The ICJ made an oral statement at the UN Human Rights Council, highlighting a severe lack of domestic judicial capacity, and the large needs for justice in relation to gross violations and international humanitarian law, as well as ordinary civil and criminal matters, in South Sudan.
The ICJ reported in 2013 that, notwithstanding substantial legal reforms, the justice system in South Sudan was so under-resourced that statutory courts were effectively unavailable to a large majority of the population. Further, judicial appointment procedures were insufficiently independent or transparent to satisfy international standards. Customary courts have a greater presence, but rightly do not have criminal jurisdiction, and further do not meet international standards as regards, for instance, institutional guarantees for independence and impartiality.
In addition to the difficulties most residents already faced in accessing justice, the conflict has resulted in gross violations of human rights and international humanitarian law. South Sudan must ensure effective remedy and reparation for victims of such violations, and that anyone reasonably suspected of responsibility is investigated and, if there is sufficient evidence, prosecuted. At the same time, it must fulfill the fair and effective administration of ordinary civil and criminal justice.
Particularly given the scale and gravity of the violations, the South Sudanese justice system simply does not have the capacity to bear this burden, at least not alone. In addition to building the capacity of the domestic judiciary, it is clear that an international criminal tribunal, preferrably the International Criminal Court, will need to play a key role. Other states, too, will have to exercise all grounds of jurisdiction at their disposal, and deliver effective mutual legal cooperation.
The ICJ considers that the lack of an effective, independent and impartial court system in South Sudan may well have contributed to the rapid deterioration of the situation over the past months. Building an independent and impartial justice system in which all residents of South Sudan can have confidence is essential to preventing recurrence of the violations in the future.
HRC26-Oral statement on SouthSudan-Advocacy-non legal submission-2014 (full statement in PDF)