South Sudan war crimes court-martial

Flora McCrone has written War Crimes and Punishment: The Terrain Compound Attack and Military Accountability in South Sudan, 2016-2018 (Aug. 2019), published by the Small Arms Survey. Excerpt (footnotes omitted):

The Terrain court martial proceedings

The first court hearing for the Terrain case began in May 2017 shortly after [Paul] Malong’s dismissal and the appointment of the new CDF, James Ajongo.

The question remained as to whether to hold the trial in a civilian court or under the SPLA GCM Unit, with legal and practical issues affecting both sides of the argument. In theory, under the SPLA Act, charges against SPLA soldiers accused of crimes against civilians should be tried in a civilian court (Southern Sudan, 2009). The Kiir-appointed Investigation Committee recommended, however, that the trial should take place within the SPLA court-martial system. Interviewees posed the following factors as having influenced this decision:

• Special tribunals can circumvent some of the protocol and procedures normally required in civilian courts, because such tribunals deal with ‘special’ or extraordinary circumstances. In this case, at the outset there was only one claimant, the Terrain general manager, who at the start of the court martial had to represent both Terrain Services Ltd and the victims of the attack, because the victims had no claimant of their own in the country. Normally, all claimants need to be physically present in the country for a trial to go ahead, but designating the Terrain court martial as a special tribunal could override this rule.
• The attack took place in a context of war and military operations.
• The attack featured both military crimes under the SPLA Act (Southern Sudan, 2009) and criminal crimes under the Penal Code (Southern Sudan, 2008). 
• The court martial system was seen as being better resourced and more efficient than the civilian courts. 

In the Terrain court-martial both the SPLA Act (military law) and the Penal Code (criminal law) were applicable. Five members were appointed to the judging panel, including two judge advocates and three SPLA officers. The SPLA leadership selected Gen. Moulana Knight, a military lawyer, as head of the judging panel. Leading the prosecution’s team was an SPLA chief prosecutor and a private lawyer who represented the Terrain owners and, by default, the victims of the attack. (A private lawyer representing some of the attack victims joined the proceedings later when the first rape victim came to testify in August 2017.) An SPLA-appointed lawyer led the defence team and was supported by three additional lawyers.

The ranks of the 12 accused soldiers ranged from private to captain. Ten of them were from the SPLA Tiger Division, one from the NSS, and one from Military Intelligence. Open hearings began with witness testimony from eight South Sudanese private security guards, four East African Terrain staff members, the Terrain general manager, and a South Sudanese doctor who treated victims.

Proceedings stalled temporarily when the rape victims were unavailable to testify, because they opted not to return to South Sudan for the trial. Their absence cast uncertainty on how the trial would proceed, because the defence team made a ‘submission of no case to answer’—a standard procedural request—in an attempt to have the case dismissed for lack of evidence. After evaluating the submission, however, the judging panel agreed that the court-martial would proceed.

In August 2017 one rape victim agreed to fly to Juba to testify for the prosecution on condition that the US Embassy provide her with physical protection and an armed guard during her testimony. In October a series of contentious exchanges between the SPLA and the US Embassy concluded with the SPLA accepting the US Embassy’s facilitation—together with the US Federal Bureau of Investigation (FBI)—of a satellite video link to allow other witnesses outside of South Sudan, including rape victims, to testify.

The trial was delayed again in October when defendant Luka Akechak was found dead while in NSS custody. Akechak, of the SPLA Tiger Division, was the highest-ranking soldier of the 12 defendants and was believed to have implicated other senior officers during his testimony (see Wudu, 2017). There was some uncertainty as to the cause of his death, which was officially attributed to ill health, and, given the poor conditions in which the accused soldiers were held, this was a plausible explanation (see Wudu, 2017).

When the trial resumed the defence team presented witness testimony, much of which hinged on alibis for the remaining 11 accused. According to trial observers, these alibis appeared to be highly unreliable and conflicted with other defendants’ narratives of the events on 11 July.

In December the judging panel privately reached a verdict. Then-CDF James Ajongo signed off on the verdict, and it was then passed on to the President’s Office for final approval, with the judgment expected to be released in February 2018. However, after Ajongo’s illness and subsequent death in early April, the verdict’s release was delayed until after the appointment of his replacement, Gabriel Jok, in May (Dumo, 2018a).  Nearly ten months later, on 6 September 2018, the verdict was finally released (Dumo, 2018b).

Among the 11 soldiers charged, life sentences were given to two of those found guilty of murder. One soldier was acquitted, and of the eight others, three were found guilty of raping the aid workers, four of sexual harassment, and one was found guilty of theft and armed robbery. The compensation awarded to the victims included USD 2.25 million for damages to the owners of Terrain, USD 4,000 for each of the six known victims of sexual assault and rape, and 51 cows for the family of John Gatluak (Amnesty International, 2018b).

After the announcement of the verdict and sentences, the ten convicted soldiers were taken to the main SPLA barracks in Giada, where they were publicly stripped of their ranks before being taken to Juba Prison. As of July 2019 none of the victims had been paid their compensation (Tanza, 2019; Mednick, 2019b). Two separate appeal processes have been filed: one by the defence to reduce the sentences for some of those convicted and another by the rape victims contesting the amount of monetary compensation, which they deemed to be inadequate. The appeals are expected to be passed on to the Supreme Court for judgment.