African Court issues its first judgment on women’s rights

On 11 May 2018, the African Court on Human and Peoples’ Rights issued a landmark judgment in the case APDF and IHRDA versus the Republic of Mali. For the first time in its history, the Court found a violation of the Protocol on the Rights of Women in Africa. The Court held that Malian Family Code violates women’s rights as recognized under international law, and condemned the State of Mali to modify its legislation.

Two civil society organisations had lodged a complaint before the African Court in September 2016 alleging that the Malian Family code adopted in 2011 is not compatible with the State’s obligations under international law. The Court therefore proceeded to examine if the code was in conformity with human rights instruments Mali had ratified, and found that several provisions of this code are not.

The Malian Family Code permits marriage for girls from the age of 16-years. In specific circumstances, the minimum age for marriage for girls may be lowered to 15-years. Consent is not always a requirement for a marriage to be valid. The African Court found that the relevant provisions of the Family Code are blatant violations of the Protocol on the Rights of Women in Africa (Maputo Protocol) under which the minimum age for marriage is 18 years for both women and men. The Maputo Protocol also provides that free and full consent in marriage must be protected by law. In matters of inheritance, Islamic law and customary practice is the applicable regime by default in Mali. This means that women only receive half of what men receive and children born out of wedlock receive inheritance only when their parents so decide. In relation to this issue, the African Court emphasized that women and natural children should be entitled to inheritance by law, and as such, the Family Code should not allow the application of rules contrary to this principle. The Court held that the relevant provisions of the Malian Family Code are discriminatory and perpetuate practices or traditions harmful towards women and children, in violation of the Maputo Protocol, the African Charter on the Rights and Welfare of the Child and the UN Convention on the Elimination of All Forms of Discrimination against Women.

The political context in which the Malian Family Code was adopted, characterized by vigorous opposition by religious movements to a more progressive legislation, was at the heart of the arguments put forward by the State of Mali in its defence. But to the African Court, this was no good excuse for passing a law contradictory to its international obligations. It thus ordered Mali to modify its legislation as well as to take measures to inform, teach, educate and sensitize the population on the rights of women, and to report to the Court on the implementation of the judgement within a period of two years. Continue reading

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The Akayesu Judgment at 20: looking back, pushing forward

Twenty years ago, on September 2nd, 1998, the International Criminal Tribunal for Rwanda (ICTR) handed down a landmark trial judgment in the Akayesu case: the first to define rape as a crime against humanity, and the first to recognize that rape and other acts of sexual violence are constitutive acts of genocide. The defendant, the mayor of the Rwandan town of Taba, was found guilty of genocide and crimes against humanity for acts he engaged in and oversaw against Taba’s Tutsi residents, including murder, torture, rape, and other inhumane acts.

Throughout its findings, the ICTR Trial Chamber surfaced gender in its legal analysis, illuminating the gendered experience of mass atrocities, and underscoring how the perpetrators’ and victims’ understanding of gender influenced the planning, commission, and impact of a wide range of genocidal acts.

Akayesu‘s ground-breaking findings owed less to the Prosecution’s case theory – which originally failed to include charges of sexual violence, despite the rape of between 250,000 and 500,000 women and girls between April and June 1994 – than to the Coalition for Women’s Human Rights in Conflict Situations. Formed by feminist activists in 1996, the Coalition mobilized around the ICTR’s failure to investigate and prosecute sexual violence. As prosecution witnesses, who were primarily female survivors of the genocide, gave first-hand accounts of sexual violence, the Coalition submitted an amicus curiae brief calling upon the Trial Chamber to use its authority to invite the Prosecution to amend their Indictment to include charges of rape and other acts of sexual violence.

One of the suggestions in the amicus was that the Prosecution charge rape and sexual violence as acts of genocide, arguing that they were essential components of the genocide, and were designed to “destroy a woman from a physical, mental or social perspective and [destroy] her capacity to participate in the reproduction and production of the community.” An oft-cited passage in the Akayesu Judgment, echoes aspects of this argument:

Sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and to the destruction of the Tutsi group as a whole. […] Sexual violence was a step in the process of the destruction of the Tutsi group—destruction of the spirit, of the will to live, and of life itself.

On the 20th anniversary of Akayesu, two things are evident.

First, despite the judgment’s pioneering nature, a gendered understanding of genocide (and international crimes, more generally) still needs to be consciously asserted in investigations, analysis, and prosecutions. The legal avenues opened by Akayesu were, for a long time, not seized upon by prosecutors; the ICTR and the International Criminal Tribunal for the former Yugoslavia (ICTY) Prosecution’s practice of charging rape occurring during the genocide as crimes against humanity and/or war crimes, rather than genocide, continued. Decades later, the analysis and reporting of genocide continues to revolve around an understanding of genocide as a crime committed through organized mass killings. Killing remains the privileged genocidal act, and consequently the examination of the risk and commission of genocide has largely, and unhelpfully, revolved around the numbers killed. Akayesu notwithstanding, the majority of genocide convictions in both the ICTR and ICTY have been based on instances of mass executions, founded upon strategies geared towards achieving the immediate physical destruction of (predominantly male members of) the protected group.

Second, the work of asserting a gendered analysis of international crimes continues largely to be done by feminist jurists and practitioners, most of whom are female. While it is not the role of female lawyers and activists to bring to light the experience of women and girls in jurisprudence, the task has too often fallen on their shoulders. Akayesu would not have been the landmark case it is without the work of the female-led Coalition; the Judges, notably Judge Navanethem Pillay; and the Chamber’s Legal Officers, notably Cecile Aptel. At the ICTY, three female lawyers and investigators led the development of the evidence of crimes committed in Foča with an express focus on building a case that reflected the organized way rape was used as part of ethnic cleansing. As a result, the Kunarac Judgment found sexual enslavement and rape as crimes against humanity. At the International Criminal Court (ICC), it was under the auspices of the first female Chief Prosecutor, Fatou Bensouda, that a gender strategy for investigations and prosecutions was developed.

The red thread of genocide continues to course its way through human history. In June 2016, the UN Commission of Inquiry on Syria determined that ISIS was committing the crime of genocide against the Yazidis of the Sinjar region of northern Iraq. In August 2018, the UN Fact-Finding Mission on Myanmar held that there was sufficient information to support an inference of genocidal intent regarding the actions of Myanmar’s security forces against the Rohingya. Having failed in its obligation to prevent genocide, punishment remains a priority for the international community. The UN’s recent report on Myanmar has reinforced calls for the Security Council to refer the situation in Myanmar to the ICC. For the Yazidi genocide, the path to justice is likely to be forged through national courts, including, hopefully, in Iraq. The Iraqi Investigation Team, created by the Security Council, has just begun its work.

As the push for accountability for the Yazidi and Rohingya genocides continues, it is essential that prosecutors and activists alike ensure that acts of genocide, beyond the act of killing, are fully investigated, properly indicted, and raised at trial. As women and girls are more likely to survive genocide, any ensuing trials rely heavily on what they have seen, heard, and suffered. A conception of genocide that relies on them bearing witness to killings (usually but not solely of male members of the group), and which turns away from all non-lethal acts of genocide (usually but not solely visited on female members of the group) is a harm to the survivors, the group, the historical record, and to our understanding of the crime of genocide.

When genocide is recognized only its most murderous articulations and gendered genocidal crimes such as rape, torture, forced pregnancy, and enslavement are ignored, States and international organizations lose much of their power to uphold the legal obligations to prevent and punish genocide. When the gendered crimes of genocide are excluded from prosecutions, the living survivors of genocide are denied justice and history yet again erases the experiences of women and girls.

In 1998, Akayesu’s gendered analysis was ground-breaking. In 2018, it’s never been more necessary.

 

 

 

 

 

 

 

Beyond the Numbers: Gender Parity on the African Court on Human and Peoples’ Rights— A Lesson for African Regional Courts?

Image-1ON August 27 2018, the newly elected judges on the African Court on Human and Peoples’ Rights were sworn in at the seat of the Court in Arusha, Tanzania. Earlier on, from June 25 to July 2, 2018, the 31st Ordinary Session of the Assembly of Heads of State and Government of the African Union (AU) took place in Nouakchott, the capital city of the Islamic Republic of Mauritania. One of the agenda items during the session was the election of new judges to fill vacancies on the African Court on Human and Peoples’ Rights (ACtHPR). Four spots had opened on the court—one of which was left open by Judge Solomy Balungi Bossa who resigned from the ACtHPR after her successful election to the International Criminal Court (ICC) in December 2017.

The three newly sworn in judges are; Judge Imani Aboud, the Judge-in-Charge at the Tanga High Court in Tanzania and current President of the Tanzania branch of the International Association of Women Judges (IAWJ), elected from the East African region. Judge Stella Isibhakhomen Anukam, Director of the International and Comparative Law Department in the Federal Ministry of Justice in Abuja, Nigeria, representing the West African region, and Professor Blaise Tchikaya, a Professor of International Public Law at University of Paris, France, a native of Congo representing the Central region. The fourth seat was retained by Judge Ben Kioko of Kenya who was re-elected for a second six-year term.

This recent election is a historical one because it brings the gender composition of the court to six women and five men! The record of gender parity set by the ACtHPR begun with the elections in 2017, where in an earlier post Vive la Diversité!I noted that in celebrating the gains made at the African Court in achieving gender parity,  the Court’s gender parity success should provide lessons for other regional courts in Africa—especially the benches of the  ECOWAS Court of Justice and the East African Court of Justice where women judges are woefully underrepresented.

From Tunis to Lusaka, women judges across the continent of Africa are making important strides in domestic judiciaries as shown in Gender and the Judiciary in Africa: From Obscurity to Parity? These developments do not rest only at the prescriptive level, as  a growing number of women have broken the veil of masculinity and ascended to leadership positions as Chief Justices and Presidents of Constitutional Courts. From Arusha to The Hague, the increase in the number of women judges from Africa is being felt at the international level as documented in International Courts and the African Woman Judge: Unveiled Narratives.  Currently, of the six women judges on the bench of the International Criminal Court (ICC), two are from Africa, accounting for 33% of all women on the bench— in a tie with the Latin America and Caribbean Group. At the International Court of Justice (ICJ), Justice Julia Sebutinde made history when she was elected to the ICJ bench in 2012, making her the first woman from the continent of Africa on the ICJ.

The representation of African women on the ACtHPR and the ICC strongly suggests that there is a pool of qualified women judges from the continent of Africa to fill positions on the benches of sub-regional, regional, and international courts. The record set by the ACtHPR, by achieving gender parity in its 12 years of existence is remarkable in the history of international courts and tribunals, where it took over forty years for the European Court of Justice to appoint its first woman judge, Fidelma Macken in 1999. The gender parity gains at the ACtHPR can be linked to a combination of regional factors and mechanisms. One such mechanism is the activist agenda to achieve gender equality embodied in the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa(Maputo Protocol) and the Solemn Declaration on Gender Equality in Africa, aimed at achieving gender equality across the continent. Second, the sustained advocacy for women’s equal participation in decision-making, led by women’s organizations such as Solidarity for African Women’s Rights (SOAWR). Additionally, the commitment of the Legal Affairs unit of the African Union in reviewing and rejecting nominations that do not contain the names of women, has proved instrumental in meeting the nomination requirements. Credit must also be given for the political will of the Assembly of Heads of State and Government to abide by the gender representation provisions in Article 12 (nominations) and Article 14 (elections) of the Protocol to the African Court on Human and Peoples’ Rights on the Establishment of  an African Court on Human and Peoples’ Rights (Court Protocol).

Beyond the numbers, what should the gender parity on the ACtHPR mean?

Attaining a critical mass of women judges on the ACtHPR is a great achievement, but more needs to be done. In the following discussion, I offer seven suggestions on how to move beyond the numbers.

First, is the need to develop specific strategies. The gender parity on the ACtHPR should provide lessons leading to the development of specific strategies for achieving gender parity on the benches of other African regional courts. This development should be used as an advocacy tool by women’s rights organizations to signal to other regional courts to nominate and elect qualified women judges to judicial positions. Not all sub-regional courts have gender aspirational targets in their protocols. Nonetheless, even where there are no aspirational targets, the success achieved by the ACtHPR should be framed and articulated as a regional diffusion mechanism for developing norms and best practices for judicial selection in other regional courts. The success at the ACtHPR should encourage other courts to revise their selection methods and bring them to par with evolving international standards for achieving gender balanced benches.

Second, is the need for advancing knowledge. Current scholarship needs to look beyond the descriptive representation of women on the ACtHPR. Feminist legal scholars should move past essentialist studies on the numbers of women judges and move towards analyses of questions on the substantive representation of judges. Research on substantive representation of African women judges has shown that women judges bring more than gender and racial diversity to the benches of international courts. Scholars need to focus on new research questions that interrogate wider judicial issues beyond why more women are needed and what they do on these courts. In this endeavour, scholars need to be mindful of avoiding essentialist repetitions of the “difference women judges make”, a caution succinctly captured by Judge Sebutinde when she notes;

In a world where one half of the population is female and the other half male, I would like for people to say one day that the World Court is comprised of fifty percent men and fifty percent women. That would be gender parity. It serves no purpose for people to ask, what difference or contribution have those three women judges made since they joined the Court? … For over seventy years there have been predominantly male judges serving on the International Court of Justice, yet nobody ever asks those kinds of questions when it comes to men. Why should the female judges serving on the Court have to justify or validate their presence or role on the Court? As long as we meet the statutory qualifications and are duly elected, we have as much right to sit on that Bench and to participate in the settlement of State disputes, without having to validate or justify our presence there with “value addition,” period.[1]

Third, is spreading the progress across sectors. The gender parity gains made at the ACtHPR and the long established gender parity on the African Union Commission, should be used as tools for promoting the African Union Agenda 2063, specifically goal 5, of achieving “an Africa whose development is people driven, relying on the potential offered by people, especially its womenand youth and caring for children.” Relying on the potential of women for development is not new to the African context. Women have always been at the center of economic development and have contributed in many ways to the domestic and international economic development projects. Yet, one of the many things lacking is the political will and commitment of governments and leaders to provide conducive political conditions and free and fair electoral processes aimed at encouraging and promoting women running for elected office. The remarkable progress made in increasing the gender representation on the ACtHPR should spread horizontally and vertically into other political, bureaucratic and administrative levels—beginning with the African Union organs and spreading across domestic government structures.

Fourth, is the mentoring impact. The increase in the number of women judges on both domestic and regional courts in Africa opens the door and encourages young girls and women to aspire for professional leadership. As the continent of Africa deals with its youth bulge, the success of women judges and other women in leadership positions should be used as learning and mentoring opportunities for the younger generation. In the words of Judge Florence Ndepele Mwachande Mumba;

The call for women judges must start at state level. National governments must be persuaded to open judiciaries to women judges and to promote their nomination to international courts. It is necessary to provide for gender balancing in international courts, at all times. Otherwise, women judges can easily be overlooked as the majority heads of state are still men. International legal practice offers women opportunities to excel and to contribute towards peace and harmony for all. Other women judges I worked with were of similar views. They felt that if women lawyers were promoted to high judicial office, gender balance would be attained. This would encourage girls to pursue law knowing that if they distinguished themselves, they can reach the highest offices in the legal profession.[2]

There is a lot to learn from the growing trend of women judges and their leadership capabilities. In May 2010, of the 18 judges on the ICC bench, 11 were women, the highest number the court had ever had. In 2015, the ICC made history with its all-female Presidency with the election of Judge Silvia Férnanda de Gurmendi as President, Judge Joyce Aluoch as First Vice-President and Judge Kuniko Ozaki from Japan as Second Vice President. At the ICC, four African women have served in the Vice Presidency; these include Judge Akua Kuenyehia of Ghana, Judge Fatoumata Dembele Diarra of Mali, Judge Sanji Monageng of Botswana and Judge Joyce Aluoch of Kenya. At the African Court, Judge Sophia Akuffo of Ghana and Judge Elsie Thompson of Nigeria have served as President and Vice President respectively.

Sixth, gains are not linear.The gender parity fluctuations at the ICC has shown that reaching gender parity on an international bench is not to be taken as a given, as these gains can be reversed at any time. Before the December 2017 elections of judges to the ICC, with the retirement of six judges, only one woman remained on the court. But for the election of five new women judges, the ICC would have regressed on its gender parity record. Sustainable gender balanced courts require continued vigilance to ensure that the progress made becomes institutionalized, eventually developing to the status of a customary principle or practice.

Seventh, is the need for sustained advocacy.Many challenges remain in achieving gender parity across other international institutions and courts. Gender activists must continue the drive to change the picture of international law through movements such as the GQUAL Campaign. Sustaining and replicating the progress at the ACtHPR provides lessons not only for African courts, but for all international courts, and advocates of gender parity can draw some best practices from the continent of Africa.

[1]Grossman, Nienke. (2018) Judge Julia Sebutinde: An Unbreakable Cloth. In, Dawuni, Josephine and Kuenyehia, Akua (ed.s), International Courts and the African Woman Judge: Unveiled Narratives (Routledge, 2018).

[2]Mumba, Florence N.M. (2018). Women Judges in International Courts and Tribunals –The Quest for Equal Opportunities.In, Dawuni, Josephine and Kuenyehia, Akua (eds), International Courts and the African Woman Judge: Unveiled Narratives (Routledge, 2018).

***This article is cross-posted from the Institute for African Women in Law.

How women and girls who survived Boko Haram have gone from one nightmare to another in Nigeria

Bama Hospital camp

Women in Bama Hospital camp in north-east Nigeria, December 2015. (Gbemiga Olamikan)

While there has been international outrage following Boko Haram’s abduction of women and girls in north-east Nigeria, there has been little awareness or condemnation of the abusive behaviour of the Nigerian armed forces – despite the fact that they have been committing war crimes and potential crimes against humanity against Boko Haram survivors.

This blog highlights some of our findings in a recently released Amnesty International report, “They betrayed us”, as well as related developments since. The report documents how thousands of women and girls in north-east Nigeria who lived under Boko Haram’s brutal rule have since been subjected to gendered forms of violence and abuse by those responsible for protecting them.

Attacked instead of protected

In 2014, Boko Haram took control of large swathes of north-east Nigeria. From early 2015, the Nigerian military intensified its operations against the armed group, and has since recaptured much of this area. The military then established so-called “satellite camps” for internally displaced people from areas that had been under Boko Haram control in the key towns they recaptured.

By mid-2016, over 200,000 people were living in these camps; many thousands more have arrived since.  However, many of the IDPs had not chosen to come to the satellite camps at all. While some were fleeing Boko Haram, others had fled after the military indiscriminately attacked their rural communities, opening fire, burning down homes, and ordering everyone to leave. Some told us they were hoping to be rescued from Boko Haram when they were attacked by the military. Others told us that they had been taken to the camps by the security forces against their will.

The forced displacement across scores of villages do not appear to have been sufficiently targeted to be in line with any imperative military reasons and the violent nature in which they were conducted suggest they did not appear to be designed to ensure civilians’ security. Instead, these acts appear to constitute a war crime.

Families separated

The military subjected everyone arriving in the satellite camps to a “security screening”. Many (in some locations, almost all) men and boys perceived to be of “fighting age” were arbitrarily detained and taken away to military detention facilities where thousands remain. One result was that the satellite camps have been made up of disproportionate numbers of women and their dependents, with few civilian men.

Confined and left to die

In the satellite camps, women and their dependents have been denied information on their loved ones in detention and subject to severe movement restrictions.

From late 2015 until mid/late 2016, when humanitarian aid finally scaled up, thousands of people – mostly women and their dependents – died from lack of food, water and healthcare while confined in the camps. By confining people to camps in such conditions, those responsible may have committed the war crime of murder.

While the food security situation has improved in most of the satellite camps since mid-2016, there are still massive gaps in assistance provided, and women face gender-based discrimination accessing assistance and livelihood opportunities.

Sexual violence

Members of the military and the allied militia have subjected women and girls in the satellite camps to sexual violence. Women who were near-starving were often forced to be the ‘girlfriends’ of the soldiers or militia members in order to access food. Even now, sexual exploitation continues to thrive in a context of impunity, near-confinement and deprivation.

The coercive circumstances that soldiers and militia members created and took advantage of negates any consent that may have apparently been given by women succumbing to be their ‘girlfriends’. Those responsible thus committed the war crime of rape even where physical force was not used or threatened. In some cases, women who refused sex were also raped by security forces using physical force or threats.

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New supplements to the International Protocol on documentation and investigation of sexual violence in conflict for Iraq, Myanmar and Sri Lanka

Cover_Myanmar_Burmese supplement.jpgOnce hidden and unspoken, reports of sexual violence now feature prominently in daily media dispatches from conflict zones around the world. This visibility has contributed to a new emphasis on preventing and addressing such violence at the international level.

Promoting the investigation and documentation of these crimes is a key component of the international community’s response. However, this response requires thoughtful and skilled documenters.  Poor documentation may do more harm than good, retraumatising survivors, and undermining future accountability efforts.

Recently, the Institute for International Criminal Investigations (IICI) and international anti-torture organisation REDRESS, with the funding support of the United Kingdom’s Foreign and Commonwealth Office (FCO), have launched a series of country-specific guides to assist those documenting and investigating conflict-related sexual violence in Myanmar, Sri Lanka and Iraq.

The guides (available in English, Burmese, Tamil, Sinhalese, Arabic and Kurdish on the REDRESS and IICI websites) complement the second edition of the International Protocol on the Documentation and Investigation of Sexual Violence in Conflict, published in March 2017 by the FCO.

The Protocol aims to support practitioners to document appropriately by providing a “set of guidelines setting out best practice on how to document, or investigate, sexual violence as a war crime, crime against humanity, act of genocide or other serious violation of international criminal, human rights or humanitarian law”. It is a tremendous resource for practitioners, covering theoretical, legal and practical aspects of documentation.

However, as the Protocol itself makes clear, documentation of conflict-related sexual violence is highly context-specific. Each conflict situation and country has individual legal and practical aspects that must be considered alongside the Protocol’s guidelines.

The guides aim to fill this gap by addressing the context for and characteristics of conflict-related sexual violence in the three countries. They address legal avenues for justice domestically and at the international level, specific evidential and procedural requirements and practical issues that may arise when documenting such crimes.

The publication of these guides on the three different countries highlights some interesting comparisons and contrasts.  Although the background to and most common forms of sexual violence differ from country to country, the motivations for the violence have parallels. Similarly, the stigmatisation of survivors is a grave concern in each country, influencing all aspects of daily life for them and the way that institutions and individuals respond to the crimes committed against them.

In all three countries, a landscape of almost complete impunity prevails, and in many situations survivors, their families and practitioners face significant threats to their security – often from state actors (e.g. police, military, state security). This harsh reality is borne out by the fact that although the drafting of the supplements relied heavily on the experience and input of local practitioners, due to security concerns, very few were able to be individually acknowledged for their contributions.  Continue reading

Safeguarding ‘distinction’ inside the wire: Humanitarian-peacekeeper interactions in South Sudan’s Protection of Civilians sites

Following the outbreak of violence in December 2013, tens of thousands—and eventually hundreds of thousands—of internally displaced persons (IDPs) sought refuge at UN bases in South Sudan. These sites came to be referred to as Protection of Civilians (PoC) sites, guarded by forces from the UN Mission in South Sudan (UNMISS) under a robust PoC mandate. In response, many international humanitarian actors, ranging from UN agencies to NGOs, sought to live and work ‘inside the wire’ of the PoC sites as well. They wanted to be close to the war-affected populations they serve, and were also seeking to protect their own staff from violent attacks. As a general rule, global civil-military guidance dissuades humanitarian actors from co-locating with military actors in conflict settings. In recognition of the exceptional circumstances, however, the UN Humanitarian Country Team in South Sudan approved the temporary use of military force protection by humanitarian actors; this has enabled them to reside in the sites.

South Sudan’s PoC sites have generated considerable interest from policymakers and scholars alike, some of whom have drawn attention (pp. 39-40) to the complex relationships of diverse international actors operating in the sites. What is missing at this juncture, from a legal perspective, is a robust account of the challenges that co-location in the sites poses for the civilian-combatant distinction in international humanitarian law (IHL). Drawing on field research[1] conducted in South Sudan in 2015, this article highlights one slice of the international community where interactions are shaped by struggles over ‘distinction’: the humanitarian-peacekeeper relationship.

As one UN civilian actor notes, the PoC sites in South Sudan are spaces where the UN mission ‘comes closest’ to humanitarian actors. Another civilian member of UNMISS surmises, ‘I’ve never seen another example where humanitarians and UNMISS work so closely’. This issue of physical proximity is also flagged by a humanitarian NGO actor living in one of the PoC sites. He is concerned that the mere fact of his presence in the site undermines any efforts his organization might make with regard to distinction from UNMISS. An individual working for a different humanitarian NGO picks up this thread. He explains that co-locating with UN military forces leads ‘fiercely independent’ humanitarian NGOs to fear that they are compromising the humanitarian principles of neutrality, independence, and impartiality. It is adhering to these principles, he explains, that helps humanitarian actors to demonstrate they are distinct.

It is apparent that the attempt to safeguard distinction from UN military actors is not always, or only, about compliance with international law. Much of the time, humanitarian NGOs are also hoping to influence local perceptions. One component of this perceptions work involves the attempt to secure the trust and acceptance of the war-affected populations they seek to serve. As one humanitarian actor explains, it is local beneficiaries who matter most; the ‘element of distinction is purely from their perspective’. Continue reading

Malian suspect at ICC: New opportunity for accountability for sexual crimes

After Jean-Pierre Bemba’s conviction was overturned, the new Malian case at the ICC offers an opportunity to successfully convict a suspect for sexual crimes. Focusing on a gender analysis of crimes will be essential, as gender was at the center of armed groups’ strategy.

Few women in northern Mali believed that this day would come.  One of the chiefs of the Islamic police of Timbuktu during the jihadist groups take over of the north of the country in 2012-2013 appeared before the ICC last April. The prosecution alleges that Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud is responsible for rape and sexual slavery, torture, persecution, outrages upon personal dignity, passing of unlawful sentences, and attacking religious and historical buildings.

If the charges of rape and sexual slavery are upheld after the confirmation of charges hearing planned in the fall, it will be a not-to-be-missed opportunity to secure a conviction for sexual crimes as well as to focus on the gender dimension of some international crimes. Gender was indeed at the center of the Islamist militants’ strategy to secure their grip on Timbuktu and to subjugate its inhabitants. Meanwhile, it is the first time that a suspect is appearing before the Court on the charges of persecution on gender grounds.

In the sixteen years it has been operating, the ICC has deplorably failed to convict a single accused for sexual violence. In a recent setback earlier this month, the Court acquitted the former vice-president of the Democratic Republic of Congo, Jean-Pierre Bemba, of war crimes and crimes against humanity – including rape.  In two other previous instances, accused were also acquitted.

Yet, in 2014, the Office of the Prosecutor committed to better integrate a gender perspective in all its work and to improve prosecution of sexual violence.  The Al Hassane case and the context in which crimes were committed in Timbuktu offer an opportunity to demonstrate this commitment.

Al Hassan was a member of Ansar Eddine, an Islamist group seeking to impose Islamic law across the country. Alongside Tuareg rebels and other jihadist groups including Al Qaida in the Islamic Maghreb, they launched an offensive on northern Mali and took control of Timbutku between April 2012 and January 2013.

During this period, Islamist armed groups imposed a strict application of Sharia law. Men and women were not allowed to talk to each other outside of their families, music was forbidden, and shopkeepers were arrested and tortured for possessing tobacco. Jihadists imposed cruel punishments including public flogging and amputation. While these practices and destruction of mausoleums have caught the world’s attention, sexual crimes have been kept secret because of the stigma and the cultural taboo attached to them.

Women of Timbuktu were sexually harassed, forcibly married and raped. Women who were not fully covered were commonly harassed and beaten on the street by members of the Islamic Police or the so-called morality police, the Hisbah. They chased and arrested people considered not in compliance with Sharia law. During their detention at the police station, women were routinely tortured, sexually abused and in some cases raped.  Armed men controlling the city also kidnapped women after allegedly “marrying” them, detained them in their homes or abandoned houses to rape them repeatedly, and sometimes gang raped them.

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