South Sudan
21 April 2020

Human Rights in South Sudan: An Interview with Andrew Clapham

In an interview for a joint project between Global Rights Compliance and the World Peace Foundation, Professor Andrew Clapham describes his role and work as Commissioner on the UN Commission on Human Rights in South Sudan. 

Can you describe your role as a Commissioner on the UN Commission on Human Rights in South Sudan and outline the mandate of the Commission?

I have been a Commissioner since September 2017, and am very honoured to have been asked by the UN Human Rights Council to fulfil this role alongside Commissioner Barney Afako and our Chair, Yasmin Sooka. As for the mandate, let me break it down into four parts.

First, We have a general mandate to monitor and report on the situation of human rights in South Sudan, and to make recommendations to prevent any deterioration of the situation with a view to its improvement.

Second, the mandate of the Commission is to determine and report the facts and circumstances of alleged gross violations and abuses of human rights and related crimes. This is to be done with a view to ending impunity and providing accountability. We have been specifically directed to include sexual and gender-based violence as well as ethnic violence.

Third, we are asked to provide guidance on transitional justice, including accountability, reconciliation and healing, and to make recommendations on technical assistance to the Government of South Sudan. In a similar vein, we are asked to make recommendations on technical assistance and capacity-building, including to law enforcement institutions, on the promotion and protection of human rights and fundamental freedoms, including on addressing sexual and gender-based violence.

Fourth, we have been mandated to collect and preserve evidence of, and to clarify responsibility for, alleged violations and abuses of human rights and related crimes. We are asked to make such information available also to all transitional justice mechanisms, including those to be established pursuant to chapter V of the Revitalised Agreement, including the Hybrid Court for South Sudan, once established in cooperation with the African Union.

So, we report orally twice a year to the UN Human Rights Council on how we are fulfilling our mandate with an annual written report and a number of annexes known as Conference Room Papers (CRPs)

Can you briefly explain the focus and the methodology employed by the Commission in the collection of information and preparation of the findings?

The Commission has a staff of around 13 persons nearly all based in Juba; others have been based in Addis Ababa and Nairobi. The information is collected directly by the staff and the Commissioners in South Sudan and the refugee camps and settlements in the neighbouring countries of Sudan, Ethiopia, Kenya and Uganda. The staff include gender advisers, a forensic doctor and a military adviser.

Our methodology is quite carefully considered in order to do no harm and to take into account the particularly vulnerable nature of many of the victims and witnesses that we engage with.  

Although we are not engaged in law enforcement or prosecution, the nature of our mandate requires that not only do we clarify responsibility, but that we also make this information available to future mechanisms including the Hybrid Court. For this reason we aim to ensure that much of the evidence we have collected and preserved can be used in a court of law.

Various other UN fact-finding bodies have repeatedly reported lack of ground level access or lack of cooperation from the government officials. This seems to be in contrast with the South Sudan Commission who have managed to conduct missions across South Sudan. Can you elaborate on your experience and on the importance of state cooperation for investigations?

The cooperation of the Government of South Sudan has been crucial to our ability to do the work and is very much appreciated. As you say, such cooperation is not always the case when such Commissions are set up.

The Government of South Sudan represents a new nation on the world scene and is genuinely interested to be able to receive advice and find its place in international relations. We are regularly in contact with different ministries and have been fortunate in having very constructive discussions with different parts of the Government and the parties to the various agreements.  We were able, at the end of each mission, to have regular meetings with the Government to raise our concerns directly.

This engagement is particularly important as we seek to look at the structural issues that drive the conflict and to make recommendations for the future to ensure respect for human rights and longer-term stability.

We also enjoyed very constructive state engagement from the neighbouring states, which enabled us to travel to the refugee camps and discuss the immediate reasons for displacement as well as understand the long-standing concerns of South Sudanese.

The Commission, like other UN bodies such as the Group of Eminent Experts in Yemen, have focussed on the deliberate use of starvation as a method of warfare. What led you and the Commission to highlight this often-overlooked crime?

All the staff and Commissioners have been struck by the precarious nature of the life of millions of people across South Sudan.

Having looked at the general issue of the right to food, it seemed important to consider not only the levels of hunger and food insecurity in South Sudan, but also the decisions and responsibility connected to specific incidents that could fall within the jurisdiction of a criminal court such as the Hybrid Court.

South Sudan has seen prolonged and recurrent famines in the recent past. With the latest IPC warning predicting a resurgence of acute food insecurity in 2020, what are the pressing challenges that you see in South Sudan in context of deliberate starvation?

We have been stressing the fact that there needs to be accountability among the Government and opposition armed forces for those who have pursued policies and actions amounting to starvation as a method of warfare.

In addition, there are commanders who could be held accountable under international law for failing to prevent or punish the international crime of starvation of the civilian population as a method of warfare.

In some cases, armed forces deliberately and systematically attacked, destroyed and rendered useless objects indispensable to the survival of the civilian population.

In other situations, the crime of intentionally using starvation of civilians as a method of warfare consisted of arbitrarily denying humanitarian aid to populations in need, including by arbitrarily denying objects indispensable to their survival.

South Sudan has confirmed its fourth COVID-19 case and appears worryingly unprepared to face the pandemic. What consequences will COVID-19 and possible restrictive measures (border closures impeding access to humanitarian aid) have on food security in South Sudan?

It is tragic that the virus is present now in South Sudan and has claimed its first victims. The Commission has noted that access to health care in South Sudan remains extremely constrained for all residents, with women and children among the worst affected.

Approximately 90 per cent of health facilities countrywide are being run by international organisations. It is therefore vital that immediate measures can be implemented to isolate and treat those infected given the extreme conditions under which many people are living, in particular in the camps for the internally displaced.

The UN Secretary-General last month pointedly stated that, "the fury of the virus illustrates the folly of war", and went on to call for "an immediate global ceasefire in all corners of the world.  It is time to put armed conflict on lockdown and focus together on the true fight of our lives". 

We can only echo this appeal. In our own statement, we highlighted the importance of allowing humanitarian workers to deliver essential food and medical supplies at this time.   

Why is it important, especially during the current climate, to recognise the interdependency and indivisibility of human rights, in this case, the right to food and the right to health?

There is a temptation for interest to gravitate to questions related to fighting, cease-fires and violence. Relative calm can lead to the false conclusion that there are no human rights problems.

But the threats to life from denial of access to food and health care can be just as grave as those delivered by bullets and grenades.

Our recommendations need to address policy choices that are made when it comes to allocating budgets for socio-economic benefits and reparations as well as accountability for war crimes. Moreover, we are asked to make recommendations to prevent a deterioration of the situation.

The 2020 report of the Commission links diversion of public funds and corruption to lack of civilian access to food and other vital services. Why is this linkage important?

We felt that we needed to highlight that funds that could be used to ensure the fulfilment of the human rights to health, food, education, and housing were disappearing from the revenue available to the government, thus exacerbating the human rights situation with regard to the fulfilment of economic and social rights.

With the new coalition transitional government sworn in on 22 February 2020, what possibilities do you see for accountability on a domestic or international level and especially for crime of starvation?

It is critical that the new Government makes accountability a core mission of its three-year mandate and establishes the necessary mechanisms for achieving this.

Of course, once the transitional justice mechanisms are established in South Sudan, as foreseen in the 2018 Revitalised Agreement, one could expect further accountability for starvation through the Commission for Truth, Reconciliation and Healing as well as the Compensation and Reparation Authority.

Beyond the domestic level in South Sudan, it is possible that starvation as a war crime could be prosecuted in a number of states that have included this crime in their national criminal law.

It is also possible that there could be accountability for those responsible through the operation of immigration law that screens out those suspected of having committed war crimes or crimes against humanity. Where people have lied on their application forms this too can lead to criminal proceedings.

Lastly, the Commission is also drawing attention to the fact that starvation could be prosecuted by the Hybrid Court for South Sudan as a crime against humanity.

The Draft Statute of the Hybrid Court includes the following relevant crimes against humanity when committed as part of a widespread or systematic attack directed against a civilian population: (i) deportation or forcible transfer of population; (ii) persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognised as impermissible under international law; and (iii) other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

This article was originally featured in a blog as part of a collaborative project between Global Rights Compliance and the World Peace Foundation. The project concerns accountability for starvation and is supported by the Dutch Ministry of Foreign Affairs.