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

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Sexual violence in Syria: acting on what we know

Last month marked the seventh anniversary of the Syrian uprising. The Syrian people were late in joining the Arab Spring and within months after they did civil unrest descended into war. As the years go by, the range of atrocities committed in Syria appears to defy those covered by international law. There are arbitrary arrests, torture and deaths in detention, and use of civilians as hostages. The most reported incidents are use of chemical and explosive weapons in civilian areas, starvation of besieged populations and the targeting of hospitals, schools and markets to force surrender.

Perhaps unsurprisingly, in comparison the use of sexual and gender-based violence has received little attention. This is in part because of the inherent difficulties in documenting sexual violence – chief among them is under- and delayed reporting due to reluctance of survivors to share experiences that could lead to rejection by their families and communities. It is also because other tactics of war, like aerial and ground bombardments, are more lastingly visible and more easily documented for that reason. By and large, documentation of sexual violence, in any context, relies on victim and witness testimony. Bombardments, on the other hand, are documented using supporting material such as photographs, videos, and satellite imagery that corroborates witnesses’ accounts. Crucially, witnesses of bombardments can speak without fear of stigma or feelings of shame.

Challenges in documenting sexual violence explain why it has taken so long for comprehensive overviews of the situation on the ground to become public. While as early as September 2011 reports emerged of Syrian Government forces committing sexual violence during home raids, it is only in the last year that in-depth accounts on the extent and use of sexual violence in Syria were published. In 2017, investigative journalist Marie Forestier published a report on rape as a tactic of war by the Assad regime. On the occasion of the seventh year of the uprising, the Syria Commission of Inquiry published a report covering sexual and gender-based violence by a number of perpetrators, including detailed violations by Government forces and associated militias.

Together, these reports document the use of sexual violence since the 2011 demonstrations up to last year. They show that the use of sexual violence has changed – but not stopped – throughout the conflict. Initially, Government forces conducted mass arrests of demonstrators and their supporters in their homes and at checkpoints. Most of those arrested were men and boys. When the wanted males were not found, women and girls were arrested to pressure their male relatives to surrender. Female protestors and activists were also arrested. Sexual violence occurred from the moment of arrest and throughout detention. In Government detention facilities, women and men were raped to force confessions and to provide information, with men most commonly raped with objects. Some women were gang raped, others were raped repeatedly by different officers. On occasion, senior officers raped detainees and in other instances gave permission for their subordinates to do so. There is no reported instance of officers being disciplined for their acts. Continue reading

Launching the Winter 2018 Issue of the Transitional Justice Institute Research Paper Series on SSRN

Elise Ketelaars and Catherine O’Rourke

We are delighted to present a new issue of the Ulster University Transitional Justice Institute Research Paper Series on the Social Sciences Research Network. The issue broadly addresses the fields of peacebuilding and transitional justice in Northern Ireland and Latin America. Each of the papers emphasize, in their own ways, the importance of in-depth case study research in enriching their fields of scholarship. Moreover, the issue once again highlights the strong and durable relations that TJI scholars have maintained with practice and activism within and outside Northern Ireland. The issue displays the value of these ties in creating both impactful and innovative approaches to peacebuilding, humanitarian work and justice in societies in transition.

Cath Collins’ report summary on disappearance and enforced disappearance in past political violence in Latin America neatly illustrates the importance of scholar-activism-policy ties. In addition to being a professor at TJI, Cath Collins is the founder and director of the Transitional Justice Observatory at the Universidad Diego Portales, Chile. In her contribution, she collates and synthesises the results of three stimulating dialogues between law, social science and forensic (natural) sciences that took place in Santiago de Chile and Lima, Peru in 2017. The dialogues were organized to inform efforts to give domestic effect in Chile and Peru to the International Convention against Enforced Disappearance. The challenges addressed in the dialogues resonate across many other transitional contexts and confirm the value of disseminating this unique case study research.

The other three contributions concern the Northern Irish context in single case study and comparative research. The paper of Monica McWilliams and Jessica Doyle exemplifies the ongoing engagement of the authors and the TJI with understanding gender based violence in transitional settings. The paper explores the links between intimate partner violence and violent conflict based on findings from more than 100 in-depth semi-structured interviews with women victims of IPV from across Northern Ireland. The paper combines findings from McWilliams’ 1992 study on domestic violence in Northern Ireland with new data she and Doyle gathered during the course of 2016. The paper thereby presents a rare empirically grounded insight into the impact of transition from conflict to peace on intimate partner violence.

Kris Brown’s paper examines the impact on peacebuilding of partisan political commemoration. The paper’s salience is undeniable in light of Northern Ireland’s current ‘Decade of Centenaries’, which encompasses the foundational years in modern Irish history of 1912 to 1923, This paper, in addition to McWilliams and Doyle’s, is an output of the DFID-funded Political Settlements Research Programme, a unique North-South, scholar-practitioner consortium of five institutions (University of Edinburgh Global Justice Academy, Ulster University Transitional Justice Institute, Conciliation Resources, Rift Valley Institute and the Institute for Security Studies).

Finally, we are delighted to present a contribution on the role that ‘wild nature’ can play in peacebuilding, or ‘peace cultivation’. The paper was presented by TJI/INCORE’s Brandon Hamber and Alistair Little and Wilhelm Verwoerd at the 29th Annual Nobel Peace Prize Forum at Augsburg University in Minneapolis. Little and Verwoerd belong to ‘Beyond Walls’ which organises ‘the Journey through Conflict’ process in the framework of ‘Sustainable Peace Network’. Between 2004 and 2011 they have facilitated peacebuilding activities through immersion of participants in ‘wild nature’ in the Scottish Highlands and South Africa. The role of nature in peacebuilding activities has been underexplored. Through the continuous monitoring of the experiences of the over 100 individuals who participated in ‘the Journey through Conflict’ over the years, however, this paper gives a fascinating insight into the role of nature-based activities in peacebuilding. This joint intellectual effort between Hamber and the practitioners from Beyond Walls once again demonstrates how strong and sustainable ties between academia and practice create fertile ground for innovative contributions to scholarship.

 

Prosecuting Sexual Violence at the Special Court for Sierra Leone

On 13 December, I organized a side-event at the International Criminal Court Assembly of States Parties titled “Prosecuting Sexual and Gender-Based Violence at the Special Court for Sierra Leone”. The event was co-sponsored by the Permanent Missions of Sierra Leone and Canada, UN Women, the Canadian Partnership for International Justice and Western University (Canada).

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Valerie Oosterveld & Sharanjeet Parmar, Photo Credit: CPIJ

At the event, Sharanjeet Parmar discussed her experience as a prosecutor at the Special Court for Sierra Leone (SCSL) in the prosecution of sexual and gender-based violence (SGBV). I presented conclusions from a UN Women-funded project to gather best practices and lessons learned from the SCSL in its investigations and prosecutions of sexual and gender-based violence (SGBV). Fannie Lafontaine, Canada Research Chair on International Justice and Human Rights, moderated the event, which was opened by Ambassador Amadu Koroma, Deputy Permanent Representative (Political),  Permanent Mission of the Republic of Sierra Leone to the UN, and Catherine Boucher, Counsellor, Permanent Mission of Canada to the UN.

In this blog post, I will briefly explain the UN Women-funded project and some of the best practices that emerged. Over the past year, I, along with a small team consisting of Wayne Jordash, former SCSL defence counsel, Maxine Marcus, former SCSL prosecutor, and Fannie Leveau, gender issues consultant, interviewed over 30 individuals who had worked with the SCSL during that court’s 2002-2013 lifespan.

We spoke with individuals with a wide range of experiences – as investigators and prosecutors within the Office of the Prosecutor, as outreach workers, psycho-social support staff, and victim/witness protection staff in the Registry, defence counsel, judges and Chambers staff, and civil society members who worked closely with the SCSL. All had been involved in some way in investigating, prosecuting, defending or considering crimes of SGBV, or in supporting victims and witnesses who had experiences of SGBV.

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Fannie Lafontaine, Photo Credit: CPIJ

Those interviews revealed a number of best practices. First, the investigation and prosecution of SGBV was a key priority of all of the chief Prosecutors. This priority was originally set by the first Prosecutor, David Crane, at the outset of his mandate. Among his earliest hires were two investigators trained in SGBV and human rights, both experienced in gender analysis and both of whom had deep knowledge of the Sierra Leone conflict and familiarity with Sierra Leonean culture. They entered the Office with existing links to Sierra Leonean civil society (including women’s groups). Later, another gender advisor was added. These experts were integrated into multi-disciplinary investigation teams comprised of male and female international and local staff, with a combination of security, country, child rights and financial crimes experts. This meant that, from the beginning, the investigations were multifaceted and contextualized, with an understanding of how SGBV fit into the larger crime pattern. This translated into the collection of strong evidence on SGBV – in the context of all of the other crimes – for the prosecutors to use and apply in the indictments and trials.

Second, the large number of Sierra Leoneans in the SCSL – a proportion which increased over time to become a majority – meant that there was a deeper understanding of customary and traditional practices than there would be if the staff was mostly or entirely international. This strengthened the ability of those participating in the judicial process to understand witness narratives, including on SGBV, and the context within which the crimes were alleged. This was particularly important with respect to the forced marriage, rape and sexual slavery charges.

Third, the Registry contained an expert psychologist, whose work was directly linked to the SGBV and child soldier charges. The psycho-social support staff were Sierra Leonean. Together, the psychologist and her staff provided psychosocial support to SGBV survivors, among others, and adapted that support to fit the realities of the types of trauma experienced in Sierra Leone. This support helped to make victims feel comfortable enough to participate in the court process. Staff working with witnesses were provided with additional training on psycho-social support. However, it is important to note that the protection of, and support and outreach to, SGBV victims was limited by the lean budget of the court.

Fourth, outreach to the community throughout Sierra Leone was a priority within the court from the very beginning, despite the lack of budgetary support for this activity from the SCSL’s Management Committee. Outreach – including on SGBV crimes – commenced before the formal investigations began, first carried out by NGOs and thereafter directly by the SCSL. Staff were dedicated to outreach, making it happen despite the lack of budget. Eventually, the European Union agreed to fund the outreach.

The OTP was the first organ of the court to engage in outreach to women and girls in the field, with direct involvement of the Prosecutor. Responsibility was later shifted to the Registry, with the outreach program involving gender-sensitive Sierra Leoneans with connections to affected communities, including SGBV survivors. Outreach was organized and largely conducted by nationals, and that outreach included women’s groups, as well as organizations representing victims.

Principals of the SCSL travelled regularly to locations throughout the country to answer questions, explain the mandate, receive feedback and respond to concerns. They answered questions about SGBV crimes directly and openly, encouraging discussion of the issue. The outreach continued throughout the mandate of the court, and included updates on trials involving SGBV charges. That said, and in spite of the relative success of the SCSL’s outreach in comparison with other international tribunals, our interviewees indicated that more could have been done on SGBV outreach. For example, more confidence-building could have been done with those subjected to forced marriage, who were worried that they would be prosecuted by the SCSL because of their simultaneous victim-perpetrator status (as many of them were also forced to support or fight with the rebels).

Fifth, the fact that SCSL was based in Sierra Leone was a key factor in the court’s ability to successfully investigate and prosecute SGBV crimes. Interviewees indicated that localizing the court in-country facilitated access to SGBV evidence in a manner sensitive to the communal context. It also led to greater understanding of the links between SGBV and customary/traditional belief systems, as well as increased the understanding within the court of the context of the SGBV crimes. Location in-country also strengthened engagement with Sierra Leonean police services and organizations in witness protection activities and allowed for more effective risk assessments. Finally, being located in Sierra Leone allowed the court to more easily consult with community members, including consultations by the Office of the Prosecutor with a wide variety of women’s groups on the forced marriage charges.

There are many other best practices, as well as lessons learned, identified by our interviewees, which will be included in our final report, which is in the process of being drafted. If any IntLawGrrls readers have experience in the consideration of SGBV in the SCSL and wish to be interviewed for this study, please feel free to contact me at vooster@uwo.ca.

Thanks are extended to UN Women and the European Commission for funding Phase 1 of this study.

Launching the Spring Issue of the Transitional Justice Institute Research Paper Series on SSRN

Catherine O’Rourke and Elise Ketelaars

We are pleased to announce the publication of a new issue of the Ulster University Transitional Justice Institute Research Paper Series on the Social Sciences Research Network. This exciting new issue engages both with highly-topical contemporary questions, as well as long-standing challenges in international law, peace, human rights and gender equality. First off, Thomas Obel Hansen considers the Policy Paper of the ICC on preliminary examinations and its potential to advance ‘positive complementarity’ between the operation of the court and the domestic pursuit of justice for conflict victims. At a time of apparent crisis for the court, scholarship such as Hansen’s that addresses this critical relationship between its operation and broader domestic impacts is critical. Aisling Swaine, the leading global expert in National Action Plans (NAPs) for Women, Peace and Security, examines relevant practice to date in the Asia-Pacific region. She demonstrates an exciting new methodology for gender-responsive planning, which has relevance well beyond the specifics of Asia Pacific, namely the ‘Gender Needs Analysis Tool’. Likewise, the findings, conclusions and recommendations offer immediate policy relevance to the current 63 UN member states with NAPs on Women, Peace and Security, as well as those currently developing or reviewing NAPs.

Contributions by Catherine O’Rourke and the joint article by Anne Smith, Monica McWilliams and Priyamvada Yarnell both address the question of international human rights obligations and their current and potential impact on Northern Ireland. Catherine O’Rourke, in research from the DFID-funded Political Settlements Research Programme, considers the recent report of the UN Special Rapporteur on Truth, Justice, Reparations and Guarantees of Non-recurrence on his country visit to Northern Ireland. She identifies the potential for the report to positively re-shape both the diagnostic (defining the problem) and prognostic (identifying the solutions) framing of the vexed issue of how to deliver accountability for past conflict killings and harms in Northern Ireland. Finally, Anne Smith, Monica McWilliams and Priyamvada Yarnell engage with the highly topical challenges of protecting human rights in Northern Ireland as the UK advances its withdrawal from the European Union. In a timely and important contribution, the authors consider how the long-promised Bill of Rights for Northern Ireland might finally be advanced as part of broader efforts to ensure continued human rights protections in the midst of Brexit.

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Go On! Transnational Law & Justice Network + Contemporary Challenges to International Criminal Justice + 2017 ICC Summer School

Go On! makes note of interesting conferences, lectures, and similar events.

Screen Shot 2017-04-17 at 20.12.58.png ► The Transnational Law and Justice Network at the University of Windsor, Faculty of Law announced open registration for the “Transnational Criminal Law in the Americas”, which will be held on May 4-5, 2017, at Windsor University inWindsor, Ontario, Canada. Click here for details.

► Northumbria University has announced their inaugural summer academy open for registration for the “Contemporary Challenges to International Criminal Justice”, which will be held on June 12-16, 2017, at Northumbria University in Newcastle, United Kingdom. Click here for details.

Screen Shot 2017-04-17 at 20.35.34► The Irish Centre for Human Rights has announced registration open for the “2017 International Criminal Court Summer School”, which will be held on June 19-23, 2017, atNational University of Ireland Galway in Galway, Ireland. Click here for more details.

Victims’ interminable wait for justice in Sri Lanka

On 23 March 2017, the Human Rights Council (HRC) passed Resolution 34/1 on promoting reconciliation, accountability and human rights in Sri Lanka – the latest in a series of resolutions addressing the aftermath of the ethnic conflict between the Government of Sri Lanka (GoSL) and the Liberation Tigers of Tamil Eelam (LTTE). It follows Resolution 30/1 of October 2015 that provides a roadmap for judicial and non-judicial measures to promote post-conflict accountability and reconciliation in Sri Lanka. The first to be co-sponsored by Sri Lanka, Resolution 30/1 was heralded as an opportunity for Sri Lanka to reset its human rights record and embark on a post-conflict journey towards justice, reconciliation and non-recurrence.

Resolution 30/1 sought to implement the recommendations set out in the 2015 report of the UN Office of the High Commissioner for Human Rights Investigation on Sri Lanka (OISL), which documented the “horrific level of violations and abuses” in the Sri Lankan civil war. (See my previous blogs “The Long Journey to Justice for Sri Lanka’s Victims” Part I and Part II for a discussion on the OISL report and Resolution 30/1 respectively). Resolution 34/1 rolls over Resolution 30/1 due to the lack of progress in fulfilling the latter.

Where do we stand, seventeen months after Resolution 30/1 and almost eight years after the official end to the conflict? In March 2017, reporting back to the HRC on the implementation of Resolution 30/1, the UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein noted that the GoSL has been “worryingly slow” in fulfilling its transitional justice commitments and that “the structures set up and measures taken during the period under review were inadequate to ensure real progress.” For instance, in August 2016, Parliament adopted legislation for the establishment of an Office of Missing Persons to investigate the tens of thousands of missing persons – a key transitional justice measure given that Sri Lanka records one of the highest rates of disappearances in the world. However, the legislation is yet to be operationalised.

Another key recommendation – establishing a “Sri Lankan judicial mechanism” with international actors – has been ignored despite being a cornerstone of Resolution 30/1 in securing accountability and justice for victims. International presence in an accountability process was intended to mitigate deep-seated mistrust in purely domestic mechanisms by providing impartiality and credibility. As noted by the UN High Commissioner for Human Rights in 2015, there has been “a total failure of domestic mechanisms to conduct credible investigations, clarify the truth of past events, ensure accountability and provide redress to victims.” Despite the GoSL’s commitments, President Sirisena, in January 2016, excluded any foreign involvement in an accountability mechanism – a position that has been maintained by other senior government officials including the Prime Minister.

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