Conflict-related sexual violence: what are we talking about? (Part 2)

This post is a continuation of Conflict-related sexual violence: what are we talking about? (Part 1),” posted yesterday morning.

III. …and took time to be prosecuted as a crime against humanity and a war crime.

For centuries, CRSV crimes did not preoccupy international tribunals. While sexual violence had been committed during World Wars I and II, impunity for such crimes was considered as normal before the Nuremberg or Tokyo tribunals. Rape was assimilated to bad treatments committed against civilians, and sexual violence in conflict was perceived as a collateral damage. If none of CRSV crimes were prosecuted at that time, it is because these crimes did not exist under international law. Pursuant to the principle of legality, developed by Cesare Beccaria in the 18th century and also known as nullum crimen, nulla poena sine lege, no one can be convicted of a criminal offence in the absence of a clear and precise legal text.

The first major step in the criminalization and recognition of sexual violence in conflict was the four Geneva Conventions of 1949. Common article 3 does not expressly mention rape nor other forms of sexual violence, but bans “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture,” and “outrages upon personal dignity, in particular humiliating and degrading treatment.” Article 27 of the Fourth Geneva Convention holds that “women shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution or any form of indecent assault.” In addition, rape is expressly mentioned in article 4§2 of Additional Protocol II of 1977, which states that outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault are and shall remain prohibited at any time and any place.

The NGO We ARE Not Weapons of War notes that, in 1992, the issue of the mass rape of women in former Yugoslavia came to the fore at the United Nations Security Council, which declared that the mass, organized, and systematic detention and rape of women, in particular Muslim women, persecuted in Bosnia and Herzegovina constituted “an international crime that was not to be ignored.”

A few years later, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) were the first tribunals whose Statutes explicitly included CRSV crimes. Article 5 of ICTY Statute and Article 3 of ICTR Statute included rape as a crime against humanity, alongside other crimes such as torture and enslavement. In 1998, the ICTR became the first international tribunal to consider the acts of sexual violence as constituting genocide. In its judgment against a former Rwandan mayor, Jean-Paul Akayesu, it considered rape and sexual assault to be acts of genocide insofar as they were committed with intent to destroy a protected group, in whole or in part.

Continue reading

Conflict-related sexual violence: what are we talking about? (Part 1)

In the context of the author’s attendance to the 18th Assembly of State Parties to the International Criminal Court, this blogpost aims at sharing knowledge about conflict-related sexual violence (CRSV) and providing a preliminary understanding of the issue. It first explores the use of CRSV through history. Then, it highlights how it targets both women, girls, men and boys. Last but not least, this blogpost depicts the slow development of international tribunals’ responses to this scourge.

I. Conflict-related sexual violence is an old phenomenon…

According to the United Nations, CRSV refers to rape, sexual slavery, forced prostitution, forced pregnancy, forced abortion, enforced sterilization, forced marriage and any other form of sexual violence of comparable gravity perpetrated against women, men, girls or boys that is directly or indirectly linked to a conflict. The term also encompasses trafficking in persons for the purpose of sexual violence or exploitation, when committed in situations of conflict. 

The French NGO We are NOT Weapons of War stresses that sexual violence used as a weapon of war has always been present in conflict, even though its victims have long seemed invisible. This idea is also supported by Stand Speak Rise Up, a non-profit organization from Luxembourg. In its white book, we can read that sexual violence in conflict is not new and the historical roots of this phenomenon are deep: from the Viking era to the Thirty Years’ War and the Second World War, rape has been part of the “spoils of war” throughout history, a weapon of the victors and conquerors. War rape is rarely the result of uncontrolled sexual desire, but rather a way to exert power and install fear in victims and their community. 

In the 1990s, the conflicts in Bosnia, Rwanda and the Great Lakes Region marked a major turning point in the use of sexual violence as a weapon to weaken and subdue vulnerable populations or to advance a political agenda. The Stand Speak Rise Up white book explains that CRSV was methodically organized and implemented in cold blood on a very large scale. Sexual violence in particular was also a tool of submission and terror at the end of the Cold War. 

Still nowadays, sexual violence can play a vital role in the political economy of terrorism, with physical and online slave markets and human trafficking enabling terrorist groups to generate revenue from the continuous abduction of women and girls. As an example, the Yezidi community in Iraq suffered and still suffers from these crimes, as the so-called Islamic State continues to target women and girls, abducting them and reducing them to sexual slavery and forced marriages. 

Perpetrators of such acts are often affiliated with States or non-State armed groups, including terrorist entities. Continue reading

Introducing Morgane Greco

photo-morgane-grecoIt is our great pleasure to introduce our new IntLawGrrls contributor Morgane Greco.

Morgane is an International Studies Master’s degree candidate from the University of Montreal. She holds a Public Law’s Bachelor additionally to a Political Science’s Bachelor from Lyon II University in France.

Thanks to the ERASMUS+ Program, Morgane has spent one semester in Nicosia, at University of Cyprus where she studied the post-conflict Cypriot society. For six months, she has been doing an internship at the United Nations Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict, in New York. She is currently finishing her master’s thesis about the work of this Office’s international civil servants in the fight against conflict-related sexual violence in the Democratic Republic of the Congo. Thanks to the Canadian Partnership for International Justice, Morgane attended the 2019 Assembly of the States Parties of the International Criminal Court. Earlier, in July 2019, she took part in the World Mediation Forum in Luxembourg where she gave a presentation on mediation and transitional justice in the Democratic Republic of the Congo, focusing on sexual violence’s crimes. 

Morgane’s interests are focused on the plague of conflict-related sexual violence, including meaningful reparations for victims, access to justice and accountability for perpetrators.  She is also highly involved in the fight against gender inequalities and its consequences.

Heartfelt welcome!

Discussion Friday 3 April: Domestic Violence During COVID-19: Sheltering at Home When Home is the Most Dangerous Place

The Roosevelt House Human Rights Program of Hunter College and the Sisterhood is Global Institute are hosting a live online discussion on Friday April 3 with frontline women’s rights activists from across the world.

Friday, April 3, 2020 1:00 pm – 2:00 pm EDT (17.00 – 18.00 GMT)

For victims of domestic violence, home is often the most dangerous place on earth. As the world moves towards lockdown to prevent the spread of COVID-19, women may have no safe place to turn. Moderated by Jessica Neuwirth, the discussion will explore current realities of domestic violence victims and solutions for supporting women in this vulnerable moment.

Discussants:
Carmen Espinoza, Executive Director of Manuela Ramos in Peru
Shafiqa Noori, Director of Humanitarian Assistance for Women and Children of Afghanistan
Diane Rosenfeld, Lecturer on Law and Director of the Gender Violence Program at Harvard Law School
Randa Siniora, Executive Director of the Women’s Center for Legal Aid and Counseling in Palestine

Registration is required. You may register here and join at zoom.us/j/580841531

New Report on Guatemala’s Justice Sector – “A Window of Opportunity: Support to the Rule of Law in Guatemala”

The International Legal Assistance Consortium (ILAC) has released a new rule of law assessment report, “A Window of Opportunity: Support to the Rule of Law in Guatemala”. The report examines the state of Guatemala’s justice sector after the closure of the International Commission against Impunity in Guatemala (CICIG) in September 2019. It discusses how recent threats against the justice sector have reversed much of the progress that was made to strengthen the rule of law during CICIG’s existence. 

Guatemala cannot combat corruption and strengthen the rule of law without ensuring an independent and impartial judiciary. With a new incoming executive, the report underlines that the international community must seize the window of opportunity to re-engage with Guatemala in combating corruption. This will require finding new and effective models of development cooperation to ensure more sustainable ways of strengthening the rule of law.

Read the full report here.

ILAC is a global rule of law consortium based in Sweden, providing technical assistance to justice sector actors in conflict-affected and fragile countries. ILAC’s mission is to rapidly respond to and assess the needs of the justice sector in conflict-affected and fragile countries, and help strengthen the independence and resilience of justice sector institutions and the legal profession. Today, ILAC has more than 80 members including individual legal experts as well as organisations representing judges, prosecutors, lawyers and academics worldwide.

High Court of Australia dismisses private prosecution of Aung San Suu Kyi for alleged crimes against humanity

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Source: By Alex Proimos from Sydney, Australia – High Court of Australia, CC BY 2.0, https://commons.wikimedia.org/w/index.php?curid=25649423

The High Court of Australia (HCA) recently dismissed a private prosecution of Aung San Suu Kyi – the State Counsellor of Myanmar – for alleged crimes against humanity against Rohingya people in contravention of the Australian Criminal Code. The judgment sheds light on the shortcomings of Australia’s domestic implementation of the Rome Statute of the International Criminal Court (Rome Statute) and raises important questions about the future of prosecutions of international crimes under Australian law.

Background

On 16 March 2018, Mr Taylor, a private citizen of Australia, lodged an application in the Registry of the Melbourne Magistrate’s Court alleging that Aung San Suu Kyi had committed the crime against humanity of the forcible transfer of population in contravention of section 268.11 of the Australian Criminal Code. Under section 268.121, the prosecution of these types of international crimes may only proceed with the consent of the Australian Attorney-General. Section 268.121 provides that:

(1) Proceedings for an offence under this Division must not be commenced without the Attorney-General’s written consent.

(2) An offence against this Division may only be prosecuted in the name of the Attorney-General.

Accordingly, Mr Taylor requested the consent of the Australian Attorney-General to commence the prosecution. The Attorney-General refused consent based on Australia’s observation of the principle of head of state immunity, which renders Aung San Suu Kyi “inviolable and immune from arrest, detention or being served with court proceedings”.

On 23 March 2018, Mr Taylor brought an application in the original jurisdiction of the HCA arguing that the Attorney-General erred in refusing to provide consent to the prosecution and requested the HCA to quash the Attorney-General’s decision. Specifically, the plaintiff submitted that, by ratifying the Rome Statute, “Australia took upon itself, as a matter of international obligation, not to recognise immunity based on official capacity for Rome Statute crimes in domestic criminal proceedings”. This is because article 27 of the Rome Statute removes immunity based on a person’s official capacity (e.g. Head of State).

The parties agreed to a set of special questions to be determined by the HCA, including whether the Attorney-General’s decision to refuse consent was erroneous by virtue of Australia’s ratification of the Rome Statute. However, the plaintiff failed to overcome the threshold issue of whether a private prosecution may be brought without the consent of the Attorney-General. The HCA, by a narrow four to three majority, therefore found it unnecessary to answer the remaining special questions regarding the current status of the principle of head of state immunity for international crimes before domestic courts and under principles of customary international law.

The HCA judgment Continue reading

Introducing Adaena Sinclair-Blakemore

Photo - AdaenaIt is our great pleasure to introduce our new IntLawGrrls contributor Adaena Sinclair-Blakemore! 

Adaena is an Australian lawyer interested in international human rights law, international criminal law and the implementation of international law into domestic law. She holds a Juris Doctor (First Class) from Melbourne Law School where she was the Editor of the Melbourne Journal of International Law. She also holds a Bachelor of Arts in French Studies and Italian Studies from the University of Western Australia.

She has previously interned in the Trial Chambers of the International Criminal Court and worked as a Research Assistant at the Asia Pacific Centre for Military Law at Melbourne Law School, where she undertook research on the laws of peacekeeping operations. During her Juris Doctor, Adaena was a student in the International Criminal Justice Clinic, a subject run in partnership with Amnesty International’s Human Rights in International Justice Project which focuses on monitoring and evaluating the human rights compliance of the international criminal tribunals.

Heartfelt welcome!