Gender-based crimes: A monumental day for the ICC

When it comes to prosecuting sexual and gender-based crimes, there have been few days as significant as today in the ICC’s twenty-one-year long history. The day began with a conviction for sexual violence crimes against male and female victims in the Ntaganda case, followed by the first attempt in any international criminal court or tribunal to prosecute gender-based persecution.

Rosemary Grey (University of Sydney) and Indira Rosenthal (University of Tasmania)[1]

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Safeguarding women after disasters: some progress, but not enough

Hundreds of Mozambicans were killed and thousands made homelessrecently by Cyclones Idai and Kenneth. Almost immediately, there were reports of a sadly familiar story: women being forced to trade sex for food by local community leaders distributing aid.

Globally, international organisations appear to be grappling with the issue more seriously than before. Yet reports about sexual exploitation keep coming. How does the aid community strategise to protect women’s safety in disaster situations?

Over the past 15 years, I have done research on sexual exploitation of displaced women in Uganda and Colombia. I have also worked with a variety of humanitarian organisations on accountability and legalisation. Through this, I have identified the factors necessary to bring justice to the victims of predatory aid workers.

Sexual exploitation must be recognised as a real and widespread problem. There must be staff and management accountability. Transgressions must be sanctioned through disciplinary or penal measures. But there are also major dilemmas that need to be understood and tackled by governments, agencies and, most importantly, local communities.

Sexual exploitation in aid

The sexual exploitation of disaster and conflict victims is a global – and longstanding – phenomenon. Over the last 25 years, there have been radical changes in the standards of global public morality around the conduct of personnel working for international organisations and NGOs when vulnerable adults and children are involved.

Nevertheless, the willingness to see sexual exploitation as an inherent feature of the international community’s intervention to bring development, humanitarian aid or peace has been much slower to evolve.

It was only 24 years ago that UNHCR issued guidelines on sexual violence and refugees that expressly mentioned international refugee workers as being implicated in sexual violence against refugees.

The sexual abuse of vulnerable women and girls in several African countries by international aid workers was recently described as “endemic”. It was also noted that perpetrators easily moved around the sector undetected.

Several recent cases have been reported from Cote d’ivore, to the Democratic Republic of the Congo, Namibia, Liberia, Sierra Leone, South Sudan and the Central African Republic.

These have involved aid workers and peacekeepers, as well as local aid workers and government employees.

In my research on refugees, accusations concerning “sex for resettlement” registration surface regularly. I found these to be frequent while working on refugee resettlement in Kampala 15 years ago. Despite the UNHCR’s promise to reform, similar accusations keep resurfacing, most recently in Kenya. The time has come for the international community to seriously debate the power mechanisms embedded in the resettlement process that enable sexual exploitation to fester.

What will fix the problem?

The first step is to organise accountability.

Humanitarian accountability first emerged as a concern in the 1980s. It was institutionalised in the 1994 Code of Conduct for the International Red Cross and Red Crescent Movement and NGOs in Disaster Relief . The 1996 Joint Evaluation of Emergency Assistance to Rwanda was a defining moment.

That report resulted in several sector-wide initiatives. Five years ago efforts were made to streamline these in the revised Core Humanitarian Standards.

Throughout this period, sexual exploitation has been considered the worst possible behaviour humanitarian workers can be guilty of. But it has not been clear what constitutes exploitation and in which relationships it takes place. The lack of a definition, the unwillingness to articulate and enforce robust norms for professional behaviour and the absence of effective complaint mechanisms and protections for whistle-blowers have contributed to a culture of impunity for predatory behaviour against aid recipients.

Early policy responses to sexual exploitation were concerned with reputational issues. But over the past 15 years the humanitarian sector has seen a flurry of institutional initiatives to grapple with this specific issue. The effort to prevent sexual exploitation and abuse is led by the Inter-Agency Standing Committee.

The aid sector is now engaging in “safeguarding exercises”. These emerged after the Oxfam scandal in Haiti. The organisation was seen as failing to act on sexual misconduct by staff in the aftermath of the 2010 earthquake, and then to have attempted a cover-up.

Safeguarding includes all actions by aid actors to protect staff from harm (abuse, sexual harassment and violence) and to ensure staff do not harm beneficiaries.

This broad definition represents both a welcome recognition of the scope of the problem and an opportunity for a comprehensive approach. But it also creates some new challenges. Three are particularly worth noting.

The challenges

Who gets a voice: There has been vocal concern about the lack of inclusiveness in how safeguarding is practised. Critics have noted that a safeguarding industry was hatched with little attention to local and national context or participation. There is a view that safeguarding is yet another Western-centric practice. I think this critique is true. But it also creates a dilemma: should global norms about sexual exploitation in international aid be up for local negotiation?

Regulation and criminalisation. In recent years, there have been calls to regulate foreign aid actors more robustly. This is understandable. Aid actors have operated with a great deal of license and even impunity under the humanitarian banner. But drawing up new laws also creates problems. This is particularly true in a context where African civil society generally is under pressure from new restrictive laws that curtail their activities.

Responding to the call to “do something”, the international community has embraced criminalisation and criminal prosecutions to promote and strengthen the fight against impunity. But opting for criminal law and the courtroom rests on a deeply simplistic framing of structural power imbalances in aid. Legal strategies are costly and slow. The focus on sexual violence in disasters and conflicts also risks crowding out concern for other aspects of women’s lives.

Localisation: Since 2016 there has been a significant focus on the localisation of aid. The Charter for Change focuses on contracting, resource allocation, transparency and communication. It highlights the importance of not undermining local capacity. The process is generally painfully slow and a shockingly small percentage of international aid funding is actually allocated to local actors.

At the same time, there is a persistent call for international actors to do, control and know more about what goes on locally to limit corruption, incompetence and abuse. This call comes partly from media in donor states addressing taxpayers, but also from watchdogs within the sector.

This is also the case for sexual exploitation. In its report, Human Rights Watch demands that “international partners, particularly the UN, should ensure greater oversight of the conduct of local officials during the distribution of humanitarian aid”. This will not come for free.

The question is how a balance can be found between control and localisation – and who gets to determine what this balance should be.

This post was originally published at https://theconversation.com/safeguarding-women-after-disasters-some-progress-but-not-enough-116619. For an extended critical commentary on the rapid rise of the Safeguarding concept in the aid sector, see https://jhumanitarianaction.springeropen.com/articles/10.1186/s41018-019-0051-1

CCIL 2018: “The Role of International Criminal Law and the ICC in Responding to the Alleged Crimes Perpetrated Against the Rohingya”

On November 1 and 2, 2018, the Canadian Council on International Law (CCIL) held its annual conference in Ottawa, Canada. This conference is touted as one of the premier international law conferences in the world, bringing together scholars and practitioners from across Canada, the United States and Europe. This year’s topic was “International Law at the Boundaries,” which recognized the role of non-state actors and ideas that seek to push international law to its limits.

One particular panel discussed three important, and even novel, issues within international criminal law: (1) jurisdiction over crimes committed by a non-state party; (2) sexual and gender-based violence; and (3) the role of social media in contributing to these crimes. “The Role of International Criminal Law and the International Criminal Court (ICC) in Responding to the Alleged Crimes Perpetrated against the Rohingya,” examined the ongoing situation in Myanmar and the ICC’s role in holding perpetrators of international crimes accountable. Fannie Lafontaine of Laval University’s Faculty of Law and the Canadian Partnership for International Justice chaired the panel of three speakers: Payam Akhavan of McGill University’s Faculty of Law, Valerie Oosterveld of Western University’s Faculty of Law, and Kyle Matthews of the Montreal Institute for Genocide and Human Rights Studies.

Akhavan discussed the ICC’s jurisdiction over the crimes committed against the Rohingya. This has been an area that has required some thought because Myanmar is not a party to the Rome Statute of the ICC, and therefore the Court does not have jurisdiction over crimes committed on its territory unless a referral by the United Nations Security Council is made (which has not happened yet and has been suggested to be unlikely). Akhavan highlighted how the ICC’s jurisdiction is currently being established through the crime of forced deportation as an underlying act of the crime against humanity. Forced deportation involves the crossing of international borders, and because the act of deporting the Rohingya ended on the territory of a state that is a party to the Rome Statute—Bangladesh—the Court has jurisdiction to try those responsible for forcing the Rohingya into Bangladesh.

Oosterveld ended the panel with a discussion of sexual and gender-based violence in the context of the Rohingya. She discussed the many ways that Rohingya women and girls are targeted and then humiliated through public gang-rapes to promote terror, and even ‘branded’ by their perpetrators biting them. Men and boys suffered similar treatment in detention from their captors trying to gain information.

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Violent Extremism and Terrorism in the Scope of Women, Peace and Security: an Uncomfortable Relationship

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Credit: UN Photo/DN (http://www.un.org/en/sc/about/)

The most recent and very controversial resolution of the United Nations Security Council(UNSC) Women, Peace and Security (WPS) agenda, Resolution 2242 of 2015, has started to be implemented by the member states: a very recent example is Bosnia and Herzegovina. To date, Bosnia and Herzegovina has adopted three National Action Plans (NAPs) to implement the WPS agenda in its legal, judicial and administrative bodies for the periods of 2010-2013, 2014-2017and 2018-2022. Although the first two NAPs have not engaged with counterterrorism (CT) or countering violent extremism (CVE), the third NAP has a specific section regarding the measures for CT and CVE. In the NAP of 2018-2022, greater involvement of women in the initiatives for CT/CVE is highly encouraged.

The engagement of women with the CT and CVE programmes has developed in a very problematic way. The international framework on CT and CVE was established by UNSC Resolution 1373 (2001), immediately after 9/11. Fionnuala Ní Aoláin’s review of 43 UNSC Resolutions regarding the CT/CVE agenda pointed out that the agenda made only a handful of references to women and/or sexual harms. Thus, the CT and CVE agendas were gender-blind. Whereas the WPS agenda, at least initially, was trying to bring a gender lens to the peace and security concepts, CT/CVE resolutions have remained detached from the UNSC WPS purposes and agenda.

Very recently, this detachment has been terminated, not through the application of a gender-sensitive lens to the CT/CVE, but through the engagement of the WPS agenda with the CT/CVE programmes. With the adoption of UNSC Resolution 2242, CT/CVE discourse has been introduced to the WPS agenda.

In Resolution 2242, the SC

“(…) expresses deep concern that acts of sexual and gender-based violence are known to be part of the strategic objectives and ideology of certain terrorist groups, used as a tactic of terrorism, and an instrument to increase their power through supporting financing, recruitment, and the destruction of communities (…)”

To tackle this, the SC

“(…) urges Member States and the United Nations system to ensure the participation and leadership of women and women’s organizations in developing strategies to counter terrorism and violent extremism which can be conducive to terrorism(…)”

Integration of CT/CVE with the WPS agenda through “strategic essentialism” presented women as “an untapped resource for countering violent extremism” (page 31). Feminist scholars have been concerned with the language in the resolution which essentializes women “as wicked purveyors of extremist violence or virtuous saviours of sons, husbands and communities” (page 282).

Bosnia and Herzegovina’s latest NAP echoes this language of Resolution 2242. “Women and children” are depicted as the main victims of violent extremism and terrorism.  The NAP acknowledges the presence of “radical communities” in Bosnia and Herzegovina and encourages international partners, the non-governmental sector, academia and religious communities to cooperate in order to “protect” the main victims of violent extremism and terrorism: “women and children”.

A major problem with both Resolution 2242 and the Bosnian NAP of 2018-2022 is the “over-simplistic understanding of the causes of extremism, and the solutions”(page 108). Such an approach seems palliative; the reasons for the emergence of violent extremism and terrorism in societies are simply ignored and instead the aim is onlyto treat the symptoms.

In addition, Resolution 2242 leaves the meanings of “violent extremism” and “terrorism” open. Similarly, Bosnia and Herzegovina barely specifies the measures for tackling violent extremism and terrorism. This prevents us from gaining any insight into the meaning and scope of “violent extremism” and “terrorism” in the Bosnian context. Expansion of the WPS agenda and alignment of the CT/CVE  and WPS agendas “does not mean that women will be included in defining what constitutes terrorism” and violent extremism. This very point creates concerns for feminist scholarship since the ambiguous and “customizable” scope of violent extremism and terrorism might lead to the securitization and instrumentalization of the WPS agenda, and to the legitimization of the SC.

This is not the first time that international security has intervened in the WPS agenda. In an earlier resolution, Resolution 1960 of 2010, the SC brought forward “targeted sanctions” against perpetrators of sexual violence in armed conflict, which was a “counterproductive development in the contemporary collective security approach to women, peace and security”. Such security-oriented interventions sideline gender equality and aim to “empower” women with the only purpose of providing security in the affected societies.

As Diane Otto has pointed out, any so-called successes in the feminist theory and practice should always be weighed against their consequences. Integration of the CT/CVE into the WPS agenda is presented as a success by the UNSC since this integration could reduce the impacts of terrorism and violence extremism on women. However, as WILPF reminds us, “inclusive” strategies are more often than not used to justify the use of force.

Although Resolution 2242 has already been adopted in Bosnia and Herzegovina and many other countries through NAPs, legal, judicial, and administrative bodies and women’s rights NGOs should cautiously put the NAPs into practice by constantly examining the potential impacts of CT and CVE programmes on women.

Call for abstracts

STUDYING WAR CRIMES:

The ethics of re-presenting mass violence in research

When do descriptions of harm become academic sensationalism rather than re-presentations of violent materialities? Can academic interest and engagement in mass harm ever avoid voyeurism? How can sensational violence be ethically re-presented in research? Across disciplines theorizing mass harm, a consensus is emerging cautioning against sensationalism in re-presentations of perpetrators, victims, crimes, and sufferings, seeing detailed descriptions of violence as academic voyeurism. Yet, how comfortable a read can research that has violent profusion at its core become, before the distance created by language becomes an ethical – and analytical – challenge in its own right?

This edited volume invites experienced scholars to address thoroughly the ethics of doing research on mass harm in general, and of re-presenting and describing mass violence, harmdoing, trauma, and suffering in their own research in particular. Drawing on a range of methodological approaches and empirical cases, the book will address how mass violence and war crimes are brought into research – both as an ethical, a sensational, and an analytical matter.

We ask contributors to reflect on their re-presentations of mass crimes, violence and justice, seeing re-presentations both as an issue to do with individual and disciplinary research ethics but also as a matter to do with power and material structures of academic knowledge production. The purpose is to encourage active engagement with a research ethics that goes beyond ‘procedural ethic;’ to expand the discussion on responsibility for the stories we hear, read, analyze, and re-tell; and to address in-depth the ethics of listening, seeing, and telling in research on mass violence and war crimes.

The book will be relevant for all researchers who wish to engage ethically with the study of mass violence and war crimes.

We invite abstracts that explore the ethics of re-presenting mass violence in research.

Abstracts may also cater specifically to:

  • The ethics of caring, seeing, listening and re-presenting
  • Selection and exclusion: whose stories are told?
  • Understanding harm/understanding as harm
  • “Thick descriptions” and sensationalism
  • Breaking the silence vs silence as choice
  • Emotions, positionality, and reflexivity

Submission guidelines:

Abstract of no more than 500 words to be submitted by November 30th, 2018 to editors at studyingwarcrimes@gmail.com. We only accept original contributions and the abstract needs to clearly demonstrate the chapter’s contribution to the volume.

Please include a 150-200 word bio highlighting your affiliation, work experience and credentials in the field of war and mass violence research.

Further process:

After an initial screening and by December 15th, 2018, editors will invite 8 contributors to develop their abstract into a full chapter (5-7000 words) to be submitted by April 15th 2019. We will apply for funding for a lunch-to-lunch workshop for contributors in May 2019. The final submission date for full chapters will be in August, 2019.

Routledge (Taylor&Francis Group) initiated our work with this collection, and has expressed a strong interest in publishing the book.

About the editors:

Sladjana Lazic is a post-doctoral researcher at the Center for Peace Studies (CPS) at the Arctic University of Norway (UiT). She holds a PhD in Political Science from the Norwegian University for Science and Technology in Trondheim, Norway, on victims’ perspectives on transitional justice and legitimacy.

Anette Bringedal Houge holds a PhD in Criminology and Sociology of Law from the University of Oslo on conflict-related sexual violence, perpetrator re-presentations, and international criminal justice. She has published her research in e.g., Aggression and Violent Behavior, British Journal of Criminology and Criminology and Criminal Justice. Anette is the Head of Humanitarian Needs and Analysis at the Norwegian Red Cross.

Feminism and the Kenyan TJRC (Part 2)

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Women singing at the launch of the TJRC public hearings in Garissa (April 2011)               (Kenyan TJRC)

Addressing the first feminist critique – the failure to address systemic and structural violence that tends to affect women disproportionately – was easier for us to address compared to other truth commissions given our broad mandate and, in particular, the requirement that we investigate violations of socioeconomic rights. To better analyze systemic and structural issues, including those related to socio-economic rights, we needed to address effectively the second critique – the failure to encourage active participation of women, a failure that had already been experienced by the Mutua Task Force.

 

In addition to dedicating specific parts of our statement-taking form to capturing the experience of women; training our statement takers on gender sensitivity, and ensuring a high percentage of female statement takers (43 percent), we also conducted thirty-nine of what we called women’s hearings in each of the places where we held public hearings. Our challenge was not just to encourage women to participate and speak to the Commission, but also to elicit testimony about violations and related issues experienced by them. The experience of previous truth commissions suggests that women who are willing to speak about past violations tend to speak as witnesses and observers concerning incidents that happened to others, usually the male members of their family. The characterization of such testimony as indirect is itself problematic, as it tends to de-emphasize the secondary effects of violations on family members and community members and more fundamentally emphasize the individualistic, rather than community-oriented, aspect of violations. While women may testify about what happened to others in their family or community because they are reluctant to testify about themselves, they may also focus on violations directly experienced by their family and community members because they see themselves as part of those larger social entities and, thus, are more likely than men to see such violations of “others” as affecting them, their families, and their communities directly. Nevertheless, we were concerned that some women might feel reluctant to share their own direct experiences of violations out of fear rather than because they adopted a more holistic approach to violations and their effects.

In addition to holding women’s hearings in each place where we held public hearings, we often had a prominent woman activist from each community testify about the experience of women generally in that community. We were able to do this in part because of the strong working relationship we had developed with Maendeleo ya Wanawake, the largest women’s membership organization in Kenya. We were thus able to explore at the local level some of the broader systemic, institutional, and cultural issues faced by women. To further broaden this analysis, we devoted one of our national thematic hearings to women. The purpose of the thematic hearing was to supplement the individual stories we had heard in the field – both from witnesses as well as local activists – with a more national and even international perspective on the broader systemic issues facing women in Kenya. Continue reading

Feminism and the Kenyan TJRC (Part 1)

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Commissioners Tecla Namachanja and Margaret Shava at the launch of public hearings in Garissa (April 2011)       (Kenyan TJRC)

In 2004 a task force chaired by Professor Makau Mutua travelled throughout Kenya to determine whether a truth commission should be established to address historical injustices.  In their report, the task force observed that while their provincial hearings were “on the whole” well attended, the number of women participating in the hearings was “low.” The experience of the Mutua task force mirrored that of truth commissions generally. Female participation in truth commission processes worldwide has been low, leading more recent truth commissions to create special units to encourage the participation of more women. Kimberly Theidon discusses attempts to incorporate a greater gender sensitivity to transitional justice processes, focusing in particular on Peru.

 

Christine Bell and Catherine O’Rourke pose three sets of questions as part of a feminist critique of transitional justice generally.  First, where are women (both representation and participation in transitional justice design and process)? Second, Where is gender (where are the voices and experiences of women with respect to conflict, human rights violations and justice)? Third, where is feminism (referring to the feminist critique of justice and its applicability to transitional justice)?

Feminist critiques of truth commissions tend to focus on two issues. First, truth commissions ignore or do not devote sufficient attention to systemic, structural, and institutional violence that tends to affect women disproportionately. Second, truth commissions are not designed to encourage the participation of women, and thus perpetuate the silencing of women in those societies.

The drafters of the Kenyan legislation establishing the Truth Justice and Reconciliation Commission were sensitive to these critiques, requiring that there be gender balance among the commissioners (we began with five male and four female commissioners); requiring that the chair and vice chair be of opposite gender; including sexual- and gender-based violence in the violations we were to investigate, and suggesting that we put into place special mechanisms and procedures to address the experiences of women. During most of our operational period, our CEO was a woman; and during the fourteen months when we conducted most of our external activities (statement taking, public hearings, investigations, and other outreach activities), our acting chair was a woman – in fact Tecla Namachanja Wanjala was the first woman to serve as the chair of a truth commission. Continue reading