addressed by the African Court and Commission
on Wartime rape through the African Charter on Human and People
Rights
State parties are obliged to adhere to what they have guaranteed under the African
Charter. These include promoting human and people's rights and ensuring that they are
protected. However, the African Commission cannot guarantee compensation. It is also not
in a position to condemn a state that is in violation of rights included in the charter, but the
Commission can forward concluding recommendations. Therefore, here it needs to be clear
that the success of the Commission depends upon how its recommendations are viewed by
the African Union, as decisions passed by the commission need to be endorsed by the African
Union General Assembly. It is only after the General Assembly accepts or endorses a given
recommendation that a targeted state will be obliged to implement the recommendation.
125
As
history tells, most cases presented to the African Union General Assembly have failed to get
123
African Charter on Human and Peoples' Rights, art.5.OAUDoc.CAB/LEG/67/3 rev.5, 21I.LM.5 (entered into
force in 1986).
124
Mary pat Treuthart, No Woman, No Cry - Ending the War on Women Worldwide and the International
Violence Against Women Act(i-vawa),33 B.U. Int'l L.J. 73,90(2015)(discussing the meaning of sexual violence).
125
African Charter on Human and Peoples' Rights, art.5.OAUDoc.CAB/LEG/67/3 rev.5, 21I.LM.5 (entered into
force in 1986).

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the blessings from member states.
126
Despite this hurdle in enforcement, all members of the
African Union are bound to respect the rights protected under the Charter.
127
In addition to Article 1, the African Charter has an urgent response mechanism
particularly when mass violation such as that of wartime rape in any of the African countries
occurs. As indicated under Article 58 of the Charter the Commission has elaborated its role in
urgent responses such as the one in South Sudan where mass human rights violations have
occurred. The mechanisms the commission employs to this effect include conducting on site
visits, undertaking diplomatic efforts and working withnational and international
organizations.This is to minimize and further eradicate factors that led to such emergencies.
The African Commission also reports to the African Union General Assembly on the
emergency. In most incidences, though the Commissionreports on the human rights
violations, the response from the General Assembly might be very slow. This is when the
Commission will actually publicize how the situation looks like in a given country and what
actions must be taken.
128
Here, it is important to note that publicly condemning human rights
violation in a given country by the Commission will have heavy weight to how the country is
viewed in terms of its human rights records.
129
2.
Optional Protocol to the African Charter on Human and People Rights
on Women's Rights (Maputo Protocol)
a)
Relevant Provisions on Wartime Rape
The Maputo Protocol, when it comes into force tried to fill the gap that was created
through the African Charter particularly as it relates to women's human rights. Article 3 of
the protocol enshrines that every women has the right to dignity inherent in a human beings
and to respect as a person and to the free development of her personality.
130
Very important
recognition of the protocol is recognizing women rights as individual rights for women
only.Unlike the CEDAW,this protocol also clearly prohibits violence against women and
interprets it widely to also include women's protection from physical, sexual, psychological,
126
African Charter on Human and Peoples' Rights, art.5.OAUDoc.CAB/LEG/67/3 rev.5, 21I.LM.5 (entered into
force in 1986).
127
African Charter on Human and Peoples' Rights, art.5.OAUDoc.CAB/LEG/67/3 rev.5, 21I.LM.5 (entered into
force in 1986).
128
African Charter on Human and Peoples' Rights, art.5.OAUDoc.CAB/LEG/67/3 rev.5, 21I.LM.5 (entered into
force in 1986).
129
African Charter on Human and Peoples' Rights, art.5.OAUDoc.CAB/LEG/67/3 rev.5, 21I.LM.5 (entered into
force in 1986).
130
Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, art 3, July
11, 2003, O.A.U. Doc. CAB/LEG/66.6 (entered into force in 2005).

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and economic harm.
131
From the definition provided by the Optional Protocol, it is clear that
such protection also includes protection from wartime rape during an armed conflict .The
Protocol protects women from the violation of their human rights both in their private and
public life; during both peace time and conflict times.
132
The women's protocol also stipulates
that states be under an obligation to protect when women seek asylum and refugee status
because of a given armed conflict by categorizing acts that have happened during the conflict
including wartime rape as a war crime, genocide and crimes against humanity.
133
The Optional Protocol under Article 11/2 underlines that woman in whatever ethnic
group they belong in a conflict should be provided a civilian protection from violence. Here,
the Maputo Protocol is very clear that wartime rape and other types of sexual violence
constitute international war crime as stipulated under the Geneva Conventions and the Rome
Statute of the ICC.
134
In addition to this, the Optional Protocol is the only women's right
Protocol that position sexual violence including wartime rape as genocide.
135
Hence, the
protocol required African states when in conflict to adhere to the principles under
international humanitarian law.
136
We can easily see here that the Maputo Protocol is much
related to what was practiced by the different tribunals established for the adjudication of
wartime rape.
137
b)
Jurisprudence Addressing Wartime Rape under the Maputo
Protocol by the African Court and the Africa Commission on Human
and People's Rights
When the African Charter for Human and People Rights came into force, one of the
major challenges it had to overcome was the absence of a court for the implementation of
relevant decisions. This has curtailed the Charter's protection role and affected the number of
cases that are dealt with. For many who have researched in this area the coming into force of
the African Court was to fill this gap and address impunity, which the African Commission
131
Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, art 3, July
11, 2003, O.A.U. Doc. CAB/LEG/66.6 (entered into force in 2005).
132
Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, art 3, July
11, 2003, O.A.U. Doc. CAB/LEG/66.6 (entered into force in 2005).
133
Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, art 11, July
11, 2003, O.A.U. Doc. CAB/LEG/66.6 (entered into force in 2005).
134
Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, art 11/2,
July 11, 2003, O.A.U. Doc. CAB/LEG/66.6 (entered into force in 2005)
See Article 11/2 of the women's protocol.
135
Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, art 11,
July 11, 2003, O.A.U. Doc. CAB/LEG/66.6 (entered into force in 2005).
136
Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, art 11/2,
July 11, 2003, O.A.U. Doc. CAB/LEG/66.6 (entered into force in 2005).
137
Tribunals including, the ICTR, ICTY and Sierra Leone.

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on Human and People's right lacked in many occasions.
138
The African Court works closely
with the Commission and support the work of the Commission.
The Court deals with the adjudication of cases that are related to the rights recognized
under the African Charter on Human and People's Rights. It also includes interpreting other
laws and conventions the country in contact with the Court has ratified.
139
Unlike the
commission, which most of the time is given the mandate to only take a look at international
human rights instruments through comparing regional and national laws of a country, the
African Court does adjudicate based on directly referencing provisions which have relevance
to women's human rights including those related to wartime rape in its decision making.
140
What is fascinating about the African Court is when a woman or group of women
feelsthat the charter did not address issues such as wartime rape properly; they can still raise
international and regional women rights instruments and bring their cases to the African
Court as victims. Likewise, the travauxprdparatoires of the African Court also confirms
that the Court can look into international treaties, the Optional Protocol and other relevant
women rights conventions to resolve a dispute before it.
The African Court can order to compensate victims of rights violations and arrange
the implementation of the same.
141
Another important feature of the African Court is that of
the provisional measures it can order when particularly there are mass human rights violation
such as wartime rape as is the case in South Sudan. The Court can request state parties to
abstain from committing the mass human rights violations. The African Court has a power to
deal with the situation by itself, unlike what is discussed above for the commission that
normally conduct studies before even forwarding recommendation to the General
Assembly.
142
The decision of the Court does not pass through any scrutiny. Judgments passed
by the Court also are final and states within the Court's jurisdiction are expected to abide by
138
African Union Commission, Protocol establishing the African Court on Human and People's right (Jan
25,2004 ) available at http://www.achpr.org/instruments/court-establishment.
139
African Union Commission, Protocol establishing the African Court on Human and People's right (Jan 25,
2004) available at http://www.achpr.org/instruments/court-establishment.
140
African Charter on Human and Peoples' Rights, art 60-61,OAUDoc.CAB/LEG/67/3 rev.5, 21I.LM.5 (entered
into force in 1986).
141
African Union Commission, Protocol establishing the African Court on Human and People's right (Jan
25,2004) available at http://www.achpr.org/instruments/court-establishment
142
African Union Commission, Protocol establishing the African Court on Human and People's right (Jan
25,2004 ) available at http://www.achpr.org/instruments/court-establishment

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the African Court's judgments.
143
Therefore, the Court is an effective means particularly to
prevent and halt wartime rape during armed conflict.
144
3.
Inter-Governmental Authority on Development (IGAD)
a)
IGAD Mandate and Establishment
The Inter-Governmental Authority on Development (IGAD) in Eastern Africa was
first established in 1996 to follow up on the work of the Intergovernmental Authority on
Drought and Development (IGADD), which was established earlier in 1986. In 1983 and
1984, six member states of Africa planned to establish an intergovernmental organ for
development and to eradicate the impacts of drought in the horn of Africa through support
from the United Nations. In addition to its original plan, IGAD was translated into a platform
for cooperation within the horn of Africa including in areas of governance and security. This
mandate of IGAD was added in 1996 when it was restructured both in relation with its
mandate and structure.
145
The major mission of IGAD though all mandates are believed to be important is its
mandate to promote peace and security and humanitarian affairs in Africa.
146
In relation with
this, the IGAD secretariat has been working towards promoting peace and security and
creating mechanisms within the region for the purpose of preventing conflicts, managing and
resolving all types of conflicts including through peaceful deliberations towards peace
building.
147
b)
The Role of IGAD in South Sudan's Justice and Accountability
Process
In the context of South Sudan, the role of IGAD in peace and security was translated
through the IGAD led meditation process that was established as a response to the ongoing
emergency in the region, particularly after conflict broke out in Dec 2013. This mission
supports all groups in the civil war achieve long-lasting peace in the region. It focuses on the
choice of the people of South Sudan and a respect to the constitution of South Sudan leading
143
African Union Commission, Protocol establishing the African Court on Human and People's right (Jan
25,2004) available at http://www.achpr.org/instruments/court-establishment
144
NtombizozukoDyani, Sexual violence, Armed Conflict and International Law in Africa, 15 Afr. J. Int'l
Comp. L 230,250-252(2007).(discussing the role of the African Court in preventing and responding to sexual
violence in the region).
145
Mission of IGAD, http://igad.int (last visited Dec.15, 2016).
146
Mission of IGAD, http://igad.int (last visited Dec.15, 2016).
147
Mission of IGAD, http://igad.int (last visited December15, 2016).

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to a better political dialogue and peaceful transition.
148
This role is played by three special
envoys who were appointed during the 23
rd
extraordinary session of the African Union from
Ethiopia, Sudan and Kenya. Governments in these countries, the African Union and the
United Nations and other stakeholders support the work of this mission.
149
IGAD's meditation
process so far involved relevant stakeholders including the Government of the Republic of
South Sudan, the Sudan People's Liberation Movement in Opposition, those who represent
civil societies, political parties in the country and, other community led organizations.
150
The IGAD led mediation process so far resulted in the signing of the Agreement for
the Cessation of Hostilities and the Status of Detainees on Jan 2015.The mediation process
also established a Monitoring and Verification team to ensure the implementation of what is
contained in the peace deal.
151
Another success of the IGAD led process is that of the
Agreement to Resolve the Crisis, which was signed by both parties to the conflict in May
2014 towards identifying a political remedy through a more participatory manner.
152
c)
The Role of the African Union Commission of Inquiry in South
Sudan's Justice and Accountability Process
The Peace and Security Council of the African Union Commission as part of its
mandate to provide effective guidance to what has happened in South Sudan, the council
called for the establishment of the Commission of Inquiry for South Sudan in Dec
2013.
153
The terms of reference for the African Union Commission of Inquiry for South
Sudan included responsibilities to the Commission to investigate the human rights violations
and other abuses that has happened in South Sudan during the civil war. It also required the
Commission to identify the factors that have contributed to the conflict and make practical
suggestions on how justice and accountability can be ensured on the way forward including
through transitional justice frameworks that can lead the country towards unity of purpose
and towards better development and prosperity.
154
148
Mandate of IGAD Special Envoy for South Sudan, http://southsudan.igad.int/index.php/about-us/ (last visited
Dec15, 2015).
149
Mandate of IGAD Special Envoy for South Sudan,
http://southsudan.igad.int/index.php/about-us/
( last
visited Dec 15,2015).(The US also supports the work of this mission as a member of the Troika that includes
Norway, UK and USA).
150
Mandate of IGAD Special Envoy for South Sudan,
http://southsudan.igad.int/index.php/about-us /
(last
visited Dec15, 2015).
151
IGAD, Agreement on the Resolution of the Conflict in the Republic of South Sudan, at 4, (August 2015).
152
IGAD, Agreement on the Resolution of the Conflict in the Republic of South Sudan, at 4, (August 2015).
153
For more information on this, see the outcome of the 411
th
meeting of the Peace and Security Council of the
African Union Commission held at the level of Heads of State and Government, in Banjul.
154
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
,
F
INAL
R
EPORT OF
T
HE
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
¶3(2014).

32 |
P a g e
Finally yet importantly, the Commission was also required to submit its progress
within 3 months period. The terms of reference of the Commission of Inquiry was very clear
in that it required appropriate recommendations that practically prevent the recurrence of
violence in South Sudan and those strategies that could help towards national peace building
,truth and healing to the people of South Sudan.
155
The terms of reference also included
recommendations to be made as far as better accountability frameworks for human rights
violations is concerned.
156
The Commission of Inquiry for South Sudan was composed of
prominent figures in Africa, including those who have promoted the protection of women
rights in the context of an armed conflict.
157
4.
Implementation Challenges of the Regional and Sub-Regional
Frameworks
Despite the existence of regional and sub-regional legal frameworks in Africa that
protect women rights including through institutional frameworks such as the IGAD,
prosecuting and investigating wartime rape had a number of challenges. The major ones
include lack of forensic evidence and absence of knowledge and skills for investigation and
prosecution. In addition to this, there are also challenges that are related to the physical
security of victims of wartime rape while being a witness to their own
cases.
158
Discrimination and cultural stereotypes also affect women from coming into contact
with the justice system.
159
C.
South Sudan's Legal and Institutional Frameworks
When it comes to the protection of women from violence, the role of national and
legal systems and institutions is a primary importance. Both regional and international legal
frameworks for instance require that any scrutiny of a right violation first pass through the
exhaustion of legal remedies available at national level. In this part of the paper, I will try to
touch upon what already exists within the national legal system in South Sudan that
155
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
,
F
INAL
R
EPORT OF
T
HE
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
¶3(2014).
156
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
,
F
INAL
R
EPORT OF
T
HE
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
¶3 (2014).
157
Particularly Ms. Bineta Diop, President, of Femmes Africa Solidarité (FAS) and AU Chairperson`s Special
Envoy on Women, Peace and Security.
158
African Union Commission (AUC), Final Draft Transitional Justice Framework (Feb 5, 2014) (unpublished
AU Draft Transitional Justice Framework) (on file with the African Union Commission Department of Political
Affairs).
159
African Union Commission (AUC), Final Draft Transitional Justice Framework (Feb 5, 2014) (unpublished
AU Draft Transitional Justice Framework) (on file with the African Union Commission Department of Political
Affairs).

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P a g e
particularly includes South Sudan's Judiciary and Prosecuting Team. The Judiciary in South
Sudan starting from higher level to lower level is very weak not only during armed conflict
but also during peace times. Many of the courts lack trained judges and other experts who can
support the proper implementation of the mandate of the Judiciary. In places where judges
exist courts are rudimentary and do not have even the primary sections such as voice
recorders and support staffs. Unfortunately, any recording of a court process is undertaken
manually. Many judges functioning in the region accept the fact that they do not have
knowledge about many of the laws in the region. There is a backlog for many of cases
pending in the Court system and many people in the region show dissatisfaction. Many agree
with the justice delayed justice denied metaphor.
160
In addition, the conflict took most of the young capable men including those who
were involved in the civil police. Those old people who remained in the community or who
were previously harmed by the prevailing armed conflicts replaced the young and capable
members of the society.
161
Moreover, many members of the police lack training and are not in
a good position to effectively investigate and prosecute. There has been for long time a public
outcry with regard to the capacity of the justice institutions to remedy injustice.
162
Even when
there are cases that are adjudicated and resulted in the imprisonment of a fellow South
Sudanese, enforcing the judgments has been a bottleneck. The same conclusion can be
reached to prisons in South Sudan whose day-to-day activities are mainly supported by
stakeholders from outside including NGOs. Institutions in the justice sector do not engage
paralegals whose role could have lessened some of the burden in the area.
163
1.
Legislative Frameworks
To begin with, much should also not be expected from this region with regard to the
legislative frameworks that promote rights for the citizen. In1984, a committee drafted a
Penal and Discipline Code, which came into force until 1994. These laws were replaced by
the 1994 SPLA act.
164
In 2002, a law review committee reviewed sixteen laws and drafted
160
W
ORLD
V
ISION
I
NTERNATIONAL
T
HE
S
OUTH
S
UDAN
S
ECRETARIAT OF
L
EGAL AND
C
ONSTITUTIONAL
A
FFAIRS
,
A
S
TUDY ON
C
USTOMARY
I
NTERNATIONAL
L
AW IN
C
ONTEMPORARY
S
OUTH
S
UDAN
R
EPORT
7 (2004).
161
W
ORLD
V
ISION
I
NTERNATIONAL
T
HE
S
OUTH
S
UDAN
S
ECRETARIAT OF
L
EGAL AND
C
ONSTITUTIONAL
A
FFAIRS
,
A
S
TUDY ON
C
USTOMARY
I
NTERNATIONAL
L
AW IN
C
ONTEMPORARY
S
OUTH
S
UDAN
R
EPORT
7 (2004).
162
W
ORLD
V
ISION
I
NTERNATIONAL
T
HE
S
OUTH
S
UDAN
S
ECRETARIAT OF
L
EGAL AND
C
ONSTITUTIONAL
A
FFAIRS
,
A
S
TUDY ON
C
USTOMARY
I
NTERNATIONAL
L
AW IN
C
ONTEMPORARY
S
OUTH
S
UDAN
R
EPORT
7 (2004).
163
W
ORLD
V
ISION
I
NTERNATIONAL
T
HE
S
OUTH
S
UDAN
S
ECRETARIAT OF
L
EGAL AND
C
ONSTITUTIONAL
A
FFAIRS
,
A
S
TUDY ON
C
USTOMARY
I
NTERNATIONAL
L
AW IN
C
ONTEMPORARY
S
OUTH
S
UDAN
R
EPORT
8 (2004).
164
W
ORLD
V
ISION
I
NTERNATIONAL
T
HE
S
OUTH
S
UDAN
S
ECRETARIAT OF
L
EGAL AND
C
ONSTITUTIONAL
A
FFAIRS
,
A
S
TUDY ON
C
USTOMARY
I
NTERNATIONAL
L
AW IN
C
ONTEMPORARY
S
OUTH
S
UDAN
R
EPORT
8 (2004).

34 |
P a g e
seven newlaws, bringing the total number of laws in South Sudan to 23.
165
During the
legislative development process in South Sudan many of the participants (and in particular,
women) were not happy about the way the discussions were being conducted. Moreover,
most of the laws that were initially reviewed in 2003 become provisional orders when signed
by the chairperson of SPLM in June 26, 2003. Unfortunately, these laws are still pending
signature by South Sudan's National Liberation Council (NLC).
166
a)
The Transitional Constitution of South Sudan
The Transitional Constitution of the Republic of South Sudan protects women's rights
under Article 16. In particular, the Constitution provides that women be accorded full and
equal dignity of the person with men. In addition to the assurance for gender equality,
wartime rape is prohibited by the Constitution through broadly interpreting both Article 18
and Article 11of the Constitution that discusses the prohibition of torture.
167
b)
The Penal Code of South Sudan
As that of the transitional constitution of South Sudan the penal code of South Sudan
under Article 247 prohibit sexual intercourse with any other person without his/her free will
and place such acts as rape punishable for a maximum of fourteen years. It further underlines
that consent given by a minor should not be considered as consent and that the act still fall
under what is indicated as rape.
168
2.
The Substantive Jurisdiction of South Sudan Judiciary
Looking at the constitution of South Sudan it is clear that the constitution provided
power to the courts to act as an independent structure from the executive and the legislative
branch of the government including financially. However, the Supreme Court of South Sudan
is accountable to the President of South Sudan. There is a deep-rooted understanding that the
judiciary in South Sudan will operate based on the values, culture and standards the people of
165
W
ORLD
V
ISION
I
NTERNATIONAL
T
HE
S
OUTH
S
UDAN
S
ECRETARIAT OF
L
EGAL AND
C
ONSTITUTIONAL
A
FFAIRS
,
A
S
TUDY ON
C
USTOMARY
I
NTERNATIONAL
L
AW IN
C
ONTEMPORARY
S
OUTH
S
UDAN
R
EPORT
8 (2004).
166
DongSamuelluak'sDiscussiononSouthSudan'sLaws,http://www.gurtong.net/Governance/ConstitutionLaws/La
wsofSouthSudan/tabid/342/Default.aspx (last visited Jan 10, 2016).
167
S
OUTH
S
UDAN
'
S
T
RANSITIONAL CONSTITUTION
,2011,art 16.
168
S
OUTH
S
UDAN
'
S
P
ENAL
C
ODE
, Feb 10, 2008, art 247.

35 |
P a g e
South Sudan adhere.
169
The mandate of the courts as indicated under the constitution is
expected to be developed through a legal framework that provides the function and mandate
of the Court and its staffs. Judiciary functions in Southern Sudan are structured as the
Supreme Court of Southern Sudan, Courts of Appeal, High Courts, County Courts and Other
Courts that can be established by law as deemed necessary.
170
The Supreme Court is the highest court in South Sudan with final say on any matter.
This court also deals with matters that are related to constitutional provisions.
171
This Court
has a criminal jurisdiction over the President and Vice President.
172
Any dispute between the
government of South Sudan and that of the people is also expected to be resolved by the
Supreme Court in South Sudan.
173
The High Court is the highest court that is established at every state level in South
Sudan. The mandate of the High Court includes interpreting and adjudicating cases that are
related to the state's constitution. In addition to cases that come as an appeal,this court has
both civil and criminal mandate as far as a given state is concerned. Within the High Court,
there is an opening for the integration of women at state level based on their competence and
experience. Like that of the Supreme Court, the High Court's mandate and operational
principles are expected to be in light of the interim constitution.
174
III.
Promoting Accountability by Developing theHybrid Court for South Sudan (HCSS)
I argue that real peace cannot exist without the promotion of justice for everyone that
is involved in an armed conflict, and that includes women victims of wartime rape in South
Sudan. All interventions that are designed to promote peace should include elements of
justice and accountability.
175
When the Court is established, African expertise specialized in international criminal
laws as well as international human rights laws, with high moral character, impartiality and
169
W
ORLD
V
ISION
I
NTERNATIONAL
THE
S
OUTH
S
UDAN
S
ECRETARIAT OF
L
EGAL AND
C
ONSTITUTIONAL
A
FFAIRS
,
A
S
TUDY ON
C
USTOMARY
I
NTERNATIONAL
L
AW IN
C
ONTEMPORARY
S
OUTH
S
UDAN
R
EPORT
7 (2004).
170
S
OUTH
S
UDAN
'
S
T
RANSITIONAL
C
ONSTITUTION
,2011,art
16.
171
Dong Smauel's discussions on South Sudan's Laws, http://www.gurtong.net/governance/Constituional Laws
of South Sudan/tabid/342/Default.aspx(last visited Jan 10,2016).
172
Dong Smauel's discussions on South Sudan's Laws, http://www.gurtong.net/governance/Constituional Laws
of South Sudan/tabid/342/Default.aspx(last visited Jan 10,2016).
173
SOUTH SUDAN
'
S TRANSITIONAL CONSTITUTION
,2011,art 10.
174
SOUTH
S
UDAN
'
S TRANSITIONAL CONSTITUTION
, 2011, art 133.
175 Interview with Salah Hammad, Senior Human Rights Expert at the African Union Commission (Feb 5,
2016).

36 |
P a g e
integrity other than South Sudanese, should be sought for the Court personnel.
176
People of
South Sudan origin believe the Hybrid Court for South Sudan is independent to deal with
issues of human rights violations including wartime rape if parties are willing to settle their
differences and compromise for the purpose of justice for all.
177
Speaking from the point of view of women who have undergone wartime rape, the
absence of a justice and accountability framework subjects them for twice victimization. The
importance of criminal prosecution for perpetrators who commit crimes such as wartime rape
has been considered as an integral component of what is just for victims under international
law.
178
Prosecution of perpetrators has been used beginning from World War II for addressing
the harm of a wartime rape victim to rectify what has happened in the context of a conflict.
179
Women who lack justice are twice victimizedbecause the absence of an effective and
adequate justice system by itself is symbolic for the fact that rape is normal and that it is
acceptable.
180
The absence of such a system in South Sudan hence contributed to women's
victimization not only due to the rape but also due to the lack of a system that responds to the
issue. Here victimization twice can also be derived from the fact that 90 % of wartime rape
cases in South Sudan have been dealt with through customary justice and customary courts
where women's vulnerability and status are used against them.
181
In Africa, there are actual circumstances that have taken peace processes together
with accountability and justice for victims of wartime rape in an armed conflict. For instance,
experience from Rwanda and Uganda indicates that even when employed together these
176Dunia Tegegn, Results of the Accountability Mechanisms and Women's Role in South Sudan's Peace
building Survey (unpublished summary of data collected from the Accountability Mechanisms and Women's
Role in South Sudan Survey conducted from Jan 2016-March 2016 ) (on file with author).
177
Dunia Tegegn, Results of the Accountability Mechanisms and Women's Role in South Sudan's Peace
building Survey (unpublished summary of data collected from the Accountability Mechanisms and Women's
Role in South Sudan Survey conducted from Jan 2016-March 2016 ) (on file with author).
178
David C. Gray and Benjamin A. Levin, Feminist Perspectives on Extraordinary Justice,
in 13 S
ERIES
O
N
T
RANSITIONAL
Justice, F
EMINIST
P
ERSPECTIVES ON
T
RANSITIONAL
J
USTICE
:
F
ROM
I
NTERNATIONAL AND
C
RIMINAL TO
A
LTERNATIVE
F
ORMS OF
J
USTICE
77-78 (Martha Albertson Fineman Estelle Zinsstag eds.,
2013).
179
Elish Rooney, Intersectionality: A Feminist Theory for Transitional Justice, in 13 S
ERIES
O
N
T
RANSITIONAL
Justice, F
EMINIST
P
ERSPECTIVES ON
T
RANSITIONAL
J
USTICE
:
F
ROM
I
NTERNATIONAL AND
C
RIMINAL TO
A
LTERNATIVE
F
ORMS OF
J
USTICE
149 (Martha Albertson Fineman Estelle Zinsstag eds., 2013).
180
Effective remedies to victims are also discussed as part of the 2005 UN basic principles on the right to
remedy and reparation alluding to the fact that any justice system need to addresses the issue from the point of
view of the victim.
181
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
,
F
INAL
R
EPORT OF
T
HE
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
¶1086 (2014).

37 |
P a g e
approaches are not contradictory but complementary.
182
Moreover, experience from Sudan is
evident that accountability processes should be a primary consideration.
183
The African Union Transitional Justice Policy put accountability at the center of its
efforts to bring peace and justice in the continent. It clearly stipulates that accountability
processes should be set up to ensure military and humanitarian actors abide by regional,
national and international human rights frameworks including women rights instruments and
relevant principles.
184
A.
Elements of Developing the Hybrid Court for South Sudan
Any justice and accountability mechanism to address issues that are relevant to women's
human rights should contemplate women's needs in the process. It also important to include a
gender and women's human rights perspective by bringing to justice those who are
accountable to committing rights violations including wartime rape in the context of civil
wars.
185
herere
It is an obligation of a state when designing a peace building and accountability framework to
identify the primary areas to address women's concerns. This kind of framework is crucial to
prevent the recurrence of violence against women in the same country. Finding men who are
willing to indict other men for the crimes of rape against women is challenging.
186
Yet, this
same role is a role that needs to be played by the African Union Commission during ongoing
and active conflicts. The role of the African Union Commission is significant when there are
indications leading to the failure of existing justice and accountability frameworks within a
given state as in the context of South Sudan.
187
182
Interview with Salah Hammad, Senior Human Rights Expert at the African Union Commission (Feb 5, 2016).
183
My interaction with the National Endowment for Democracy indicates that the absence of primary focus ona
justice component for Sudan has later affected the women's position in their own community and this is a very
good lesson the South Sudan's peace building process can learn. This lesson is particularly never ignoring the
accountability issues in any post conflict peace building initiatives and including voices of women and their
issues.
184
African Union Commission (AUC), Final Draft Transitional Justice Framework (Feb 5, 2014) (unpublished
AU Draft Transitional Justice Framework) (on file with the African Union Commission Department of Political
Affairs).
185
African Union Commission (AUC), Final Draft Transitional Justice Framework (Feb 5, 2014) (unpublished
AU Draft Transitional Justice Framework) (on file with the African Union Commission Department of Political
Affairs).
186
DuniaTegegn, Results of the Accountability Mechanisms and Women's Role in South Sudan's Peace building
Survey (unpublished summary of data collected from the Accountability Mechanisms and Women's Role in
South Sudan Survey conducted from Jan 2016-March 2016 ) (on file with author).
187
African Union Commission (AUC), Final Draft Transitional Justice Framework (Feb 5, 2014) (unpublished
AU Draft Transitional Justice Framework) (on file with the African Union Commission Department of Political
Affairs).

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Whether the proposed justice and accountability frameworks are within a court
system or not they are required to have a reparation scheme to address wartime rape.
In the context of South Sudan and the proposed Hybrid Court, there is a need to
design a compensation program that address wartime rape. Similarly, an
accountability framework is expected to facilitate an effective access to justice and
opportunities to services and economic resources.
188
1.
Specialized Teams on Rape cases vs Integrated Approach
Looking at the experience of various tribunals with regard to prosecuting wartime
rape, best practices indicate that instead of having an independent team specialized in the
prosecution of wartime rape, the prosecution of wartime rape can be better integrated with the
mandate of any court dealing with other human rights violations.
189
This is particularly
because if an integrated approach of wartime rape within the mandates and functions of a
given court is developed, any investigation on wartime rape will result in the accountability
of the accused for rape instead of only proving the fact that rape has happened to a women.
190
The integration of wartime rape in the work of any court will contribute primarily to
the responsibility component whereby facts identified can belinked to the crime committed.
In addition to this, because of the integration it will not be an excuse for staff members of
courts to say they were not part of that specialized teamand they have excluded the evidences
thereof.
191
The integration of wartime rape in the whole process will provide every expert in
the justice institutions and particularly those in the context of court procedures information
on what has happened and how each individual fact relates to the other. The integration will
also lead to the identification of the highest-level accountable to wartime rape including
individuals in the government or in the military.
188
African Union Commission (AUC), Final Draft Transitional Justice Framework (Feb 5, 2014) (unpublished
AU Draft Transitional Justice Framework) (on file with the African Union Commission Department of Political
Affairs).
189
O
FFICE OF
T
HE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF
T
HE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 27(2014).
190
O
FFICE OF THE PROSECUTOR FOR THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA
,
BEST PRACTICES
MANUAL FOR THE INVESTIGATION AND PROSECUTION OF SEXUAL VIOLENCE CRIMES IN POST
-
CONFLICT REGIONS
:
LESSONS LEARNED FROM THE OFFICE OF THE PROSECUTOR FOR THE INTERNATIONAL CRIMINAL TRIBUNAL FOR
RWANDA
,¶ 29(2014).
191
O
FFICE OF THE PROSECUTOR FOR THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA
,
BEST PRACTICES
MANUAL FOR THE INVESTIGATION AND PROSECUTION OF SEXUAL VIOLENCE CRIMES IN POST
-
CONFLICT REGIONS
:
LESSONS LEARNED FROM THE OFFICE OF THE PROSECUTOR FOR THE INTERNATIONAL CRIMINAL TRIBUNAL FOR
RWANDA
,¶ 29(2014).

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P a g e
2.
Rationale for Specialized Teams on Rape Cases in the Context of
South Sudan
The importance of the Hybrid Court for South Sudan (HCSS) including the
specialized teams for the prosecution of wartime rape relates to four major reasons. First, the
trial of rape under both International Human Rights and International Humanitarian Law
contributes to the preservation of post - conflict collective memory by establishing a
historical record of rape as a war crime. Second, it signals the acknowledgment of rape as a
deplorable, condemnable and punishable act of war. Third, it guarantees that perpetrators are
held accountable for their crimes and finally the process will incorporate wartime rape
victims, who have been dispossessed of a vote to speak about the violence committed against
them in other platforms including in their own national courts.
B.
Promoting Institutional Inclusiveness for Survivors of Rape
1.
The Role of Women in Setting up a Hybrid Courtin South Sudan
True justice cannot be achieved unless the justice and accountability frameworks
tackle the underlying stereotypes and institutional barriers that prioritize patriarchy.
192
The
absence of victims of wartime rape in the Hybrid Court could underestimate the credibility of
any courts inclination to promote justice in South Sudan.
193
Hence, promoting essential
benefits to women in an armed conflict context demands adding to the existing justice
framework the impacts of discrimination against women that is well entrenched in the
customs and traditions of South Sudan. Taking into account intersectional position of
women victims to create close relationships among women with different ethnic background
is also crucial.
194
The proposed court needs to enhance the role of women for different
reasons. The major reason is women who are placed at the center of two different abusive
192
David C. Gray and Benjamin A. Levin, Feminist Perspectives on Extraordinary Justice,
in 13 S
ERIES
O
N
T
RANSITIONAL
J
USTICE
,F
EMINIST
P
ERSPECTIVES ON
T
RANSITIONAL
J
USTICE
:
F
ROM
I
NTERNATIONAL AND
C
RIMINAL TO
A
LTERNATIVE
F
ORMS OF
J
USTICE
77-78 (Martha Albertson Fineman Estelle Zinsstag eds.,
2013).
193
David C. Gray and Benjamin A. Levin, Feminist Perspectives on Extraordinary Justice,
inin 13 S
ERIES
O
N
T
RANSITIONAL
Justice, F
EMINIST
P
ERSPECTIVES ON
T
RANSITIONAL
J
USTICE
:
F
ROM
I
NTERNATIONAL AND
C
RIMINAL TO
A
LTERNATIVE
F
ORMS OF
J
USTICE
77-78 (Martha Albertson Fineman Estelle Zinsstag eds.,
2013).
194
David C. Gray and Benjamin A. Levin, Feminist Perspectives on Extraordinary Justice,
inin 13 S
ERIES
O
N
T
RANSITIONAL
Justice, F
EMINIST
P
ERSPECTIVES ON
T
RANSITIONAL
J
USTICE
:
F
ROM
I
NTERNATIONAL AND
C
RIMINAL TO
A
LTERNATIVE
F
ORMS OF
J
USTICE
77-78 (Martha Albertson Fineman Estelle Zinsstag eds.,
2013).

40 |
P a g e
regimes do not have similar challenges as men.Men might face abuse during an armed
conflict only because they belong to a certain ethnic group.
195
Therefore, a consideration of these dimensions should validate the need for an
increased role in the establishment of the AU Hybrid Court for wartime rape.
196
It is important
to identify that efforts in the context of justice and accountability that pay an insignificant
attention to gender will fail in terms of addressing what is called gender justice in the context
of wartime rape.
197
There is a need to take into account how women differently experience the
effects of armed conflict.
198
2.
Platforms for Including Women in the Establishment of the South
Sudan Hybrid Court
The Court needs people who have demonstrated a history of fighting for the victims
of rape, abuse, and trauma.
199
The structure of the Court needs to be inclusive. Female judges
or magistrates with high moral character, impartiality and integrity must be amongst the male
judges.
200
When the Court is to be established, women need to be a part of the process and
the Court itself as judges, as prosecutors and witnesses in their own cases. This applies
equally for those who were subjected to wartime rape. Women can be able to raise women's
concerns. This aspect of court procedures is clearly recognized under the Rome statute.
201
The
ICC for example in several of its cases has encouraged women who are victims of wartime
rape to come forward and participate.
202
195
David C. Gray and Benjamin A. Levin, Feminist Perspectives on Extraordinary Justice,
inin 13 S
ERIES
O
N
T
RANSITIONAL
Justice, F
EMINIST
P
ERSPECTIVES ON
T
RANSITIONAL
J
USTICE
:
F
ROM
I
NTERNATIONAL AND
C
RIMINAL TO
A
LTERNATIVE
F
ORMS OF
J
USTICE
77-78 (Martha Albertson Fineman Estelle Zinsstag eds.,
2013).
196
David C. Gray and Benjamin A. Levin, Feminist Perspectives on Extraordinary Justice,
inin 13 S
ERIES
O
N
T
RANSITIONAL
Justice, F
EMINIST
P
ERSPECTIVES ON
T
RANSITIONAL
J
USTICE
:
F
ROM
I
NTERNATIONAL AND
C
RIMINAL TO
A
LTERNATIVE
F
ORMS OF
J
USTICE
77-78 (Martha Albertson Fineman Estelle Zinsstag eds.,
2013).
197
David C. Gray and Benjamin A. Levin, Feminist Perspectives on Extraordinary Justice,
inin 13 S
ERIES
O
N
T
RANSITIONAL
Justice, F
EMINIST
P
ERSPECTIVES ON
T
RANSITIONAL
J
USTICE
:
F
ROM
I
NTERNATIONAL AND
C
RIMINAL TO
A
LTERNATIVE
F
ORMS OF
J
USTICE
77-78 (Martha Albertson Fineman Estelle Zinsstag eds.,
2013).
198
David C. Gray and Benjamin A. Levin, Feminist Perspectives on Extraordinary Justice,
in 13 S
ERIES
O
N
T
RANSITIONAL
Justice, F
EMINIST
P
ERSPECTIVES ON
T
RANSITIONAL
J
USTICE
:
F
ROM
I
NTERNATIONAL AND
C
RIMINAL TO
A
LTERNATIVE
F
ORMS OF
J
USTICE
77-78 (Martha Albertson Fineman Estelle Zinsstag eds.,
2013).
199
DuniaTegegn, Results of the Accountability Mechanisms and Women's Role in South Sudan's Peace building
Survey (unpublished summary of data collected from the Accountability Mechanisms and Women's Role in
South Sudan Survey conducted from Jan 2016-March 2016 ) (on file with author).
200
DuniaTegegn, Results of the Accountability Mechanisms and Women's Role in South Sudan's Peace building
Survey (unpublished summary of data collected from the Accountability Mechanisms and Women's Role in
South Sudan Survey conducted from Jan 2016-March 2016 ) (on file with author).
201
Statute of the International Criminal Court, art 68(3), Jul.1,2002,UNDoc.A/CONF.183/9.
202
Statute of the International Criminal Court, art 42, Jul.1,2002,UNDoc.A/CONF.183/9.

41 |
P a g e
The same experience exists within the mandate of the African Union Commission on
Human and People's Rights and the African Court. This best experience particularly
recognized under the ICC, ICTR and ICTY needs to be replicated within the African Union
Hybrid Court for South Sudan.
203
The active role of women in the court's process also extends
to the trial process and sentencing particularly for women who were the subjects of rape that
is committed as a war crime and as a crime against humanity. The power of sentencing in
favor of women as a way of validating justice bestows recognition that crimes against them
were committed and that the crimes are in violation of international and national human
rights frameworks.
204
The active participation of victims of wartime rape during sentencing including
through their representatives facilitates a sense of dignity, truth and reconciliation for women
helping them to restart their life free from trauma. They will also feel like they are at the
center of the accountability process and can raise concerns about the system for any
ineffective enforcement.
205
The platforms for women also have a positive contribution particularly because
women who pass through investigation and prosecution are limited in their testimony to
answer only what the prosecutor, counsel or the judge is asking them. Women are not
encouraged to speak up about the consequence of the act on their life today or in the future.
Especially, during sentencing, these responses play a significant contribution and courts need
to encourage that the process encompasses these dialogues by women when they are giving
their testimony.
206
The relevance of this process also extends to supporting the judiciary in the
assessment of consequences of wartime rape on a given women leading to better outcome for
203
Interview with Salah Hammad, Senior Human Rights Expert at the African Union Commission (Feb 5,
2016).
204
David C. Gray and Benjamin A. Levin, Feminist Perspectives on Extraordinary Justice,
in 13 S
ERIES
O
N
T
RANSITIONAL
Justice, F
EMINIST
P
ERSPECTIVES ON
T
RANSITIONAL
J
USTICE
:
F
ROM
I
NTERNATIONAL AND
C
RIMINAL TO
A
LTERNATIVE
F
ORMS OF
J
USTICE
77-78 (Martha Albertson Fineman Estelle Zinsstag eds.,
2013).
205
David C. Gray and Benjamin A. Levin, Feminist Perspectives on Extraordinary Justice,
in 13 S
ERIES
O
N
T
RANSITIONAL
Justice, F
EMINIST
P
ERSPECTIVES ON
T
RANSITIONAL
J
USTICE
:
F
ROM
I
NTERNATIONAL AND
C
RIMINAL TO
A
LTERNATIVE
F
ORMS OF
J
USTICE
77-78 (Martha Albertson Fineman Estelle Zinsstag eds.,
2013).
206
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 222(2014) .

42 |
P a g e
all women.
207
Having platforms during trial including during the sentencing stage for women
to present the consequence of rape could help a judge to take into account the multifaceted
impacts of rape while reaching a judgment on guilt and during measuring harm.
208
In addition
to these, with no regard for how the sentencing process turns out, the fact that women can be
heard in a court system itself is empowering and justice
.
.
209
Likewise, the African Union Hybrid Court needs to integrate platforms for victims
and those who legally represent them. There are negative perceptions with regard to the
capacity of South Sudan women in organizing themselves politically and influencing
decisions of the court. People from the region indicate that South Sudan's women have been
marginalized beginning from the 1800 mainly because of their lack of education. Almost 95
% of South Sudan's women are illiterate.
210
Even when they are educated, most of these
women care for their husbands at home and are not politically organized.
211
Because of these
challenges, people from the region believe women of South Sudan in partnership with the
international movement for women's rights can work together and have a better voice in the
justice and accountability process.
212
When it comes to organized women groups, another
challenge reflected during this research process is the existence of women groups who are
dependent and are influenced by the ruling party and its allegiances to the extent of not
speaking up about wartime rape.
213
Hence, the platform for South Sudan's women should be
207
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 222(2014).
208
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 223(2014)
209
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 229(2014).
210
Dunia Tegegn, Results of the Accountability Mechanisms and Women's Role in South Sudan's Peace
building Survey (unpublished summary of data collected from the Accountability Mechanisms and Women's
Role in South Sudan Survey conducted from Jan 2016-March 2016 ) (on file with author).
211
Dunia Tegegn, Results of the Accountability Mechanisms and Women's Role in South Sudan's Peace
building Survey (unpublished summary of data collected from the Accountability Mechanisms and Women's
Role in South Sudan Survey conducted from Jan 2016-March 2016 ) (on file with author).
212
Dunia Tegegn, Results of the Accountability Mechanisms and Women's Role in South Sudan's Peace
building Survey (unpublished summary of data collected from the Accountability Mechanisms and Women's
Role in South Sudan Survey conducted from Jan 2016-March 2016 ) (on file with author).
213
Dunia Tegegn, Results of the Accountability Mechanisms and Women's Role in South Sudan's Peace
building Survey (unpublished summary of data collected from the Accountability Mechanisms and Women's
Role in South Sudan Survey conducted from Jan 2016-March 2016 ) on file with author[hereinafter ASS
survey]

43 |
P a g e
free from biased understanding of what happened during the armed conflict .Women groups
who can speak for women issues need to be identified and organized better to work with the
African Union Hybrid Court.
214
C.
Integrating a Gender Lens in the Investigation and Prosecution of Wartime
Rape
1.
Integrating a Gender Approach in the Investigation of Wartime Rape
a)
A Unified Prosecution Strategy for Wartime Rape
The investigation and prosecution of wartime rape must be part of the African Union
Hybrid Court's strategy towards the investigation and prosecution of gross human rights
violations such as genocide, crimes against humanity and war crimes.
215
This means the
attention wartime rape receives should be fair and equal to other crimes entertained by the
Hybrid Court. In additionto this, the integration of wartime rape into the overall strategy to
prosecute and investigate means that there is a need for close coordination between
investigators and prosecutors.
216
Another advantage of an integrated approach isthat the
prosecution and investigation of other crimes will be seen as a principal crime in and of itself
and be examined likewise, rather than being considered as an additional or subordinate crime
that comes along with other major incidents happened in South Sudan.
217
b)
The Defense of Consent in Wartime Rape Cases
Proving the commission of wartime rape should not permit the use of consent as an
excuse by perpetrators to be relived of accountability. The totality of circumstances
where wartime rape happens should be considered while evaluating the evidence to
214
Dunia Tegegn, Results of the Accountability Mechanisms and Women's Role in South Sudan's Peace
building Survey (unpublished summary of data collected from the Accountability Mechanisms and Women's
Role in South Sudan Survey conducted from Jan 2016-March 2016 ) (on file with author).
215
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 27(2014).
216
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 28(2014).
217
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 28(2014).

44 |
P a g e
prove guilt.
218
In the context of an armed conflict where there is evidence leading to
the commission of war crimes, crimes against humanity and genocide, the incidents
including wartime rape are presumed to be forced and there is no need to prove if a
women has consented to sexual intercourse.
219
The proposed Hybrid Court for South
Sudan (HCSS) should also adopt the evidentiary principle that is applied particularly
by ICTR. The focus of evidence in the context of an armed conflict should move
away from looking at the mental status of a victim of wartime rape to how rape was
actually inflicted on the women.
220
c)
Initial Witness Selection
For any investigation to commence and pursue witness selection, identifying where to
find survivors of wartime rape is important. Finding survivors is a time intensive and difficult
job because in the aftermath of an armed conflict, survivors could move to different places
including safe shelters, Internally Displaced Person's camps and even away from the country
where they are originally from.
221
As such, the role of prosecutors and investigators of
wartime rape needs to focus on contacting and working with local NGOs who are more
engaged with the issue. Communicating with Humanitarian Agencies, UN Organizations,
Women's Associations and the like can be helpful to gather information about survivors of
rape.
222
This is a success, because non-governmental organizations, since they are involved
with the local community can have first-hand information about what happened and who was
218
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 184(2014).
219
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 186(2014).
220
This is also in line with Article 7(1)(g) of the ICC Statute. All of these instruments support the conclusion that
coercion is established where perpetrators commit rape in the context of genocide, crimes against humanity, or
war crimes. In these circumstances, voluntary consent is impossible and the element of non-consent should be
presumed as a matter of law.
221
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 105(2014).
222
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 106(2014).

45 |
P a g e
affected.
223
This also can apply to the proposed Hybrid Court at the stage where prosecutions
and investigations are to be considered.
d)
Working with Organizations that are Already on the Ground
In Rwanda, for instance, international human rights organizations interviewed victims
and witnesses before the tribunal was set up. Investigators were able to rely on these
interviews to help direct and focus their own criminal investigations. In similar situations
,investigators should coordinate with local NGOs who are on the ground and work with them
to identify and locate potential witnesses and other sources of information.
224
e)
Preparation for Interview with Witness
(i)
Initial Approach to Witnesses
The first contact with a survivor of rape is a significant step in the justice and
accountability process. As victims are at the center of the criminal investigation, unsafe
approach to a witness of wartime rape could put her to further risk.
225
The way an investigator
presents herself to a victim could subject a wartime rape survivor to retaliation by her
perpetrators. It is hence important that investigators hide themselves from what marks their
identity, role and organization.
226
It is important to understand that because the typical
characteristics of wartime rape manifests psychological fear and silence, other factors should
not exacerbate the situation for victims.
227
Protection of survivors of violence during
223
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 107(2014).
224
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 108(2014).
225
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 109(2014).
226
This, for instance, might include the use of vehicles that identify victims. Can you explain this more? Are
you referring to drones or some other type of technology? I don't know what kinds of vehicles can identify
victims.
227
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 115-116 (2014)

46 |
P a g e
investigation, prosecution and adjudication of cases also requires respect for the dignity and
personal integrity of survivors of violence.
228
A safe environment that encourages free flow of information and sense of freedom is
essential for victims to come forward and raise their voice against wartime rape.
229
When
victims of wartime rape are in contact with the justice system, staff member of any given
court as an individual could bring into the system bias and attitudes on wartime rape.
Trainings are hence meant to challenge the prevalence of a partial and patriarchal thinking
and operations within any justice and accountability process including the Court system.
230
All trainings need to equally be given to translators and interpreters as they also end up in
contact with survivors of violence for so long.
231
The training needs to be focused on how
they can engage with perpetrators and what kind of contribution they can make throughout
the justice and accountability process.
232
(a)
Confidentiality and Protective
Measures
Staffs that will be engaged to run the Hybrid Court including investigators and
prosecutors need to be well equipped with the relevant skills for handling survivors of
wartime rape; this also requires knowledge of the psychological and social consequences of
wartime rape.
233
Another relevant area that requires professional development is prioritizing
better safety measures in handling stress by survivors to prevent secondary victimization of
228
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 117(2014).
229
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 129(2014).
230
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 134(2014).
231
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 46(2014).
232
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 50(2014).
233
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 51(2014).

47 |
P a g e
victims of wartime rape.
234
In order to protect the rights of victims, cases that involve children
and women raped shall be tried in camera and therefore measures in line with international
laws and standard practices must be put in place.
235
When designing protective measures, the proposed Hybrid Courts should take into
account the pattern of violence/history of women's role in the society and cultural barriers for
women to speak up. The need to provide protective measures should also include
understanding how wartime rape is expressed, how detailed it can be discussed in the
society.
236
These considerations are important because women who speak of their harm in
their own language could feel unprotected because of the language barriers between
investigators and victims of wartime rape.
237
Protection standards need to be developed because not only the victims of wartime
rape but also their families and children born out of rape withstand the worst. This extends to
children not being able to access education and health because of discrimination. These
potential impacts contribute to the silencing of victims of wartime rape during the justice and
accountability process.
238
Individuals who are involved in the investigation and prosecution of wartime rape
also need to respect the confidentiality of information of survivors of violence. This includes
the name and any other background information of a survivor of violence that can expose her
identity. The confidentiality standards apply throughout the justice, accountability process.
This will heighten the confidence a survivor of wartime rape will have in the process, and her
willingness to tell the story of her own injuries and others.
239
234
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 51(2014).
235
Dunia Tegegn, Results of the Accountability Mechanisms and Women's Role in South Sudan's Peace
building Survey (unpublished summary of data collected from the Accountability Mechanisms and Women's
Role in South Sudan Survey conducted from Jan 2016-March 2016 ) (on file with author).
236
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 139(2014).
237
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 143(2014).
238
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 251(2014).
239
For example, the Secretary-General's Report on Sexual Violence in Conflict states that a "victim centered
approach" to prosecuting sexual violence crimes is "vital".

48 |
P a g e
The guarantee of confidentiality also goes hand in hand with how women will be
viewed in their own society in the aftermath of rape and if their society is going to accept
them. Protecting information shared by women who were subjected to wartime rape
contributes to the women's smooth integration into their own society.
240
The confidentiality
standard also protects the family of a woman who survived wartime rape.
241
This is because
when women's stories are shared to a larger community, the women's family and her
offspring's will be excluded and shamed. Hence, precautions should be used as far as keeping
confidential information that is material to an ongoing wartime rape case is concerned.
The confidentiality standards and protective measures towards preventing secondary
victimization of women can be made possible through hiding information that reveals
women's names and background from any public documentation and court procedure, and
using technologies that can hide their identity such as Closed Circuit Television (CCTV)
and other creative techniques.
242
(b)
Use of the Same Gender and Nationality for
Interviews with Witnesses
The development of any strategy for prosecution and investigation should take into
account the background of a victim of wartime rape.
243
This is to mean, when
approached by individuals of a different gender, women tend to be discouraged to tell
their own story.
244
Best practices in this area from other tribunals indicate that the use
of individuals of the same gender works better. Women speak to other women with
240
Many Rwandan women who had been raped or who suffered sexual violence generally did not reveal their
experiences publicly, fearing that they would be rejected by their family and wider community, and be unable to
reintegrate or marry.
241
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 115(2014).
242
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 55(2014).
243
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 47(2014).
244
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 47(2014).

49 |
P a g e
less difficulty or shame.
245
This implies, when a tribunal is established to deal with
crimes that have occurred in the context of a conflict, the investigation and
prosecution team need to be composed of different genders, the central point being
that it needs to be staffed with women.
ii.
Conducting an Interview with Witness
During an interview with survivors of wartime rape, there are important factors the
process needs to be cognizant. The first one is that the process should lead to find out
credibleand accurate information from survivors of wartime rape that leads to accountability
of perpetrators. Second, despite the dire need to get this information, the process should not
result in further victimization.
246
All precautions should be taken to prioritize the needs and circumstances of
survivors of wartime rape. Processes that result in putting women in an adverse position
should be discontinued.
247
Experience with other courts indicates that in interviews that
actually result in more harm to a victim of wartime rape, other methodologies to gather
information about what happened should be used as an alternative.
248
During the interview, investigators and prosecutors should not jump to the core of
what is expected from a survivor of wartime rape. Since the experience is a story of pain,
women might choose to speak about the main points at a later stage. Any accountability and
justice framework should allow time for the women to talk about what makes them happy,
their hobbies and the like which could break the silence and raise their interest to jump to the
major point.
249
245
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 47(2014).
246
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 131(2014).
247
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 131(2014).
248
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 132(2014).
249
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 133(2014).

50 |
P a g e
An investigator, who is interviewing a victim, should also explain the process for the
interview, including the need for the interview, the outcome of the interview, if there is a
need for recording the interview, why recording is needed.
250
The investigator needs to create
a very friendly, victim centered environment during the interview which also includes
clarifying any questions or requests that are not clear, and understanding when a survivor of
rape is not comfortable. This also should go as far as giving extra time for women as needed
because of the circumstances the women has been through.
251
The investigator should also
understand when a survivor of rape forgets about some of the facts in her own or others
stories.
252
During the trial stage, survivors of wartime rape are expected to be told about the
process in the Court system. This includes how the trial process is going to take place, what
will survivors of wartime rape do, how long it will take, who will ask those questions and
the like.
253
The investigator together with the prosecutor should also let the victim of
wartime rape know that sometime in the trial process that they will be directly contacting the
perpetrator and their names could be released at the end of the day.
254
On the other hand, individual investigators who are involved in interviewing rape
survivors should themselves be both verbally and nonverbally cautious of what they want to
ask. The way they present themselves to survivors of wartime rape during an interview
should be culturally acceptable.
255
Attentive listening of the survivor with no intervention
250
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 135(2014).
251
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 138(2014).
252
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 138(2014).
253
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 139(2014).
254
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 139(2014).
255
In addition to language, investigators should be aware of the messages their non-verbal communication may
send to witnesses. In the experience in Rwanda, for example, a female investigator wearing a short dress could
be seen as indecent or unprofessional and, therefore, undermine the investigator's effectiveness.

51 |
P a g e
and using broader questions during an interview session have proved to be workable in the
framework of other tribunals.
256
There were standards that are identified as best practice by other tribunals, which can
be replicated into the African Union Hybrid Court. This relates to expenses witnesses might
incur if they are to appear during trial and share their testimony depending on where the
Hybrid court is to be placed. Practices in this area indicate that if a survivor of wartime rape
clearly demands in her interview that she needs financial support to travel and give her
testimony, it is recommended that it fall under the duty of the proposed Hybrid Court to
support her financially.
257
In addition, victims of wartime rape who are going through an interview need to be in
touch with a counselor since there is an expectation of some level of trauma whenever a
women passes through an interview on her own story.
258
Equally important to the process for
interviewing victims of wartime rape is, the type of information an investigator needs to
collect during an interview. This aspect is very crucial for holding an accused accountable for
his act. This information includes what happened at the crime scene, for example, when,
where, and how the crime was committed, the identity of the perpetrators; and evidence on
the perpetrator's mental state.
259
Best practices from other tribunals also underline the need
for a standard procedure for interview with a survivor of wartime rape inthe justice and
accountability process.
260
256
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 142(2014).
257
Many potential witnesses before the Rwanda Tribunal expressed concern about the loss of income they
would experience if they agreed to travel to Arusha to testify. As a result, the Tribunal provided witnesses with a
daily
allowance to defray expenses and, upon verification, compensation for lost income associated with their court
appearance.
258
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 151(2014).
259
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 102(2014).
260
For more information on this, see the ICTR interview checklist annexed in Annex A? Is the Annex numbered
or lettered? If so, you can specify so. to the best practice manual.

52 |
P a g e
(a)
Understanding Cultural
Implications during an Interview
In the context of investigating and interviewing victims of wartime rape, cultural
aspects in the lives of the victims of wartime rape are crucial.
261
Though it is questionable to
use judges for the Hybrid Court from South Sudan, there is procedural benefit to involve
citizens of South Sudan in terms of investigations and prosecutions so some aspects of the
region's culture are well known and will not be a barrier to the justice and accountability
process.
262
If this is not possible, it is advisable to educate or raise the awareness of
individuals investigating human rights violations in South Sudan on some core elements of
the region's culture particularly that which relates to women's role in the society and
perceptions of the community on wartime rape. For example, there is a custom in South
Sudan demanding a woman to seek consent from her husband while disclosing information
about what happened to her during the civil war.
263
If investigators and those conducting an interview did not have this information, it
will pose a challenge to the woman if she goes ahead and discusses the matter. If she cannot
do it because of the low status she has in her community, which limits her capacity to speak
up, it will pose a challenge to the accountability process. Likewise, investigators and those
who will be interviewing a survivor of wartime rape should be familiar with the kinds of
expressions culturally used to explain wartime rape that might not be clearly referring to the
act but use other terminologies to explain it. This will have an impact on the outcome of the
case particularly that which relates to the commission of the crime.
264
261
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 114 (2014).
262
In the ICTR, this accountability process was made easier by including Rwandan staff on investigation and
prosecution teams. However, the final compromise agreement for South Sudan conflict indicates that the
prosecutor, defense council and registrar of the hybrid court can only be elected from outside of South Sudan
and be nominated by the African Union Commission. My interview with the human rights expert of the African
Union Commission indicates that judges might possibly be selected from South Sudan as well.
263
DuniaTegegn, Results of the Accountability Mechanisms and Women's Role in South Sudan's Peace building
Survey (unpublished summary of data collected from the Accountability Mechanisms and Women's Role in
South Sudan Survey conducted from Jan 2016-March 2016 ) (on file with author).
264
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 37 (2014).

53 |
P a g e
(b)
Liaising with NGOs on Previous
Interviews of the Same Victim
There can be no additional value to approaching victims of wartime rape a number of
times if it is proved that they have already been contacted by either local or international
organizations focused on women's rights.
265
If it is procedurally permitted to look at what
survivors of wartime rape provided, investigators should be able to go through it and
determine if the information is adequate. In cases where by the already existing information
is not adequate, investigators can arrange a second round of interviews only with regard to
what was found to be inadequate and can request validation of the information the survivors
already provided.
266
(c)
Framing Interview Questions
The experience of other tribunals in terms of standardizing questions for wartime rape
crime interviews confirm that when developed earlier and used properly, interview questions
work well.
267
Some of the factors that need to be included in the standard procedure relate to
what was already said by other survivors or witnesses as a way of confirming it in a more
general manner.
268
While developing the important issues as part of the standard interview guidelines
there should be engagement with those who will be involved in interpreting the questions so
that they will not feel strange while conducting the interpretation throughout the interview
process.
269
Such an engagement will contribute to being aware of grey areas that might come
out during the interview, what can be done if the survivor cannot continue with the interview,
agreement on how to respond to issues that might emerge during the discussion and
265
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 107 (2014).
266
In the context of South Sudan, for instance the Commission of Inquiry has already collected some
information about women's rights violations including wartime rape. However, additional information on the
prevalence of wartime rape can be gathered to substantiate what is already there.
267
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 114 (2014).
268
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 114 (2014).
269
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 114 (2014).

54 |
P a g e
determination of the types of issues the investigators and prosecutors would like more focus
on.
270
(d)
Information on Referral Services for Survivors
of Violence
According to the African Union Transitional Justice Framework, which was endorsed
by the African Union General Assembly facilitating a victim centered justice mechanism
should be at the center of any justice and accountability process in Africa.
271
The framework
further emphasizes that a victim-centered approach recognized under the framework also
includes financing victim support services (referral services) for survivors of wartime rape
both during and in the aftermath of any conflict.
272
The importance of psychological support for women who will be participating in an
interview is crucial. In addition to the investigation process, after the trial stage survivors of
wartime rape need to be provided with support services such as temporary shelter, medical
services, and on-going counseling services. These services can be provided through referral
systems coordinated by the AU Hybrid Court or through other local and international
organizations that are working together with the Court and more focused on women's rights
issues. Even though, this does not seem like an original mandate of the justice sector, since it
is part of the continuum of care, it should be seen as an integral part of the accountability and
justice process for women in South Sudan. Accordingly, a coordinating organ supporting
witnesses within the Court system can be established and can be mandated to do this task.
273
Primary services relevant for women, who were subjected to wartime rape, could
include medical and, counseling services and shelters.
274
In cases where due to capacity issues
the Hybrid Courtis not able to have a coordinating team within its mandate, it is still expected
to share information on where these services are found, including identifying service
providers and working closely with organizations that have already developed the services.
270
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 114 (2014).
271
African Union Commission (AUC), Final Draft Transitional Justice Framework (Feb 5, 2014) (unpublished
AU Draft Transitional Justice Framework) (on file with the African Union Commission Department of Political
Affairs).
272
African Union Commission (AUC), Final Draft Transitional Justice Framework (Feb 5, 2014) (unpublished
AU Draft Transitional Justice Framework) (on file with the African Union Commission Department of Political
Affairs).
273
See experience by the witness and victims' support section of the ICTR. Cooperation is needed among
prosecution, registry, national authorities, and service providers to ensure adequate support to witnesses.
274
Childbirth, HIV and STD testing, provision of Anti Retroviral (ARV) and counseling for families of a
wartime rape also falls under these services.

55 |
P a g e
The existence of such information should also be known and shared by investigators who will
be interviewing survivors of wartime rape before they conduct interviews.
275
f)
Documentation of Wartime Rape
As a best practice of ICTR, any documentation of wartime rape needs to include who
the primary perpetrator of wartime rape is and how the survivor of wartime rape was able to
identify him if she was able to identify him.
276
The documentation of the facts should also
lead to identify if there was penetration however slight, if the act of wartime rape was
inflicted in the context of the war, and if there was no need to prove free will.
277
Information
whether ethnic background or race was used as a ground or wartime rape or whether there
were additional factors that were used to commit wartime rape against women should be
collected. Documentation of wartimerape should also present information on whether women
during the conflict were only civilians and not involved as combatants.
278
Documentation should present whether wartime rape was systematic and if the
conflict was international or non-international. Documentation should include if there was a
chain of command or reporting structure and holding perpetrators responsible.
279
The most
widely used procedures for documenting wartime rape and other types of sexual violence
have been the Commission of Inquirythat are established for the purpose of investigating and
documenting human rights violations in the aftermath of any conflict.
280
Documentation of
sexual violence including wartime rape in these reports has varied from one country to
another. Researchers who have been studying the progress of Commission of Inquiry in terms
275
Both during and after the Court session a standard service that takes into account the impact of wartime rape,
the needs of pregnant women, HIV and PTSD should be available.In the current South Sudan, organizations
such as UN Women and UN Mission for South Sudan are providing services and the Court needs to work with
them.
276
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 95 (2014).
277
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 95(2014).
278
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 95 (2014).
279
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 95 (2014).
280
Before the coming into effect of the South Sudan COI, there were about 12 COI's established by the UN and
other regional bodies including the African Union.

56 |
P a g e
of covering sexual violence including wartime rape have identified better indicators. This
paper discusses the major ones including the need to have separate sections within the report
of the Commission and the depth of information on wartime rape. Commissions of Inquiries
are expected to have a separate section that elaborates on wartime report within the structure
of the report.
281
Commissions of Inquiries that include reports on sexual violence including wartime
rape also vary in their scope of coverage. Some only cover specific information with only
some lines discussing sexual violence in general and leaving a number of questions in the
minds of readerswhereas others are broader in their coverage. For example, by including
information on the number of women who were raped and the manner wartime rape was
inflicted. Some keep silent as far as the number of women who are affected by sexual
violence including wartime rape is concerned while others at least indicate that there exists no
known number.
282
Some reports indicate that they have spoken with victims of wartime rape and then do
not dive deeper into the issue in the body part of their documentation for example, by
including the impact rape resulted in the women overall wellbeing. A more successful
Commission of Inquiry report also includes information about women in general and the role
they play and their status in helping readers make the right connection between women's role
in peace times and during an armed conflict.
283
Successful Commission of Inquiry reports also
include other gender related crimes that are most of the time considered as gender blind
which actually could have a significant impact on women's day-to-day lives. The insertion of
this kind of information in the documentation of wartime rape contributes to making the
connection between wartime rape and other intersectional factors. A successful
documentation of wartime rape also includes a specific recommendation to wartime rape.
284
The addition of human rights language in terms of framing rights violations in the
context of women human rights instruments is also an essential component of any
Commission of Inquiry. Detail discussion of what rights and which laws are infringed will
give a clear picture on the extent of rampant women rights violations.
285
Likewise, analysis of
281
Emily Kenney, Developing a Gender Methodology For U.N. Commissions of Inquiry, 46 N.Y.U. J. INT'L L.
POL.589,590-630(2014).
282
Emily Kenney, Developing a Gender Methodology For U.N. Commissions of Inquiry, 46 N.Y.U. J. INT'L L.
POL.589,590-630(2014).
283
Emily Kenney, Developing a Gender Methodology For U.N. Commissions of Inquiry, 46 N.Y.U.
J.
I
NT
'
L
L.
P
OL
.589,590-630(2014).
284
Emily Kenney, Developing a Gender Methodology For U.N. Commissions of Inquiry, 46 N.Y.U. J. INT'L L.
POL.589,590-630(2014).
285
Emily Kenney, Developing a Gender Methodology For U.N. Commissions of Inquiry, 46 N.Y.U. J. INT'L L.

57 |
P a g e
international and national criminal law violations is significant for documenting sexual
violence including wartime rape. Many of the Commission of Inquiry reports that have
included sexual violence such as wartime rape lack mentioning the commission of wartime
rape as a war crime but are limited to discussing only crimes against humanity. A successful
documentation of wartime rape however should include an analysis of wartime rape as a war
crime.
286
Using the yardsticks discussed above a detailed evaluation of the report of the
Commission of Inquiry for South Sudan indicates that better documentation was made
possible. The scope of sexual violence is discussed more broadly to include rape, gang rape
as well as use of objects such as guns and stones to penetrate women's reproductive organs. It
elaborates on the use of rape to the extent of affecting women's reproductive capacity.
287
The
Commission of Inquiry for South Sudan's documentation also included information on the
use of rape was as a weapon of war and in a systematic manner to affect the ethnic group, the
women belong.
288
The report of the Commission of Inquiry also included information on what are
assumed non-gendered impacts of the war on women including the impact of the war on
women's day-to-day life like collecting woods and fetching water. In addition to this, the
report of the Commission of Inquiry touches upon previous exclusions of women including in
connection with the 2005 Comprehensive Peace Agreement.
289
It has the exclusion of women
from the peace deal as well as the lack of reference to sexual and gender based violence.
290
The Commission of Inquiry also has a reference to how the culture of South Sudan
discriminates against women who go through rape and what the accountability mechanism
should look like.
291
It underlines the absence of any discussion in connection with the impact
of culture on women in general and those who are subjected to wartime rape in
POL.589,590-630(2014).
286
Emily Kenney, Developing a Gender Methodology For U.N. Commissions of Inquiry, 46 N.Y.U. J. INT'L L.
POL.589,590-630(2014).
287
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
,
F
INAL
R
EPORT OF
T
HE
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
¶586(2014).
288
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
,
F
INAL
R
EPORT OF
T
HE
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
¶586 (2014).
289
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
,
F
INAL
R
EPORT OF
T
HE
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
¶586 (2014).
290
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
,
F
INAL
R
EPORT OF
T
HE
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
¶755 (2014).
291
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
,
F
INAL
R
EPORT OF
T
HE
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
¶755 (2014).

58 |
P a g e
particular.
292
The report of the Commission of Inquiry also explicitly discusses how human
rights and humanitarian law standards are violated in the context of the armed conflict, which
it categorizes as a non-international armed conflict.
293
The Commission of Inquiry also discussed the human rights principles and norms that
were violated through wartime rape including discrimination, inhuman and degrading
treatment. The documentation of the commission also discusses the humanitarian law rules
and procedures that were violated. This includes customary humanitarian law, Common
Article 3 of the Geneva Convention and Additional Protocol II. It also has underlined how
acts committed by the parties to the conflict constitute a war crime and a crime against
humanity.
294
The Commission of Inquiry clearly indicated rape of women and girls as constituting
war crime under the Geneva Convention Common Article 3 and Additional protocol II. The
Commission of Inquiry based on similar justifications also presented that rape constitutes
crime against humanity and that it has occurred in such a manner in South Sudan.
295
The
documentation of the Commission of Inquiry also has clear recommendations targeting
women. The first one is that of ratifying the international conventions that are most relevant
to women's rights. The Commission of Inquiry also recommended building the capacity of
gender and social welfare structures in the region.
296
With regard to the proposed Hybrid Court as one component of the accountability
process, the Commission of Inquiry documentation indicated that special attention is given to
victims of sexual and gender based violence.
297
Unfortunately, the Commission of Inquiry
documentation has no statistical information on the overall number of women who were
raped during the conflict.
298
Hence, follow up mechanisms including using the Hybrid Court
should attempt to identify the overall prevalence of wartime rape in the context of the South
Sudan civil war.
292
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
,
F
INAL
R
EPORT OF
T
HE
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
¶846 (2014).
293
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
,
F
INAL
R
EPORT OF
T
HE
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
¶1125 (2014).
294
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
,
F
INAL
R
EPORT OF
T
HE
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
,¶1126 (2014).
295
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
,
F
INAL
R
EPORT OF
T
HE
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
, ¶1144-1148 (2014).
296
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
,
F
INAL
R
EPORT OF
T
HE
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
, ¶1144 (2014).
297
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
,
F
INAL
R
EPORT OF
T
HE
A
FRICAN
U
NION
C
OMMISSION OF
I
NQUIRY ON
S
OUTH
S
UDAN
,¶1144-1148 (2014).
298
Though in some parts, the COI indicated women's fear as a reason for not reporting and for not sharing their
story limiting the official/reported number of women raped; no perfect explanation was given to the absence of
the actual number on women who were raped or at least an estimate of the number.

59 |
P a g e
2.
Integrating a Gender Approach in the Prosecution of Wartime Rape
a)
Incorporating Wartime Rape as an Integral Part of the
Prosecution Strategy
(i)
Coordination between Investigators and
Prosecutors
Protective measures should be taken for victims of wartime rape throughout the whole
process beginning from investigation until sentencing and in the aftermath of trial
procedures.
299
When possible, this includes for survivors to speak and be contacted by same
person. For example, when there are staff turnovers or replacements in the Court system or
withinthe prosecution team, it is important the investigator or prosecutor she has worked with
present the survivor with the new prosecutor or investigator to avoid fear and shame.
300
This
can be made possible, if there is close collaboration between the prosecuting team and the
investigating team including through a standard work plan.
301
Information gathered by an
investigator should be shared with the prosecutor and vice versa so that a woman who has
spoken with an investigator is not obliged to go through the interview telling her story with a
prosecutor.
302
The same applies to other organizations who would like to hear the story of
wartime rape. The central point should be that women do not feel bad talking about their
experiences to many strange people.
299
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 220 (2014).
300
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 220 (2014).
301
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 220 (2014).
302
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,
B
EST
P
RACTICES
M
ANUAL FOR THE
I
NVESTIGATION AND
P
ROSECUTION OF
S
EXUAL
V
IOLENCE
C
RIMES IN
P
OST
-C
ONFLICT
R
EGIONS
:
L
ESSONS
L
EARNED FROM THE
O
FFICE OF THE
P
ROSECUTOR FOR THE
I
NTERNATIONAL
C
RIMINAL
T
RIBUNAL FOR
R
WANDA
,¶ 220 (2014).

60 |
P a g e
(ii)
Preparing Rape Survivors for Court
during Prosecution
(a)
Process of Explaining the Trial
Process to theWitness
It is expected that survivors of wartime rape should have met with the prosecution
team many times before the trial stage. However, for orienting the witness about the Court
process it is mandatory for the prosecuting team to explain the Court process to the survivor
of wartime rape.
303
This explanation helps them to understand what will take place during the
trial. It is important that preparations be conducted by assessing the personal challenges and
backgrounds of witnesses.