State responses to COVID-19 have revealed that many national governments are not prioritizing access to safe abortion and other reproductive health care services, despite their vital importance to ensure the well-being of all persons. In this free webinar, Professor Dipika Jain and Payal Shah will offer comparative perspectives on reproductive justice in India and globally, in the context of COVID-19 and beyond the pandemic. In a new article just published in the Columbia Journal of Gender and Law, the speakers examine the transformative potential of jurisprudence from the Indian Supreme Court on reproductive rights. They argue that it is critical for the judiciary to move beyond privacy-based arguments and incorporate a comprehensive equality-based analysis that accounts for the impact of gender, caste, indigeneity, age, and socioeconomic status. The COVID-19 pandemic has brought to light deep-rooted inequalities in access to healthcare services, in India and other countries. In these circumstances, restrictions on access to abortion disproportionately impact marginalized persons, making it imperative for law and policy-making to adopt an equality analysis in their approach.
The Syrian civil war has remained largely unsolvable from a peace-keeping perspective, and largely untouchable from a legal perspective. Yet, Germany is trying one of the most meaningful criminal cases in the international community in recent years. This comes at a time when local court systems around the world are shutting down, reducing the number of cases heard, or adapting to online forums. Despite a global pandemic, some of the victims of the Syrian civil war are going to have their day in court.
Germany’s progress poses a greater question regarding the future of international crimes: Will they be primarily tried in international courts and tribunals, or will they be “outsourced” to domestic courts? German action in the Syrian case suggests that the future of international criminal prosecution will be in the hands of individual states, who step up when international organisations and courts do not. Additionally, a pattern has emerged among the individual states who are attempting to try cases connected to the Syrian civil war. The pattern indicates that states who experience an influx of refugees and asylum seekers may be the ones best suited for prosecution of international crimes committed on foreign soil. Germany had more access to witnesses and more support for this prosecution in part because of the number of witnesses that are now living within their borders.
To properly prepare for the outsourcing of international crimes committed in other countries, states must consider a few key things. Continue reading →
Guatemala is just one of the slew of countries like Brazil, Nicaragua and Hungary that was already experiencing rule of law backsliding long before Covid-19. However, as highlighted in ILAC’s most recent rule of law assessment report, there was a window of opportunity to return to combating corruption and strengthening the rule of law in Guatemala with the ushering in of a new executive in January 2020. Guatemala’s new president, Alejandro Giammattei, even took early steps to show he was serious about fighting corruption by signing an inter-institutional cooperation agreement and establishing a presidential commission against corruption. Even though there were initial signs of hope, there are already unfortunately several reasons to fear that the rule of law will continue to backslide and that the chance for justice will be postponed during the pandemic.
Further rule of law backsliding during Covid-19 is already happening
We have already seen Guatemala’s Congress use a Covid-19 discussion to pass a bill that amends the NGO law. The amendment restricts development NGOs and has been heavily criticized since it was first introduced in March 2017 as being inconsistent with the right of association and freedom of expression. Yet, on February 11, it was “surreptitiously approved after being introduced by three congressmen during a discussion of emergency measures to confront the coronavirus, thus deceiving all transparency and debate in the parliamentary process”. Guatemala’s Constitutional Court provisionally suspended enactment of the law, but its final ruling is on hold as the Court is not in session due to Covid-19.
Added challenges to judicial nominations
More than six months have passed since Congress should have elected judges to Guatemala’s highest benches, including the Supreme Court and Court of Appeals. What was already a nominations process plagued by technical failures and corruption scandals has been further delayed and is likely to become even less transparent due to the pandemic. In the midst of the national quarantine, Guatemala’s Congress met on March 17, and elected judges to the Supreme Electoral Tribunal. The Congressional session to elect the judges was closed to the media as a measure to apparently prevent spreading of the virus. In response, many sectors within Guatemala expressed concern over the lack of transparency in the election process. Despite these concerns, the nine newly elected judges took the bench on March 27.
Almost as worrying is the fact that the first order issued by the new judges suspended the annulment of six different political parties, economic sanctions against former political candidates, advertising companies and political organisations, several of whom had allegedly illicitly financed past elections. The judges justified their order by stating that the affected parties were unable to appear in their defense due to the public health crisis. This begs the question of whether the judges used Covid-19 as a pretext to justify their ruling after being influenced to suspend the annulments and sanctions. If the answer is yes, this is not a good start for the legitimacy of the newly formed Tribunal which is meant to administer justice and root out corruption in electoral matters.
Covid-19 as a pretext for limiting civil liberties
Not only was the media excluded from the Congressional session to elect new judges to the Supreme Electoral Tribunal, but the government has placed further restrictions on journalists seeking to access and cover other Congressional sessions. On April 4, in response to the limitations, the Human Rights Ombudsman filed an amparo with the Constitutional Court claiming that the restrictions violated Guatemala’s constitution. Similarly, about a week later, more than a hundred journalists, columnists, activists and civil society organizations demanded that President Giammattei and his government stop threatening their freedom of expression and independent journalism. The demand arises from the fact that the government has attempted to silence media outlets critical of the government’s response to the pandemic by using intimidation tactics and excluding journalists from official WhatsApp groups where the government disseminates Covid-19 information.
Can the Constitutional Court continue to resist?
The Constitutional Court has remained a pocket of resistance throughout the attacks on the justice sector and the rule of law in Guatemala, and hopefully this will remain true in spite of the pandemic. In addition to the amparos pending before the Constitutional Court regarding the NGO law and the restrictions placed on journalists, the Court continues to receive amparos during the pandemic. This includes amparos filed by the Human Rights Ombudsman to decentralise Covid-19 testing and for President Giammattei’s failure to appoint a head of the Presidential Secretariat for Women which works to protect the rights of women and children, an amparo requiring President Giammattei to guarantee water and electricity services throughout the health emergency and an amparo to guarantee that the conditions of employees are not modified during the pandemic. It is unclear how these pressing constitutional questions will be resolved while the Court is not in session and how much of a backlog the institution can manage once it is up and running again. How long can justice be postponed during a public health crisis?
The American Journal of International Law is issuing a worldwide call for papers for an Agora symposium to be published in the October 2020 issue of the Journal. The topic – “The International Legal Order and the Global Pandemic” – recognizes that the present crisis raises foundational questions for the international legal order that extend beyond the immediate challenges to public health and economic stability.
The COVID-19 pandemic has triggered an equally urgent digital rights crisis.
New measures being hurried in to curb the spread of the virus, from “biosurveillance” and online tracking to censorship, are potentially as world-changing as the disease itself. These changes aren’t necessarily temporary, either: once in place, many of them can’t be undone.
That’s why activists, civil society and the courts must carefully scrutinise questionable new measures, and make sure that – even amid a global panic – states are complying with international human rights law.
Human rights watchdog Amnesty International recently commented that human rights restrictions are spreading almost as quickly as coronavirus itself. Indeed, the fast-paced nature of the pandemic response has empowered governments to rush through new policies with little to no legal oversight.
There has already been a widespread absence of transparency and regulation when it comes to the rollout of these emergency measures, with many falling far short of international human rights standards.
Tensions between protecting public health and upholding people’s basic rights and liberties are rising. While it is of course necessary to put in place safeguards to slow the spread of the virus, it’s absolutely vital that these measures are balanced and proportionate.
Unfortunately, this isn’t always proving to be the case.
The Rise of Biosurveillance
A panopticon world on a scale never seen before is quickly materialising.
“Biosurveillance” – which involves the tracking of people’s movements, communications and health data – has already become a buzzword, used to describe certain worrying measures being deployed to contain the virus.
A panopticon world on a scale never seen before is quickly materialising
The means by which states, often aided by private companies, are monitoring their citizens are increasingly extensive: phone data, CCTV footage, temperature checkpoints, airline and railway bookings, credit card information, online shopping records, social media data, facial recognition, and sometimes even drones.
Private companies are exploiting the situation and offering rights-abusing products to states, purportedly to help them manage the impact of the pandemic. One Israeli spyware firm has developed a product it claims can track the spread of coronavirus by analysing two weeks’ worth of data from people’s personal phones, and subsequently matching it up with data about citizens’ movements obtained from national phone companies.
In some instances, citizens can also track each other’s movements – leading to not only vertical, but also horizontal sharing of sensitive medical data.
Not only are many of these measures unnecessary and disproportionately intrusive, they also give rise to secondary questions, such as: how secure is our data? How long will it be kept for? Is there transparency around how it is obtained and processed? Is it being shared or repurposed, and if so, with who?
Censorship and Misinformation
Censorship is becoming rife, with many arguing that a “censorship pandemic” is surging in step with COVID-19.
Oppressive regimes are rapidly adopting “fake news” laws. This is ostensibly to curb the spread of misinformation about the virus, but in practice, this legislation is often used to crack down on dissenting voices or otherwise suppress free speech. In Cambodia, for example, there have already been at least 17 arrests of people for sharing information about coronavirus.
Oppressive regimes are rapidly adopting “fake news” laws
At the same time, many states have themselves been accused of fuelling disinformation to their citizens to create confusion, or are arresting those who express criticism of the government’s response.
As well as this, some states have restricted free access to information on the virus, either by blocking access to health apps, or cutting off access to the internet altogether.
AI, Inequality and Control
The deployment of AI can have consequences for human rights at the best of times, but now, it’s regularly being adopted with minimal oversight and regulation.
AI and other automated learning technology are the foundation for many surveillance and social control tools. Because of the pandemic, it is being increasingly relied upon to fight misinformation online and process the huge increase in applications for emergency social protection which are, naturally, more urgent than ever.
Prior to the COVID-19 outbreak, the digital rights field had consistently warned about the human rights implications of these inscrutable “black boxes”, including their biased and discriminatory effects. The adoption of such technologies without proper oversight or consultation should be resisted and challenged through the courts, not least because of their potential to exacerbate the inequalities already experienced by those hardest hit by the pandemic.
Eroding Human Rights
Many of the human rights-violating measures that have been adopted to date are taken outside the framework of proper derogations from applicable human rights instruments, which would ensure that emergency measures are temporary, limited and supervised.
Legislation is being adopted by decree, without clear time limitations
Legislation is being adopted by decree, without clear time limitations, and technology is being deployed in a context where clear rules and regulations are absent.
This is of great concern for two main reasons.
First, this type of “legislating through the back door” of measures that are not necessarily temporary avoids going through a proper democratic process of oversight and checks and balances, resulting in de facto authoritarian rule.
Second, if left unchecked and unchallenged, this could set a highly dangerous precedent for the future. This is the first pandemic we are experiencing at this scale – we are currently writing the playbook for global crises to come.
If it becomes clear that governments can use a global health emergency to instate human rights infringing measures without being challenged or without having to reverse these measures, making them permanent instead of temporary, we will essentially be handing over a blank cheque to authoritarian regimes to wait until the next pandemic to impose whatever measures they want.
We are currently writing the playbook for global crises to come
Therefore, any and all measures that are not strictly necessary, sufficiently narrow in scope, and of a clearly defined temporary nature, need to be challenged as a matter of urgency. If they are not, we will not be able to push back on a certain path towards a dystopian surveillance state.
Litigation: New Ways to Engage
In tandem with advocacy and policy efforts, we will need strategic litigation to challenge the most egregious measures through the court system. Going through the legislature alone will be too slow and, with public gatherings banned, public demonstrations will not be possible at scale.
The courts will need to adapt to the current situation – and are in the process of doing so – by offering new ways for litigants to engage. Courts are still hearing urgent matters and questions concerning fundamental rights and our democratic system will fall within that remit. This has already been demonstrated by the first cases requesting oversight to government surveillance in response to the pandemic.
These issues have never been more pressing, and it’s abundantly clear that action must be taken. The courts can be an important ally in safeguarding our digital rights, also in the current crisis, but we must give them the opportunity to play that role.
In response to the COVID-19 crisis, the American Journal of International Law (AJIL) is issuing a worldwide call for papers for an Agora symposium to be published in the October 2020 issue of the Journal. The topic – “The International Legal Order and the Global Pandemic” – recognizes that the present crisis raises foundational questions for the international legal order that extend beyond the immediate challenges to public health and economic stability. Papers can address any aspect of this topic from a historical, institutional, doctrinal, normative, critical, or geopolitical perspective, or a mix of approaches, including but not limited to:
state responsibility for pandemics;
the design and operation of international institutions, such as the World Health Organization, and other forms of international cooperation;
challenges to the promotion and protection of human rights during pandemics, including emergency and police powers, surveillance technologies, and the impact on migration and refugees;
the disparate consequences of pandemics for minority groups, economic inequality, or intergenerational equity;
the relationship between climate change and pandemics;
controversies over innovation for medical treatments and vaccines and the cross-border distribution of goods, services, and knowledge;
threats to the global financial system; and
historical analyses of pandemics and insights for present and future challenges
Papers should not exceed 5,000 words, inclusive of footnotes. The deadline for submissions is July 1, 2020. Submitted papers should be emailed to firstname.lastname@example.org.
The selection of papers will be based on importance, novelty, and quality of analysis, with particular attention given to papers likely to have lasting relevance. An effort will also be made to publish a diverse array of contributions. Authors are asked to conform to AJIL’s style manual, which can be found here.
III. … and questions the importance of justice within the healing process
As potential victims of crimes against humanity, war crimes and eventually genocide, survivors of CRSV deserve justice. Congolese gynecologist Dr. Denis Mukwege, 2018 Peace Nobel Prize Laureate, explained at a University of Montreal in June 2019 that justice is an integral part of the victims’ healing process. To him, justice is key both to the victims’ psychological well-being and to the restoration of their dignity. As Dr. Yael Danieli points out in her 2014 article, reparative justice can take place at every step throughout the justice process: from the first encounter of a court with a potential victim or witness to the aftermath of the completion of the case, every step represents an opportunity for redress and healing.
Despite the increased attention of the international community towards impunity for sexual violence crimes, according to the last Secretary-General Annual Report on conflict-related sexual violence, accountability remains elusive. The ability of victims to access a justice system is frequently hindered by reporting barriers both at the individual and structural levels. Across most countries, victims are often reluctant to report their experiences owing to stigma, fear of reprisal or rejection by their families or communities, and lack of confidence in judicial and non-judicial responses. As an example, in Guinea, the 2009 repression has traumatized a large number of civilians. Even if some courageous female victims did testify before Guinean courts, the absence of specialized investigation and prosecution units within justice system to provide support to vulnerable victims, combined to the lack of relevant training for magistrates, registrars and lawyers – professions in which males are largely overrepresented –, did not encourage victims to testify in a climate of trust.
The justice process can also cause secondary victimization or second injury. Sexual violence victims often have to tell their story many times to different persons, with a high level of details, and fight to be trusted. Moreover, depending on the various national and international judicial systems’ requirements, victims may have to bring evidence of their rape, while such an evidence is expensive to obtain. They can notably have to bring a medical certificate to the court. As an example, Guinean victims of the event of 28 September 2009 did face difficulties to prove the evidentiary value of a medical certificate confirming that sexual violence took place.
It is also important to mention that, for some victims, justice does not necessarily mean seeking a reparation order or a conviction from a court. According to Salah Aroussi’s article titled Perceptions of Justice and Hierarchies of Rape: Rethinking Approaches to Sexual Violence in Eastern Congo from the Ground Up (2018), “survivors of rape by armed groups or civilians in the DRC primarily conceive justice as economic assistance and have limited interest in the prosecution of perpetrators […]. [R]epairing the harm and restoring the victim is at the heart of communities’ understanding of what justice is.” The author warns that “at the same time, survivors’ reluctance to pursue formal justice must be understood in the light of the inaccessibility of the Congolese criminal justice system and its failure to play a positive role in society.”
Victims of conflict-related sexual violence suffer from long term, if not lifelong consequences. During the Commemoration of the 10-Year Anniversary of the Mandate on Sexual Violence in Conflict, Tatiana Mukanire, survivor from the Democratic Republic of the Congo and leader of the survivors SEMA Network,explained that raping a person amounts to killing her or him while letting him or her breathe. At the same time, impunity, corruption, lack of services and difficult access to healing resources tend to silence CRSV victims. Lack of confidence towards nationals and international justice systems are also an issue, whereas the International Criminal Court has already failed to deliver justice in the case of Jean-Pierre Bemba, despite the struggle of victims to hold him accountable.
As a conclusion, to answer CRSV victims’ needs, it is imperative to understand the consequences of the victimization on the survivors’ lives. Otherwise, there is a chance to see the survivors’ care not to be optimal. Nobody can speak in place of victims. They have their own voice and have to be heard. Our role is to listen to them.
This blogpost and the author’s attendance to the 18th Assembly of States Parties to the International Criminal Court are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.
We need a global plan to address the predictable rise in gender-based violence that COVID-19 is triggering.
Even before COVID-19, domestic violence was already a global emergency. (Photo: Noam Galai/Getty Images)
You can now google lists of rich and famous people who have been infected with coronavirus, leading some to comment that COVID-19 is an equal-opportunity disease. But while the virus itself doesn’t discriminate, responses to it have reinforced inequality, leaving more people exposed to widespread abuses, including domestic violence.
From a hurricane in New Orleans to war in Syria, domestic violence increases when communities face crisis. We should know that COVID-19 is no exception. Stress and anxiety brought on by the outbreak can leave an abuser feeling out of control, triggering violence. And the measures we’ve taken to control the disease create more danger. Distancing from those outside the family reinforces the isolation that abusers impose. Suspension of work means many more hours of exposure to violence at home. Lockdown cuts off avenues of escape.
We’ve begun to see reports about the pandemic triggering domestic violence in some of the world’s centers of power. France and the U.S. for example, are reporting spikes in domestic violence calls to hotlines. In China, the number of cases reported to police nearly tripled in February, the peak month for COVID-19, compared to last year. But few responses recognize that the threat of domestic violence is compounded in countries already battered by war or economic ruin, where governance is weak, services are inadequate, and healthcare systems are even more ghastly than in the US.
In early March, the World Health Organization announced that the last Ebola patient in the Democratic Republic of Congo (DRC) was discharged—a major milestone in the fight against one of the world’s deadliest viruses. Only days later, the DRC reported its first case of COVID-19. The virus is likely to spread like wildfire in communities with weak healthcare infrastructure, where poverty is grinding and warfare is ongoing. And riding on the coattails of the virus is domestic violence. With movement in the capital city of Kinshasa intermittently curtailed, women’s rights groups say that many more women are now seeking help.
Drawing on bitter lessons from the Ebola outbreak, Congolese women’s rights advocates are acutely aware that intimate partner violence increases with calamity. In a country challenged by the lack of services for abused women, and a legal system that fails to fully criminalize, must less prosecute, domestic violence, activists are wisely focusing on prevention.
Nearly half of all women in the world have experienced psychological violence. It’s been called “the most widespread but among the least reported human rights abuses.”
They’ve organized social media campaigns, asking community leaders to speak out online against abuse. Video clips feature men talking about doing their share of childcare and household chores to promote gender equality at a time when the work-burden at home is increased. Similar segments are planned with messages geared toward helping families confined at home to find healthy ways to vent frustration. And women’s rights advocates are innovating ways to document abuse to make the case for better laws and services to confront domestic violence in the long-term. In this way, they are working to ensure that a more just society emerges from the pandemic.
Since coronavirus hit Lebanon, groups there have seen a 60 percent jump in domestic violence cases. One local women’s organization is providing vital public health information on how to prevent the spread of domestic violence along with the spread of COVID-19. They’re offering psychosocial support sessions via conference calls and WhatsApp groups, saving face-to-face interventions for high-risk cases.
In Colombia, youth activists are performing online skits to teach non-violent ways to handle real-time frustrations and family conflicts during the pandemic. They’re preventing domestic violence now with methods that have a demonstrated track record of reducing child abuse and youth criminal activity, both risk factors for future domestic violence. LGBTIQ organizations are following suit, providing e-mentoring services, live chats and online hubs for people confined to trans-hostile and homophobic spaces.
As the world turns up the volume on social media, domestic violence needs to be part of the COVID-19 conversation—and not just in the messaging of local activists. Every government is obligated to prevent and redress gender-based violence, including during a pandemic.
While the United States wasted time rallying for a UN resolution to blame China for unleashing the virus, UN Secretary-General António Guterres called for a global ceasefire, supported by at least 53 countries. Afghan, Yemeni and Syrian women had already issued that call as part of their COVID-19 response. They know firsthand that war-torn countries have little chance of success against the pandemic in the midst of gunfire and aerial bombing. In fact, armed groups in Colombia, Yemen, Syria, the Philippines and Cameroon have taken steps towards a ceasefire. This is a major opportunity in the fight against the spread of the pathogen, especially in places where millions are displaced and hospitals have been reduced to rubble. And it would take little effort to mobilize already trained responders who can recognize, prevent, and address domestic abuse during precious moments of ceasefires.
Even before COVID-19, domestic violence was already a global emergency. You likely know the stat: one out of every three women in the world will experience physical or sexual violence in their lifetime. Nearly half of all women in the world have experienced psychological violence. It’s been called “the most widespread but among the least reported human rights abuses.” Those who are targeted with domestic violence, not only because of their gender, but on the basis of overlapping identities defined by race, disability, sexual orientation, caste, or class, faced compounded threat even without the pandemic. Now, mandatory curfews and lockdowns of tens of millions of people, epic, sudden loss of jobs and harvests, and the looming possibility of a global depression threaten to vastly exacerbate conditions that give rise to domestic violence.
UN Secretary-General Guterres is now calling for a global “ceasefire” on domestic violence. The international interventions that follow should look to women’s groups working on the frontlines of the crisis to lead. The emergency responses we take now are seeding the future. We need a global plan to address the predictable rise in gender-based violence that COVID-19 is triggering. As we act at home to keep our loved ones and communities safe, we should take stock of women’s community-based responses worldwide. The lessons we learn from them now can help us get through the worst that is still to come.
In this blogpost, we will first demonstrate that conflict-related sexual violence has long-term consequences on female victims’ lives and on their communities. Even if men and boys also suffer from conflict-related sexual violence, this post will not address their particular situation, and will specifically focus on women and girls. Then, we will address the needs of these female victims. Finally, we will discuss the importance of justice in the victims’ healing process.
I. Understanding the consequences of CRSV on victims…
Sexual violence results in multiple consequences for survivors and their communities. These consequences can be classified in four categories, namely social, psychological, medical and economic consequences.
Social consequences of CRSV may include the rejection of the female victim by her own family, her husband and her community. The raped woman is considered as impure: for example, in the Democratic Republic of the Congo, a raped woman is often considered as unworthy of respect in her community. Rape is taboo – but while taboo is sometimes perceived as needed to preserve societal welfare, in the context of CRSV, it rather appears as a powerful tool of domination of men over women.
In many societies, raped unmarried women can forget the idea of getting married one day. Especially when a child is born from a rape committed by an enemy group, the mother tends to be considered as an “affiliate of the enemy,” and both the mother and the child are highly stigmatized. To avoid stigma, women and their children often have to flee from their homes. Women in this situation are then alone to take care of a child they did not necessarily want to have, and to meet the family’s financial needs. The economic consequences of rape tend to bury women in poverty. Also, ostracized young victims usually quit school. In addition to rejection, as explained in the work of a University of Montreal PhD student, raped women can notably face depression and post-traumatic stress disorder symptoms, which may drive them to suicide. Last but not least, CRSV threatens the victims’ physical integrity: in addition to the physical violence inherent to it, it can also infect women and children born of rape with HIV or other sexually transmissible diseases. Furthermore, in places where abortion is not accessible, women can resort to illegal and clandestine abortion threating their lives. Lots of women lack resources to receive proper medical treatment or surgery or suffer from the lack of medical structures in some remote areas.
Conflict-related sexual violence can result in a highly traumatized population. This victimization tends to modify social relationships, pervert the community dynamics and even cause intergenerational trauma.
II. …allows to better respond to their specific needs…
Having a look to CRSV consequences is useful to provide a better response to victims’ needs. Professor Jo-Anne Wemmers, in her book entitled Victimology: A Canadian Perspective (2017), explains that some similarities exist between the fundamental needs of human beings and those of victims. The first are illustrated by Abraham Maslow’s hierarchy of needs, as illustrated below. This pyramid, created in 1940, exposes the hierarchy of human needs and should be read from the bottom up. The transition from one step to another requires the entire fulfillment of the need below.
If Professor Jo-Anne Wemmers mostly supports Maslow’s hierarchy of needs when it comes to assessing victims’ needs, she prefers to summarize the range of their needs as falling into these five categories: medical needs, financial needs, need for protection, need for support in order to help them deal with the psychological effects of their victimization, and need for recognition and respect in the criminal justice system. A comparison between these two pyramids shows us that victims of crimes have specific needs and concerns compared to “un-injured” human beings.
Applying this framework to CRSV victims leads to think that the importance of fulfilling their needs of safety and security cannot be overstated. On the one hand, for victims of sexual violence, feelings of security, serenity and trust are key for them to be able to speak out about what they experienced. On the other hand, a context of armed conflict tends to lower the victims’ feeling of security, making them even more vulnerable and less likely to have access to relevant services.
This blogpost and the author’s attendance to the 18th Assembly of States Parties to the International Criminal Court are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.
III. …and took time to be prosecuted as a crime against humanity and a war crime.
For centuries, CRSV crimes did not preoccupy international tribunals. While sexual violence had been committed during World Wars I and II, impunity for such crimes was considered as normal before the Nuremberg or Tokyo tribunals. Rape was assimilated to bad treatments committed against civilians, and sexual violence in conflict was perceived as a collateral damage. If none of CRSV crimes were prosecuted at that time, it is because these crimes did not exist under international law. Pursuant to the principle of legality, developed by Cesare Beccaria in the 18th century and also known as nullum crimen, nulla poena sine lege, no one can be convicted of a criminal offence in the absence of a clear and precise legal text.
The first major step in the criminalization and recognition of sexual violence in conflict was the four Geneva Conventions of 1949. Common article 3 does not expressly mention rape nor other forms of sexual violence, but bans “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture,” and “outrages upon personal dignity, in particular humiliating and degrading treatment.” Article 27 of the Fourth Geneva Convention holds that “women shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution or any form of indecent assault.” In addition, rape is expressly mentioned in article 4§2 of Additional Protocol II of 1977, which states that outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault are and shall remain prohibited at any time and any place.
The NGO We ARE Not Weapons of Warnotes that, in 1992, the issue of the mass rape of women in former Yugoslavia came to the fore at the United Nations Security Council, which declared that the mass, organized, and systematic detention and rape of women, in particular Muslim women, persecuted in Bosnia and Herzegovina constituted “an international crime that was not to be ignored.”
A few years later, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) were the first tribunals whose Statutes explicitly included CRSV crimes. Article 5 of ICTY Statute and Article 3 of ICTR Statute included rape as a crime against humanity, alongside other crimes such as torture and enslavement. In 1998, the ICTR became the first international tribunal to consider the acts of sexual violence as constituting genocide. In its judgment against a former Rwandan mayor, Jean-Paul Akayesu, it considered rape and sexual assault to be acts of genocide insofar as they were committed with intent to destroy a protected group, in whole or in part.