Breaking the Istanbul Convention Impasse in Lithuania

There is a sense of déjà vu surrounding the 2011 Council of Europe Istanbul Convention and the  related public debate in Lithuania. The treaty continues to find itself back on the political agenda and in public discourse, despite the parliament’s decision to put on hold its ratification in 2018.

And yet it is locked in stalemate as the major disagreement over the usage of ‘gender’ in the Istanbul Convention continues. According to Article 3c, ‘gender’ means “socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men”. Critics contend that the concept is unfamiliar to national law. It is argued that the Convention challenges the binary sex system and paves the way for the recognition of lesbian, gay, bisexual and transgender people.

There was also a legal sufficiency argument deployed by those objecting to the treaty. Lithuania “applies all the main provisions of the fight against violence against women, which the Istanbul Convention seeks to implement”, stated the ruling Lithuanian Farmers and Greens Union party in 2018. Little critical light was cast on this assertion, however. The society has instead immersed itself in the conceptual dispute. A recent episode was an open letter from Ausra Maldeikiene, the European Parliament member, addressed to the Catholic Church. It asks to clarify the theological stance in relation to the Convention, despite the bishops’ expressed opposition a couple of years ago.

Alternative approaches are needed to resolve the impasse. The Istanbul Convention — no matter how comprehensive, far-reaching and therefore appealing it is — should not divert from other strategies that could promote gender equality and tackle gender-based violence. One such strategy could be a reassessment of the legal sufficiency argument and the subsequent legal reform. More specifically, the reform of the 2000 Criminal Code and the sexual assault provisions contained therein.

Relevant Articles 149-153 are ill-suited to serve complainants of sexual violence. They are outdated, convoluted, and effectively place the burden of proof on victims.

Take, for example, the crime of rape. The partial definition contained in Article 149 treats it as “sexual intercourse with a person against their will by using physical violence or threatening the immediate use thereof or by otherwise depriving of a possibility of resistance”.

In truth, many victims do not resist. Neuroscience has shown that in the face of danger, the prefrontal cortex — the part of our brain responsible for rational thinking — is impaired. The defence circuitry takes over, leading the attacked person to retreat to learnt habits and reflexes. Shaped by evolution, this process is automatically activated. According to Jim Hopper, a teaching associate at Harvard University, “despite our dominant role on the planet now, we evolved as prey, and when a lion or tiger is upon us, stopping to think is fatal”.

Alas, the self-protection habits that sexual assault victims draw upon tend to be non-confrontational and ineffective. As Jim Hopper further suggests

“What if youre a woman and the only habits your brain cues up are those youve always relied upon to ward off unwanted sexual advances — like saying, I have to go home now” or Your girlfriend will find out”? Those phrases, and passive behaviours that go with them, may be your only responses, until its too late”.

If the defence circuitry determines the situation to be inescapable, it can trigger survival reflexes. These can range from partial or total immobility to difficulty speaking, dissociation, or even losing consciousness. Neurological responses seem counterintuitive, but learning about them is crucial to understand why many victims will submit to sexual attack. Their ability to resist should never, ever be assumed.

The legal premise about physical force warrants a revision, too. As Stephen J. Schulhofer, a criminal justice scholar, puts it, “force runs on a continuum — the knife at your throat, <…> the threat to take away your job or your children, the need to placate a thesis supervisor — all these things can lead a person to tolerate and submit to unwanted sexual advances”. Article 151 acknowledges that mental coercion or person’s dependency could be used in compelling individuals to have sexual intercourse; nevertheless, it is attributed to the lesser offence of sexual abuse. The latter carries a maximum sentence of three years, as opposed to seven years for rape. Ultimately, the form of violence used — be it physical, psychological or financial — should not be considered relevant. It is solely a means for coercive sexual behaviour.

It is high time to change the lens through which sexual offences are viewed. Unwanted bodily invasion is an act of wrongdoing — labelling it as such should not be dependent on whether or not a victim resisted, or what type of accompanying violence they had to endure. Instead, the focus should be placed on the victim’s consent as a voluntary agreement and the steps taken by the defendant to establish it.

For staunch proponents of the Istanbul Convention, the legal reform could offer a happy medium. Described by the United Nations as a ‘gold standard’, it recognises different forms of violence, including psychological (Article 33) and physical (Article 35). Its definition of rape is consent-based (Article 36). It may not yet be possible to align Lithuanian laws with the letter of the Istanbul Convention. But it does not mean that its spirit could not be followed.

As the aforementioned Catholic Church’s engagement shows, the echoes of religious — and political — actors can be louder than the voices of those subjected to gender-based violence. Women’s rights advocates have to attest to this reality. For many, the Istanbul Convention is too controversial.

Nonetheless, the backlash should not place an insurmountable constraint upon the activist imagination. Women’s and human rights defenders could redirect their energy towards the mobilisation of civil society, the initiation of legislative and educational campaigns, and lobbying. Criminal justice reform is a specific alternative that could be explored. Yet it is important to acknowledge — particularly in the current polarised context — that ways to strive for gender equality and improve victims’ lives are countless.

Trauma-Misinformed Justice at the International Criminal Court

Trauma permeates international criminal justice. Exposure to life and physical integrity threatening events is indiscernible from the gravest international crimes—genocide, crimes against humanity, war crimes, and the crime of aggression. The very creation of the International Criminal Court (ICC) was underpinned by efforts to shield humanity from mass trauma. The 1998 Rome Statute—the document establishing the ICC— acknowledges “unimaginable atrocities that deeply shock the conscience of humanity”, and mandates the Court to prosecute the mentioned crimes which “threaten the peace, security and well-being of the world”.

It may appear that in practice the ICC addresses trauma in a sensitive manner. In the first case of Lubanga, the judges noted that it may explain incoherence in the witnesses’ testimonies. Therefore, the Chamber “made appropriate allowance for any instances of imprecision, implausibility or inconsistency” [para. 103]. The latter approach had been echoed in the subsequent judgments (see, for example, Bemba, para. 230; Katanga, para. 83; Ngudjolo, para. 49; Ntaganda, para. 79).

Nevertheless, whilst the ICC seeks to embrace stories of adversity, it simultaneously acts as their arbitrary. What constitutes the “appropriate” is open to interpretation, thus the recognition of psychological injury is bound to be consensual. Consequently, representation of trauma—its instances and recollection—is stripped of heterogeneity, and its subjects are denied the unadulterated expression of suffering.

Minimisation of trauma

The courtroom stories revealed multiple instances of trauma in the seminal Lubanga case, including abduction of young people, separation from families, forced enrolment to military forces, and participation in hostilities.

Yet, the bench voiced reservations as to the witnesses’ experiences:

“The Chamber has taken into account […] the trauma the children called by the prosecution are likely to have suffered. […] some or all of them may have been exposed to violence in the context of war, and this may have had an effect on their testimony” [para. 479; emphasis added].

A well-examined lack of witness credibility may have had effect on the judges’ position; however, the legal facts should have been separated from the war actualities embedded in the broader case context. The latter concerned the DRC wars, marked by the destruction of infrastructure, massacres, cannibalism and public rapes. In the province of Ituri where the ICC investigation was conducted, 95 per cent of youth were found to have witnessed at least one traumatic event.

The probabilistic language used in Lubanga demonstrates the ICC’s failure to recognise trauma to its full extent; the issue further compounded by the relevant behavioural misinterpretations.

In the Katanga case, Witness P-28 demonstrated reluctance in providing the account of a particular battle. This surprised the Chamber: a “detached report […] did not appear to reflect the acts of someone who had directly participated in the attack, but rather seemed to be the recollection of a person far removed from the battlefield’’ [para.134].

However, such behaviour is indicative of dissociation; a psychological defence mechanism separating an individual from the traumatic event. Even though the ICC is claimed not to factor demeanour in determining witness’ reliability, it should refrain from remarking on behavioural peculiarities, which might be natural adaptive responses to threatening situations.

Prioritisation of sexual violence victims

Within the juridical trauma discourse, a category of crimes could be distinguished as receiving a different and favourable ICC’s treatment, namely the crimes of sexual and gender-based violence (SGBV). Notwithstanding the acquittal of Jean-Pierre Bemba in 2018, the Trial Chamber’s judgment serves as an instructive example: addressing rape as a crime against humanity and a war crime, it contains most references to trauma. The offence is portrayed as “humiliating and traumatic” [para. 1010].

The judges elaborated the effects of sexual violence—physical, psychological, social—in great detail. In one particular instance, Witness P22, who was raped by three men at gunpoint, was reported to be “suicidal, reluctant to engage in any sexual relationship, and exhibited symptoms consistent with post-traumatic stress disorder” [para. 508; see also paras. 469; 483; 492; 494].

It is true, as J.N. Clark observes, that the light cast on rape victims individualises them and directs attention to their needs. Nevertheless, it is odd that such excessive remarks are made solely with regards to SGBV victims. More problematically, the phrase “traumatising circumstances”—indicating extremely severe occurrences—appears to be primarily reserved for female SGBV victims (see, for example, paras. 468; 492).

Moreover, the depiction of individual harm is fragmented; sparse and mediated references to trauma symptoms oversimplify its understanding. The Court tends to misuse both gender lens and the language of trauma in representing collective wrongdoing. In honouring primarily female victims of sex crimes, the ICC— in D. E. Buss’ words—creates “archetypal representations of the ‘woman victim’ (that) too easily stand in as a conceptual shorthand for the complexity of atrocity’’.

Retraumatisation in the courtroom

Evidence giving is emotionally strenuous. As S. L. Steele notes, an individual subjected to the trial process may come to “physical or psychological harm in a new and different manner to the original traumatisation”. This is well exemplified by Witness’ P-132 experience in the Katanga trial: while testifying about multiple acts of rape and sexual slavery, on several occasions she “was overwhelmed by emotion and had to stop when she broke down in tears, leading to the hearing’s adjournment” [para. 205].

Some traumatic memories cannot be retrieved. Regarding Witness P-0010, the Chamber in Ntaganda highlighted that “in relation to certain issues, such as the circumstances of her alleged abduction [by militia], she frequently noted that she did not understand a question, or that her memory was failing her’’ [para. 91]. Witness’ reliability is subsequently questioned: according to the Defence, P-0010 was a “combative, biased and uncooperative witness” [para. 91].

The ICC procedural documents incorporate special measures to children, elderly people or SGBV victims. These include anonymity, testimony by video-link, and image and voice distortion.

The Court nonetheless tends to undermine the impact of the trial. In Lubanga, for example, the Trial Chamber attributed the evidence giving to mere “stress” [para. 478]. After being presented a photograph of a perpetrator, the mentioned Witness-132 in the Katanga trial was visibly affected; yet the bench was guarded in acknowledging her distress: “it does not rule out the possibility […] that her emotional response to the photograph could be explained by the trauma she suffered, since it can indeed be disturbing or painful to have to recall such experiences [para. 1005; emphasis added].

J. Herman once wrote, “if one set out by design to devise a system for provoking intrusive post-trauma symptoms, one could not do better than a court of law”. The magnitude and intensity of the international crimes compels the ICC to treat everyone engaging with the justice process as having encountered traumatic events. Its policies and procedures should ensure victims and witnesses’ safety, stabilisation and fairness.

Debating the Istanbul Convention in Lithuania: The Term ‘Gender’ is not Alien

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In June 2018, Lithuanian president Dalia Grybauskaite submitted to the national parliament the Council of Europe Convention on preventing and combating violence against women and domestic violence — known as the Istanbul Convention — for ratification. Entered into force in 2014, the Convention provides a comprehensive set of policy and legal measures to prevent and prosecute violence against women and protect the survivors.

Yet the treaty is bound to face political opposition, as demonstrated by the earlier parliament’s decision to put on hold its ratification. The main reason for the delay was the use of the term ‘gender’ in the Istanbul Convention. In accordance to Article 3c, ‘gender’ means ‘socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men’. The term is central to the Convention since it depicts violence against women as gender-based. In other words, it views gender violence as a consequence of power inequalities between men and women, which are rooted in sociocultural norms. The critics in Lithuania assert that the concept of ‘gender’ is unfamiliar to national law. It is further argued that the treaty challenges binary sex system and paves the way to the recognition of lesbian, gay, bisexual and transgender (LGBT) people.

This post, however, asserts that the concept of ‘gender’ has been long present in national law consequent to the country’s entry into two international treaties, 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the 1998 Rome Statute of the International Criminal Court (ICC). Relatedly, existent gender obligations are highlighted, including those owed to LGBT people.

CEDAW: promoting gender equality

The ruling Lithuanian Farmers and Greens Union party previously suggested that CEDAW, which Lithuania ratified in 1994, provided a sufficient framework to tackle violence against women. As a treaty dedicated to the elimination of discrimination against women, it is absent of the term ‘gender’ and is believed to overlap with the Istanbul Convention.

 Such arguments are defective. CEDAW does not contain a specific provision on violence against women. It is true that CEDAW uses the term ‘sex’, not ‘gender’; in substance, however, CEDAW is in alignment with the Istanbul Convention insofar both treaties require the state parties to undertake measures altering proscribed gender roles. For instance, CEDAW mandates the state parties:

 ‘To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women’ (Article 5a).

 ‘To eliminate ‘any stereotyped concept of the roles of men and women at all levels and in all forms of education by encouraging coeducation and other types of education which will help to achieve this aim’ (Article 10c).

 Appreciation of sociocultural factors is also evident in general recommendations of the Committee on the Elimination of Discrimination against Women, the treaty monitoring body. General Recommendation 28, for example, stipulates that ‘although the Convention only refers to sex-based discrimination . . . [it] covers gender-based discrimination against women. The term ‘gender’ refers to socially constructed identities, attributes and roles for women and men’. The addition of ‘gender’ to the Committee’s documents does not conflict with CEDAW. On the contrary, it provides the name to the addressed social dimension of inequality between women and men. The name, which entered a vocabulary of international law only in 1990s, after CEDAW was made. 

 The genie is out of the bottle: just as resistance to the concept of ‘gender’ due to its newness appears to be ungrounded, so does the belief that Lithuania does not have commitments to LGBT persons seems to be false. As Article 1 of CEDAW demonstrates, the treaty is a non-discrimination instrument targeting ‘any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing . . . of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field’. It may therefore be applicable, for example, to lesbians whose rights to marriage, health care and employment are adversely affected owing to heteronormative impositions.

The Rome Statute and the pioneer legal definition of ‘gender’

The Rome Statute may seem to have little relevance to the debates surrounding the Istanbul Convention and violence against women. It established a permanent international criminal court which has the jurisdiction to prosecute individuals over the crimes of genocide, crimes against humanity, and war crimes. Yet for the purpose of this article, the Rome Statute significant, since it was the first international treaty to define ‘gender’. Its ratification by Lithuania in 2003 demonstrates that the country encountered the term; and was presented the opportunity to engage the concept through its translation.

In accordance to Article 7(3) of the Rome Statute, ‘gender’ refers to the ‘two sexes, male and female, within the context of society’. This rather peculiar conceptualisation has a clear deterministic foundation: it acknowledges only two sexes, male and female. As I contended elsewhere, it may consequently exclude intersex individuals who are neither female nor male: they possess a combination of male and female genitalia, or have ambiguous genitalia.

The phrase ‘within the context of society’, meanwhile, enables the ICC to consider contextual factors, including gender roles, social attitudes, and sexual orientation. Article 7(3) has the scope of accommodating LGBT persons since most of them identify themselves as either male or female, yet they tend to experience discrimination due to non-adherence to heterosexual norms. The social construction of gender has also been highlighted by the ICC Office of the Prosecutor. Its 2014 Policy Paper on Sexual and Gender-Based Crimes explains that the definition of ‘gender’ ‘acknowledges the social construction of gender, and the accompanying roles, behaviours, activities, and attributes assigned to women and men, and to girls and boys’. Alas, the sociological component is lost in the Lithuanian translation of Article 7(3); in effect, it conflates ‘gender’ with ‘sex’.

So the Istanbul Convention would neither introduce the term ‘gender’ nor impose the requirement of LGBT-inclusive gender equality — both have been part of Lithuanian international responsibilities. It would, however, assist the country in addressing the root causes of gender-based violence, criminalise the latter adequately, and implement victim-centred protection and support measures.