Since December 2013, South Sudan and its armed forces have been involved in non-international armed conflicts 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) and other armed groups. The August 2015 peace agreement ultimately failed and the non-international armed conflict continues, despite a “revitalized” peace agreement signed in 2018.
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. “Ugandan army declares withdrawal from South Sudan”, Sudan Tribune, 13 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 (SPLA) and those loyal to the Vice President (SPLM/A-IO).
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 and that 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 23 at the latest.
Fighting and related violence has continued since then, justifying the continued qualification of the situation as a non-international armed conflict. Report of the UN Commission on Human Rights in South Sudan, March 2019, para. 16; See also UNMISS/OHCHR, Report on violations and abuses against civilians in Gbudue and Tambura states, Western Equatoria between April and August 2018, 18 October 2018; UNMISS/OHCHR, Report on indiscriminate attacks against civilians in Southern Unity April-May 2018. At the end of 2018, it was estimated that more than four million people had fled their homes since December 2013 and that seven million people were in need of humanitarian assistance HRW, World Report 2019, South Sudan – Events of 2018. The parties continue to restrict access to conflict-affected areas by humanitarian organizations. Humanitarians actors have been killed and detained and their premises attacked and looted. Report of the UN Commission on Human Rights in South Sudan, March 2019, para. 22; HRW, World Report 2019, South Sudan – Events of 2018.
In July 2018, the UN Security Council imposed an arms embargo and additional targeted sanctions in South Sudan. UNSC Resolution 2428 (2018).
The signing of a peace agreement in September 2018 has not ended the hostilities, though the UN noted “a marked decline in fighting across the country, with the exception of Central Equatoria and Western Bahr el-Ghazal states”. Report of the UN Commission on Human Rights in South Sudan, March 2019, para. 20
Another armed group involved in hostilities in South Sudan is the National Salvation Front (NAS, sometimes referred to as NAS-TC). The group is active in the Equatoria region and has reportedly been involved in clashes against the SPLA and the SPLA-IO in 2018 and 2019. International Crisis Group, “Salvaging South Sudan’s Fragile Peace Deal”, 13 March 2019, see e.g. Appendix A; IISS Armed Conflict Database, South Sudan – Military and Security updates, 2018, 2019; "National Salvation Army", Sudan Tribune. Fighting in this region has also severely affected civilians. HRW, “South Sudan: Government Forces Abusing Civilians”, 4 June 2019.
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 two main armed factions: the Sudan People's Liberation Army loyal to President Kiir (SPLA) and the Sudan People's Liberation Movement/Army-in-Opposition (SPLM/A-IO) 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 SPLM/A-IO 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.
The NAS also seems to fulfill the requisite organizational criteria. The group, which was created in March 2017, has a military leadership (headed by Thomas Cirillo Swaka) and offices abroad. National Salvation Front, Timeline ; “NAS’s conference supports rejection of South Sudan revitalized peace deal”, 28 November 2018. The NAS is mostly constituted of defectors from the SPLA-IO and is now considered the second largest armed group operating in South Sudan. The hostilities in which it has reportedly been involved demonstrate a capacity to plan and carry out military operations and to challenge government forces control in the Equatoria region. International Crisis Group, “Salvaging South Sudan’s Fragile Peace Deal”, 13 March 2019; IISS Armed Conflict Database, South Sudan – Military and Security updates, 2018, 2019; “South Sudan army, NAS rebels clash near RDC border”, Sudan Tribune, 8 February 2019. The group is also able to take collective decisions and speak with one voice; it has for instance rejected the 2018 revitalized peace agreement but committed to the 2017 cessation of hostilities agreement and called for unfettered humanitarian access. “NAS’s conference supports rejection of South Sudan revitalized peace deal”, 28 November 2018.
2015 and 2018 Peace Agreements, 2017 Cessation of Hostilities 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. 'South Sudan: Ceasefire violations, hostile propaganda undercut regional peace push, Security Council told', 24 January 2018. Amongst other things, 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. Following the outbreak of fierce fighting in Juba in July 2016, the Peace Agreement collapsed. The clashes included continuing ethnic violence, reports of widespread sexual violence and rape by government forces, looting, and indiscriminate attacks. HRW, "South Sudan: Killings, Rapes, Looting in Juba", 15 August 2016.
On 21 December 2017, parties to the conflicts, including the SPLA, the SPLM/A-IO and the NAS, signed an Agreement on Cessation of Hostility, Protection of Civilians and Humanitarian Access. '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, the agreement has been repeatedly violated. 'South Sudan: Ceasefire Violations, Hostile Propaganda Undercut Regional Peace Push, Security Council Told', UN News Centre, 24 January 2018; International Crisis Group, “Salvaging South Sudan’s Fragile Peace Deal”, 13 March 2019.
In September 2018, government and opposition leaders signed a “Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan”. The agreement envisions a transitional government led by President Salva Kiir with Riek Machar as first vice president and four additional vice presidents. It provides for an eight-month pre-transitional period, followed by a 36-month transitional period. The NAS however has not signed the Agreement. “Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan”; “Juba deal ignored root causes of conflict, rewarded political elite”, The East African, 13 March 2019.
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 2018 Peace Agreement has not so far led to such a lasting cessation. Armed clashes were reported days after the signing of the agreement and they continue on a regular basis. Armed Conflict Location and Event Dataset, Country Report: South Sudan Conflict Update, July 2016; IISS Armed Conflict Database, South Sudan – Military and Security updates, 2018, 2019; Report of the UN Commission on Human Rights in South Sudan, March 2019. Therefore, the non-international armed conflicts continue.
UN Peacekeeping Mission and Regional Protection Force
In 2011, the UN Security Council established the United Nations Mission in the Republic of South Sudan (UNMISS) “to consolidate peace and security, and to help establish the conditions for development in the Republic of South Sudan”. UNSC Resolution 1996 (2011). Following the 2013 crisis, UNMISS was reinforced in 2014 and its mandate reprioritized towards the protection of civilians, human rights monitoring, and support for the delivery of humanitarian assistance and for the implementation of a 2014 Cessation of Hostilities Agreement. It was authorized to use “all necessary means” to perform these tasks. UNSC Resolution 2155 (2014).
To supplement the peacekeeping mission, the Security Council authorized, on 12 August 2016, the deployment of the Regional Protection Force with a robust mandate, under the command of UNMISS. With 4,000 troops, the Regional Protection Force is mandated to provide “a secure environment in and around Juba […] and in extremis in other parts of South Sudan”. This includes provinding protection to key facilities and routes in Juba and to strengthen the security of UN Protection of Civilian sites, other United Nations premises, United Nations personnel, humanitarian actors and civilians. The Regional Protection Force is authorized “to use all necessary means, including undertaking robust action where necessary and actively patrolling” to accomplish its mandate. UNSC Resolution 2304 (2016). 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 Sudan: 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.
As of March 2019, UNMISS had 19,402 deployed personnel. UNMISS Factsheet
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 SPLM/A-IO 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.
It is however unclear, as of June 2019, whether the NAS fulfills the requisite territorial control criterion for the applicability of Protocol II. In any case, Protocol II does not apply to the fighting between the SPLM/A-IO and the NAS as the two entities are non-state armed groups. Common article 3 and customary IHL rules applicable in non-international armed conflicts nonetheless cover the activities of the NAS.
In addition to international humanitarian law, international human rights law continues to apply during armed conflicts.