South Sudan's Sexual Violence Crisis - More Than a Wartime Phenomenon

South Sudan continues to grapple with a pervasive crisis of sexual violence, extending beyond the immediate context of armed conflict. This article examines the systemic failures of the state, peacekeeping missions, and justice mechanisms that perpetuate this crisis, highlighting how deeply entrenched societal norms and institutional weaknesses contribute to widespread impunity. Despite constitutional guarantees and international obligations, the formal justice system struggles with capacity, while customary law often undermines women's rights. The United Nations Mission in South Sudan (UNMISS) faces challenges in its protection mandate. The article argues that a comprehensive approach involving robust legal reforms, strengthened accountability, and a shift in societal attitudes is essential to address this persistent human rights violation.

South Sudan, a nation scarred by decades of conflict, faces a persistent and alarming crisis of sexual violence that transcends its wartime origins. While often associated with armed conflict, the prevalence of sexual violence in South Sudan is a deeply rooted societal issue, exposing profound failures in the state's protective mechanisms, the mandates of peacekeeping missions, and the efficacy of justice systems. This enduring crisis demands a critical examination of the legal and institutional landscape that allows such atrocities to continue with widespread impunity.

This article posits that the ongoing sexual violence crisis in South Sudan is not merely a byproduct of conflict but a systemic problem exacerbated by weak governance, a dysfunctional justice sector, and the complex interplay between statutory and customary law. It highlights the urgent need for comprehensive reforms that address not only the immediate acts of violence but also the underlying structural and cultural factors that perpetuate them, thereby failing to protect civilians and ensure accountability for perpetrators.

The legal framework in South Sudan is a hybrid system comprising the Transitional Constitution of the Republic of South Sudan, 2011, statutory laws, and customary laws. The Transitional Constitution enshrines human rights and fundamental freedoms, including equality for all citizens, and states that international human rights treaties ratified by South Sudan are an integral part of its Bill of Rights. South Sudan ratified the African Charter on Human and Peoples' Rights in 2013 and the Maputo Protocol in 2023, formally committing to regional instruments that guarantee women's rights and protection from violence.

Domestically, the Penal Code Act, 2008, criminalizes sexual violence, defining rape as sexual intercourse without consent and setting the age of consent at 18 years. However, marital rape is not explicitly recognized as a crime under either statutory or customary law, creating a significant gap in protection. Customary law, which plays a dominant role in the daily lives of many South Sudanese, often conflicts with constitutional guarantees and statutory provisions, particularly concerning women's rights. Customary courts frequently handle serious criminal matters like rape, despite lacking inherent jurisdiction, and their rulings can be biased against survivors, sometimes even forcing victims to marry their rapists or face charges of adultery.

The persistent nature of sexual violence in South Sudan underscores critical failures across multiple fronts. Firstly, the state's capacity to prevent and prosecute sexual violence remains severely limited. Despite legal prohibitions, most sexual violence cases do not reach formal courts due to poor investigative capacity of the police, evidentiary challenges, and court biases. The judicial system is backlogged and under-resourced, and legal aid for victims is primarily administered through NGOs, with state-appointed legal aid reserved for those charged with serious offenses.

Secondly, the role of peacekeeping missions, specifically the United Nations Mission in South Sudan (UNMISS), while crucial, has faced limitations. UNMISS is mandated to protect civilians, including from conflict-related sexual violence (CRSV), and to monitor and report on human rights violations. Its mandate was strengthened in 2016 to explicitly deter and prevent sexual violence. However, reports indicate a disconnect between mandate language and operational reality, with challenges in ensuring adequate protection capacity, sustained monitoring, and unrestricted humanitarian access. Recent mandate renewals have even raised concerns about reduced troop numbers and the removal of explicit CRSV references, signaling a potential rollback of gender commitments.

Thirdly, impunity remains a pervasive issue. Both state and non-state armed actors have been implicated in sexual violence, with limited willingness to investigate or prosecute perpetrators. The 2018 Revitalized Agreement on the Resolution of the Conflict in South Sudan (R-ARCSS) included provisions for transitional justice mechanisms, such as a Commission of Truth, Reconciliation and Healing, a Compensation and Reparation Authority, and a Hybrid Court. While parliament recently approved bills for a truth commission and reparations authority, there has been pushback on establishing the Hybrid Court, which is critical for prosecuting grave crimes. This selective implementation often absorbs perpetrators into state structures without accountability, undermining justice for survivors.

Finally, the crisis is deeply embedded in the socio-cultural fabric, extending beyond active conflict. Practices such as early and forced marriages, coupled with deeply patriarchal customary laws that often cast men as heads of families with subservient female roles, perpetuate gender inequality and normalize violence against women and girls. The stigma associated with sexual violence often deters survivors from reporting, and in some cases, victims are charged with adultery if a conviction against the perpetrator is not secured. This cultural acceptance and systemic devaluation of women contribute to the high prevalence of sexual violence, even in periods of relative peace.

The persistent crisis of sexual violence in South Sudan is a complex challenge rooted in a confluence of conflict-related trauma, weak governance, institutional failures, and deeply entrenched patriarchal norms. Addressing this requires a multi-faceted and sustained approach that moves beyond reactive measures to comprehensive systemic reform. Practitioners must advocate for the full and effective implementation of South Sudan's international and regional human rights obligations, particularly the Maputo Protocol, and push for domestic legal reforms that explicitly criminalize all forms of sexual violence, including marital rape, and ensure a clear minimum age of marriage at 18 without exceptions.

Furthermore, there is an urgent need to strengthen the formal justice system through enhanced investigative capacities, specialized courts for gender-based violence, and robust victim protection mechanisms. Efforts must also focus on reconciling customary law with human rights standards, ensuring that traditional justice mechanisms do not undermine statutory protections. Ending elite impunity, supporting survivor-centered justice, and expediting the establishment of the Hybrid Court are critical steps towards accountability and breaking the cycle of violence. The international community, including UNMISS, must maintain explicit provisions for conflict-related sexual violence in its mandates and ensure adequate resources and unrestricted access to address this enduring crisis.