Prioritising Reparations for Conflict-Related Sexual Violence over Prosecution and Prevention

Today the 19th of June marks the International Day for the Elimination of Sexual Violence in Conflict, intended to raise awareness of the need to put an end to conflict-related sexual violence. 2019 also marks the 10 year anniversary of the creation of the mandate of the Office of the Special Representative on Sexual Violence in Conflict. While the past decade has seen initiatives such as the UK’s Preventing Sexual Violence Initiative (PSVI), sexual violence remains prevalent. Moreover, international action has become a shrinking space for adequately responding to victims and survivors’ needs, such as the recently regressive 2019 Women, Peace and Security Resolution 2467 that removed all reference to sexual and reproductive services.

As a registrar doctor in obstetrics and gynaecology conducting a PhD on reparations for conflict-related sexual violence I have interviews dozens of victims of CRSV and come across many in my own practice, which continue to evidence inadequate reparations to remedy their harm. My research has also highlighted the value of an interdisciplinary approach to such complex topics, rather than remaining in our own professional or disciplinary silos, there needs to be a more coordinated response to victims’ needs. As such with victims, healthcare practitioners and transitional justice actors in Peru, Colombia and Uganda I have been exploring a medico-legal approach to reparations for CRSV to better appreciate the harm and stigma of victims and their families, how to more appropriately respond to the harm, but also the role and responsibility healthcare professionals play, such as in forced sterilisation in Peru.

This blog hopes to highlight some of my preliminary findings, in that while there has been increasing attention to reparations for CRSV, it has seen a blurring between charity/ assistance and a rights based approach to reparations that degrades remedying victims’ harm. These questions are not just academic, but also reflect victims’ experience, such as the comfort women’s rejection of funding without acknowledgement of responsibility or apology from the Japanese government. Moreover, reparations are more about providing victims with just compensation, but recognising their harm and ensuring their rights to also medical, legal and social rehabilitation along with other remedial measures (satisfaction, restitution and guarantees of non-repetition). As such this post outlines the key principles for guiding reparations for CRSV that go beyond prosecution and prevention that continue to dominate the international community’s response to such violence. There principles highlight that reparations can more appropriately respond to victims’ harm and experience, while complementing the broader goals of accountability and prevention of recurrence.

Principles

There are a number of principles on reparations for gross violations of human rights or grave breaches of international humanitarian law. Pablo de Greiff, former UN Special Rapporteur on truth, justice, reparations and guarantees of non-recurrence, suggests a number of principles to assess the effectiveness of reparation programmes of completeness; comprehensiveness and complexity; integrity or coherence; finality; and munificence.

Completeness involves the coverage of the ‘whole universe of potential beneficiaries’. Comprehensiveness covers the distinct types of violations or harm, with complexity concerning the variety of measures, such as going beyond just compensation. Integrity involves internal and external coherence, which refers to the relationship between different types of reparations and other transitional justice mechanisms respectively. Finality pertains to whether a reparation programme closes other avenues for victims to bring redress. Lastly, munificence relates to the scope of a reparation programme’s benefits. The Colombian reparation programmes aims to meet these principles, but faces problems of scale and deliverability.

However there is little guidance on conflict-related sexual violence. The 2005 UN Basic Principles on the Right to Remedy and Reparations is gender neutral, even blind, just providing a principle of non-discrimination. The civil society driven 2007 Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparations also outlines the importance of transforming the structures of violence which give rise to sexual violence such as CRSV, but it is not binding on states.

Ruth Rubio Marin adds two further categories from a gender perspective on implementing reparations, in particular for sexual violence: openness; and transformative potential. Openness refers to the ‘level of participation of victims, victims’ groups, and other relevant actors in civil society in the design of a reparations program’. This openness not only improves the transparency and effectiveness of such reparation programs and outcomes, but Rubio-Marin suggests it can also have a ‘reparative effective by affirming the victims’ status as active citizens’ recognised and respected by the state. Rubio-Marin indicates that the transformative potential is the extent to which a reparations program has the ‘capacity to subvert, instead of reinforce, pre-existing structural inequalities’, not limited to gender hierarchies. Victims of sexual violence often face stigma from their family, community and society that disincentives them from speaking out or punishes those who do so.

A Medico-Legal Approach

A medico-legal approach would add three further principles to provide a more victim-sensitive approach: do no harm; vulnerability; and temporality. Do no harm – ensures that reparations do not compound victims’ harm, and safeguards against uninformed risks of procedures and interventions. Importantly a do no harm approach would stipulate that victims are treated with respect and dignity (both in process and outcomes) so as to guarantee they are not coerced to chose a measure they are not satisfied with nor does it reinforce stigma. For instance, when offering psychological support, victims may also need physical support or vice versus. It is imperative to recognise how one may impact the other at different points in a person’s lifetime, which needs to be reflected in referral pathways for each individual. Alternatively only offering them short term reparation when they need long term support, may cause them further harm and distrust of service providers, especially when their health trajectory is likely to degrade due to age and/or disability.

Any actor involved in reparation can cause deliberate or unintentional harm. In one interview with a local counsellor in Uganda, they told me about a male victim of sexual violence for whom they cared. When this victim went to a doctor in his local hospital he was disbelieved that he was a victim of sexual violence and was rejected from having treatment. Accordingly a component of ‘do no harm’ is recognising and challenging unsafe or unethical practice. Similarly in Colombia the use of purple bracelets helps to identify victims of sexual violence, intended to reduce victimisation by avoiding asking victims about the violation, but as an obvious marker can also cause stigma in itself an unintended harm.

Vulnerability – the situation of vulnerability appreciates how certain groups are impacted more than others, or uniquely harmed, and what type of measures would facilitate redressing intersecting violations. Further still the principle of vulnerability can facilitate a transformative approach and reveal health inequities. The principle requires priority to certain individuals who are vulnerable to access reparation to alleviate their suffering from compounding further. This may include victims of displacement and in displaced persons camps where high rates of sexual violence occurs. For sexual violence being identified as a victim in a reparation programme may cause further social repercussions such as stigma. In Colombia victims in rural areas spoke of insecurity, infiltration of health services by armed groups or social and economic marginalisation that mean they suffered multiple violations and have no service provider to turn to in order to avoid further victimisation.

Temporality – focuses on how the impact of harm can change over time (increase, reduce or resolve). It also requires consideration of the appropriate moment for which reparations to be applied. For example, HIV (human immunodeficiency virus) can develop into AIDS (acquired immunodeficiency syndrome) and conditions to related immunocompromise and late presentation of HIV, such as certain HIV-associated malignancies and opportunistic infections. This underlines the importance of providing humanitarian assistance or interim relief to victims to mitigate their health being worsened or morbidity increasing.  Equally, harm may not manifest until years after registration programme has closed, such as delayed expression of psychological effects or sub-threshold symptoms that do not meet clinical criteria of diagnosis until later in life. For instance in Colombia, medical professionals spoke about victims of CRSV often taking years to come forward, often ten or twenty years later as the consequences of their sexual violence become so acute that they can no longer hide it or cope.

An array of sensory triggers may contribute towards the manifestation of psychological distress that may be linked to sexual violence, like a further traumatic or life event, such as childbirth or a new intimate or sexual relationship. Stigma from sexual violence and the added possibility of a mental health illness functions as a barrier to timely diagnosis (stigma multipliers). Temporality also raises the question of whether reparations are the most suitable intervention given the stage of transition a society may be in (and who they are willing to accept as eligible victims for reparations at a specific time point).

Together these principles indicate that sexual violence in conflict and other situations of mass victimisation raises difficult and complex issues that are perhaps glossed over in the rhetoric of ‘ending rape in war’ or even the notion of ‘conflict-related sexual violence’ as a distinct phenomena for prosecution and reparation. At the same time there is a place for healthcare service provision and reparations to complement each other. As doctors we are not trained or practice in terms of who is a victim and who is not. Nonetheless, social and cultural contexts can shape personal attitudes of healthcare practitioners. In general terms we think of the patient as a person and treating their symptoms and working out the cause or diagnosis and formulating an individualised treatment plan for them that aims to improve outcomes. There is a lot to be learnt in these terms of seeing the person and their suffering. Importantly reparations are victim-centred measures intended to remedy and acknowledge their harm, prevention and prosecution are important, but if we are serious about justice for these types of violations it has to start with it benefiting those most directly affected.

Photo of Nurse Norbert Chambu treats approximately five victims of SGBV a week, by USAID

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