Daniel Juol Opinion



By Daniel Juol Nhomngek,

Gavel and scales

Oct 3rd, 2018(Nyamilepedia) — The signing of the recent Revitalized Peace Agreement to resolve the South Sudanese conflict has again raised the issue of accountability in respect to human rights violations to the highest level at the movement. As some members of the International Community insist on the need for the establishment of the Hybrid Court in South Sudan as a means of redressing the human violations during the four years conflict, the government of South Sudan vehemently opposes it.

As referred to in the above paragraph, when we talk of the Hybrid Court, we mean a new type of criminal body that was created by the end of the 1990’s and the beginning of the 2000′. This term was generally used to indicate the following criminal bodies: the special panels of the district courts of Dili; the court for Sierra Leone; the extraordinary chambers in the courts of Cambodia.

The above tribunals or Hybrid Courts share common features with other international criminal bodies. They are composed of independent judges, working on the basis of predetermined rules of procedure, and rendering binding decisions. The UN played a key-role in the creation and this is why their decisions are enforced under the supervision of the UN Security Council.

In relation to South Sudan there is a lot of human rights violations that have taken place and those who agitate for the establishment of the Hybrid Court have valid argument. As the matter of fact, after the conflict broke out in 2013, a lot of human rights since then have been continually violated. For example, scores of villages were and are still being burned today, hundreds of women and girls are reported to have been raped and an untold number of civilians killed.

Moreover, a lot of tortures have taken place. It was reported that the SPLA tortured civilians in a very brute manner. The SPLA tortured civilians by tearing their fingernails out, dripping burning plastic bags on children to make their parents hand over weapons as well as burning villagers alive in their huts if rebels were suspected of spending the night there.

The United Nations Human Rights Council has also reported many human rights violations. This is been substantiated by Human Rights Watch which reported that both the SPLA and the rebel group led by Johnson Olony were responsible for atrocities. In the same way, there have been reports of human rights violation orchestrated by the SPLA/M-IO.  

In South Sudan human rights violations have not ended in the bush but they have also reached even inside prisons as those under the government custody or political prisoners are tortured and some disappeared. There is a fear now that majority of the political prisoners might not be there. Or in other words, they might not be alive as the President of South Sudan recently publicly admitted that there are no political prisoners in the custody of the government yet some of us know that some South Sudanese were abducted from Kenya by the government and the question is where the political prisoners are? This is contrary to the human rights law.

The human rights law is that if the political prisoners are not there now but they were previously under the government custody then the government bears sole responsibility to explain their whereabouts. If the government fails to give satisfactory explanation then the government is responsible for charges under the international human rights law principle of forced disappearance. Under the international human rights law, a forced disappearance (or enforced disappearance) occurs when a person is secretly abducted or imprisoned by a state or political organization or by a third party with the authorization, support, or acquiescence of a state or political organization, followed by a refusal to acknowledge the person’s fate and whereabouts, with the intent of placing the victim outside the protection of the law (Read more in the textbook: Jean-Marie Henckaerts; Louise Doswald-Beck; International Committee of the Red Cross (2005). Customary International Humanitarian Law: Rules. Cambridge University)

Often, forced disappearance is an imply murder. This is because the victim in such a case is abducted, illegally detained and often tortured during interrogation, and killed, with the body hidden. Typically, a murder will be surreptitious, with the corpse disposed of to escape discovery so that the person apparently vanishes. The party committing the murder has plausible deniability, as nobody can provide evidence of the victim’s death.

Therefore, if the government of South Sudan is not able to produce or explains the whereabouts of the majority of political prisoners, then it will be presumed to have murdered those individual political detainees who cannot be located. This amounts crimes against humanity and contribute to the general human rights violations.

The overall implications of human rights violations are the massive loss of lives. As the recent report indicated, the number of the people killed in South Sudan since the conflict broke out in 2013 is about 400,000 (four hundred thousand) people. This shows that a lot of war crimes and crimes against humanity have been committed that led to the loss of lives in such a large scale. It therefore implies that such a great number of people should not die in vain but someone or the government must be account for their deaths. The government has a duty to protect citizens.

Based on the above reasons, the government of South Sudan and the oppositions have a duty to respect human rights and if they violated human rights then they are required to accountable to the extent of their contributions to the deaths of the people and other human rights violations.

Though the position of the oppositions in respect to accountability is not clear, it defeats my understanding when the government officials in South Sudan who claim to have responsibility loathe being called upon to account. What the government of South Sudan should understand is that accountability and responsibility follow and supplement each other: there can be no responsibility without accountability. Responsibility is the action by the one in authority to account for his or her action or omission. This means that accountability and responsibility go together.

In ethics and governance, accountability is answerability, blameworthiness, liability, and the expectation of account-giving. In leadership roles, accountability is the acknowledgment and assumption of responsibility for actions, products, decisions, and policies including the administration, governance, and implementation within the scope of the role or employment position and encompassing the obligation to report, explain and be answerable for resulting consequences.

In South Sudan the government officials and employees including the members of the organized officers under the government and members of the oppositions accused of massive human rights violations must account for their actions to the citizens of South Sudan. This further means that under the principle of command responsibility, the leaders of South Sudan beginning from the President to the junior officers and head of the oppositions to the junior officers in the rank must account for their actions that led to the violations of human rights.  

In summary, the SPLM government and the SPLA/M-In-Opposition should understand that they cannot eat their cake and at the same time have it. If they have violated human rights, then they must account for their actions that led to the human rights violations.

Hence, those who are accused of human rights violations in South Sudan must account. Accountability is a matter of necessity under the international human rights law. Human rights cannot be protected effectively without the violators being called upon to account.

In fact, reconciliation, reparation and compensation cannot be meaningful without accountability. Nonetheless, accountability does not necessary mean going to court but it means publicly acknowledging one guilty and ask the victims for forgiveness.

If South Sudan is to escape future conflict, the need for accountability should not be taken for granted.

The author, Daniel Juol Nhomngek, can be reached for more information at  juoldaniel2003@gmail.com

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