sexual and gender based violence

Past Time for Respect for Indigenous Peoples and the Environment

/ Tamar Ezer & Braelyn Saumure / Leave a comment

Despite the challenges of 2021, it closed with some important milestones. At long last, the U.N. Human Rights Council recognized “the human right to a clean, healthy and sustainable environment” and appointed a Special Rapporteur to focus on rights in the context of climate change. Additionally, the U.S. officially designated Indigenous Peoples’ Day on October 11. President Biden’s proclamation acknowledges “the centuries-long campaign of violence, displacement, assimilation, and terror wrought upon Native communities” and celebrates Indigenous Peoples’ “resilience and strength” and “immeasurable positive impact . . . on every aspect of American society.”

Violence against Indigenous Peoples and nature is deeply intertwined. For generations, Indigenous lands have been exploited as a “hunting ground” for resources with colonialism propped up by racial and gender hierarchies. In the U.S., Native American and Alaska Native women experience sexual assault at a rate 2.5 times higher than other women, with 86% of perpetrators non-Native men. For example, the oil boom in the Bakken region brought a 75% increase in sexual assaults and a 53% increase in violence with the influx of hundreds of transient male workers, housed in “Man Camps” near Indian territories. Moreover, with strained infrastructure and Indian tribes lacking jurisdiction to prosecute non-Indian defendants, there is often no accountability. Indigenous leaders have highlighted the link between sovereignty over land and bodily autonomy.

Against this backdrop of abuse, the climate crisis is displacing Indigenous communities at increasing rates and leading to economic instability, land disputes, and disruptions in social safety nets, contributing to increased risk of gender-based violence. Moreover, Indigenous leaders have been at the forefront of sounding the alarm on climate change and may also experience violence as retaliation for their actions as human rights defenders confronting environmental degradation. Further, the COVID-19 pandemic has disproportionately impacted Indigenous Peoples, aggravating preexisting inequalities and resulting in heightened rates of infection and  increased environmental degradation, economic insecurity, and gender-based violence, threatening Indigenous cultures. 

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Conflict-related sexual violence: consequences and needs of female victims (part 2).

/ Morgane Greco / Leave a comment

This blogpost is the continuation of “Conflict-related sexual violence: consequences and needs of female victims (part 1)“, posted yesterday morning.

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.” 

CONCLUSION

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.

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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.

Conflict-related sexual violence: consequences and needs of female victims (part 1).

/ Morgane Greco / 1 Comment

The first blogpost of this series entitled “Conflict-related sexual violence: what are we talking about (part 1) and (part 2) aimed at providing an introduction to the issue of conflict-related sexual violence (CRSV). We saw that CRSV is a crime as old as war itself, targeting both women, girls, men and boys, and its use is today recognized, codified and prosecuted as one of the most serious violations of international law.

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.

Source: https://www.simplypsychology.org/maslow.html

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.

The United Nations Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict, in its last Annual Report also shares a similar approach. The report mentions that survivors often require immediate life-saving health care, including comprehensive clinical management of rape, and medication to prevent sexually transmitted infections and unwanted pregnancies. Survivors may also require life-saving psychosocial support to recover from the psychological and social impacts of conflict-related sexual violence. 

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. 

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To read the second part of the piece, click here: Conflict-related sexual violence: consequences and needs of female victims (part 2).

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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.

Conflict-related sexual violence: what are we talking about? (Part 2)

/ Morgane Greco / 3 Comments

This post is a continuation of “Conflict-related sexual violence: what are we talking about? (Part 1),” posted yesterday morning.

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 War notes 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.

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Conflict-related sexual violence: what are we talking about? (Part 1)

/ Morgane Greco / 2 Comments

In the context of the author’s attendance to the 18th Assembly of State Parties to the International Criminal Court, this blogpost aims at sharing knowledge about conflict-related sexual violence (CRSV) and providing a preliminary understanding of the issue. It first explores the use of CRSV through history. Then, it highlights how it targets both women, girls, men and boys. Last but not least, this blogpost depicts the slow development of international tribunals’ responses to this scourge.

I. Conflict-related sexual violence is an old phenomenon…

According to the United Nations, CRSV refers to rape, sexual slavery, forced prostitution, forced pregnancy, forced abortion, enforced sterilization, forced marriage and any other form of sexual violence of comparable gravity perpetrated against women, men, girls or boys that is directly or indirectly linked to a conflict. The term also encompasses trafficking in persons for the purpose of sexual violence or exploitation, when committed in situations of conflict. 

The French NGO We are NOT Weapons of War stresses that sexual violence used as a weapon of war has always been present in conflict, even though its victims have long seemed invisible. This idea is also supported by Stand Speak Rise Up, a non-profit organization from Luxembourg. In its white book, we can read that sexual violence in conflict is not new and the historical roots of this phenomenon are deep: from the Viking era to the Thirty Years’ War and the Second World War, rape has been part of the “spoils of war” throughout history, a weapon of the victors and conquerors. War rape is rarely the result of uncontrolled sexual desire, but rather a way to exert power and install fear in victims and their community. 

In the 1990s, the conflicts in Bosnia, Rwanda and the Great Lakes Region marked a major turning point in the use of sexual violence as a weapon to weaken and subdue vulnerable populations or to advance a political agenda. The Stand Speak Rise Up white book explains that CRSV was methodically organized and implemented in cold blood on a very large scale. Sexual violence in particular was also a tool of submission and terror at the end of the Cold War. 

Still nowadays, sexual violence can play a vital role in the political economy of terrorism, with physical and online slave markets and human trafficking enabling terrorist groups to generate revenue from the continuous abduction of women and girls. As an example, the Yezidi community in Iraq suffered and still suffers from these crimes, as the so-called Islamic State continues to target women and girls, abducting them and reducing them to sexual slavery and forced marriages. 

Perpetrators of such acts are often affiliated with States or non-State armed groups, including terrorist entities.

II. …that targeted and still targets both men, boys, women and girls…

In September 2019, during the United Nations 74th General Assembly, the Special Representative of the UN Secretary General on Sexual Violence in Conflict recalled that conflicts exacerbates existing gender inequalities, exposing women and girls to various forms of sexual and gendered-based violence. Women and girls, in particular, suffer sexual violence in the course of displacement, navigating their way through checkpoints and across borders without documentation, money or legal status. It is also important to note than men and boys also suffer from conflict-related sexual violence . 

Conflict-related sexual violence refers to incidents including rape, gang rape, forced nudity and other forms of inhumane and degrading treatment in a context of armed conflict. A disturbing trend is that sexual violence is increasingly perpetrated against very young children. The Secretary-General emphasized that during the Colombian civil war, that has lasted for 50 years, rebels systematically used sexual violence against the civilians, targeting women as well as their children. The Colombian Constitutional Court has recognized “a widespread, systematic and invisible practice.” It is also important to keep in mind that both men and women can be perpetrators. 

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To read more, click here: Conflict-related sexual violence: what are we talking about? (Part 2)

Safeguarding women after disasters: some progress, but not enough

/ Kristin Bergtora Sandvik / Leave a comment

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

Children Born of Rape in Bemba: Can the ICC Close the Accountability Gap?

/ Eithne Dowds / 1 Comment

BembaChildren born of sexual and gender-based violence in situations of conflict and mass violence have, until recently, been neglected in international criminal law. These children exist in what the Secretary-General on Sexual Violence in Conflict has previously termed an “accountability gap” as the “punishment against or redress by the perpetrator rarely includes reparations for the women who were victimized or the children who were born as a result of rape”.

Such children have, however, featured in recent cases at the International Criminal Court (ICC). For instance, in the case against Jean-Pierre Bemba Gombo, leader of the Congolese Movement of Liberation of the Congo (MLC), convicted in March 2016 of war crimes and crimes against humanity for crimes committed by his troops in the Central African Republic (CAR) between 2002 and 2003, unwanted pregnancies and the birth of children were identified during sentencing as a harm of rape. This case represents the first time the ICC will have the opportunity to provide reparations to victims of rape and a recent Expert Report on reparations suggested that children born of rape should be included within this process.

Children Born of Rape in Bemba

It is unclear how many children were born of rape as a result of Bemba’s MLC crimes. Expert testimony provided during the Trial, however, identified at least four women who suffered unwanted pregnancies as a result of rape, noting that:

One victim did accept the child as being her own, so took on, shouldered that. There was another one who didn’t want to have anything to do with the child she had given birth to, and there was a third one who had an abortion. Actually, she had to do this in hiding, and that meant that there were medical consequences to that abortion. And a fourth, well, we lost track of her. We do not know what the outcome in terms of this pregnancy was.

These children, who are about 13 years old now, are in a precarious situation in terms of their own identity and family relations, as explained by the mother of one of the children during the sentencing hearing:

She doesn’t know who her father is. She doesn’t know where he is. She has no news of him. And I wonder how things will develop. I ask God if I die, what will happen to that child? The three others which I had, I know that their father’s families are there, and if something happened to me, those children could go and live with the family of their father. But when it comes to this child, what will her fate be if anything happens to me? Continue reading →

Yazidi Women and Girls’ Resistance Against Genocide, Enslavement and Sexual Violence: Report from the First International Yazidi Women’s Conference

/ Jocelyn Getgen Kestenbaum / Leave a comment

“Those awaiting help from others are condemned to disappear.” – International Yazidi Women’s Conference participant, quoting a proverb.

Last weekend, on March 11 & 12, 2017, I led a researcher and two students from the Benjamin B. Ferencz Human Rights and Atrocity Prevention Clinic to accompany Patricia Viseur Sellers, Special Adviser to the Office of the Prosecutor of the ICC to the first International Yazidi Women’s Conference in Bielefeld, Germany. Our Clinic has been working with Ms. Sellers for the past two years on criminal accountability for the gender dimension of atrocity crimes, especially as these crimes affect children, in several national and regional cases. Our collaboration currently is focused on the sexual enslavement and other gender-based crimes against the Yazidis.

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From left: Kerrijane John, Jocelyn Getgen Kestenbaum, Leyla Boran, Patricia Viseur Sellers, Alexandra Insinga and Samantha Hechler.

Days after International Women’s Day, the Yazidi Women’s Council, the Kurdish Women’s Peace Office (Cenî), and the Platform for Struggle for Women Held in Captivity gathered over 200 participants and prominent Yazidi organizations to denounce the atrocities—including, among others, the crimes of genocide, enslavement, rape, and torture—that have been and continue to be perpetrated against Yazidi women and girls. The attendees—all women—predominantly hailed from the Yazidi and Kurdish refugee and diaspora communities. After the German government did not grant several speakers visas to attend, they participated via Skype from Shengal (Sinjar) in Northern Iraq.

Experts from the legal, political, historical, medical and psychosocial fields contributed to the panel presentations, which centered on the concepts of genocide and femicide, enslavement, sexual violence, trauma, and resistance. Prominent Yazidi and Kurdish women’s human rights lawyers, including Leyla Boran and Faika Deniz Pasha, the first Turkish Kurdish woman parliamentarian, Feleknas Uca, and allies among women’s rights activists in Germany led the discussions, which included arguments supporting the link between genocide and femicide and the legal requirements of intent under international law. In addition, historians contextualized the current genocide against the Yazidis with previous genocides that have occurred against the group and in the region. Importantly, first-hand survivor accounts of genocide, sexual violence and enslavement bore witness to the crimes as well as to this community’s experience when ISIS invaded their homeland. The voices of the powerful speakers from Shengal also stressed the multiplicity of ways in which Yazidi women are organizing and resisting ongoing attacks on their people and homeland in northern Iraq. All the speakers stressed that they will take whatever steps are necessary to prevent the continued kidnapping, enslavement and sale of Yazidi girls and women.

Ms. Viseur Sellers keynoted the conference and provided the international human rights and criminal law frameworks to name the atrocities being committed against Yazidi women and girls by ISIS. Sellers explained the value in protecting group identities as well as preserving racial, religious, national, and ethnic differences. The international community’s prohibition against the intentional destruction of such groups under the Genocide Convention, she stated, was evidence of such values of diversity. In addition, Ms. Sellers detailed what the crimes of enslavement and slave trading are; she emphasized that these international crimes, along with genocide, are regarded the most heinous crimes under international law. She asserted that, undeniably, ISIS has and continues to perpetrate acts of genocide, enslavement and slave trading against Yazidi women and girls in violation of treaties and jus cogens norms. Sellers concluded by recognizing the intergenerational harms of genocide and enslavement while giving language, voice and operational tools to assist the Yazidi women and girls’ continuing struggle and resistance.

According to the Yazidi community, the August 2014 massacre in Shengal was the 74th recorded genocide against the religious minority group. The United Nations International Independent Commission of Inquiry on the Syrian Arab Republic, among others, has provided evidence and analysis of the crimes here. As the struggle for group survival continues, Yazidi women have organized themselves to resist multiple threats, including ISIS. Accountability for past, present and future crimes is recognized as a necessary component of justice for the Yazidis. The group’s concerns for survival, safety and return of thousands of their women and children held in captivity or forced to join ISIS forces, however, necessarily overshadowed these discussions.

What the future holds is unclear, especially given the military actions against ISIS in Syria and Iraq and the implications of the military solution for the remaining estimated 3000 Yazidi women and girls in captivity—some already sold by ISIS to slave-holders outside the contested areas. What our team did find is the need for dialogue between international lawyers familiar with the issues and representatives of these communities to develop and refine creative, pragmatic and comprehensive legal strategies to open avenues of accountability and justice for the atrocity crimes committed in the past and still being perpetrated against Yazidi women and girls. The time to act is now. Our Clinic, in concert with Patti Sellers, will continue our work on these issues and would welcome the opportunity to coordinate with others in the IntLawGrrls network who are working on the Yazidi genocide or on the gender dimensions of these atrocity crimes.

 

A day to remember: Ongwen’s trial starts on 6 December

/ Dieneke de Vos / 8 Comments

Tomorrow, 6 December, the trial against Dominic Ongwen will start before Trial Chamber IX of the International Criminal Court (ICC). Ongwen’s trial follows the ICC’s first conviction for rape this year, and presents a firm break with past setbacks in terms of accountability for sexual and gender-based violence (SGBV) at the Court. It will be an important and interesting trial for many reasons, too numerous to address all of them here. Let me focus on a couple relating to the SGBV charges. They are addressed in detail in the Prosecution’s pre-trial brief (I highly recommend reading it in full!) and will no doubt feature prominently during the trial. References below are to paragraphs in the pre-trial brief.

Broadest range of SGBV charges

Dominic Ongwen is an alleged senior commander in the Lord’s Resistance Army (LRA), who is charged with responsibility for war crimes and crimes against humanity committed by the LRA in various locations in Northern Uganda from at least 1 July 2002 to 31 December 2005. As I wrote earlier, he saw 70 charges confirmed against him, including for various modes of liability. It is the first time an accused faces such a high number of charges at the ICC. Many of these charges were added after the Office of the Prosecutor conducted additional investigations following Ongwen’s surrender to the ICC in January 2015. His 2005 arrest warrant contained only seven charges, none of which were for SGBV.

With now 19 of the 70 charges against him relating to SGBV, it is also the first time an accused faces such a broad range of SGBV charges at the ICC: they include several counts of rape, sexual slavery, enslavement, forced marriage, torture, outrages upon personal dignity, and forced pregnancy. Eleven of these 19 SGBV charges relate to crimes Ongwen personally committed as a direct perpetrator (again, a first at the ICC – all other individuals charged with SGBV were/are either charged as indirect (co)perpetrators or under the theory of command responsibility). The other SGBV charges relate to the LRA’s conduct more generally for which Ongwen is held responsible (in the alternative) as indirect co-perpetrator, for ordering, or under the theory of command responsibility.

Forced marriage

Ongwen is the first person at the ICC to face charges of forced marriage. While not a specific crime under the Rome Statute, forced marriage is charged as the crime against humanity of ‘other inhumane acts’. The Prosecution’s pre-trial brief describes an elaborate structure through which young girls abducted by the LRA were distributed among commanders to serve as ting-tings (if they were very young) and subsequently as forced wives (although many witnesses also described that girls could become wives at any age). Soldiers were given ‘wives’ by Ongwen as rewards for ‘work[ing] well in attacks and battle’ (131). Continue reading →

Sexual and gender-based violence under the Geneva Conventions: A New Commentary

/ Indira Rosenthal / Leave a comment

The 1949 Geneva Conventions, A Commentary (A. Clapham, P. Gaeta, M. Sassòli, Eds. OUP, October 2015), is a mammoth effort to update the interpretation of the Conventions to take account of the significant developments in international law, especially international human rights and international criminal law, since the ICRC published Jean Pictet’s edited commentaries* in the middle of last century.

As the editors point out, since Pictet’s commentaries were published the international legal landscape has dramatically shifted. For one thing, the 1949 Conventions have been universally ratified and their application interpreted in hundreds of cases. International human rights law (IHRL) has developed enormously since the 1960s and its intersection with IHL is more commonly acknowledged. Recently concluded human rights treaties expressly address their application to situations of armed conflict (e.g., Istanbul Convention on violence against women; Convention on the Rights of Persons with Disabilities). International criminal law has become something of a growth industry since the 1990’s when the tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) and the International Criminal Court (ICC) were established with jurisdiction over IHL violations.

Since Pictet’s day, the worldview of sexual and gender-based violence (SGBV) and IHL has also radically changed. Due to the persistence of feminists over many decades, there is greater awareness of the prevalence of SGBV during armed conflict and a growing intolerance of it as an inevitable part of war. There have been numerous convictions for SGBV crimes as a violation of IHL (e.g., at ICTY, ICTR and ICC). In this context, SGBV has also evolved from its arcane conception in the Conventions as an attack against the honour of a female person, focussed on forced sexual intercourse, to encompass a wide range of acts against the sexual integrity of a person of any gender.

Patricia Viseur-Sellers and I wrote the chapter on protections from rape and other sexual violence and we start from the principle that humane treatment, the fundamental tenet of the Conventions regime, prohibits these acts against any person in every circumstance. We look in detail at Article 27, Fourth GC on civilians as the only article in the Conventions to refer expressly to sexual violence. It requires that female civilians “be protected against any attack on their honour, in particular against rape, forced prostitution and indecent assault”.

None of these terms are defined in the Conventions. We examine each one drawing on a range of sources, including international jurisprudence where available (e.g., Nuremberg, the International Military Tribunal for the Far East, the ICTY and ICTR), the Rome Statute and Elements of Crimes of the ICC, as well as leading critical feminist analysis, especially the work of J. Gardam & M. Jarvis in Women, Armed Conflict and International Law (Kluwer, 2001).

Much of the discussion focuses on a critical assessment of the imprecise and out-dated approach in Article 27(2) that protects women from sexual assault as “attacks on their honour” rather than against their person and sexual integrity. We agree with Gardam and Jarvis that IHL is a “thoroughly gendered system” and that equating female honour with chastity and modesty mischaracterises sexualised violence and perpetuates the discriminatory gender stereotype which sees women’s honour as belonging to her family and community, especially its male members. We point out that it also perpetuates the myth that sexual violence, especially rape, can only be committed against females. Continue reading →