The AU Commission Final Report: Anything Missing

By Sindani Sebit,

Nov 8, 2015(Nyamilepedia) —- I have just finished reading the 315 page AU final report on the crisis in South Sudan. This is a comprehensive report and I must admit that the Commission has done a splendid and commendable work in terms of the investigation and talking to witnesses on both sides of divide. The Commission traced the history of conflicts in Sudan and during the SPLM struggle. Of particular interest is the repeated reference to 1991 SPLM split. The Commission delved into all the factors that could have precipitated the conflict in South Sudan. It concluded that gross human right abuses, crime against humanity and violation of humanitarian law took place in South Sudan. However, the eminent Commission stopped short of concluding that genocide was committed in the country when it detailed many scenarios that could constitute genocide. It also made valuable recommendations that may form the basis for restoration of peace and unity in South Sudan. However, the issue of genocide is what informs my dilemma here.

Let me be forthright here to declare that I am not here to dispute the conclusions of Commission neither am I here to challenge any iota about the competence of the Commission or its diligence to carry out its work. I repeat here that indeed the Commission did a fabulous jog despite constraints in terms of continuous insecurity in the country and limited resources as it contended in the report. I am not also here to justify that genocide has taken place in South Sudan but I am, from the findings of the commission, trying to match its the findings with factors that UN considers to constitute genocide and leave it to my readers to determine whether genocide was committed or not during this conflict.

Genocide is defined in Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide(1948) as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part1; imposing measures intended to prevent births within the group; [and] forcibly transferring children of the group to another group.”

The key word here is “intent to destroy”. Before I can try to point out whether there was any intend to destroy a committee during this conflict, it is prudent that I discuss the UN Analysis Framework that it uses to determine if there is likely risk for ge3neocide to occur or if genocide has actually taken place. This is quite important for my readers to objectively compare the findings in the report with the eight categories of factors in the UN analytical framework so as to make their own conclusions.

The Office of the UN Special Adviser on the prevention of Genocide (OSAPG) uses an Analysis Framework that comprises eight categories of factors that determine whether there may be a risk of genocide in a given situation or genocide has taken place. These eight factors include:

1. Inter-group relations, including record of discrimination and/or other human rights violations committed against a group
2. Circumstances that affect the capacity to prevent genocide
3. Presence of illegal arms and armed elements
4. Motivation of leading actors in the State/region; acts which serve to encourage divisions between national, racial, ethnic, and religious groups
5. Circumstances that facilitate perpetration of genocide (dynamic factors)
6. Genocidal acts
7. Evidence of intent “to destroy in whole or in part …”

According to the UN, these eight categories of factors are not ranked, and the absence of information relating to one or more categories does not necessarily indicate the absence of a risk of genocide. However, the most significant thing is the cumulative effect of the factors. UN concludes that if these factors become none existent in any country, then the risk of genocide is assumed to decrease.

In order to understand the situation in South Sudan, it is worth looking at what UN considers as issues to be analyzed under each of these factors that can determine risk of genocide. By analyzing each one we may be able to determine whether AU Commission might have inadvertently missed to conclude that genocide was committed in South Sudan. Therefore, in this article, I will consider each analyzable issue under each of the eight factors and try to match them with crucial findings in the report.

1. Inter-group relations, including record of discrimination and/or other human rights violations committed against a group

According to the UN the issues to be considered here are:

• Relations between and among groups in terms of tensions, power and economic relations, including perceptions about the targeted group;
• Existing and past conflicts over land, power, security and expressions of group identity, such as language, religion and culture;
• Past and present patterns of discrimination against members of any group which could include:

1. Serious discriminatory practices, for instance, the compulsory identification of members of a particular group, imposition of taxes/fines, permission required for social activities such as marriage, compulsory birth-control, the systematic exclusion of groups from positions of power, employment in State institutions and/or key professions2;
2. Significant disparities in socio-economic indicators showing a pattern of deliberate exclusion from economic resources and social and political life.

• Overt justification for such discriminatory practices;
• History of genocide or related serious and massive human rights violations against a particular group; denial by the perpetrators;
• References to past human rights violations committed against a possible perpetrator group as a justification for genocidal acts against the targeted group in the future.

Considering the situation in South Sudan, three things stand out clearly before the conflict erupted in South Sudan, First there was tense relations between Kiir and Riak groups over power. The report clearly indicated that the conflict originated over split in the movement. This couple with Kiir’s mobilization speeches in Bahr el Ghazal that the power that the community fought for is been threatened and this community should not allow it to be taken away under any cost. The mobilization of the army in Bahr el Ghazal testifies to this factor that tension over power was high. The community strongly believes in power in South Sudan as birth right and felt that the community of Riak was threatening this right to rule and exploit the country. The second thing that came out of the report was the clear reference to the past conflict between the Dinkas and Nuers particularly in reference to the 1991 split in the movement. It is a known fact that many people particularly Dinkas lost their lives during that conflict and up to date nobody was held responsible despite the fact that Riak is reported to have taken responsibility for that unfortunate incident and publically apologized to the Dinka community. Whether the Dinka leadership appreciated that apology or not, is unclear but it appears some Dinkas were looking for opportunity to avenge. The third issue to consider here is reference to the past rights violations against a possible perpetrator group as justification for genocidal act. The AU report is full of statements uttered by senior SPLA commanders and government officials in reference to the 1991 so-called Bor genocide. The president is quoted clearly in the report as pronouncing in the NLC meeting that 1991 incident would not repeat itself again. This means that the president himself was already contemplating a chance of revenge and indeed what happened in Juba must have been done to avenge the Bor incident. This is why despite the fact that though the group opposing the government had only 4 Nuer community, the mass killings in Juba targeted only the Nuer community.

2. Circumstances that affect the capacity to prevent genocide. The issues to be analyzed here include:

• Existing structures that can protect genocide such as effective legislative protection; independent judiciary and effective national human rights institutions,
• Whether these structures effective
• Whether vulnerable groups have genuine access to the protection afforded by the structures;
• Patterns of impunity and lack of accountability for past crimes committed against
• the targeted groups;
• Other options for obtaining protection against genocide, e.g. presence of
• peacekeepers in a position to defend the group, or seeking asylum in other.

Although the report noted that South Sudan has a constitution with clear chapter on human rights, parliament, judiciary and human right commission, these institutions are rendered toothless and the president usurped all the powers to use decrees to rule the country. In fact the executive created a situation where these institutions became the mouthpieces of the government. Since the war broke out in South Sudan, the parliament and judiciary went into a state of coma while the commission on human rights could only write weak reports that tend to exonerate the establishment. On the other hand the ethnic group that faced extermination in Juba had no chance to seek redress instead, up to date, they have been hunted like rats in their own country. Even when they get shelter from the UN compounds, they have never been free from killings. The report demonstrated vividly the attack on the UN compound in Bor where several people died, the continuous killing and raping of men and women who try to venture out of the camps to get firewood or any other items of necessity. In South Sudan, the government has killed and detained people and looted government coffers without any accountability. This is the level of impunity the report has correctly articulated.

3. Presence of illegal arms and armed elements. The critical issues to be looked at here include:

• Whether there exists a capacity to perpetrate genocide – especially, but not exclusively, by killing;
• How armed groups are formed, who arms them and what links they have to state authorities, if any;
• In cases of armed rebellions or uprising, whether a state has justified targeting groups from which armed actors have drawn their membership.

The AU Commission is very clear on the fact that there existed in South Sudan two groups of armies who had the capacity to perpetrate genocide. There was the regular army particularly the presidential guards and the Mathiang Nyoor recruited from Bahr el Ghazal and trained in Luri under the watchful eye of the president and supported by him. This army was rejected by the SPLM general command because it was not a part of the national army. It is reported that this army was the one used to systematically kill innocent civilians. The report also pointed out that tanks were used to not only destroy houses including Riak’s house but also to directly fire on civil populations not only in Juba but in many areas particularly during the scotch earth policy that ended in the mass murder and destruction in Leer in Unity state.

The report is also very vivid on the formation, training and deployment of the Mathiang Nyoor soldiers. It is clear from the report that this force was recruited from one community, trained in Juba and initially deployed in Juab to clean roads for purposes of surveillance on the location of the targeted community. During the initial days of conflict, the perpetrators of the conflict divided the town into three command areas that systematically carried out their genocidal act on civilians with absolute precision. They collected civilians and butchered them mercilessly in various areas including police stations. In order for the government to justify its genocidal activities, it concocted its “dodo” coup theory; a theory which the Commission found out to be grossly false. This theory was aimed at hoodwinking the international community to believe that the killings in Juba occurred during cross-fire between combatants. Thus they dead were not intended targets. If so why was it that only one community became the victim of crossfire when Juba is populated with all tribes of South Sudan? In fact the report revealed that soldiers when from house to house seeking out particular groups for extermination.

4. Motivation of leading actors in the State/region; acts which serve to encourage divisions between national, racial, ethnic, and religious groups. The issues that need to be analyzed are whether there were:

• Underlying political, economic, military or other motivation to target a group and to separate it from the rest of the population;
• The use of exclusionary ideology and the construction of identities in terms of “us” and “them” to accentuate differences;
• Depiction of a targeted group as dangerous, disloyal, a security or economic threat or as unworthy or inferior so as to justify action against the group;
• Propaganda campaigns and fabrications about the targeted group used to justify acts against a targeted group by use of dominant, controlled media or “mirror politics”;
• Any relevant role, whether active or passive, of actors outside the country (e.g., other Governments, armed groups based in neighboring countries, refugee groups or diasporas) and respective political or economic motivations.

Although the Commission is not explicit on these issues, there was already huge propaganda within SPLM that depicted the opposition as dangerous, disloyal and a security threat without any evidence. The recruitment of Mathiang Nyoor and their deployment of Juba to defend the president means there was already a perverted feeling within the establishment that there was a dangerous group that intended to usurp power from the so-called elected government. The report is clear on the activities and pronouncements made before and during the NLC meeting in which the President threatened the opposition and prevented it from actively participating in the deliberations of the meeting.

5. Circumstances that facilitate perpetration of genocide (dynamic factors). The issue here is whether there were any development of events, whether gradual or sudden, that suggest a trajectory towards the perpetration of genocidal violence, or the existence of a longer term plan or policy to commit genocide such as:

• Sudden or gradual strengthening of the military or security apparatus; creation of or increased support to militia groups (e.g., sudden increases in arms flow) in the absence of discernible legitimate threats;
• Attempts to reduce or eradicate diversity within the security apparatus;
• Preparation of local population to use them to perpetrate acts;
• Introduction of legislation derogating the rights of a targeted group;
• Imposition of emergency or extraordinary security laws and facilities that erode civil rights and liberties;
• Sudden increase in inflammatory rhetoric or hate propaganda, especially by leaders, that sets a tone of impunity, even if it does not amount to incitement to genocidal violence in itself;
• Permissive environment created by ongoing armed conflict that could facilitate access to weapons and commission of genocide.

The AU Commission is replete with the fact that these issues existed in South Sudan before the massacre took place in Juba and during the subsequent period of the war. The military buildup continues up to date with recruitment in Bahr el Ghazal despite the signing of the ceasefire. The report pointed out that the government was getting wary of the number of Nuer soldiers in the army because 60% or more of the SPLA forces were from Nuer community and there was certainly a need to offset this balance. This can only be done through more recruitment from other communities or by initiating a war of attrition so as to reduce this numbers and this is what might have transpired. During the conflict, the government recruited and armed militia groups in Upper Nile and Bentui to persecute the war. The report also mentioned the security laws the government introduced in parliament aimed at carrying out unprecedented arrest of opponents and journalists without any warrant of arrest. The National South Sudan TV became an instrument of hate, propaganda and promoting hatred on the pretext of military moral orientation. This was aimed at encouraging people to rise against one ethnic group.

6. Genocidal acts. The issues here include:

• Acts that could be obvious “elements” of the crime of genocide as defined in Article 6 of the Rome Statute, such as killings, abduction and disappearances, torture, rape and sexual violence; ‘ethnic cleansing’ or pogroms;
• Less obvious methods of destruction, such as the deliberate deprivation of resources needed for the group’s physical survival and which are available to the rest of the population, such as clean water, food and medical services;
• Creation of circumstances that could lead to a slow death, such as lack of proper housing, clothing and hygiene or excessive work or physical exertion;
• Programs intended to prevent procreation, including involuntary sterilization, forced abortion, prohibition of marriage and long-term separation of men and women;
• Forcible transfer of children, imposed by direct force or through fear of violence, duress, detention, psychological oppression or other methods of coercion;
• Death threats or ill treatment that causes disfigurement or injury; forced or coerced use of drugs or other treatment that damages health.

For those who have read the AU report, they must have seen the graphic description of the killings, abductions, torture and mutilation of bodies in Juba. The report has detailed the scale of raping and the intention to use sexual violence as a tool of war. The ethnic cleansing that is happening in Upper Nile and Bentui with an intention of creating single ethnic group federal states. This goal has been consummated by the recent unilateral decree by the president creating 28 states in South Sudan. The aim is to have states where Nuer and Shilluk cannot co-exist with Dinka and to deprive the Nuer and Shilluk the oil resources in Upper Nile and Bentui. The destruction of houses, looting of cows and destruction of growing fields in Bentui is a means to create conducive atmosphere whereby the citizenry will slowly die of hunger and other famine related disease. The issue of cannibalism has been depicted in the report. This is worse than coerced use of drugs or other treatment known to mankind that damage health.

7. Evidence of intent “to destroy in whole or in part …”. In order to establish any intent to commit genocide, there is need to analyze the following:

• Statements amounting to hate speech by those involved in a genocidal campaign;
• In a large-scale armed conflict, widespread and systematic nature of acts; intensity and scale of acts and invariability of killing methods used against the same protected group; types of weapons employed (in particular weapons prohibited under international law) and the extent of bodily injury caused;
• In a non-conflict situation, widespread and/or systematic discriminatory and targeted practices culminating in gross violations of human rights of protected groups, such as extrajudicial killings, torture and displacement;
• The specific means used to achieve “ethnic cleansing” which may underscore that the perpetration of the acts is designed to reach the foundations of the group or what is considered as such by the perpetrator group;
• The nature of the atrocities, e.g., dismemberment of those already killed that reveal a level of dehumanization of the group or euphoria at having total control over another human being, or the systematic rape of women which may be intended to transmit a new ethnic identity to the child or to cause humiliation and terror in order to fragment the group; The destruction of or attacks on cultural and religious property and symbols of the targeted group that may be designed to annihilate the historic presence of the group or groups;
• Targeted elimination of community leaders and/or men and/or women of a particular age group (the ‘future generation’ or a military-age group);
• Other practices designed to complete the exclusion of targeted group from social/political life.

Since the outbreak of the conflict in South Sudan in December 2013, the South Sudan TV has been turned and used as an organ to propagate hate and propaganda aimed at creating hatred against targeted community. The widespread killing, the burning and mutilation of bodies, killing of victims by asphyxiation and forcing of victims to drink human blood and eating human flash shows nothing other than clear intent to dehumanize the victims. This is also intended to depict the idea of having total control over other human beings. The Commission heard of use of cluster bombs on civilians by the government or government surrogates. The widespread destruction of homes in Unity state, the hunting of civilians hiding in marches, killing of children and widespread destruction of property and means of living is reported by the Commission. This act underscores the perpetrator’s goal to reach the foundation of their group.

8. Triggering factors. These are events or circumstances that might aggravate conditions or spark deterioration in the situation, pointing to the likely onset of a genocidal episode. These ‘triggers’ might include:

• Upcoming elections (and associated activities such as voter registration or campaigning; revision of delimitation of electoral boundaries; a call for early elections or the postponement or cancellation of elections; disbanding of election commissions; imposition of new quotas/standards for political party or candidate eligibility);
• Change of Government outside of an electoral or constitutionally sanctioned process; Instances where the military is deployed internally to act against civilians;
• Commencement of armed hostilities;
• Natural disasters that may stress state capacity and strengthen active opposition groups;
• Increases in opposition capacity, which may be perceived as a threat and prompt preemptive action, or rapidly declining opposition capacity which may invite rapid action to eliminate problem groups.

In the case of this conflict the report is very clear that the SPLM elections, the increasing opposition capacity and strengthening of the opposition capacity was perceived as a threat to the power that be. This might have prompted a pre-emptive action from the side of the government

Having analyzed the factors that could lead anyone to deduce whether there was genocide in South Sudan, it is important to come back to the issue of intent. Was there intent to create genocide? The report has mentioned two crucial points that could be important when considering whether there was intent or not on the side of perpetrators of the conflict. One is the repeated reference to the 1991 SPLM conflict. In fact the report was explicit that many high ranking SPLM and government officials have referred to the Bor massacre as an issue in South Sudan. Is it possible that the intent here is revenge? Secondly the report also mentioned the overwhelming number of Nuer soldiers in the Army which was estimated to be more than 60% and this was largely attributed to Kiir’s policy of integrating the Nuer militia into the SPLM. Could the intent here be that the power be ib South Sudan realize the threat posed by this huge number of Nuer soldiers and therefore the need to down size the number to manageable size? Of course other causes such as control of resources and power can also be advanced but all in all I leave it to the readers to pass their judgment on the final AU report.

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