In February 2018, authorities in Chile granted historical monument status to a  clandestine detention center formerly located in the basement of Plaza Constitución, in the heart of Santiago’s civic district. Known as Cuartel N°1 (headquarters N°1) of the police intelligence services (SICAR), or as El Hoyo (the Hole), this site functioned as an interrogation and torture center during the dictatorship era, between 1973-1974. This recognition is symbolic given the site’s location at the time, under a square in front of La Moneda presidential palace. It is also significant because this site was one of many where prisoners, in particular women, were subjected to systematic sexual torture during the 1973-1990 military regime. Over this last decade, other detention centers notorious for sexual violence have attained national heritage status. These memorialization initiatives are a form of reparations to the victims. They are also the result of sustained advocacy efforts by victim groups, who have demanded that public steps be taken to memorialize the atrocities of the Pinochet regime.

However, dealing with the past is complex, and a gap remains between memory processes and justice efforts. To date, there have been no convictions for sexual violence in human rights trials in Chile. The 2004 Valech truth commission report marked the first public acknowledgement that the military regime routinely used sexual violence against political opponents in state-run detention facilities. Focusing on cases of political prisoners and torture, the report identified various sites where this tactic was used. The Valech commission’s archives could not be made available to the courts as a 50-year secrecy law prohibited public and judicial access to this information, although partial judicial access has since been granted. Importantly, the law did not prevent survivors from separately pursuing criminal or civil actions.

When survivors and witnesses of sexual violence have come forward in human rights trials, judges have largely disregarded their evidence. Courts have tended to prioritize the prosecution of deaths and disappearances, focusing primarily on murder and kidnapping charges. Torture has been considered of lesser gravity, in part due to its inadequate inclusion in the law in force at the time of the offences. While several recent decisions have included torture convictions and have reflected its gravity in the penalties imposed, courts have yet to expressly recognize sexual violence as a form of torture. Judges have also been reluctant to convict individuals for sexual violence due to the absence of physical evidence, failing to apply international precedents in reaching their findings.

In recent years, sexual violence survivors have demanded justice, insisting on categorizing these abuses as torture. In 2016, two women publicly denounced the sexual torture committed against them at the SICAR’s Cuartel N°1. Through their legal representatives, both had also previously filed criminal complaints for these crimes (in 2010 and 2015 respectively). The decision in this case (case N° 629-2010) is currently pending, but it is unlikely to result in convictions for sexual torture. The indictment against the twelve accused in the case only included charges for kidnapping, with sexual violence as an aggravating circumstance. A handful of sexual violence survivors have brought similar complaints −including several former detainees of an infamous torture center in Santiago known as Venda Sexy (Sexy Blindfold) or as the Discotheque, where guards played loud music while they sexually abused blindfolded prisoners. As state-funded legal aid is only available for the relatives of absent victims (the dead and disappeared), and not for torture survivors, these survivors have had to seek their own legal representation.

While criminal accountability for sexual violence has been lacking, the Supreme Court has recognized the right of survivors to bring civil claims for dictatorship-era sexual violence. In January 2018, in the case of Lara Reyes vs the State of Chile (case N° 31.711-17), the Supreme Court overturned a 2017 ruling of the Santiago Appeals Court for failing to uphold a plaintiff’s right to seek reparations for the sexual violence she suffered. The crimes occurred on 8 March 1984 during a political protest. Policemen arrested the victim, then a minor, and took her to a local police station, where she was held in a basement and gang-raped by several policemen. While the Appeals Court acknowledged that the policemen had sexually assaulted the victim, it found that the statute of limitations applied to the civil action for damages−filed 31 years after the crimes occurred. It held that the sexual violence did not amount to a crime against humanity, but rather was an isolated and private act, committed for personal motives by the perpetrators and not in furtherance of a State policy. It further noted that two of the perpetrators had already been convicted for the crimes under ordinary criminal provisions.

In overturning this decision, the Supreme Court made several key findings, reaffirming its prior jurisprudence on reparations for torture survivors. It found that the sexual violence in the case amounted to a crime against humanity given the political context in which it occurred, the participation of state agents and the fact that the victim’s illegal arrest had facilitated the crimes. It reasoned that, in these circumstances, the statute of limitations did not apply to either the criminal or civil actions. Finally, it held that the Chilean state and the courts have the duty to uphold the right to reparations of victims of dictatorship-era abuses. Although this case was not included in the Valech report, the Supreme Court accepted the state’s duty to provide reparations on the basis of international law.

Chile has come a long way in reckoning with its violent past. But this process remains unfinished. According to official estimates from September 2017, 1328 human rights criminal cases are currently pending at different procedural stages. Between mid-2016 and mid-2017, the Supreme Court’s criminal chamber handed down 55 judgments in human rights trials (for more details, see pages 68-71 of this report). However, accountability efforts have not included sexual violence survivors, and they have had to bear the burden of triggering compliance with the state’s obligations under international law to prosecute those responsible. Decades after the crimes took place, the window to provide redress to these victims is quickly closing.

 

In April, Oxford University Press will publish a book called “Prosecuting Conflict-Related Sexual Violence at the ICTY”, edited by ICTY Prosecutor Serge Brammertz and ICTY Principal Legal Counsel (Deputy to the Prosecutor) Michelle Jarvis. The book is an extensive, rich and compelling 11-chapter publication aimed at galvanizing efforts to improve accountability for sexual violence crimes. It has unique historical value as it records the experience of the ICTY’s Office of the Prosecutor (OTP) in prosecuting conflict-related sexual violence over the past two decades. It also has practical value as it has been written from a practitioner’s perspective to promote better accountability outcomes in the future at both international and national levels. It provides strategies to address common challenges in prosecuting sexual violence cases−offering concrete recommendations to overcome them.

This book is the product of several years of research of the Prosecuting Sexual Violence (PSV) Working Group of the ICTY’s OTP. Created in 2009, the PSV Working Group aimed to document and share the OTP’s legacy in this field before the Tribunal’s closure. For this purpose, it focused on examining the ICTY’s experience in prosecuting sexual violence crimes and reflected on lessons learned over the past two decades. The PSV Working Group conducted interviews with past and present OTP staff members with relevant experience and reviewed extensive internal and public documentation relating to its sexual violence cases, as well as transcripts and case files. Through its work, it identified prevalent and mutually reinforcing themes and fundamental insights for successful prosecutions.

Three key insights to successful sexual violence prosecutions emerge from this legacy work. These insights are discussed throughout the book.

First, the book highlights the crucial importance of conceptualizing sexual violence crimes as violent crimes. Accurately characterizing sexual violence can help overcome pervasive misconceptions that these crimes are incidental, personally motivated or opportunistic acts simply because of their sexual component. These misconceptions negatively impact criminal investigations, as they may lead prosecutors and investigators to discount the seriousness of sexual violence and not prioritize these crimes in their work. These misconceptions may also lead prosecutors to miss the connections between sexual violence and the prevailing context of mass atrocity, making it in turn more difficult to hold senior level officials accountable for these crimes. The book provides concrete recommendations for applying the appropriate analytical lens and legal framework to clearly reflect the connections between the crimes and the context in which they are committed, identify the characteristics of sexual violence, and understand the nature of the harms inflicted on the victims and their communities.

Second, the book focuses on the importance of adopting a witness-centered approach in sexual violence prosecutions, tailored to the needs of each individual. By creating an enabling environment that allows victims and witnesses to provide the best possible evidence, prosecutors can enhance their willingness to testify and their ability to do so effectively. The book contains guidelines to inform the work of prosecutors in preparing witnesses and questioning them in court, and in overcoming the barriers that prevent them from coming forward.

Lastly, the book emphasizes the importance of implementing and prioritizing strategies for keeping sexual violence prosecutions on the agenda over time in a prosecution office. This involves treating sexual violence prosecutions as core work and putting in place comprehensive policy guidelines on prosecuting these crimes that are duly enforced. A visible and effective commitment from the senior management in a prosecution office is also crucial to addressing these crimes, as the office leadership is responsible for setting the appropriate tone for gender issues. The book proposes strategies to mainstream the prosecution of sexual violence crimes and to incorporate a gender perspective within a prosecution office.

Alongside the publication of this book, a Prosecuting Conflict-Related Sexual Violence Network has been launched within the International Association of Prosecutors and with the support of the ICTY’s OTP. The network is a forum for sharing expertise and knowledge among practitioners from different regions of the world, and for facilitating their training and access to relevant legal materials. It seeks to promote the development of progressive approaches to sexual violence prosecutions and contribute towards increased accountability for these crimes. Both the book and the network mark important steps in moving the accountability dialogue forward.

Next Friday, November 6^th, don’t miss the panel “Gender justice: addressing domestic challenges through international law”  at the International Law Weekend in New York.

Achieving justice for gender-based human rights violations is a significant challenge in post-conflict regions. The panel will explore different regional approaches to pursuing accountability for gender-based human rights violations through international law. The panelists will focus on legal advocacy and litigation strategies that can be used to promote gender justice at the domestic level.

Panelists:

•  Michelle Jarvis, Principal Legal Counsel, Office of the Prosecutor, ICTY
•  Linda Bianchi, Public Prosecutor, Public Prosecution Services of Canada, Ottawa; Former Appeals Counsel, Office of the Prosecutor, ICTR
•  Pam Spees, Staff Attorney, Center for Constitutional Rights
• Priya Gopalan, Human rights and gender practitioner; former OHCHR Gender Advisor and ICTY Attorney

Moderator:
· Daniela Kravetz, International criminal justice and gender consultant, UN Women.

We look forward to your attendance and contributions to the discussion that will follow the presentations.

Date: Friday, November 6^th, 16:45pm

Location: Fordham University School of Law

Address: 150 West 62nd Street, New York