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

Doctoral Thesis / Dissertation , 2016 , 71 Pages , Grade: A

Gender Studies

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. 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 crossfire, others were deliberately targeted along ethnic lines. Women are the immediate victims of this conflict because of rampant sexual abuse perpetrated against them.

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.

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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).

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15 |

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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 |

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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 |

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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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23 |

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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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29 |

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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

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INAL

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EPORT OF

T

HE

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NION

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OMMISSION OF

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OUTH

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¶3(2014).

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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

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FRICAN

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,

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R

EPORT OF

T

HE

A

FRICAN

U

NION

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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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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).

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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.

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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).

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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

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OMMISSION OF

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UDAN

¶1086 (2014).

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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).

---

39 |

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

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RACTICES

M

ANUAL FOR THE

I

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P

ROSECUTION OF

S

EXUAL

V

IOLENCE

C

RIMES IN

P

OST

-C

ONFLICT

R

EGIONS

:

L

ESSONS

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EARNED FROM THE

O

FFICE OF THE

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ROSECUTOR FOR THE

I

NTERNATIONAL

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RIMINAL

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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

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EGIONS

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FFICE OF THE

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ROSECUTOR FOR THE

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,¶ 222(2014).

208

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ROSECUTOR FOR THE

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,

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,¶ 223(2014)

209

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,¶ 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

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RIMINAL

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FFICE OF THE

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ROSECUTOR FOR THE

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,¶ 27(2014).

216

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ROSECUTOR FOR THE

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,

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FFICE OF THE

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ROSECUTOR FOR THE

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NTERNATIONAL

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,¶ 28(2014).

217

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ROSECUTOR FOR THE

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,¶ 28(2014).

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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

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ROSECUTOR FOR THE

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FFICE OF THE

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ROSECUTOR FOR THE

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,¶ 184(2014).

219

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ROSECUTOR FOR THE

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,¶ 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

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ROSECUTOR FOR THE

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FFICE OF THE

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,¶ 105(2014).

222

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,¶ 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

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ROSECUTOR FOR THE

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FFICE OF THE

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ROSECUTOR FOR THE

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,¶ 107(2014).

224

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FFICE OF THE

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,¶ 108(2014).

225

O

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,¶ 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

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IOLENCE

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RIMES IN

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OST

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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

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OST

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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

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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

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EXUAL

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IOLENCE

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RIMES IN

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OST

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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

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ANUAL FOR THE

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NVESTIGATION AND

P

ROSECUTION OF

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EXUAL

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RIMES IN

P

OST

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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

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NVESTIGATION AND

P

ROSECUTION OF

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EXUAL

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IOLENCE

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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

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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

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NVESTIGATION AND

P

ROSECUTION OF

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EXUAL

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IOLENCE

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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

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ANUAL FOR THE

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NVESTIGATION AND

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ROSECUTION OF

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RIMES IN

P

OST

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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

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WANDA

,

B

EST

P

RACTICES

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ANUAL FOR THE

I

NVESTIGATION AND

P

ROSECUTION OF

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EXUAL

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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

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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

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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

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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

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,¶ 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

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,¶ 151(2014).

259

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,¶ 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.

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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

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FFICE OF THE

P

ROSECUTOR FOR THE

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NTERNATIONAL

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,

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FFICE OF THE

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ROSECUTOR FOR THE

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NTERNATIONAL

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RIMINAL

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RIBUNAL FOR

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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

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P

RACTICES

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ANUAL FOR THE

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EGIONS

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EARNED FROM THE

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FFICE OF THE

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ROSECUTOR FOR THE

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NTERNATIONAL

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,¶ 37 (2014).

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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

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P

ROSECUTOR FOR THE

I

NTERNATIONAL

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ROSECUTOR FOR THE

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,¶ 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

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ROSECUTOR FOR THE

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NTERNATIONAL

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,¶ 114 (2014).

268

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NTERNATIONAL

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FFICE OF THE

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,¶ 114 (2014).

269

O

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ROSECUTOR FOR THE

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NTERNATIONAL

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,

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ANUAL FOR THE

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,¶ 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

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ROSECUTOR FOR THE

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NTERNATIONAL

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ROSECUTOR FOR THE

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,¶ 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.

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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

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,¶ 95 (2014).

277

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,¶ 95(2014).

278

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,¶ 95 (2014).

279

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,¶ 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.

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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.

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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

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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

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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.

304

For example on issues such as what questions are very

challenging to answer, how can fear during trial be avoided for a better outcome during the

hearing of testimony. Building trust and confidence on the prosecuting team is also important

as rape naturally causes survivors to fear and not to trust people. Close and friendly

relationships with the prosecution team can improve this common feature of wartime rape

victims.

305

The prosecuting team is expected to be passionate, considerate, and understanding

and should be able to motivate survivors to come forward to speak with the team and her

plans to speak during the trial.

306

When approached by the prosecuting team survivors should be able to say that they

are not ready to speak and that they need additional support during the process.

307

For

instance, a prosecution team could present friendly conversation before diving into detailed

303

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

,¶ 159 (2014).

304

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

,¶ 160 (2014).

305

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

,¶ 161 (2014).

306

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

,¶ 161 (2014).

307

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

,¶ 161 (2014).

---

61 |

P a g e

discussions using well-known African proverbs or greetings in South Sudanese language to

facilitate a smooth environment when initially meeting the witness and preparing her for the

Court session.

308

The prosecutor needs to have open-ended questions to help survivors speak broadly

and to practice this communication style in court.

309

During the preparation stage, the

prosecutor should inform the survivor that additional people will be in the Court and that she

might be asked strange questions. The prosecuting team should explain the existence of

witness protection systems within the Court and that their identity could somehow be

protected.

310

They also need to be told who starts the questions, and that further assistance

exists within the Court such as counseling and medical support.

311

A witness also needs to be informed that she needs to tell the truth, to be calm and if

she does not know the answer how to indicate that.

312

The existence of another lawyer within

the Court system that could trigger different questions to them including very challenging

ones should be indicated to the victim.

313

In addition to preparing the survivor, the prosecutor

is expected to be professional and gender sensitive while interacting with the victim.

314

Best

308

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

,¶ 161 (2014).

309

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

,¶ 161 (2014).

310

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

,¶ 163 (2014).

311

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

,¶ 163 (2014).

312

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

,¶ 163 (2014).

313

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

,¶ 163 (2014).

314

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

,¶ 166 (2014).

---

62 |

P a g e

practice also indicates that survivors of rape providing their testimony be consulted if

additional documentations are to be used during a trial.

315

When preparing a witness to present facts and evidence as it relates to wartime rape

survivors are expected to speak bluntly, about what happened to them. This includes detailed

description of the steps and the incidents.

316

It is therefore important to orient victims to be

able to speak in a clear and detailed manner during their court presentation. Experiences

show that this is expected during the trial stage of such cases and that it falls under the role of

the prosecutor.

317

(b)

Required Expertise for Interviewing Survivors

It is important to facilitate a quiet and safe environment to protect victims from

further victimization during an interview. Experiences also show that it is very important to

conduct an interview as soon as possible because evidence may be destroyed or lost. If a

woman decides to disappear or if circumstances have allowed for her disappearance, it will

be a waste for the investigating and prosecuting team. Therefore, after the appropriate

breakthrough, it would be advisable to speak with women.

318

Experiences from other tribunals

also indicate that it is advisable not to conduct interviews in a public place but preferably in a

private and quite space.

319

When interviews are conducted, they should take into account the needs of family

members. If a woman for example has a child, the interview needs to consider her situation

315

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

,¶ 168 (2014).

316

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

,¶ 169-170 (2014).

317

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

,¶ 169-170 (2014).

318

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

,¶ 169-171 (2014).

319

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).

---

63 |

P a g e

and facilitate ways the interview can take place in a more comfortable manner including the

supervision of her child.

320

At the end of their own interview, survivors of wartime rape should be allowed to

review their own testimony and validate it. This will support the investigation team to

confirm the validity of the information provided by victims of wartime rape.

321

The

validation of survivor's testimony should also be extended to the translator who has been

involved in the interview process. This will add additional credibility to the procedure.

322

Another important skill that is expected from individuals who are interviewing victims of

wartime rape is a smooth coordination during the investigation process. Experiences in this

area also indicate that it is advisable for courts themselves to have an institutional mechanism

to store documentations already collected in a well-organized and structural manner. This

protects survivors not obliged to go through an interview for the second time.

323

The referral institutional structure within the Hybrid Court could access contact

information, medical information, psychological status and other relevant information

including the language the survivor prefers. This will contribute to making the transfer from

investigation very smooth.

324

Individuals within the Court system will need to abide by such

institutional framework. Even when a new comrade replaced them, information they have

collected will be kept systematically.

325

(c)

Presenting the Witness Testimony

Similar protective measures should be taken during presenting witness testimony in

the Court system. This includes dignity, concern and, compassion for women who are

320

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

,¶ 130 (2014).

321

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

,¶ 148 (2014).

323

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

,¶ 27-28 (2014).

324

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

,¶ 153(2014).

325

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

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survivors of wartime rape. When presenting their testimony survivors of wartime rape will be

facing judges, as well as defense council that will be representing the perpetrators. These

personnel should be sensitive to the case of wartime rape and should have the skills and

knowledge to deal with survivors of wartime rape when they are presenting their testimony,

including when they express their distress and anxiety.

326

There might be a situation where a witness is not comfortable with how the process is

moving forward in the Court system. When this happen, the judge or the prosecuting team

should stop the process, and request for an interruption to avoid unequal trial process for

victims of wartime rape.

327

Like investigators and prosecutors, judges of the Hybrid Court

need to be trained in a victim centered approach.

328

In addition, after her testimony, a survivor of wartime rape could feel in secure and

might demand access to safe home. The role judges' play is significant including linking the

victim with other services and stakeholders and placing women in temporary homes through

consultation with other support groups including counselors and medical personnel.

329

These

and similar safeguards will enhance the confidence of survivors of wartime rape to continue

working with the Court towards proving impunity by the perpetrators.

(d)

Trauma Healing for Survivors of Wartime Rape

The legal counsel that represents the perpetrators of wartime rape and the prosecuting

team are going to be mainly engaged in asking questions to survivors of wartime rape during

the trial stage.

330

Therefore, survivors need to be guaranteed a trauma healing procedure. They

should be prevented from being re-traumatized and when they are traumatized, they should

be provided with better services to respond to trauma during the trial process. This can be

326

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327

This is the exact reason why having a women judge, as part of the Hybrid Court ,is crucial, as it will

contribute to the explanation of the gender dimension well to other members of the tribunal. Having women on

board also contributes to bridging or filling the gap between the Court system and the victim of wartime rape.

328

This victim-centered training contributes to insuring respect for the privacy and dignity of a victim of

wartime rape.

329

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P a g e

made possible through the following procedures that can be adhered to during the trial

stage.

331

Address trial procedures that challenge survivors' expectation beforehand.

Provide a break to survivors before jumping to the more serious questions.

Only relate questions to important details reject irrelevant questions and protect

survivors from unnecessary stress.

Undertake an ongoing evaluation of the trial process to identify the needs of

survivors.

Facilitate counseling support throughout the trial process.

Provide safe homes, andtemporary shelters to prevent the recurrence of violence.

Institutionalize information gathering and documentation to protect unnecessary

contact with survivors of wartime rape.

Protective measures for survivors of wartime rape should not be limited to the trial

stage and the investigation stage but most importantly at post trial.

332

In the aftermath of trials,

continuous engagement with survivors of wartime rape include sharing information about

updates on the case a survivor of wartime rape was involved. Protective measures should also

include ongoing health checkups, counseling services, and facilitating a more secure

accommodation for women whose lives can be in danger in the aftermath of trials.

333

It is not acceptable to leave survivors of wartime rape after their testimony because

other factors such as integrating with the society could be additional hurdles. In the absence

of ongoing protective measures, survivors of wartime rape might not have confidence in the

justice system and might not come forward when they are required for other hearings of the

court.

334

The absence of such support also means it is not adequate to provide a victim

centered approach as discussed in the previous sections.

331

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Survivors like to be informed of the contribution they have made to the adjudication

process. Engaging survivors in terms of updating them on the progress of the case also

includes discussing the effects of their statements, which might not be fully accepted by the

Hybrid Court. It is also good to expect un favorable outcomes out of the process.

335

In reality

however if the outcome of an adjudication where a survivors of wartime rape is involved

fails, such information should be discussed with the survivor in the presence of a counselor to

minimize the impact of such a ruling.

336

There are also occasions whereby when sentencing

is done for perpetrators of wartime rape that it is not very strong at least in the eyes of the

prosecuting team and the survivor of wartime rape.

These situations should call for the involvement of the survivor particularly to

influence decision made by the court.

337

The survivor or in the case of rape as a systematic

tool, the survivors who have been raped and their legal representatives and platforms should

have a say in the process including to speak as far as the day today experiences of these

women is concerned and the connection to their future wellbeing.

338

Best experiences as far as post trial and sentencing also indicate that developing

standard procedures to share updated information on cases related to wartime rape with

survivors and other stakeholders could benefit and contribute to ending impunity for wartime

rape. This is usedfor education purposes.

339

Meaning that uniform ways of sharing and

disseminating information can be possible despite staffs turn over or other factors.

In the aftermath of conflicts, there is a need to provide ongoing support services to

survivors of wartime rape including witness protection programs. This requires the

establishment of a strong monitoring system that can identify the victim, who is threatening

335

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P a g e

her and where she lives.

340

The existence of a community of service providers in the region

could facilitate information sharing and prevention of abuse of survivors of wartime rape.

This also includes the use of help lines as a point of contact.

341

The Hybrid Court for South Sudan (HCSS) hence could also play the role of

coordinating post trial and post sentencing protective measures for women who were the

subject of wartime rape in South Sudan linking the Court with other services on the ground

and sharing relevant information.

342

This also extends to ways women can be empowered

both through education opportunities and economically for example, by helping survivors

earn their own income through microfinance and by providing; them with some vocational

training to enable them lead an independent life.

Support also needs to be framed as both a short-term intervention and long-term

intervention. This is depending on what the specific needs of individual women are and

should extend to their family since the family of a woman who is subject to wartime rape also

suffers psychologically and socially. The African Hybrid Court for South Sudan (HCSS)

together with other stakeholders is expected to have a scheme to provide survivors long term

and short-term support.

IV.

Structural Recommendations to Promote Accountability

A.

The Government of South Sudan

Primary responsibility to provide protection for survivors of wartime rape and

respond to their situation rests with the government of South Sudan. This paper proposes that

both the government of South Sudan and the opposition:-

·

Collaborate with the African Union Commission towards the establishment of the

African Hybrid Court.

340

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P a g e

·

Implement the peace deal that was signed to accelerate accountability including the

establishment of the Hybrid Court.

B.

The African Union Commission

The African Union Commission through its different departments has supported the

transition to peace in South Sudan. The African Union Commission also oversights the

Hybrid Court for South Sudan. As part of its mandate and its constitutive act, the African

Union Commission.

343

·

Urgently establish the AU Hybrid Courtin consultation with the UN and other

stakeholders.

·

Strategically support the inclusion of women in the implementation of the peace deal

for South Sudan and to all processes leading to the establishment of the African

Hybrid Court for South Sudan.

C.

The United Nations

The United Nations Mission for South Sudan(UNMISS) hasplayed a significant role

in terms of protecting women from further violence placing them in civilian camps and

providing primary services of medical aid and counseling.However,the protection role-

played by UNMISS was not adequate as this organ did not have the mandate to implement

this role.

The UNMISS's role should expand towards protecting survivors of violence and

linking them to various referral services. It also should extend to the prevention of further

violence in the area. Other UN organizations such as UN Women should continue supporting

grass root organizations actively participate in the implementation of the peace deal including

that of accountability to wartime rape.

D.

The United States of America

It is the researchers view that if it was not for US and other pertinent stakeholders

such as IGAD the peace deal for South Sudan could have not come true. Similar pressures

should be exerted by the US government for the establishment of the Hybrid Court for South

Sudan (HCSS)and for the appointment of judges who will be facilitating the accountability

and justice process for women who are victims of wartime rape in South Sudan.

343

The most recent information I was able to find out from the Africa Office of the Special Envoy for Women in

Peace and Security during the 60th Session of the CSW indicates that the institutional aspect of the hybrid court

is with the legal department of the African Union Commission. Hence, my proposal primarily targets them.

---

69 |

P a g e

The US Government should also as part of its own National Strategy on Women in

Peace and Security , the National Security Strategy and its Strategy on Eradicating Gender

Based Violence everywhere push towards the inclusion of victims of wartime rape and their

platforms in the peace and accountability process for South Sudan. Particularly, the US

Government through its agencies such as USAID should support technically and financially

the establishment of independent women led organizations by involving women including

from the Diaspora to influence the work of the proposed Hybrid Court.

---

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P a g e

CONCLUSION

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 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.

344

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,

345

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.

346

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).

347

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

344

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P a g e

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.

348

This research paper has argued that through the integration of gender responsive

standards into the investigation and prosecution of wartime rape by the Hybrid Court for

South Sudan, perpetrators of wartime rape can be held legally accountable. It has presented

potential standards and concrete interventions that could be employed by the Hybrid Court

for South Sudan (HCSS) to hold perpetrators of wartime rape accountable. It has also

discussed structural tools that can be used to accelerate implementation.

348

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¶33(2014).)

Frequently asked questions about the language preview

What is this language preview about?

This is a comprehensive language preview which includes the title, table of contents, objectives and key themes, chapter summaries, and key words, focusing primarily on the South Sudan civil war and the systematic use of rape as a tool of warfare. It discusses legal frameworks and the development of a Hybrid Court for South Sudan (HCSS).

What key themes are explored in the text?

Key themes include: causes and consequences of the South Sudan Civil War, rape as a weapon of war, international and national legal frameworks addressing wartime rape, accountability mechanisms, promoting institutional inclusiveness for survivors, and recommendations to promote accountability.

What does the "Contents" section detail?

The "Contents" section provides a structured overview, listing sections such as: INTRODUCTION, Overview of the South Sudan Civil War, International Legal Frameworks, Regional Legal Frameworks, South Sudan's Legal Frameworks, Promoting Accountability (HCSS), and Structural Recommendations.

What international legal frameworks are mentioned?

The Convention on the Elimination of Discrimination against Women (CEDAW), the Rome Statute of the International Criminal Court, and United Nations Security Council Resolution 1325 are discussed.

What regional and sub-regional legal frameworks are highlighted?

The African Charter on Human and People's Rights, the Optional Protocol to the African Charter on Human and People Rights on Women's Rights (Maputo Protocol), and the Inter-Governmental Authority on Development (IGAD) are mentioned.

What does the preview say about South Sudan's legal framework?

The preview touches on South Sudan's legislative frameworks and the substantive jurisdiction of its judiciary.

What is the Hybrid Court for South Sudan (HCSS) intended to address?

The HCSS aims to promote accountability for wartime rape and other gross human rights violations, integrating gender-responsive standards in investigations and prosecutions.

What structural recommendations are outlined in the preview?

Recommendations target actions by the Government of South Sudan, the African Union Commission, the United Nations, and the United States of America to enhance accountability.

What challenges related to the implementation of the Regional and Sub-Regional frameworks are talked about in the text?

Challenges pertaining to implementing the frameworks, along with those to the regional and sub-regional frameworks are talked about in the language preview.

What is the gender lens that is used in the investigation and prosecution of wartime rape?

A focus of gender dismantles the discrimination of South Sudan's women during the Civil War, helps ensure that women's interests are addressed and taken into consideration in terms of justice and accountability framework development.

• College: Georgetown University
• Course: Leadership and Advocacy for Women Rights
• Grade: A
• Author: Dunia Tegegn (Author)
• Publication Year: 2016
• Pages: 71
• Catalog Number: V337547
• ISBN (eBook): 9783668270572
• ISBN (Book): 9783668270589
• Language: English
• Tags: victimized, twice, promoting, accountability, justice, survivors, wartime, rape, south, sudan