Author: Anna v. Gall

Sexual and gender-based violence in the Colombian conflict should not get a raw deal before the International Criminal Court

/ Anna v. Gall / 3 Comments

In 2014 an average of two women were raped every three days in the course of the armed conflict in Colombia. Sexual and gender-based violence is a systematic and widespread phenomenon. Yet to date there have been very few convictions for sexualized violence – especially in cases in which the perpetrator was a member of the armed forces. By failing to act, the Colombian state is denying women the protection against sexualized crimes and access to justice that it is obliged to guarantee under national and international law. The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) in The Hague has to date failed to include a comprehensive gender perspective into its assessment of the Colombian conflict. In its Interim Report on the Situation in Colombia from November 2012, the OTP acknowledged that between 2002 and 2008, members of the Colombian army deliberately killed thousands of civilians (so called “falsos positivos” cases) and classified them as crimes against humanity. The OTP also noted that rape and other forms of sexual violence can be attributed to state forces, paramilitaries and guerrilla. Regarding state forces, however, the OTP thus far considered sexual crimes only as war crimes. It remained silent on the question of whether sexual violence committed by the state forces could amount to crimes against humanity.

A comprehensive legal analysis of a conflict situation under international criminal law requires an adequate narrative of the conflict, which necessarily involves a gender perspective in order to detect and avoid patriarchal ways of applying international norms and international criminal law. The new Policy Paper on Sexual and Gender-Based Crimes (PP) by the OTP of the ICC provides a helpful tool for applying these norms without reproducing gender inequalities. The content of the PP is the achievement of long-term lobbying by feminist activists and academics and is based on a liberal rights-based approach of feminist theory. In the PP, the OTP announces its intention to integrate a “gender perspective” and “gender analysis” at all stages of its work, terms, which, however, remain rather vague. Prosecutor Fatou Bensouda recently acknowledged, “an important aspect of challenging the culture of discrimination that allows sexual and gender-based crimes to prevail is the effective investigation and prosecution of those most responsible for such heinous crimes.”

Therefore, the OTP should start implementing its PP in the Colombian case. This could have a substantive effect on preliminarily examinations in general, and on evaluating command responsibility and the admissibility criteria in particular. Continue reading →

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Justice for Philippine Female Survivors of Enslavement during World War II

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On 23 August the European Center for Constitutional and Human Rights (ECCHR), together with the Philippine Center for International Law (CenterLaw), submitted a petition to the Philippine Supreme Court. ECCHR is acting in support of legal proceedings initiated on behalf of Philippine survivors of sexual violence during the Second World War.
Since 2004 CenterLaw has represented 70 members of the Malaya Lolas organization (Malaya Lolas). All of them survived a siege of Mapanizque on 23 November 1944, when Japanese troops attacked the inhabitants of Barangay Mapanzique, Candaba, in the Philippines. The inhabitants of the village were beaten and murdered. The female inhabitants were transported to the Japanese military headquarters at Bahayna Pula, where they were subjected to beating, abuse and rape by Japanese soldiers. The Malaya Lolas are calling on the Philippine government to support them in their claims for compensation from Japan, which had ordered the establishment of “comfort stations” on the Philippines.
The Philippine Supreme Court turned down this appeal on 28 April 2010, once again denying the survivors the possibility of receiving formal compensation. In the context of a new hearing on the matter, ECCHR’s petition aims to emphasize the Philippine government’s obligations. It stresses that at the time of the Second World War, the systematic wartime enslavement of women constituted a violation of international law and that the survivors have a right to individual compensation.
In particular, the petition shall remind the Government that the prohibition of slavery is recognized as ius cogens in international and national legal instruments and by numerous scholars and courts. Therefore, ECCHR’s petition relies on international treaty and customary law provisions to demonstrate that the prohibition of sexual slavery had peremptory character prior to the establishment of sexual slavery facilities by Japan between 1932 and 1945.
The Government of the Philippines has a duty to examine the claims for compensation that have been brought by the survivors.
For more information see ECCHR

Criminal complaint filed over German-Swiss corporate human rights abuses in Congo

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OLYMPUS DIGITAL CAMERAOn 25 April 2013, the European Center for Constitutional and Human Rights (ECCHR), in co-operation with the British human rights organization Global Witness, filed a criminal complaint with the public prosecutor’s office of Tübingen in southern Germany against a senior employee of the German-Swiss timber trading company Danzer Group. The individual in question, a German citizen, is suspected of breaching his duties by failing to prevent crimes committed by Congolese security forces. There is sufficient initial suspicion that through omission the employee was complicit in rape, inflicting bodily harm, false imprisonment and arson. The public prosecutor’s office of Tübingen is now obliged to further investigate the circumstances of the case and establish whether the Danzer employee is criminally liable.

During the early morning hours of 2 May 2011, a task force of local security forces attacked the village of Bongulu (Équateur province) in the Democratic Republic of the Congo (DR Congo). The forces submitted inhabitants of the village to abuse, rape and arbitrary arrests. During the attack, the task force used vehicles belonging to the company Siforco, a subsidiary of the Danzer group. In addition to providing vehicles and drivers, the company also paid the members of the task force for their involvement in the operation.

This incident follows a dispute between the village inhabitants and Siforco, which is based in the area, resulting from the failure of the company to abide by its contractual obligations to provide for social projects in the region.

This incident provides a typical example of the risk for companies operating in weak governance zones of becoming involved in or encouraging the violent activity of local security forces. Almost every day reports of sexual violence committed by state and non-state actors are carried by the media. Women and girls are raped or sexually abused during the course of most military and police operations. As such, the commission of sexual crimes cannot be seen simply as excessive acts of individual soldiers or police officers, but must be looked at in the broader context of the situation in the DR Congo. The European parent companies of firms operating in such environments must adapt their risk management strategy accordingly and must ensure that they are neither directly nor indirectly involved in human rights violations. In these cases organizational safeguards must be subjected to higher standards, which can be derived from existing international standards.

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