Masters thesis of business human rights observance in south sudan a recipe for peace and sustainable development

Human Rights Observance in South Sudan: A recipe for Peace and Sustainable Development A thesis submitted in fulfilment of the requirements for the degree of Master of Business Andrew O’hide Odingdingmoi Ohuli Master of International Development and Environmental Analysis Monash University Graduate School of Business and Law College of Business and Law RMIT University October 2020 I Andrew O’hide Odingdingmoi Ohuli certify that except where due acknowledgement has been made, the work is that of the author alone; the work has not been submitted previously, in whole or in part, to qualify for any other academic award; the content of the thesis is the result of work which has been carried out since the official commencement date of the approved research program; any editorial work, paid or unpaid, carried out by a third party is acknowledged; and, ethics procedures and guidelines have been followed I acknowledge the support I have received for my research through the provision of an Australian Government Research Training Program Scholarship Date: 27 October 2020 CONTENTS Human Rights Observance in South Sudan: A Recipe for Peace and Sustainable Development Abbreviations Abstract CHAPTER ONE: RESEARCH OVERVIEW 10 11 12 Introduction Research Hypothesis Broad Research Question Background of the Study Key Research Question Scope of Research Objectives of the Research Methodology Research Findings Human Rights Overview in South Sudan The Causes of War and human rights in South Sudan Conclusion 10 10 11 11 11 12 12 19 23 CHAPTER TWO: INTERNATIONAL AND AFRICAN HUMAN RIGHTS SYSTEMS 13 Historical Background of Human Rights a English experience b The American experience c The France experience 14 Human Rights Under the United Nations Charter a Universal Declaration of Human Rights b Civil and Political Rights c Economic, Social and Cultural Rights d Optional Protocol to the Civil and Political Rights e Second Optional Protocol to the Civil and Political Rights f The International Military Tribunal at Nuremberg 15 United Nations Human Rights Institutions a Human Rights Council b United Nations High Commissioner for Human Rights c Human Rights Committee d Committee on Economic, Social and Cultural Rights e Commission on the Status of Women 25 26 28 29 31 32 34 35 36 36 37 38 38 38 39 41 42 16 Human Rights Under the African Charter a The African Union b The African Charter on Human and Peoples’ Rights c The African Commission on Human and Peoples’ Rights d The African Commission Complaint Procedures e The African Court on Human and Peoples’ Rights f African Charter on the Rights and Welfare of the Child g The ‘Right to Development’ within the African Charter 17 Human Rights Framework and the South Sudan Human Rights Abuse 18 Conclusion 44 44 45 47 48 48 50 52 57 63 CHAPTER THREE: HUMAN RIGHTS ABUSE AND INSECURITY IN SOUTH SUDAN 19 Historical Background of the Conflict in South Sudan 20 The role of Regional and International NGOs in Ending the Civil War in South Sudan 64 67 21 International Covenant on Civil and Political Rights a Freedom from Torture and Cruel, Inhuman or Degrading Treatment or Punishment b Freedom from Arbitrary Arrest and Detention: c Freedom of Movement d Right to Fair Trial e Freedom of Opinion and Expression f Right to Political Participation g Protection of Children h Minority Rights 70 22 International Covenant on Economic, Social and Cultural Rights a The Rights to Equality and Non-discrimination b The Right to Work c The Right to Health d The Right to Education e Conclusion 70 73 75 77 78 79 82 86 87 87 90 83 96 99 CHAPTER FOUR: NATIONAL, REGIONAL, AND INTERNATIONAL OPTIONS FOR ENFORCEMENT OF HUMAN RIGHTS IN SOUTH SUDAN 23 Attempt for Negotiation to end civil war in South Sudan by the IGAD, AU, UN and EU 24 Economic and military sanction to force the Government to Accept Peace and Respect the Rights of its own Citizens 25 Withdrawal of Donation/Financial Support to the Government by the Donors if the Government and the Opposition Refuse to end Conflict and Human Rights Abuse in the Country 26 Challenges to sustainable peace in South Sudan 27 Possibilities to Sustainable Peace in South Sudan 100 115 120 122 123 28 Lessons Learned and Findings from the South Sudan Conflict 29 Recommendations 30 Conclusion 124 12 124 31 Bibliography 126 ABBREVIATIONS ACHPR AU AUCISS CAT CPA CEDAW CERD CRC CSW ECJ ECOSOC EU ICC ICJ IDP ICCPR ICESCR IGAD LRA NGO OAU OAS OHCHR R2P SPLM/SPLA SSTC TGNU Troika UDHR UN UNHCHR UNHCR UNESCO UNICEF UNMISS African Charter on Human and Peoples’ Rights African Union African Commission of Inquiry for South Sudan Convention Against Torture Comprehensive Peace Agreement Convention on the Elimination of All Forms of Discrimination Against Women; Committee on the Elimination of Discrimination Against Women International Convention on the Elimination of All Forms of Racial Discrimination Convention on the Rights of the Child; Committee on the Rights of the Child Commission on the Status of Women European Court of Justice Economic and Social Council European Union International Criminal Court International Court of Justice International Displaced Person International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights Inter-Governmental Authority on Development Lord Resistance Army Non-Governmental Organisation Organisation of African Unity Organisation of American States Office of High Commissioner for Human Rights Responsibility to Protect Sudan People’s Liberation Movement/ Sudan People’s Liberation Army South Sudan Transitional Constitution Transitional Government of National Unity Members of the Troika include Norway, the United Kingdom and the United States who support South Sudan peace initiative alongside IGAD Universal Declaration of Human Rights United Nations United Nations High Commissioner for Human Rights United Nations High Commissioner for Refugees United Nations Educational, Scientific and Cultural Organisation United Nations Children’s Fund United Nations Mission in South Sudan UNSC United Nations Security Council Human Rights Observance in South Sudan: A Recipe for Peace and Sustainable Development Abstract The international human rights are frequently characterised as corresponding to three generations The first generation is referred to as Civil and Political Rights, which includes the rights which are enshrined in the International Covenant on Civil and Political Rights (ICCPR) These include freedom of expression and the right to life The second generation relates to economic, social and cultural rights They are found in the International Covenant on Economic, Social and Cultural Rights (ICESCR), and include the rights to work, health and education The third generation of rights are commonly said to include the right to development, minority rights and the right to peace Despite the diversity of these rights, they all seek to protect human beings from fear and wants, and share a common purpose which is to alleviate injustices and promote respect for human rights in the world All three generations of human rights have been exceedingly violated in South Sudan, since the outbreak of conflict in 2013 This research highlights the challenges posed by the gross violation of the ICCPR and its Optional Protocols, the ICESCR and the African Charter on Human and Peoples’ Rights (ACHPR) in South Sudan The study is by no means exhaustive in documenting the large number of violations of international human rights and humanitarian law that have occurred in South Sudan for the period from December 2013 to 2017 Rather, the research broadly investigates the issue of human rights abuse in South Sudan post-Independence and the measures that may be taken to address it The research highlights the connection between human rights abuse, political instability and insecurity in South Sudan The thesis examines the legal and political measures that may be adopted to promote respect for human rights and the pursuit of sustainable development in the country The research concludes that some of the violations of human rights may amount to war crimes and crimes against humanity Keywords: Intergovernmental Authority for Development (IGAD), Sustainable Development, social inclusion, minority rights, human rights, United Nations Mission In South Sudan (UNMISS), Comprehensive Peace Agreement (CPA), The members of the Troika (Norway, the United Kingdom and the United States) Chapter One: Research Overview Introduction This Master’s research thesis examines holistically the gross violations of the International Covenant on Civil and Political Rights (ICCPR) and its Optional Protocols, the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the African Charter on Human and Peoples’ Rights (ACHPR) in the Republic of South Sudan, mostly by state actors, over the past six years In regards to African Charter on Human and Peoples’ Rights (ACHPR), South Sudan is the latest African country to join the AU and ratify the African Charter on Human and Peoples’ Rights on the 23 October 2013,1 which means they are bound to respect and promote the Charter in the country Since South Sudan attained its independence from Sudan in 2011, it quickly descended into a civil war in 2013, claiming the lives of thousands of (mostly) civilians because of their ethnic identity or their perceived alignment with the opposition or government ‘More than 60 000 South Sudanese have been killed, 1.66 million have been internally displaced, and over 770 000 have fled to neighbouring countries Epidemics have affected areas where people have sought refuge Out of 11 million inhabitants, 4.5 million currently face severe food insecurity.’2 In the country’s key towns, most people lost their livelihoods; public infrastructure, including clinics, hospitals and schools, was looted and burnt down or occupied.3 In view of this brutality, many people chose to seek refuge at the UN Mission in South Sudan (UNMISS) compounds As the security situation continued to unfold in South Sudan, combating forces loyal to the South Sudan government and the opposition continued to practise abduction, harassment, detention and restriction of access to the affected areas by UN and humanitarian aid workers.4 As the conflict spread throughout the country, the government turned even more repressive, beating, harassing and torturing human rights workers, political opponents and journalists.5 Undoubtedly, such practices fundamentally undermine and shrink the values of a democratic society Complicit in this grave situation was the Inter-governmental Authority for Development (IGAD), which appeared to favour one side of the conflict.6 In reaction, the UN Security Council imposed an arms embargo on South Sudan’s government and further sanctioned some senior officials in the government, including military commanders from both sides of the conflict, freezing their assets.7 This intervention by the UN Security Council was necessary to minimise the atrocities that civilians were experiencing African Commission on Human and Peoples' Rights, State Parties to the African Charter Available at> https://achpr.org/statepartiestotheafricancharter#:~:text=The%20African%20Charter%20on%20Human%20and%20Peoples%E2%80%9 9%20Rights,having%20ratified%20the%20Charter%20on%2023%20October%202013.< European Parliament Think Tank, ‘Peace agreement in South Sudan Ambitious but hard to deliver’ Briefing (2 Feb 2016) Available at ReliefWeb, South Sudan Humanitarian Crisis Analysis 2018 Humanitarian Overview: An analysis of key crises in 2018 Available at Nyagoah Tut Pur, ‘More aid workers killed in South Sudan’, Human Rights Watch (13 Oct 2019.) Available at Lauren Ploch Blanchard, Conflict in South Sudan and the Challenges Ahead Congressional Research Service (22 Sept 2016) Available at https://fas.org/sgp/crs/row/R43344.pdf Sudan Tribune, ‘Why regional solution to South Sudan’s conflict is irrational’ (30 April 2018) Also available at >https://sudantribune.com/spip.php?article65304#:~:text=IGADPlus%20was%20formed%20to%20work%20as%20a%20unified,its%20members%20are%20clearly%20complicit%20in%20the%20war UN Security Council, ‘Security Council Committee established pursuant to resolution 2206 (2015) concerning South Sudan.’ Available at South Sudan is a multi-ethnic society of over 60 tribes This reality should have been reflected in the government institutions after its independence from Sudan, by balancing diversity in employment, particularly in key areas such as the army, security and high political positions The South Sudan government is mostly dominated by the two main largest ethnic groups – the Dinka and the Nuer The deliberate exclusion of the remainder of the ethnic groups raises the question of the future stability of the government, because where there is marginalisation of minority groups within a country, there is bound to be a high prospect of conflict and consequently, war Virgil Wiebe believes that gross, systematic and persistent abuse of minority rights are leading contributors to civil conflict in many countries across the world.8 It is significant that minority tribes, civil society, women organisations and other armed groups are included in peace negotiation to bring a promising and lasting peace to South Sudan Therefore, equality, justice, and respect for human dignity should be prioritised in the government’s long-term goals in order to establish a fair judicial system that is acceptable for all The South Sudan Transitional Constitution (SSTC 2011) provides that: ‘South Sudan is founded on justice, equality, respect for human dignity and advancement of human rights and fundamental freedoms’ Article (5).9 In practical terms this has not been the case, as South Sudan law enforcement authorities, including the opposition, have been acting contrary to what is stated in the Constitution, and the country’s leadership is dominated by ethnic grouping, making law and order meaningless This research examines the challenges posed by human rights abuse and violation in South Sudan, including those cases that might amount to war crimes or crimes against humanity War crimes and crimes against humanity in this context refers to an acts that constitutes a serious violation of the laws of war giving rise to individual criminal responsibility; however, they are not a major focus of this research Such crimes might include intentionally killing civilians, torturing, raping, using child soldiers and the destruction of civilian properties in which the research has covered The research highlights the legal and political measures that may be adopted to promote respect for human rights and the pursuit of sustainable development in the country Research hypothesis The primary hypothesis that has guided this research since the beginning of the 2013 conflict in South Sudan is that the mediation and ceasefire approaches to the violence would help end the conflict in the country This notion has been the main goal that the IGAD, AU and the international community has been striving to accomplish in order to usher in lasting peace and political stability in the war-ravaged country However, this apparent unfortunate expectation was based on the general belief that mediation and ceasefire more often enable nations, organisations and individuals to effectively end conflicts themselves In an attempt to make mediation and ceasefire an effective tool in a conflict that involves many actors, it is necessary to look at what makes them an effective tool to resolve conflicts It has been widely established Virgil Wiebe, ‘The prevention of civil war through the use of the human rights system’ (1995) 27 New York University Journal of International Law and Politics 410 Government of South Sudan The Transitional Constitution of the Republic of South Sudan 2011, Art 1(5) constituteproject.org Available at: that collaborations and coordination between different political or organisational actors, which are engaged in the mediation process in most conflicts in Africa, essentially represent a critical factor in the success of any mediation process.10 Therefore, the IGAD, as the leading mediator in the South Sudan conflict, should employ policies relevant to the concept of the African Peace and Security Architecture in order to ensure the success of political stability in South Sudan The research also revealed that the inclusion of different political groups, rebel and civil society entities in a mediation process could prove to be helpful in the search to bring lasting peace to the country Finally, the study hypothesised that promotion of and respect for human rights and international law could effectively transform the government to improve the political and economic climate in South Sudan Despite the term ‘human rights’ being relatively popular in Africa in the 20th century, people have been struggling to attain freedom, dignity, and social justice in that part of the world for many years In the context of the South Sudan conflict, the country has witnessed one of the worst and most devastating conflicts on the African continent Since the start of the conflict, thousands of civilians have been internally displaced, and many have sought refuge in neighbouring countries, with hundreds sheltering in UN bases in towns across the country Both sides of the conflict have committed abuses that qualify as war crimes, including looting, indiscriminate attacks on civilians, the destruction of civilian property, arbitrary arrests and detention, beatings and torture, enforced disappearances, rape including gang rape, and extrajudicial executions Some abuse may also constitute crimes against humanity To address this, the African Union (AU) and the UN human rights instruments and resources need to be deployed to address issues of human rights violation and facilitate the process of attaining the goal of fostering peace in South Sudan It is noteworthy that UN Sustainable Development Goals call for economic and social development, as well as poverty alleviation at a global level With respect to the political situation that is the underlying root of the instability in South Sudan, it is evident that the AU, UN and IGAD, need to embark on an effective strategy to usher in peace in South Sudan Broad Research Question How can the international human rights protection and enforcement framework under the United Nations and African Union systems be utilised to foster peace in South Sudan? Background of the Study South Sudan gained independence from Sudan on July 2011, the outcome of a 2005 Comprehensive Peace Agreement (CPA) signed in Machakos, Kenya, which ended Africa's 10   African Union Commission, Peace and Security Department, African Peace and Security Architecture (2016 – 2020, p.37) longest-running civil war.11 South Sudan was devastated by the civil war, which hindered the development of basic infrastructure, human capital and formal civilian institutions South Sudan was also afflicted by massive humanitarian needs that continued to persist after independence, despite the country’s wealth of natural resources, including oil fields in Upper Nile States and gold in the Eastern Equatoria state It is believed that corruption has played a very destructive role in slowing the post-war recovery and development agenda South Sudan President Salva Kiir came to power in the 2010 general election of what was then the semiautonomous region of Southern Sudan within the Republic of Sudan On 14 July 2011, the Republic of South Sudan officially joined the United Nations as the world’s 193rd nation.12 In December 2013, the power struggle between the country’s ruling political party the Sudan People’s Liberation Movement (SPLM), and the political wing of the Sudan People’s Liberation Army (SPLA) erupted in violence.13 President Kiir accused former Vice-President Riek Machar of plotting a coup against his government Riek Machar also accused President Kiir of acting unilaterally and dictatorially.14 After heated accusations between the two respective leaders, the conflict spread rapidly to the rest of the country, leading to killing and serious human rights violations being perpetrated against civilians, women and children, as well as massive displacement,15 especially in the Upper Nile States In 2015, the parties to the conflict signed a ceasefire agreement, but it was not honoured by either side.16 In 2016, a second civil conflict broke out in Juba between forces loyal to the President and former Vice-President, leading to intense fighting As a result, the forces loyal to the President took control of the capital and drove Machar’s forces out of Juba while, Machar fled the country to the neighbouring Congo Key Research Question How can the international human rights protection and enforcement framework under the United Nations and African Union systems be utilised to foster peace in South Sudan? Sub-Questions 11 12 13 14 15 16 What role can the enforcement of human rights play to foster peace and sustainable development in South Sudan? What role can regional and international organisations such as the African Union and the United Nations play in ensuring the observance and enforcement of human rights in South Sudan? BBC News, ‘South Sudan country profile’ (6 August 2018) Available at