sexual violence in armed conflict

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.

***

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.

Continue reading →

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. 

…

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

ICC extends War Crimes of Rape and Sexual Slavery to Victims from Same Armed Forces as Perpetrator

/ Yvonne McDermott / 3 Comments

Readers of this blog will be interested in an important decision issued by Trial Chamber VI of the ICC in the case of Ntaganda yesterday. At issue was the Defence’s argument that the Court could not have jurisdiction over the crimes of rape and sexual slavery allegedly committed against UPC/FPLC child soldiers, because war crimes cannot be committed against combatants from the same armed forces as the perpetrator. Such crimes, the Defence argued, would come within the ambit of domestic law and human rights, and were not covered by the war crimes prohibition.

Initial appearance of Bosco Ntaganda, 26 March 2013

Bosco Ntaganda. Picture credit.

The argument, on its face, is rather convincing – the Geneva Conventions and their Additional Protocols explicitly protect certain categories of persons, principally sick, wounded and shipwrecked persons not taking part in hostilities, prisoners of war and other detainees, civilians and civilian objects. Ntaganda is charged with these crimes under Article 8(2)(e)(vi) of the ICC Statute, which defines the war crime as:

Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;

The chapeau of Article 8(2)(e) enumerates the crimes therein as being ‘other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law’. It stands to reason, then, that we would examine that established international law framework in seeking to determine whether fellow combatants from the same armed forces as the perpetrator are protected by that framework.

Common Article 3 refers explicitly to ‘persons taking no active part in hostilities’, while Article 4 of Additional Protocol II (which contains the prohibition on outrages upon personal dignity, rape, enforced prostitution and any form of indecent assault) applies only to those ‘persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted’.

The most obvious way to resolve this issue would seem to be to acknowledge that Article 8(2)(c) and (e) crimes cannot be committed against those actively taking part in hostilities, but to argue that those victims identified in paragraphs 66-72 of the Confirmation Decision as having been abducted to act as domestic servants and, in the words of one witness, provide ‘combined cooking and love services’ were obviously not actively taking part in hostilities.

Yet, other victims mentioned in the Confirmation Decision acted as bodyguards, while other young girls abducted by the UPC/FPLC and later raped by soldiers in camps underwent military training, from which we can assume that they probably carried out some military functions. The issue here is that the Trial Chamber in Lubanga embraced a much broader definition of ‘active participation in hostilities’, in order to include a wide range of children who were forcibly recruited as victims under Article 8(2)(e)(vii). It determined, in paragraph 628, that:

Those who participate actively in hostilities include a wide range of individuals, from those on the front line (who participate directly) through to the boys or girls who are involved in a myriad of roles that support the combatants.

At the time of the Lubanga judgment, several authors noted that this expansive definition may have unintended negative consequences for the protection of children in armed conflict. For example, Nicole Urban argued that, ‘Should the sexual exploitation of and violence against child soldiers render them ‘active’ participants in hostilities under one Article, there is a real risk that they will also be considered as active participants in hostilities under the others.’ In a sense, the chickens have now come home to roost, as the Court in Ntaganda has to marry that interpretation, which seeks to protect child soldiers as victims of forcible recruitment, with an interpretation that includes them within the ambit of Article 8(2)(e) when they become victims of other war crimes.

The Pre-Trial Chamber took the position that individuals only lose their protection ‘for such time’ as they are actively participating in hostilities, and that those who were raped and subjected to sexual violence were clearly not participating in hostilities at that time. This interpretation is somewhat problematic, as it sidesteps the situation of those members of the armed groups who bear a ‘continuous combat function‘.

Trial Chamber VI in yesterday’s decision took a rather different approach, by determining that:

While most of the express prohibitions of rape and sexual slavery under international humanitarian law appear in contexts protecting civilians and persons hors de combat in the power of a party to the conflict, the Chamber does not consider those explicit protections to exhaustively define, or indeed limit, the scope of the protection against such conduct. (para. 47)

It went on to conclude that, because the prohibition of rape had attained jus cogens status under international law (para. 51), ‘such conduct is prohibited at all times, both in times of peace and during armed conflicts, and against all persons, irrespective of any legal status’, and that it did not, therefore, need to determine whether the victims were ‘members’ of the armed forces at the relevant time (paras. 52-53).

1432160866161_15769974281_f69c4819df_m

 Judge Kuniko Ozaki, one of the three Trial Chamber judges. Picture credit.

 

This decision neatly sidesteps the issues surrounding the notion of active participation in hostilities raised by the Lubanga judgment. Yet, the conclusion that members of the same armed force are not per se excluded as potential victims of war crimes is a very expansive interpretation of Article 8, and one that is not fully reasoned in the judgment. The decision appears to be founded on two separate aspects.

The first is that not all war crimes need to be committed against protected persons (para. 37). The Chamber referenced a number of sub-paragraphs of Article 8(2)(e) in this regard, namely Articles 8(2)(e)(ix) and (x) on perfidy and denying that no quarter will be given, in support of this argument. This is not entirely convincing, as Article 8(2)(e)(ix) explicitly refers to killing or wounding ‘a combatant adversary’ treacherously. Article 8(2)(e)(x), prohibiting a declaration that no quarter will be given, is explicitly prohibited because it would result in the killing of persons hors de combat.

The second justification for the decision appears to be the widespread prohibition of rape and sexual violence under international humanitarian law. The Chamber considered that to limit the protection against rape to exclude members of the same armed group would be ‘contrary to the rationale of international humanitarian law, which aims to mitigate the suffering resulting from armed conflict, without banning belligerents from using armed force against each other or undermining their ability to carry out effective military operations.’ Given that there could be no military objective or justification to engage in sexual violence against any person, regardless of whether or not that person was a legitimate target under the law of armed conflict, the Chamber considered that the prohibition of sexual violence under International Humanitarian Law was not limited to certain categories of persons, and that anyone could be a victim of this war crime. This justification is more convincing, but leaves many questions unanswered, as it seems to be limited to the prohibition of rape (which the Chamber considered to be a jus cogens norm of international law). We might ask, for example, whether armed forces who commit acts of humiliating or degrading treatment against their own members, or who deny those members a fair trial, may now find that they are committing war crimes under Article 8 of the ICC Statute.

This decision is clearly founded in a desire to offer the greatest level of protection to victims of sexual violence in armed conflict, regardless of their status. A similar argument was made in the ICRC’s updated commentary to Common Article 3 of the Geneva Conventions, which stated that ‘all Parties to the conflict should, as a minimum, grant humane treatment to their own armed forces based on Common Article 3.’

It will certainly be interesting to see what states’ reactions to this expansive interpretation, and what the broader consequences of this decision, will be.

(Cross-posted from PhD Studies in Human Rights)

Time to rethink the women, peace and security agenda?

/ Gina Heathcote / Leave a comment

On June 24th 2013 the Security Council, under the Presidency of the United Kingdom, issued its sixth Agota Sjostromresolution on women, peace and security, Resolution 2106. Although under the rubric of women, peace and security, the new resolution focuses on measures to prevent and deter sexual violence in armed conflict. In continuing the focus on sexual violence the resolution takes us full circle from the first resolution on women, peace and security, Resolution 1325, which incorporated the Council’s response to sexual violence within armed conflict as an element of a broader approach. The new resolution, in contrast, places sexual violence as the primary concern and then incorporates additional issues relating to women, peace and security only as elements of responding to combating sexual violence– including HIV, sexual and reproductive health, women’s participation, disarmament, demobilisation and reintegration processes.

While deploring the violence and suffering men and women experience as victims of conflict, including sexual violence, I wish to challenge the disproportionate attention to sexual violence as the epitome of women’s experiences of armed conflict. The failure of this approach to see or hear women as actors across the spectrum of conflict experiences reinforces women as represented through victimhood, vulnerability and childhood. Although Resolution 2106 acknowledges men and women as victims of sexual violence in armed conflict (in paragraph 6 of the preamble) the operative paragraphs fall back into the use of ‘women and children’ terminology risking not only the erasure of the experiences of male survivors but also re-asserting an equivalence between women and children in conflict situations that is ultimately harmful to women. Continue reading →