Since 2013 the ethnopolitical conflict in South Sudan has seen escalating sexual and gender-based violence against women and girls. Despite the signing of the Revitalised Peace Agreement to end the civil war in 2018, sexual violence and rape remain outrageously rampant with armed groups often targeting women as exploits of the conflict. The instrumentalisation of such atrocities, primarily as part and parcel of military tactics to dismantle ‘enemy’ communities continue and are shrouded with impunity and a sheer lack of consequences. Much of the crux of the issue, deeply rooted in the patriarchal construct of South Sudanese society, views women as inferior and mere commodities in a collapsing socio-economic structure.  

Historically, sexual violence has been a constant feature in South Sudan throughout the pre- and post-independence conflicts since the 1950s. After the recent civil war erupted between the Sudan People’s Liberation Army (SPLA), and other opposition groups including the Sudan People’s Liberation Army- In Opposition (SPLA-IO), the perpetration of rape, sexual slavery, and torture amounting to serious violations of human rights and humanitarian laws have been prevalent. According to the United Nations Mission in South Sudan (UNMISS) and the Commission on Human Rights in South Sudan (Commission), all key parties to the conflict and other armed groups have been involved in the widespread and systematic occurrence of conflict-related sexual violence (CRSV). The four patterns driving CRSV have been identified by the Commission. These include, military and political objectives; sexual slavery and servitude; crimes occurring in an enabling environment of impunity; and a culture of entitlement and exploitation of women and girls. 

The UN Report published in 21 March 2022, documents incidents of CRSV that pervades South Sudan, and implicates the exceedingly hostile environment in which women and children battle to survive. Details of mass rapes, gang rapes, sexual slavery, forced marriages, and dehumanising treatment amongst other forms of violence have emerged in the report. Many gruesome accounts of survivors have presented incidents of rape and sexual assault, where their family members or husbands were forced to watch these heinous crimes. Others explained that women were often hunted down and abducted by armed groups to forested areas where they would later be raped. Whilst these horrific recounts assist to discern the modus operandi of the infiltration of terror and gender-centric crimes, the magnitude of it still yet to be realised. 

CONFLICT RELATED SEXUAL VIOLENCE THROUGH THE LENS OF INTERNATIONAL LAW

South Sudan is a signatory to a number of international and regional human rights treaties including, the African Charter on Human and Peoples’ Rights, the Maputo Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Optional Protocol to CEDAW, and the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. These treaties ensure that rights and freedoms are directly applicable before the domestic courts. Furthermore, the peremptory norms of international human rights law obligations bind States and armed forces to respect the most basic and established areas of protection, such as, from rape and other forms of sexual violence.  

Strictly in the context of international humanitarian law, South Sudan is a state party to the Geneva Conventions of 1949 and its two Additional Protocols of 1977, regardless of its non-international armed conflict status. Although not explicitly provided, sexual violence is nevertheless prohibited under the common article 3 of the Geneva Conventions, which provides for the prohibition of violence to life and person as well as outrages upon personal dignity - article 75 of Additional Protocol I and article 4 of Additional Protocol II covering humiliating and degrading treatment, enforced prostitution, any form of torture, and rape to the list of prohibitions. Whilst these humanitarian law violations may also constitute international crimes, South Sudan has persisted in its hesitance to ratify the Rome Statute. 

CONFLICT RELATED SEXUAL VIOLENCE UNDER DOMESTIC LAW 

The Bill of Rights of the 2011 Transitional Constitution of South Sudan enshrines the protection of fundamental human rights including the right to life and human dignity; the right to liberty and security of the person; and the freedom from torture and other ill-treatment. These basic rights are reflected in the 2008 Penal Code which criminalises sexual violence including rape; detaining a person for the purpose of engaging in unlawful sexual conduct; female genital mutilation; offences relating to bodily injury; and other infringements of liberty and dignity. However, the definition of rape under the 2008 Penal Code is regressively limited to “sexual intercourse or carnal intercourse without consent, “and thereby, excluding other forms of penetration than the penile-vaginal penetration to be triable. Neither are the various forms of sexual violence against the outset of a conflict properly addressed. This is mainly due to the domestic law’s derogation from international standards, and the utter absence of the proper incorporation of international law therein. 

In a situation where there is existence of systematic rapes pertaining to military objectives - it is essential that military commanders be tried not only for direct orders of such crimes but also, the failure to stop the crimes by members of armed forces in spite of having knowledge of its occurrence. Prosecution of sexual violence perpetrated by individuals of the military and their superiors based on command responsibility, as seen in the International Criminal Tribunals for Yugoslavia and Rwanda, is largely missing from the parameters of South Sudanese law. Although there have been governmental and military efforts of establishing specialised courts, only a handful of soldiers of SPLA and SPLA-IO have been prosecuted for offences of CRSV. These minimal number of cases are considerably underwhelming in comparison to the massive levels of CRSV offences that have been documented by the UN and other human rights organisations. In the meantime, high-ranking government officials and military officials have escaped accountability afforded by impunity and a weak judicial system. 

WHY TRANSITIONAL JUSTICE REMAINS UNATTAINABLE FOR WOMEN 

Unfortunately, the 2018 Revitalised Peace Agreement did not see the end of the egregious incidences of sexual violence against women and girls. Chapter V of the Agreement sets out an extensive framework for transitional justice in South Sudan, including the establishment of the Commission for Truth, Reconciliation and Healing, the Hybrid Court for South Sudan, and the Compensation and Reparation Authority. However, these measures for ensuring criminal accountability, deterrence of CRSV, and reparations for victims have been ineffective to say the least. Without a political transition which still retains members of the military and other officials involved in the conflict, fair and impartial trials cannot be conducted by the hybrid courts. Moreover, the recurrence of violence taints the notion of transitional justice to be merely illusionary - CRSV reoccurs even before past offences of CRSV are redressed - plunging justice mechanisms into a maze of complexities. 

The guarantee of protection from gender-based sexual violence, whether in or out of conflict, becomes substantially difficult owing to social,  communal, and customary perception of women’s subordination to men. That is one of the fundamental reasons why despite handing down the guns, even defeated armed groups impose their entitlement over women as if they are the last bit of the war that they can plunder. What aggravates the situation in South Sudan is the deafening silence of the international community on top of the recent war in Ukraine, which has seen the UN significantly retrenching funds for emergency healthcare for victims of sexual violence in South Sudan.

Fabiayea is a Postgraduate in BPTC, and has passed her UK Bar exams in 2020. She is the first Bangladeshi woman to have completed a legal internship at the International Criminal Court recently; awarded by the Honourable Society of Lincoln's Inn.

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