Go On! Prosecuting Sexual Violence in Conflict

IntLawGrrls readers in the Toronto area are warmly invited to attend an upcoming panel discussion on ‘Prosecuting Sexual Violence in Conflict: Lessons from International Criminal Tribunals’. It will take place on March 7, 2017, from 4:00-6:00 pm at the Munk School of Global Affairs, University of Toronto, The Vivian and David Campbell Conference Facility (1 Devonshire Place, Toronto).

Over the past two decades, international criminal tribunals have adopted groundbreaking judgments convicting individuals for rape, sexual slavery and forced marriage committed during armed conflict and genocide in the former Yugoslavia, Rwanda, Sierra Leone, the Democratic Republic of the Congo and elsewhere. At the same time, these tribunals have had some very public setbacks, with sexual violence cases dismissed, charges acquitted, and investigations failed. What lessons can be learned from these experiences that can inform future cases at the International Criminal Court and other tribunals?prosecuting-sexual-violence-in-conflict-poster-march-7-2017

This session will feature a keynote address by Michelle Jarvis, Deputy to the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY), on her recent book (co-edited with ICTY Prosecutor Serge Brammertz), Prosecuting Conflict-Related Sexual Violence at the ICTY. Responses will be provided by Linda Bianchi (formerly of the International Criminal Tribunal for Rwanda, now Canadian Department of Justice) and Valerie Oosterveld (University of Western Ontario Faculty of Law, Canada) on whether the ICTY’s lessons can be applied on a global scale.

This event is co-organized by the University of Western Ontario Faculty of Law and the Munk School of Global Affairs, with support from the Social Sciences and Humanities Research Council of Canada.

The event is free but attendees should register.

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ICC Assembly Finishes for Another Year

icc-asp-photo

Photo Credit: ICC-CPI

The annual Assembly of States Parties (ASP) to the Rome Statute of the International Criminal Court (ICC) has finished, having taken place from November 16-24 in The Hague, Netherlands. IntLawGrrls had a team of bloggers at the ASP, whose work in contributing a series of nine posts has now wrapped up.

These posts began with a discussion of the statements by States Parties at the opening of the ASP, in which many states expressed regret regarding the announced withdrawals of South Africa, Burundi and Gambia from the Rome Statute, and of support for the ICC and the anti-impunity project of international criminal law. This post noted that the feared mass withdrawal of African states did not materialize: rather, a number of African states – including Ghana, Nigeria, Botswana and the Democratic Republic of the Congo – reiterated their support for the work of the ICC.

The posts that followed ranged from a discussion of the reasons behind Burundi’s announced withdrawal, the Prosecutor’s preliminary examinations into crimes in Afghanistan and Guinea, the reality of the work of the ICC’s Trust Fund for Victims, the Prosecutor’s Policy on Children and complementary efforts to eliminate the use of child soldiers, an interview with Richard Dicker of Human Rights Watch (a key nongovernmental figure on international criminal law issues for over two decades), and women on the ICC’s bench.

This last issue will be one – among many – to watch between now and the opening of the next ASP. In 2017, the ASP will elect six new judges. These judges will replace judges whose terms are expiring, five of whom are female (including the current ICC President, Silvia Fernández de Gurmendi). With the ICC’s bench currently the most balanced between male and female judges of any international criminal tribunal, the stakes will be high in 2017 in order to maintain this momentum toward gender balance. Another issue to watch will be the ICC’s annual programme budget, which was approved at this ASP at just under €144.6 million (€141.6 million plus Host State Loan), representing a slight increase over the 2016 programme budget of €137.39 million.

intlawgrrls-bloggers-at-asp-with-prosecutor

ICC Prosecutor and Deputy Prosecutor with  IntLawGrrls bloggers and other members of the Canadian NGO team

Our IntLawGrrls bloggers had several memorable experiences at the ASP, including:

  • Attending a session on the protection of human rights defenders and witnessing Gladwell Otieno, director of the Africa Centre for Open Governance, being publicly threatened at the ASP by a senior Kenyan government official for critiquing the Kenyan government’s intimidation of civil society organisations:
  • Meeting with representatives of the ICC’s Office of the Prosecutor and the Canadian section of Avocats sans frontières/Lawyers Without Borders to discuss international criminal justice issues in Colombia. More generally, observing diplomacy through the interactions of different actors: civil society, state representatives and the organs of the Court:
  • Attending an event titled “Child Soldiers: Prevention and Accountability” with LGen (Ret’d) Roméo Dallaire, former Commander of the UN Mission to Rwanda during the 1994 genocide: and
  • Discovering the disconnect between the rhetoric of states around victims, and the relative lack of economic and other support by the same states for the Trust Fund for Victims.

We hope that IntLawGrrls readers have enjoyed this symposium on the ICC ASP. Join us again next year for more ASP analysis!

The participation of the IntLawGrrls bloggers to the 15th Assembly of States Parties to the Rome Statute of the International Criminal Court was supported by the Social Sciences and Humanities Research Council of Canada through the project “Strengthening Justice for International Crimes: A Canadian Partnership.”

Symposium: ICC Assembly of States Parties

I am pleased to introduce a new IntLawGrrls symposium on the International Criminal Court (ICC) Assembly of States Parties. The Assembly opens today in The Hague and will run until November 24.

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2015 ICC ASP, Credit ICC-CPI

The Assembly will open with country statements, and will then consider issues such as the ICC’s annual budget for 2017 and reports from the various organs of the Court. It will also hold a panel discussion on “effective cooperation and accountability for Rome Statute crimes: the contribution of national, regional and intergovernmental initiatives” and an Open Bureau meeting titled: “Relationship between Africa and the International Criminal Court: Resuming dialogue to win the fight against impunity”. The latter is particularly salient, given recent announcements by South Africa, Burundi and Gambia that they are withdrawing from the Rome Statute. There are a number of interesting side-events meant to prompt discussion on key challenges facing the Court.

During the Assembly, IntLawGrrls is excited to have four bloggers – Rouguiatou Baldé, Jessica Dufresne, Claire Magnoux and Kirsten Stefanik – reporting daily from The Hague on key developments. Rouguiatou, Jessica, Claire and Kirsten are all doctoral students based at Canadian universities. In true Canadian fashion, their IntLawGrrls posts will be both in English and in French.

rouguiatou-p_Rouguiatou Baldé est criminologue, économiste, et chimiste. Elle effectue actuellement un doctorat en Criminologie à l’Université de Montréal , sous la supervision de Joe-Anne Wemmers. Ses recherches portent particulièrement sur la Victimologie, la Justice Internationale pénale, et la justice transitionnelle.Elle est également titulaire d’une Maîtrise en Justice Pénale, d’une Maîtrise en Économie, option Finance et d’une Maîtrise en Chimie, option Contrôle des Qualités des produits naturels et industriels.

jessica-dufresneJessica Dufresne est candidate au doctorat en droit à la Faculté de droit de l’Université d’Ottawa. Finissante de l’École du Barreau du Québec, elle est également titulaire d’une licence en droit de l’Université Paris-1 Panthéon Sorbonne, d’un baccalauréat en droit de l’Université Laval et d’une maîtrise en droit international de l’Université du Québec à Montréal au cours de laquelle elle a rédigé un mémoire portant sur la protection du droit à l’alimentation en Inde. C’est dans le cadre de ce parcours à la maîtrise qu’elle a développé un intérêt prononcé pour la sécurité alimentaire et qu’elle a décidé de s’impliquer dans la lutte pour une meilleure justice alimentaire au Canada, en mettant notamment sur pied le premier frigo communautaire au pays (Le Fridge de Rosemont la Petite-Patrie, à Montréal). Ses recherches doctorales, encadrées par le Professeur David Robitaille, expert reconnu sur les droits économiques et sociaux et le droit constitutionnel au Canada, portent sur l’effectivité globale du droit à l’alimentation dans le contexte juridique Canadien. Elle en propose une étude holistique qui porte à la fois sur l’interprétation constitutionnelle de ce droit et sur l’incontournable réforme des politiques publiques, poussées par les revendications citoyennes en matière de justice alimentaire.

claire-magnouxClaire Magnoux est actuellement candidate au doctorat à l’Université Laval sous la supervision de Fannie Lafontaine. Son sujet de thèse porte sur les politiques de poursuites du Procureur de la Cour pénale internationale. Après un master en droit comparé et politique internationale (Université de Clermont-Ferrand), elle a passé un an en Bosnie-Herzégovine (Brcko) dans une ONG dont le mandat est la réconciliation entre les communautés. Dans le cadre de son volontariat, elle a coordonné des projets culturels impliquant enfants, adolescents et jeunes adultes.  Elle a également effectué un stage au sein du Groupe de recherche et d’information sur la paix et la sécurité (GRIP) à Bruxelles, dans la section Afrique. Elle est co-coordinatrice de la Chaire de recherche du Canada sur la justice internationale pénale et les droits fondamentaux.

kirsten-stefanikKirsten Stefanik is a fourth year PhD Candidate in the Faculty of Law at the University of Western Ontario. She currently holds a Doctoral Fellowship from the Social Sciences and Humanities Research Council of Canada. Kirsten received her BA from the University of British Columbia and her LLM from Western Law. Her current research focuses on non-state actor involvement in non-international conflicts. This study explores different approaches used by various international and non-governmental organizations to engage armed groups for the purposes of educating and promoting compliance with the law applicable to the conflicts to which they are parties. It draws on international legal theories, as well as criminology and psychology theories to provide a more complete understanding of the motivations of non-state actors in conflict. This study also seeks the views of former members of armed groups with case studies and research interviews conducted in Sierra Leone, Rwanda, and the Democratic Republic of Congo. Through their voices, this research seeks a greater and more nuanced understanding of: the familiarity of these armed groups with international humanitarian law; opinions they have regarding their interactions with international or non-governmental organizations on international humanitarian law issues; and their views on how this law affected their or other members of their group’s actions during conflict.

A heartfelt welcome to Rouguiatou, Jessica, Claire and Kirsten! Thanks are extended to the Social Sciences and Humanities Research Council of Canada for funding their travel to The Hague for this purpose through the ‘Strengthening Justice Through International Crimes: A Canadian Partnership‘ grant.

Female Refugees Fleeing Conflict

Women and girls fleeing conflict face serious obstacles to presenting successful claims for status under the 1951 Refugee Convention. This is the conclusion of a study I prepared for the United Nations High Commissioner for Refugees (UNHCR) for a roundtable in Cape Town, South Africa on “International Protection of Persons Fleeing Armed Conflict and Other Situations of Violence”.  The Summary Conclusions of this roundtable are meant to inform the drafting of future guidelines to clarify the interpretation and application of international and regional refugee law instruments to persons fleeing armed conflict and other situations of violence across international borders.

credit: UNHCR/Courbet

credit: UNHCR/Courbet

 My study examined cases arising in Australia, Canada, New Zealand, the United Kingdom and the United States between 2004-2012 in which women or girls sought refugee status after fleeing conflict. These cases involve claimants fleeing from Afghanistan, Angola, Bosnia-Herzegovina, Burundi, Chad, Colombia, Côte d’Ivoire, the Democratic Republic of the Congo, Ethiopia, Guinea, Iraq, Palestine, Republic of Congo, Rwanda, Serbia, Somalia, Sri Lanka and Uganda. These cases revealed that women and girls fleeing conflict tend to face four general barriers to their refugee claims.

The first barrier arises in the consideration of conflict-related rape and other forms of sexual violence as forms of persecution. The Refugee Convention requires that refugee claimants possess a well-founded fear of a form of harm that qualifies as persecution. Unfortunately, some refugee adjudicators do not adequately consider the environment surrounding rape in conflict, inaccurately characterizing this rape as a matter of personal sexual gratification or as a private act (and therefore not persecutory), rather than as a method of dominating or terrorizing civilians. Additionally, gender-related violence may be incorrectly classified as part of the indiscriminate consequences of conflict – and therefore not targeted enough at the claimant to amount to past persecution or to present a risk for future persecution – even though a deeper examination may reveal that the victims’ gender informed the method of attack.

Under the Refugee Convention, only those who can demonstrate a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” can qualify as refugees. A second set of obstacles is found in the consideration of the Refugee Convention grounds: claims by women and girls fleeing conflict tend to be funnelled into “membership of a particular social group”, even though other categories may be more applicable because of the nature of the conflict. This results in a tendency for refugee decision-makers to create artificial sub-groups of women in order to evaluate whether claimants fit within those groups, leading to unecessarily narrow reasoning.  

A third set of obstacles arises within the consideration of state protection. The cases revealed examples in which this analysis was not done in a gender-sensitive manner with a full appreciation of the nature of the conflict. This was especially so when adjudicators were considering the “end” of the conflict: a cease-fire or peace agreement does not necessarily mean the end of persecution of women and girls.

A fourth set of obstacles is found in procedural and evidentiary matters. For example, claimants and refugee decision-makers are hampered by lack of access to gender-sensitive country of origin information demonstrating the situation of women and girls before, during and following the conflict.

These barriers have been recorded before with respect to “peacetime” claims by women and girls, but the difficulties seem to be compounded or especially prevalent in conflict-related cases. The specific issue of barriers faced by female refugee claimants fleeing conflict has received little focused attention, therefore this study is necessarily preliminary in nature. Please feel free to contact me at vooster@uwo.ca if you have any relevant cases or studies to share on female refugee claimants who have fled conflict.

G8 Declaration on Preventing Sexual Violence in Conflict

Foreign Ministers at UK G8 Meeting April 2013, credit: UK Foreign and Commonwealth Office

Foreign Ministers at UK G8 Meeting April 2013, credit: UK Foreign and Commonwealth Office

On April 11, 2013, G8 Foreign Ministers adopted a five page Declaration on Preventing Sexual Violence in Conflict. The Declaration begins with the observation that:

Sexual violence in armed conflict represents one of the most serious forms of violation or abuse of international humanitarian law and international human rights law. Preventing sexual violence in armed conflict is therefore both a matter of upholding universal human rights and of maintaining international security, in keeping with UN Security Council Resolution 1820. Ministers emphasised that more must be done to address these ongoing crimes, including by challenging the myths that sexual violence in armed conflict is a cultural phenomenon or an inevitable consequence of war or a lesser crime.

The Declaration addresses sexual violence in armed conflict directed not only at women and girls, but also at men and boys, including those secondarily traumatized as forced witnesses of sexual violence against family members (para. 3).

The first part of the Declaration focuses on international law and its normative frameworks:

  • recognizing that sexual violence in armed conflict “can be a constitutive act with respect to genocide”, a crime against humanity and a war crime (para. 2);
  • expressing full support for the work of the UN in addressing sexual violence in armed conflict, particularly that of UN Women (para. 2);
  • reiterating that ending sexual violence in conflict is interlinked with promoting and protecting women’s and children’s full human rights and fundamental freedoms, including promoting “women’s active and equal political, social and economic participation including in all conflict prevention, conflict resolution, transitional justice and security sector reform processes” (para. 3); and
  • recalling that “rape and other forms of serious sexual violence in armed conflict are war crimes and also constitute grave breaches of the Geneva Conventions and their first Protocol” and that “those accused of grave breaches should be brought to trial, in a manner consistent with international norms.” (para. 4).

The Declaration then turns to action items, proposing the creation of an International Protocol on the Investigation and Documentation of Sexual Violence in Conflict – a set of standard guidelines to be followed by all those responding during or after an armed conflict, so as to avoid multiple actors weakening or destroying evidence of, or information on, sexual violence (para. 6). This is certainly notable, as it could be of assistance not only to international and national criminal investigators, but also to international commissions of inquiry, UN Special Rapporteurs, UN agencies and nongovernmental organizations. 

G8 Ministers also:

  • committed to supporting conflict-affected countries in developing and implement country-level action plans to protect human rights defenders (para. 7);
  • called on the international community, including the G8, to mobilize funding for health, psychosocial, legal and economic support including to the International Criminal Court’s Trust Fund for Victims (para. 8); and
  • agreed that peace negotiations and ceasefires which are supported by G8 members should include the participation of women and that crimes of sexual violence in armed conflict should be excluded from amnesty provisions (para. 10).
  • committed to supporting the deployment of international experts at the request of host governments, the UN and international organizations “to build national judicial, criminal investigative and legal capacity to increase the number of perpetrators brought to justice” (para. 10). The UK has already begun this, through the creation of a national roster of experts as part of its Preventing Sexual Violence Initiative.  

Finally, the Declaration recognizes that a cooperative approach to addressing sexual violence in armed conflict may not be considered a priority in the face of other pressing security and conflict concerns but it would clearly have greater impact (para. 13). Thus, the Ministers reaffirmed their support for various UN efforts and initiatives (paras. 13 and 14) and ended by recognizing the need for a considered review of the Declaration’s commitments (para. 15).

The adoption of the Declaration resulted in some associated announcements. For example, the United States announced that it is committing $10 million, and Canada announced that it is contributing $5 million, to support new and ongoing efforts that align with the Preventing Sexual Violence Initiative.

All of these commitments are to be welcomed, especially if they truly strengthen existing United Nations and other efforts to address sexual violence in conflict. The test will be, of course, whether these G8 commitments are realized – and, if they are, whether they are they realized in a fundamentally useful manner.