Calling it what it is: It is time to define “sexual violence”

From 5-12 December 2018, International Criminal Court (ICC) member states are convening at the World Forum Convention Center in The Hague for the 17th annual session of the Assembly of State Parties (ASP) to the Rome Statute. Serving as the governing body of the Court, the ASP meets in full plenary once a year to discuss and decide upon matters key to the future functioning of the ICC. Civil society is there every step of the way, monitoring sessions and interacting with delegates, in order to advocate for an independent, effective and fair ICC.

The issue of gender justice, and more specifically of sexual and gender-based violence (SGBV), takes relevance in the side meetings. In this regard, one of the most anticipated events took place on December 10, 2018, titled “What makes violence ‘sexual?’,” including the launch of the “Call it what it is” campaign and the “Gender Report Card” on the ICC 2018. The event was organized by the Women’s Initiatives for Gender Justice with the support of the governments of Australia, Korea, Switzerland, Argentina, Canada, United Kingdom, Costa Rica, Sweden, Switzerland, and New Zealand.

Side-event “What makes violence ‘sexual’,” including the launch of the “Call it what it is” campaign and the “Gender Report Card” on the ICC 2018 @HandlMelisa, the Canadian Partnership for International Justice

The panel was moderated by Siobhan Hobbs, Legal and Program Director Women’s Initiatives for Gender Justice. The opening remarks were made by H.E. Matthew E.K. Neuhaus, Australian Ambassador to the Netherlands, who briefly talked about the challenge of dealing with the impunity of sexual crimes in conflict situations. Peter Wilson, British Ambassador to the Netherlands, also joined the opening remarks.

The side-event featured three speakers: Patricia Sellers, Special Adviser on Gender to the ICC Prosecutor; Dr. Rosemary Grey, Postdoctoral Fellow from Sydney University and author of academic analyses on SGBV; and Jihyun Park, survivor of gender-based violence and women’s rights activist from North Korea. H.E Sergio Gerardo Ugalde Godinez, Costa Rican Ambassador to the Netherlands, presented the closing remarks.

Patricia Sellers explained the genesis of how we came to conceptualize sexual violence in international criminal law, how it is addressed today, and how we want to address it in the future. She concluded by explaining that history shows us that sexual violence is something that can destroy towns, nations, communities, and can be used as means of genocide to destroy groups. Dr. Rosemary Grey stated that the ICC was the first tribunal with a statute recognizing a wide range of SGBV. However, she emphasized that the statute does not clarify the question of what makes an act sexual by nature and that, in the jurisprudence, there is no answer to what makes an act “sexual.” Dr. Grey explained that, in the Bemba case, the prosecutor alleged sexual violence was committed as Bemba’s soldiers subjected men and women to forced nudity in order to humiliate them. However, the Pre-Trial Chamber did not include those acts of forced nudity as “sexual violence” as it did not regard them to be of “comparable gravity.” In the Kenyatta case, perpetrators forced a group of people to remove their clothes and circumcised the men using rough tools and, in some cases, amputated the victims’ genitals. The Prosecutor described these acts as “other forms of sexual violence.” The victims agreed. However, the Pre-Trial Chamber characterized forcible circumcision and penile amputation as “other inhumane acts” under Article 7 (1) (k) of the Statute because it did not regard them as “sexual in nature.”

From left to right, Dr.Rosemary Grey, Patricia Sellers, Siobhan Hobbs and Jihyun Park. @HandlMelisa,Canadian Partnership for International Justice

The side event also included the launch of the campaign “Call it what is!” with remarks by H.E. Sabine Nolke, Canadian Ambassador to the Netherlands. The “Call it what it is!”campaign addresses the issue of lack of accountability for sexual violence. It is a civil society campaign that aims to think about options that otherwise we would have not have been contemplated in the definition for sexual violence, expanding our understanding of sexual violence around the world in a way that is inclusive, culturally sensitive, responds to the realities around the world, and is forward-thinking. The campaign would support the Court in considering how sexual violence is understood in different cultures by “creating a vocabulary so the ICC can speak in an inclusive language.” It aims to do so by creating a definition of sexual violence in order to serve as guide for prosecutors, victims’ representatives, defense counsel, and other judicial actors to better understand what an “act of sexual nature” involves. The campaign also included the launch of a survey (available in English, French and Spanish) that mapped different cultural perceptions on sexual violence available at the Women’s Initiative for Gender Justice webpage.

The Rome Statute is the first instrument of international criminal law to expressly include a wide range of crimes of sexual violence. However, jurisprudence of the ICC highlights the need for a working definition of what sexual violence could entail. Specifically, the ICC legal framework lacks a definition of “act of a sexual nature” (found in the ICC Elements of Crimes for sexual slavery, forced prostitution, and “other forms of sexual violence”).


Women’s Rights Activist Jihyun Park, sharing her experience as a sexual violence and forced marriage survivor in North Korea @HandlMelisa, Canadian Partnership for International Justice

One of the questions asked in the survey is what makes an act “sexual.” There are several characteristics that could help define and conceptualize a “sexual” act; it could be that the act involves contact or exposure with sexual body parts; that the act affects the victims’ sense of sexual identity; that the act affects the victims’ reproductive capacity; that the act is widely regarded as “sexual” in the victims’ community; that the act results in sexual gratification of the perpetrator; or/and that the act affects the victims’ capacity for sexual activity. The survey also asks participants to provide examples of an “act of sexual nature” — other than those listed in the Rome Statute — that could amount to sexual violence. Examples of such acts could include forced nudity, forced abortion, and genital mutilation, among many other. Finally, the survey asked participants to contextualize by explaining in which country, region, culture, or religion this“act” may be considered as an “act of sexual nature.”

As of this morning, there were more than one hundred responses from diverse geographical regions that will inform a civil society effort to develop a declaration on sexual violence, probably a non-exhaustive list.

Dr. Rosemary Grey explained how initial responses to the survey showed the range of thinking in this topic, including many acts such as forced nudity, sexual mutilation, forcing victims to watch an act of sexual violence, and forcing victims to rape others. One response that appeared many times is the “non-consensual circulation of sexual images” in media. Other examples also included forced virginity testing in order to check the condition of the hymen, groping, total abortion bans, forced abortion, and denial of contraception methods, among others. Some responses also referred to historical precedents: human experiments of a sexual nature, such as Nazi experiments on homosexual men and practices in concentration camps whereby homosexual men were not allowed to put their hands under their blankets under the presumption that they would otherwise masturbate, “weaponizing the victims’ sexuality against them.” Shaving the heads of women who have had sexual connection with the enemy as a way to humiliate them, unwanted or forced touching of body parts, violating a victim’s sexual privacy, and violations affecting reproductive rights and reproductive autonomy, were also among the sexually violent acts mentioned in some of the responses to the survey.

The expressive harm of denying diverse sexual-based crimes their recognition as related but distinct crimes is silencing the wide-ranging spectrum of gender-related harms that victims often experience.Victims of gender-based crimes not only experience forced penetration. There are gender-based harms that are equally or even more physically, psychologically, socially and emotionally harming than rape. Crimes such as enforced prostitution, sexual slavery, forced abortion, the transmission of sexual diseases, and forced pregnancy often provoke irreversible internal organ damage, psychologically traumatize the victims for the rest of their lives, subsume them in shame and guilt, and socially stigmatize them within their communities.

The ICC – a role model organization with a clear gender-sensitive mandate – has the capability to establish a gender perspective that can guarantee the effective investigation, prosecution and trial of gender-based crimes. No other institution in the world has such a significant power to contribute to ending the era of impunity for gender-based crimes.

This blogpost and my attendance to the 17th Assembly of States Parties are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

Advertisements

Human Trafficking as a Gendered Phenomenon – Part I

This is part 1 of a two-part post on human trafficking as a gendered phenomenon. In this first part we provide a brief contextualisation to the issue and introduce our recently published article examining the relationship between the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and human trafficking. In the second post, we take a historical look at how the issue of trafficking became divorced from the Committee’s work on violence against women.

Trafficking in human beings is a gendered phenomenon.[1] An estimated 79% of all detected trafficking victims are women and children and traffickers are ‘overwhelmingly male’.[2] As the former Special Rapporteur on Violence against Women, its Causes and Consequences (Special Rapporteur on VAWG) commented in her 15 year review of the mandate, human trafficking is one of the major areas of concern with regards to violence against women (alongside domestic violence, sexual violence in conflict and reproductive rights violations).[3]  The Special Rapporteur on VAWG commented that there has been a marked shift on policy in this area from a ‘prostitution framework’ to a framework which places human rights at the centre of the debate. The Declaration on Violence against Women (DEVAW) confirms this view and recognizes human trafficking as a form of violence against women (Article 2(b)). Further, violence against women has now been recognized as a form of discrimination against women.[4] It is therefore clear that human trafficking is a form of violence and discrimination against women.

More recently, trafficking has been recognised as one of the main forms of violence that women face in the context of migration.[5] Trafficked women and girls often face different forms of gender-based violence such as sexual violence, rape, violation of their reproductive rights, and slavery both in destination and during their trip. Trafficking may constitute torture, crimes against humanity, and war crimes, and it has been identified as a threat to international peace and security by the Security Council (S/RES/2331 (2016)). States of origin, transit, and destination have obligations to prevent trafficking, protect victims (within their territory and from refoulement to a country where there is a risk of torture or cruel, inhuman or degrading treatment or punishment, including the risk of re-trafficking), and to prosecute traffickers. For States to comply with these obligations, victims must be properly identified and identification proceedings must be put in place at strategic points on migration routes and access to asylum proceedings must be granted.

In practice, much remains to be done to implement a human rights and a gender approach to trafficking that can provide justice to those who have suffered violations of their rights due to human trafficking for sexual exploitation, forced labour and other forms of exploitation, slavery and servitude. Most States aim to combat human trafficking from a migrant model a criminal justice perspective and more recently a security approach, thus neglecting the rights of trafficking victims.

In our article “Human Trafficking as A Gendered Phenomenon: CEDAW in Perspective”, we argue that CEDAW is an important human rights instrument in the fight against trafficking in human beings. By way of brief introduction, the Convention is an international human rights treaty dedicated to women and girls. It has been described as ‘the definitive international legal instrument requiring respect for and observance of the human rights of women.[6] At the core of the Women’s Convention is the eradication of discrimination against women and States parties to the Convention accept wide-ranging obligations to promote equality in all spheres of life.[7]

Trafficking is expressly prohibited under CEDAW in Article 6, which mandates states to take all appropriate measures to supress trafficking and the exploitation of prostitution. We argued that given the disproportionate number of women and girls who are trafficked for the purposes of sexual exploitation and forced labour, the Convention is a valuable instrument, contextualising trafficking in the context of structural inequality, violence and discrimination. Further, the Committee’s General Recommendation No.30 and General Recommendation No. 35 point to some of the underlying factos which make women vulnerable to being trafficked including conflict, extractive industries, global supply chains and natural disasters. Significantly no State party has entered a reservation to Article 6.

However, Article 6 does not define the terms trafficking and exploitation of prostitution and the scope and contours of the obligation remain uncertain. Through an analysis of the Committee’s jurisprudence, we found that the Committee has yet to find a violation of Article 6 of the Convention finding all cases pleading Article 6 inadmissible. Further, the Committee has yet to draft a specific general recommendation on Article 6 which seems to be a glaring omission. CEDAW should make good its promise and provide substantive guidance on the scope of Article 6 of the Convention and States obligations to suppress and tackle trafficking. We argue that this is especially necessary given the lack of gender and structural analysis of trafficking by other regional and international courts and bodies and the brevity with which trafficking is dealt with in General Recommendation No 35 on violence against women.

[1] The Inter-Agency Coordination Group against Trafficking in Persons. ‘The gender dimensions of human trafficking’, Issue Brief #4, 2017.

[2] The UNODC Global Report on Trafficking in Persons 2016 notes that an increasing number of men have been detected as trafficking victims, United Nations Publication. Available at www.unodc.org/documents/data-and-analysis/glotip/2016_Global_Report_on_Trafficking_in_Persons.pdf

[3] 15 years of The United Nations Special Rapporteur on Violence against Women, its Causes and Consequences, available at www.ohchr.org/Documents/Issues/Women/15YearReviewofVAWMandate.pdf

[4] General Recommendation No. 35 (CEDAW) see paragraph 1 and 7. Opuz v Turkey (2010) 50 EHRR 28.

[5] Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment on Migration-Related Torture and Ill-Treatment, February 2018, A/HRC/37/50, available at www.ohchr.org/Documents/Issues/Torture/A_HRC_37_50_EN.pdf

[6] Rebecca Cook ‘Reservations to the Convention on the Elimination of all Forms of Discrimination against Women’ 30 Virginia J Intl’l Law (1990) 643, at 643.

[7] Andrew Byrnes and Marsha A. Freeman ‘The Impact of the CEDAW Convention: Paths to Equality A Study for the World Bank’ University of New South Wales Faculty of Law Research Series 2012, paper 7.

Conservative mobilization and adolescent pregnancy in Latin America

by Camila Gianella, Marta R. de Assis Machado and Angélica Peñas Defago

On September 27, 2017, the Brazilian Supreme Court – in a 6 to 5 judgmentdecided that public schools can have “confessional” (Catholic) religious teaching in their curriculum. The constitutional case had been proposed by the Attorney General, who argued that current practice – that privileges Roman Catholic indoctrination – would violate the separation between Church and State as well as religious freedom. Although the judgment brings severe consequences to education rights in Brazil, it is only one example of the recent battles by conservative religious groups to influence Brazilian public education. The Catholic church has a long history of interference in Roman Catholic countries, aiming to block comprehensive sex education in schools. More recently, other churches and conservative groups have adopted similar strategies to influence educational policies in Brazil and elsewhere in Latin America.

In 2011, a school booklet advocating “Schools without Homophobia,” prepared by the Brazilian Ministry of Education, was recalled after strong pressure from conservative movements, evangelical and Catholic leaders. It was denounced as an instrument to promote homosexuality among children and to destroy families. In 2014, the debate over Brazil’s National Education Plan was the battlefield of conservative and religious groups against what they called “gender ideology”. Supported by civil society mobilization, including a organization (ironically) called Escola sem Partido [Schools without Politics] conservative members of congress overruled a clause in the Brazilian National Education Plan that stated, among the goals of the public educational system, overcoming educational inequalities, with emphasis in the promotion of equality among races, regions, genders and sexual orientations. Vocal critics of anti-discriminatory public policies in education also applied political pressure during the discussion and passing of state and municipal education plans.

Brazil is only one example of a new wave of conservative mobilization that is sweeping Latin America, characterized by the gathering of powerful old economic elites and religious conservative groups. Among its central political strategies, this new wave fights against the inclusion of a gender equality approach in public policies, including school curricula among their principal battlegrounds. Across the region, this movement has won many major disputes with significant impact. They have succeeded on blocking gender approaches and comprehensive sexual education not only in Brazil, but in the Argentinian provinces of Mendoza and Entre Rios, in Monterrey (Mexico), Panama, Paraguay, Peru, and even in the most secular country in the region, Uruguay.
As our forthcoming letter to the Editor of The Lancet (2017) explains, this new wave of conservative mobilization has tangible health effects. By opposing sexual education in the schools as well as the introduction of a gender equality approach within the school curricula, they hinder a core element of public health strategies to empower girls and adolescents, and consequently to prevent teenage pregnancies, which have a devastating negative impact on women, by, for example, contributing to female poverty.

Latin America is already the only region in the world where adolescent pregnancies are not decreasing. . . . Continue reading

More Than Fair: GQUAL Campaign Mobilizes Law to Change Picture of International Justice

Globally, women occupy only 33% of the 599 seats found on the 91 adjudicatory bodies of international law. But when one excludes the committees and working groups on the rights of women and children, that number drops to 24% of the remaining 533 seats. Only one woman sits on each of the Inter-American Court of Human Rights, the appellate body of the World Trade Organization, and the Committee on the Rights of Persons with Disabilities. The paucity of women on international bodies reveals a gross imbalance of power that tips against a community that makes up roughly half the world’s population.

During the first week of October, ambassadors, legal experts, practitioners, and activists from around the world gathered in The Hague to strategize changing this male-dominated picture of international justice during the GQUAL Campaign’s international conference marking its second anniversary. The Action Plan adopted at the conference begins with an important reminder that achieving gender equality on international bodies is not solely a policy of fairness and institutional legitimacy but an action mandated by law. Together with the International Human Rights Law Clinic at UC Berkeley School of Law, GQUAL released at the conference a working paper that identifies the international legal basis for the Campaign’s aim of realizing gender parity.

States establish the nominating and voting procedures that apply to any particular international body, making them ultimately responsible for this state of affairs. Though political will is needed to remedy the stark and pervasive gender imbalance on international bodies, reform should be guided by international law and State practice, both of which support the fair representation of women in global governance.

The positive obligation to eliminate sex-based discrimination is deeply rooted and widely reflected in international human rights law. Numerous instruments, most notably the Convention on the Elimination of all Forms of Discrimination Against Women, not only prohibit States from adopting discriminatory laws but also require that States work to dismantle obstacles that result in discriminatory outcomes for women. The working paper looks beyond CEDAW for additional support to further strengthen the legal foundation of the GQUAL Campaign.

We identified several human rights treaties and policy statements that embody the non-discrimination principle and which enumerate three international human rights norms that require gender equality within different contexts relevant to the GQUAL Campaign—the right of access to decision-making within public bodies; the right of access to equal opportunity in employment; and the right of access to justice. In short, women on equal terms with men, are entitled to shape our governments, to employment that reflects our capabilities, and to the protection, recognition, and advancement of international law. Continue reading

Write On! The Palgrave Handbook of Critical Menstrual Studies

backlit_keyboardThis installment of Write On!, our periodic compilation of calls for papers, includes a call for suggestions as follows:

The Palgrave Handbook of Critical Menstrual Studies, is an ambitious endeavor undertaken by Chris Bobel, Breanne Fahs and Katie Ann Hanson, among others in the United States. The focus is to “establish[] a field of ‘critical menstrual studies’ as a coherent and multi-dimensional transdisciplinary subject of inquiry and advocacy.” Suggestions for chapters by potential authors and other possible lines of inquiry are welcomed and encouraged. Deadline is June 20, 2017.


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.

Continue reading

On the Job! Gender Project Consultant in NYC; Clinical Fellow @ Duke Law

On the Job! compiles interesting vacancy notices, as follows:

logoThe Global Coalition to Protect Education from Attack. Applications are welcome from Ph.Ds, Ph.D candidates or other advanced research training in fields such as gender, human right, humanitarian assistance or education for the position of GCPEA Gender Project Consultant.  The holder of this position will conduct research and develop gender-specific recommendations on protecting girls and women from attacks on education and military use of educational institutions. They will work approximately 65 days between April and November 2017, presenting research to the GC{EAGender Project Working Group and external reviewers. Applications will be reviewed as received until the position is filled; details here.

download► Duke University Law School. Applications are welcome from individuals with 2-5 years experience with international human rights for a supervising attorney/clinical fellow to join the international human rights program and clinic beginning in Summer 2017, led by Professor Jayne Huckerby. The holder of this position will primarily help supervise student fieldwork in Clinic projects and participate in the planning and teaching of the Clinic advocacy seminar, among other opportunities, supervised by the Director of the International Human Rights Clinic. Deadline is April 16, 2017; details here.