Since December 2013, South Sudan and its armed forces have been involved in a non-international armed conflict with dissident South Sudan armed forces.
Since December 2013, South Sudan and its armed forces, the former Sudan People's Liberation Army SPLA, have been involved in a non-international armed conflict with dissident South Sudan armed forces, known as the Sudan People's Liberation Movement/Army- in-Opposition (SPLM/A-in Opposition). The August 2015 peace agreement ultimately failed and the non-international armed conflict continues.
Uganda was a party to the armed conflict because it had troops fighting alongside the South Sudan armed forces. In accordance with the August 2015 Peace Agreement, Uganda withdrew its forces in October 2015. Accordingly, Uganda is no longer a party to the conflict. 'Uganda Army Confirms it Will Leave South Sudan', BBC, 12 October 2015.
South Sudan gained independence from Sudan in July 2013. Armed clashes broke out in Juba between armed forces loyal to President Kiir and armed forces loyal to his former Vice President Machar on the night of 15 December 2013. President Kiir accused his former Vice President of having attempted a coup. 'Heavy Gunfire Rocks South Sudan Capital', Associated Press, 16 December 2013. Within days, the armed clashes spread across the country.
Two criteria need to be assessed in order to answer the question whether a situation of armed violence amounts to a non-international armed conflict.
- First, the level of armed violence must reach a certain degree of intensity that goes beyond internal disturbances and tensions.
- Second, in every non-international armed conflict, at least one side to the conflict must be a non-state armed group which must exhibit a certain level of organization in order to qualify as a party to the non-international armed conflict. Government forces are presumed to satisfy the criteria of organization. For further information, see 'non-international armed conflict' in our classification section.
When the fighting broke out in Juba, hundreds of civilians sought shelter in the compound of the United Nations Mission in the Republic of South Sudan (UNMISS). Established by Security Council resolution 1996 (2011) of 8 July 2011, the Mission had a protection of civilian and statebuilding mandate. In the aftermath of the outbreak of the non-international armed conflict in December 2013, UNMISS was heavily criticised for its lack of preparedness. From Juba, the fighting quickly spread across the country where the armed forces broke up into factions of those loyal to the President and those loyal to the Vice President.
In resolution 2132 (2013), adopted on 23 December 2013, the Security Council increased the troop levels of UNMISS and, acting under Chapter VII, called 'for an immediate cessation of hostilities.'
The United Nations reported that by December 26, the fighting had displaced at least 121,600 people, including 63,000 who had found shelter in UNMISS compounds across the country. At least a thousand people had been killed. Report of the Secretary-General on South Sudan, UN doc S/2014/158, 6 March 2014; M. Tran, 'South Sudan Government Agrees to Ceasefire as 120,000 Flee Fighting', The Guardian, 27 December 2013.
Hence, in light of the large number of people fleeing the hostilities, the involvement of the Security Council, and the high death toll, the criteria of intensity was reached by December 24 at the latest.
Government forces are normally presumed to fulfil the required degree of organization. When the violence broke out in December 2013, the Sudan People's Liberation Army broke up into armed factions: the Sudan People's Liberation Army loyal to President Kiir and the Sudan People's Liberation Movement/Army-in-Opposition loyal to former Vice-President Machar. In other words, the armed opposition was already organized and equipped with weapons at the outset, which contributed to the rapid escalation of the conflict. The respective size of the regular armed forces and the dissident armed forces is not known.
The Sudan Liberation Movement/Army-in-Opposition under the leadership of Machar was repeatedly a party to cease-fire agreements, which further confirms that they were sufficiently organized to constitute a party to the conflict.
August 2015 Peace Agreement
After almost two years of heavy fighting, the South Sudan government concluded the Agreement on the Resolution of the Conflict in the Republic of South Sudan in August 2015. Amongst others, the peace agreement stipulated that the armed dissident forces would get the position of the vice president. 'South Sudan President Salva Kiir Signs Peace Deal', BBC, 26 August 2015.
The existence of a peace agreement does not in itself put an end to a non-international armed conflict: violence frequently continues after the conclusion of a peace agreement. In addition, a non-international armed conflict may also end without a peace agreement, for example when one of the parties to the conflict disappears. A non-international armed conflict ends in case of a 'lasting cessation of armed confrontations without real risk of resumption'. L. Cameron, B. Demeyere, J-M. Henckaerts, E. La Haye and I. Müller, with contributions by C. Droege, R. Geiss and L. Gisel, ‘Article 3: Conflicts Not of an International Character’, ICRC, Commentary of the First Geneva Convention, 2016, §491.
The 2015 Peace Agreement did not lead to such a lasting cessation. Armed clashes continued on a regular basis. Armed Conflict Location and Event Dataset, Country Report: South Sudan Conflict Update, July 2016. Therefore, the non-international armed conflict continues.
Following the outbreak of fierce fighting in Juba in July 2016, the August 2015 Peace Agreement collapsed. The clashes included continuing ethnic violence, reports of widespread sexual violence and rape by government forces, looting, and indiscriminate attacks. Human Rights Watch, Sout Sudan: Killings, Rapes, Looting in Juba, 15 August 2016.
Deployment of Regional Protection Force
On 12 August 2016, Security Council Resolution 2304 (2016) authorized the deployment of the Regional Protection Force with a robust mandate to use all necessary means to implement its mandate. The Regional Protection Force is to supplement the existing UN peacekeeping mission and mandated to provide protection to key facilities and routes in Juba and to strengthen the security of UN Protection of Civilian sites in South Sudan. The government of South Sudan initially rejected the deployment of the Regional Protection Force, 'South Sudan Renews Rejection to Regional Protection Force', South Sudan Tribune, 11 January 2017. and the phased deployment of the Regional Protection Force only began in August 2017. However, tensions with the government continue. 'South Sudna: Deployment of UN-mandated Regional Protection Force Begins', UN News, 8 August 2017; 'More Regional Protection Forces Arrive in South Sudan's Juba', Voice of America, 14 February 2018.
December 2017 cessation of hostilities agreement
On 21 December 2017, the parties to the conflict signed a cessation of hostilities agreement. 'South Sudan Cease-Fire Is Signed, but "Difficult" Period Awaits', The New York Times / Associated Press, 21 December 2017. The text of the agreement is available on the website of the Sudan Tribune. Yet, during January 2018, the agreement was repeatedly violated. 'South Sudan: Ceasefire Violations, Hostile Propaganda Undercut Regional Peace Push, Security Council Told', UN News Centre, 24 January 2018.
South Sudan is a party to the four 1949 Geneva Conventions. All parties to the conflict are bound by Article 3 common to the 1949 Geneva Conventions that provides for the minimum standard to be respected and requires humane treatment without adverse distinction of all persons not or no longer taking active parts in hostilities. It prohibits murder, mutilation, torture, cruel, inhuman and degrading treatment, hostage taking and unfair trials.
South Sudan is also a party to the 1977 Additional Protocol II applicable to non-international armed conflicts. Although territorial control shifts frequently, the Sudanese People's Liberation Movement/Army in Opposition controls territory in South Sudan, which suggests that they fulfil the required criterion for the applicability of Protocol II, namely the ability to carry out sustained and concerted military operations; impose discipline; and the ability to implement Protocol II.
In addition to international humanitarian law, international human rights law continues to apply during armed conflicts.