Pathways to accountability in the UN Commission on Human Rights in South Sudan’s report on the use of deliberate starvation as a method of warfare
On 6 October 2020, in a first for any UN Panel, the UN Commission on Human Rights in South Sudan (UNCHRSS) released a trailblazing report dedicated to assessment of the use of starvation as a method of warfare. In it, the Commission noted the existence of “deliberate strategies on the part of both Government and opposition forces to use starvation of civilians as a method of warfare” in the Western Bahr el Ghazal, Jonglei, and Central Equatoria States of South Sudan. The Commission added that the actions could amount, in certain instances, to both war crimes and crimes against humanity and that:
Based on the information collected, the Commission has reasonable grounds to believe that sufficient evidence exists to hold to account members of Government forces, under international and national laws, who have pursued policies and actions amounting to intentionally using starvation of civilians as a method of warfare in Jonglei State. 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.
Finally, the Commission has reasonable grounds to believe that sufficient evidence exists to hold to account members of the SPLA-IO (RM) under international and national laws for the crime of intentionally using starvation of civilians as a method of warfare by arbitrarily denying humanitarian aid to populations in need in Central Equatoria, including by arbitrarily denying objects indispensable to their survival. (UNCHRSS report, para 146-147)
Global Rights Compliance welcomes this report which echoes the findings of a briefing paper it released in June 2019, in collaboration with the World Peace Foundation (WPF) and experts on South Sudan. The report’s mention of pathways towards accountability and prosecution of the war crime of starvation is of particular interest and is briefly highlighted below.
Article 8(2)(e)(xix) of the Rome Statute
The UNCHRSS referred to the recent amendment of Article 8(2)(e)(xix) of the Rome Statute of the International Criminal Court as a possible avenue for accountability, which now includes the war crime of starvation both in International Armed Conflicts (IAC) and in Non-International Armed Conflicts (NIAC). The report suggested that even though South Sudan is not a party to the Rome Statute, the war crime of starvation could still be brought before the ICC through a UN Security Council referral or could be prosecuted “in states which already include a similar war crime of starvation in their national criminal law” through a universal jurisdiction claim.(UNCHRSS report, para 89) In GRC’s view, this path to hold accountable the perpetrators of starvation crimes would face a number of limitations in the relative short-term.
First, the ICC may not have subject-matter jurisdiction to consider the matter. Due to the principle of non-retroactivity, the amendment is unlikely to cover prosecutions of past starvation crimes at the ICC. As per Article 22 of the Rome Statute, criminal responsibility is precluded “unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court”.
Second, the ICC is not likely to have personal jurisdiction over the matter since South Sudan is not a party to the Rome Statute. In the unlikely event that South Sudan was to accept the jurisdiction of the ICC, then Article 121(5) of the Rome Statute would present another hindrance. This article provides that amendments to Article 8, such as the starvation amendment, are not binding on States Parties that do not accept/ratify the amendments. It is unlikely that South Sudan would, in addition to acceding to the Rome Statute, also ratify the starvation amendment, any time in the near future. The only avenue that may remain is a UN Security Council referral, as also noted by the UNCHRSS.
Consequently, prosecution under Article 8(2)(e)(xix) might not be the most appropriate avenue in the short term. In its Policy Paper on South Sudan, GRC argued that there might be scope for prosecution on the international level through Uganda (for the crime against humanity of deportation), which ratified the Rome Statute in 2002. In the Bangladesh/Myanmar situation, an ICC Pre-Trial Chamber held that it possessed territorial jurisdiction where an element of the actus reus of a Rome Statute crime, or its consequences, occurred on the territory of a State party. (para 53)
Consistent with GRC’s own findings, the UNCHRSS found that large portions of the South Sudanese civilian population were forcibly displaced by policies implemented by parties to the conflict in South Sudan and that many were forced to flee to Uganda. In light of the Bangladesh/Myanmar precedent, the crossing of the victims into Uganda may be seen to establish a territorial link to the actus reus of the crime and, thus, to establish a pathway to international justice. (UNCHRSS report, para 94)
The Regional Alternative to Justice
GRC also encourages exploration of local or regional pathways to accountability. As of today, the Transitional Constitution of South Sudan guarantees the application of international human rights instruments to which South Sudan is a party and guarantees the right to life and human dignity, from which the right to food can be subsumed. In addition, the South Sudanese Penal Code protects the right to life. However, the Code does not codify references to starvation as a crime. As also advised by the UNCHRSS report, a very laudable scenario would be the inclusion of the crime of starvation in domestic legislation. (UNCHRSS report, para 148)
Chapter V of the 2018 Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCSS) provides for the establishment of transitional justice mechanisms with a view to bring perpetrators to justice and secure reparations for victims. These mechanisms under Article 5.3 include the creation of a Hybrid Court for South Sudan with the mandate to investigate and prosecute individuals responsible for violations of international law and South Sudanese law, including for crimes of genocide, crimes against humanity, war crimes, and other serious crimes under international law including gender-based violence.
The R-ARCSS (article 5.2 and 5.4) also envisages the establishment of a Commission for Truth, Reconciliation and Healing (CTRH) and a Compensation and Reparation Authority (CRA). Together with a Hybrid Court, these could prove to be the most appropriate avenues for achieving accountability, sustainable peace, reconciliation and recognition and reparations for victims. The CTRH would be endowed with the task of investigating human rights violations, breaches of the rule of law and abuses of power perpetrated in South Sudan. Its functions would include, but not be limited to, the following: identifying remedy and reparations for victims, identifying perpetrators of violations and crimes, investigating the causes of conflict and recommending ways to prevent recurrence, recommending legal and institutional reforms to ensure prevention and accountability, supervising traditional justice mechanisms, and leading peace-building efforts. (R-ARCSS, article 5.2.2) The CRA would administer a Compensation and Reparation Fund, which would “provide material and financial support to citizens whose property was destroyed by the conflict and help them to rebuild their livelihoods in accordance with a well-established criterion”. (R-ARCSS, article 220.127.116.11)
Until now the creation of these transitional justice mechanisms has been characterized by “delays and obstruction by the Government”. However, with the 22 February 2020 compromise by opposing factions and the formation of an inclusive, Revitalized Transitional Government of National Unity on 22 February 2020, prospects for an accountability process for starvation crimes in the domestic context are more optimistic. These prospects are further bolstered by a second 6 October report by the UNCHRSS, which aims to serve as “a roadmap to energise the overdue implementation of the key commitments made in Chapter V of the Revitalised Peace Agreement which is a key pillar of South Sudan’s transition”.
 This is notwithstanding the fact that amendment could constitute a codification of existing customary international law.
 Where States do accept/ratify the amendment, the amendment will enter into force for each State one year after the State deposits its instrument of ratification or acceptance.
 While not respected in practice, the opposition armed forces (Sudan People’s Liberation Movement/Army or SPLM/A) in their Penal and Disciplinary Laws provided for the obligation to ensure citizens (under their control) produce sufficient food for themselves and for the punishment of “any member of the [SPLA] or affiliated organizations who compels citizens to surrender food materials”. SPLM/A, Penal and Disciplinary Laws, 4 July 1984, § 54(3) and 68, Report on SPLMA Practice, 1998, Chapter 4.1.