Colombia’s Constitutional Court issues landmark decision recognising victims of reproductive violence in conflict

A month ago, on 11 December 2019, the Colombian Constitutional Court issued an important decision recognising that women and girls who suffered forced contraception and forced abortion by their own armed groups should be recognized as ‘victims of armed conflict’. The decision is one of very few in the world to specifically recognise reproductive violence as a form of harm committed against women and girls in times of conflict. It thus sets important legal precedent in recognising a form of gender-based violence that has long remained invisible. Although the full written decision has not yet been made available, a summary of the decision has been published. In what follows, I analyse this summary.

Helena’s case

The case was brought by Women’s Link Worldwide on behalf of Helena (pseudonym), a young woman who had been forcibly recruited into the FARC at the age of 14. While with the FARC, she was forced to take contraceptives (injections) and forced to undergo an abortion when she became pregnant. She suffered significant and long-lasting health consequences as a result of the unsafe conditions in which these procedures were forcibly carried out. Continuing to suffer negative health consequences, Helena fled and was in hiding for many years until the peace deal with the government was signed. In 2017, she submitted an application to be recognised as a victim and to seek reparations under Colombia’s Law on Victims and Land Restitution (Law 1448). This law, adopted in 2011, recognizes victims of the armed conflict and confirms their rights to truth, justice and reparations. It includes provisions on the restitution of land and other reparations, and requires that special attention be paid to the needs of specific groups and communities, such as women, survivors of sexual violence, trade unionists, victims of forced displacement, and human rights defenders.

The agency charged with the registration of victims under this reparations framework (UARIV), however, subsequently denied Helena’s claim for victim status. In doing so, UARIV had relied upon an article in Law 1448 that denied victim status to members of illegal armed groups (Article 2(3)), and held that, in any case, Helena’s claim was submitted outside of applicable timelines set out in Law 1448. Helena fought this decision; while the first instance court did grant her access to government-provided medical support, her claims for recognition as a victim and for reparations under Law 1448 were dismissed in both first and second instance. She thus appealed her case to the Constitutional Court, who heard the matter in 2019, and issued this landmark decision at the end of last year. Importantly, Helena’s case was selected for review by the full panel of nine judges, rather than being decided upon by a panel of three judges. This illustrates the importance the Constitutional Court attached to the issues.

Constitutional Court’s decision

In its December 2019 decision, the Constitutional Court firstly found established that Helena was the victim of grave violations of her fundamental rights. The Court subsequently held that in dismissing her application to be registered as a victim of the armed conflict, UARIV violated Helena’s fundamental rights on two grounds. Firstly, UARIV had violated Helena’s rights as a victim by failing to interpret the applicable rules in accordance with established constitutional principles of most favourable interpretation, good faith, pro personae, and the primacy of substantive law. Secondly, UARIV failed to properly substantiate its decision by neither acknowledging the acts of forced abortion and forced displacement Helena suffered, nor by recognising that Helena’s specific circumstances constituted force majeure, preventing her from submitting an application within designated timelines.

The Court acknowledged that, on its face, Article 2(3) of Law 1448 allowed for the denial of victim status to ex-combatants who demobilised as an adult, and that, under this interpretation, Helena would have to seek reparations through other mechanisms, not including Law 1448 (as Helena fled the FARC after she turned 18). However, the Court also questioned whether this exclusion in Article 2(3) was consistent with Colombia’s obligations towards victims of the armed conflict, noting in particular the coercive nature of the practice of forced contraception and abortion within the FARC and that these acts were often perpetrated upon girls under 18, or upon young women who had only just reached the age of maturity.

According to the Court, denying Helena the right to be recognised as a victim under Law 1448, therefore, would violate her rights to access justice and to timely and adequate protection measures. Noting the principal obligation on the state to recognise victims of sexual violence as victims in such a way as to guarantee their rights to integral reparations, the Court also held that as a victim of sexual violence committed within an armed group, Helena would not have access to other avenues of reparations beyond Law 1448. As such, for the Court, registration in the Register of Victims constituted her only available avenue to adequately repair her fundamental rights.

Importantly, the Court held that the exclusion stipulated in Article 2(3) could not become an obstacle to reparations for victims of sexual violence who, as ex-combatants, were forcibly recruited into those illegal armed groups at a young age. Such a rigid interpretation of Article 2(3), according to the Court, would thus create an unconstitutional lack of protection and vulnerability. The Court also reiterated the state’s obligation to provide immediate, comprehensive, gender-sensitive and specialised health care to all victims of sexual violence by armed actors for such time as deemed necessary to overcome the physical and psychological health consequences of such violence.

For this reason, the Court relied upon the principle of declaring a ‘constitutional exception’ (la excepción de inconstitutionalidad) as provided for in Article 4 of Colombia’s Constitution to overrule the applicability of Article 2(3) of Law 1448 to Helena’s case. Pursuant to this principle, when faced with a conflict between an ordinary legal norm and a constitutional norm, the Court may declare a constitutional exception to preserve rights guaranteed by the constitution in a specific case. In this case, the Court held that relying upon this principle was the only way to guarantee Helena’s fundamental rights and to find an adequate balance between Colombian law and Colombia’s international legal obligations under international humanitarian law and international criminal law. Not doing so, the Court stressed, would give rise to consequences that it held to be unconstitutional. As such, the Court rendered Article 2(3) of Law 1448 inapplicable to this specific case.

The Court thus ordered:

  • that the decision by UARIV not to include Helena in the Register of Victims be declared void;
  • that within 10 days of the date of its decision, UARIV admit Helena to the Register of Victims on the basis of her having suffered forced recruitment as a child, sexual violence (including forced use of contraceptives and forced abortion), and forced displacement;
  • that within 15 days of the date of its decision, UARIV reinstate the provision of psychosocial and medical assistance to Helena to address the emotional, mental health and physical effects of having suffered sexual violence;
  • that in the provision of integral reparations to Helena, UARIV take a gender-sensitive approach to ensure her fundamental rights; and
  • that the health services provide and guarantee access to Helena to immediate, comprehensive, gender-sensitive, specialised care for as long as necessary to address the physical and psychological consequences of the violations she suffered.

Significance of the decision

In finding in favour of Helena’s registration as a victim of the armed conflict, this case establishes that ex-combatants who were forcibly recruited into illegal armed groups and suffered sexual violence, as well as reproductive violence, within those armed groups may seek victim status and thus have access to reparations under Law 1448 – a right they did not have before – regardless of the age at which they demobilised or fled. Beyond the significance of this finding for the claimant in this specific case, therefore, this decision also sets important legal precedent in recognising that victims of sexual and reproductive violence within armed groups are victims of armed conflict. This follows earlier jurisprudence by the International Criminal Court in the Ntaganda case (here and here; see also this 2017 post by IntLawGrrl Rosemary Grey). The Colombian decision is also one of very few in the world to specifically recognise reproductive violence as a distinct form of harm committed against women and girls in times of conflict.

As part of the case, the Court received 17 expert briefs from national and international human rights organisations, women’s rights organisations, academics and international experts, including one from the author of this blog post (written jointly with Ciara Laverty). In our amicus request filing, we offered the Court a comprehensive overview of the way in which reproductive violence long remained invisible in international law, how it is increasingly being recognised, and why it should be recognised as a specific and distinct form of harm, including when committed within armed groups.

Reproductive violence is a widespread yet understudied phenomenon that occurs in times of both conflict and of peace. It can have serious physical, mental, emotional and other consequences that persist long after the violence has occurred. It is a form of victimisation connected to but also different from sexual and other violence, due to the distinct harm it inflicts and the underlying value it is said to violate, i.e. reproductive autonomy. Although reproductive violence affects individuals of all genders, there are distinct forms of harm and violence that are inflicted only upon women and girls because of and directly targeting their sex-specific biological reproductive capacities, such as forced contraception, forced abortion and forced pregnancy.

Historically, however, there have only been few instances where such violence has been independently recognised and considered. This left reproductive violence relatively invisibilised in international law. Nonetheless, current developments reflect a growing recognition that reproductive violence constitutes a distinct form of violence that should be independently recognised as violating specific, individual rights and may also constitute (international) crimes in certain circumstances. This decision by the Colombian Constitutional Court recognising the specific victimisation of female ex-combatants through forced contraception and forced abortion thus contributes to providing greater legal recognition to a form of gender-based violence that has long remained invisible in international law.

Importantly, in addition to claiming her rights as a victim through the constitutional action that was the subject of this decision, Helena has also requested participation as a victim in case 007 before the Special Jurisdiction for Peace. As such, further jurisprudence, including on individual criminal responsibility for acts of reproductive violence such forced contraception and forced abortion, may be forthcoming in Colombia.

Stay tuned!

ICC Assembly of States Parties Symposium: A Recap of Two Excellent Side Events

As a delegate of the Public International Law and Policy Group, I recently attended the 18th Assembly of States Parties (ASP) to the International Criminal Court (ICC).  In addition to general debates among states parties regarding issues such as funding, election of new judges, and the general well-being of the court, various interesting side events took place, sponsored by states and NGOs.  This post will briefly highlight two such side events – the first on The Hague Principles on Sexual Violence, and the second on Timing and Duration of Decision-Making at the ICC.

The first side event, “The Hague Principles on Sexual Violence – Translating the lived experience of sexual violence survivors into law and policy,” was sponsored by Women’s Initiative for Gender Justice (WIGJ) and by Argentina, Australia, Austria, Belgium, Canada, Chile, Costa Rica, Finland, France, Ireland, Luxembourg, New Zealand, Norway, the Republic of Korea, Romania, Senegal, Slovenia, South Africa, Sweden, Switzerland, the United Kingdom, and Uruguay.

The panel was moderated by Melinda Reed from WIGJ, and panelists included Fatou Bensouda, Prosecutor of the ICC, Patricia Sellers, Special Advisor on Gender to the Office of the Prosecutor, Toufah Jallow, Toufah Foundation, Wayne Jordash, Global Rights Compliance, and Howard Morrison, ICC Judge.  Opening remarks were delivered by the Swedish Director-General for Legal Affairs, H.E., Mr. Carl Magnus Nesser, and closing remarks were delivered by the Ambassador of Australia to the Netherlands, H.E. Mr. Matthew Neuhaus.  Prosecutor Bensouda briefly spoke about her office’s efforts in prosecuting sexual violence offenders, and she emphasized the importance of the Ntaganda case, and this defendant’s conviction for crimes of sexual violence.  Judge Morrison spoke about the difficulty of prosecuting and judging cases involving survivors of sexual violence, who may be unwilling to come forward and testify because of their culture and/or because of the inherent necessity of reliving the trauma which court testimony would entail.  Special Advisor Seller highlighted the importance of case law in understanding how to prosecute future crimes of sexual violence, and Wayne Jordash described some of the difficulties associated with the international prosecution of crimes of sexual violence, as well as the failure to prosecute sexual crimes in the Lubanga cases.  The most poignant moments of this panel, however, included remarks by Toufah Jallow, a young Gambian woman who recently came forward and accused the former Gambian president of rape and sexual violence.  Ms. Jallow, who presently lives in Canada, spoke candidly about the assault, violence, and rape which she suffered at the hands of the then-Gambian president, who, according to Ms. Jallow, used sexual violence against her in order to punish her because she had rejected his offer of employment.  Ms. Jallow emphasized the necessity to use concrete language when describing circumstances of sexual assault, as well as the need to overcome cultural barriers and speak out against rape and sexual assault.  Ms. Jallow described how her own mother, who still lives in the Gambia, presently needed security, and how her mother may still believe that “a good African woman is supposed to remain silent” – event if subjected to rape and sexual violence.  Ms. Jallow confirmed that she has already testified before the Gambian national truth commission, where she has repeated the same accusation against the former president.  Finally, Ms. Jallow urged everyone to consider survivors of sexual violence as activists, and not simply as victims.

Finally, several panelists spoke about The Hague Principles on Sexual Violence, which can be found here: https://4genderjustice.org/wp-content/uploads/2019/11/The-Hague-Principles-on-Sexual-Violence.pdf 

According to some of the panelists, these Principles will hopefully become an important tool in prosecuting crimes of sexual violence.

The second side event, “It’s about time – revising the timing and duration of decision-making at the ICC,” was sponsored by the Wayamo Foundation and Austria, Finland, Germany, the Netherlands, Norway, and the United Kingdom.  Speakers included Christian Wenaweser, Permanent Representative of Lichtenstein to the United Nations, Elizabeth Evenson, Associate Director, Human Rights Watch, Lorraine Smith Van Lin, Post-conflict justice advisor, REDRESS, Shehzad Charania, Director of the UK Attorney General’s Office and International Law Advisor to the Prime Minister’s Office, and Mark Kersten, Senior Consultant, Wayamo Foundation, as moderator.  Panelists addressed the ICC’s perceived inefficiency – the court’s seemingly long disposition of various investigations and cases.  The panelists acknowledged that the ICC has handled a relatively small number of cases since its inception, and that some investigations and cases have taken a long time.  At the same time, the panelists nuanced these remarks by noting that the court was an international adjudicative body with a wide mandate and complex cases, and that because of these unique characteristics, the ICC could not be easily compared to a domestic jurisdiction which may handle cases much more speedily.  The panelists also warned that efficiency should not trump due process rights and that cutting corners within investigations, for the sake of speeding up proceedings, would not be a desirable result.

In addition to the above-described events, this year’s ASP will feature dozens of equally fascinating side events and more general debate among states parties.  Stay tuned.

 

 

 

 

 

 

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.

Malian suspect at ICC: New opportunity for accountability for sexual crimes

After Jean-Pierre Bemba’s conviction was overturned, the new Malian case at the ICC offers an opportunity to successfully convict a suspect for sexual crimes. Focusing on a gender analysis of crimes will be essential, as gender was at the center of armed groups’ strategy.

Few women in northern Mali believed that this day would come.  One of the chiefs of the Islamic police of Timbuktu during the jihadist groups take over of the north of the country in 2012-2013 appeared before the ICC last April. The prosecution alleges that Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud is responsible for rape and sexual slavery, torture, persecution, outrages upon personal dignity, passing of unlawful sentences, and attacking religious and historical buildings.

If the charges of rape and sexual slavery are upheld after the confirmation of charges hearing planned in the fall, it will be a not-to-be-missed opportunity to secure a conviction for sexual crimes as well as to focus on the gender dimension of some international crimes. Gender was indeed at the center of the Islamist militants’ strategy to secure their grip on Timbuktu and to subjugate its inhabitants. Meanwhile, it is the first time that a suspect is appearing before the Court on the charges of persecution on gender grounds.

In the sixteen years it has been operating, the ICC has deplorably failed to convict a single accused for sexual violence. In a recent setback earlier this month, the Court acquitted the former vice-president of the Democratic Republic of Congo, Jean-Pierre Bemba, of war crimes and crimes against humanity – including rape.  In two other previous instances, accused were also acquitted.

Yet, in 2014, the Office of the Prosecutor committed to better integrate a gender perspective in all its work and to improve prosecution of sexual violence.  The Al Hassane case and the context in which crimes were committed in Timbuktu offer an opportunity to demonstrate this commitment.

Al Hassan was a member of Ansar Eddine, an Islamist group seeking to impose Islamic law across the country. Alongside Tuareg rebels and other jihadist groups including Al Qaida in the Islamic Maghreb, they launched an offensive on northern Mali and took control of Timbutku between April 2012 and January 2013.

During this period, Islamist armed groups imposed a strict application of Sharia law. Men and women were not allowed to talk to each other outside of their families, music was forbidden, and shopkeepers were arrested and tortured for possessing tobacco. Jihadists imposed cruel punishments including public flogging and amputation. While these practices and destruction of mausoleums have caught the world’s attention, sexual crimes have been kept secret because of the stigma and the cultural taboo attached to them.

Women of Timbuktu were sexually harassed, forcibly married and raped. Women who were not fully covered were commonly harassed and beaten on the street by members of the Islamic Police or the so-called morality police, the Hisbah. They chased and arrested people considered not in compliance with Sharia law. During their detention at the police station, women were routinely tortured, sexually abused and in some cases raped.  Armed men controlling the city also kidnapped women after allegedly “marrying” them, detained them in their homes or abandoned houses to rape them repeatedly, and sometimes gang raped them.

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The Bystander Dilemma

Debates about conflict, crime and accountability often center on the victims and the perpetrators — protection of victims; search for, prosecution and punishment of perpetrators; compensation, restitution and acknowledgement for victims. These are, of course, essential questions and issues. But any situation of violence, from random street crime to the largest atrocities, involves a more complex cast of characters than the two main protagonists. Examining the roles, potential and obligations of that vast space between victim and perpetrator offers an opportunity to explore challenging questions about human security, responsibility, and the intersection between law, morality and the social contract.

I had the great privilege of participating in just such a conversation last Friday at the University of Utah Law Review symposium on The Bystander Dilemma: The Holocaust, War Crimes, and Sexual Assaults. The symposium was inspired by Utah Law Professor Amos Guiora’s remarkable new book, The Crime of Complicity: The Bystander in the Holocaust.  Professor Guiora’s book is an intellectually challenging and deeply personal exploration of the legal and moral obligations of bystanders, based on the experiences of his parents, Holocaust survivors from Hungary.

Over the course of three panels — on the Holocaust, situations of conflict and mass atrocities, and sexual assault — and a keynote, the symposium wove together old and new conversations about several critical thematic questions. Who is a bystander? Where is the line between bystander and perpetrator or between bystander and potential victim? How do these lines affect how we view a bystander’s obligations — or perhaps how the bystander him- or herself views any such obligations? Why does the bystander matter and, most directly linked to Professor Guiora’s book, why is there a disconnect between the bystander’s moral and legal obligations?

Particularly interesting was the breadth of ways in which one might consider the bystander and for what reasons, all of which matter to any consideration of moral or legal obligations and consequences. First, and perhaps most instinctive, we think of the bystander in the context of protecting the victim of a crime — someone who can alert the authorities or even stop the violence in some way.  This links directly to the second — preventing violence and crimes. If a bystander speaks up in some way, the attack or crime is less likely to happen.

But the discussions and exploration of the bystander dilemma ranged far beyond this direct relationship. A third component focuses on assigning responsibility to act, whether moral or legal responsibility. The central call of Professor Guiora’s new book is for a legal obligation for bystanders to alert authorities or otherwise intervene to protect the victim of a crime. Fourth, the bystander conversation is also about identifying capability — who has the capability to act to help a victim, to stop a crime, to prevent violence, and how does the nature of that capability affect the content of any such obligation?

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Court Order Protects Women Refugees (For Now)

As I’ve discussed previously, President Trump Executive Order (EO), “Protecting the Nation From Foreign Terrorist Entry Into the United States,” had particularly grave consequences for women refugees. Under the EO, all refugees were suspended from entering the United States for 120 days, which adversely affected women in particular. The EO also suspended all citizens from seven targeted countries—Iraq, Syria, Somalia, Sudan, Libya, and Yemen —from entering the United States, and it banned refugees from Syria indefinitely. Women refugees often flee sexual violence and other persecution, and without refugee protection, women are often stranded in refugee or temporary settlement camps where they face a heightened risk of sexual and physical violence.

In light of this, the nationwide injunction issued by a federal judge in Washington last week and the other day’s Ninth Circuit Court of Appeals’ decision to uphold that injunction are good news for women refugees. Under the injunction, the provision in Trump’s EO suspending refugee admissions is on hold for now, and refugees are once again allowed to enter the United States and seek resettlement as planned. However, President Trump has threatened to fight the decision, indicating he may appeal now to the Supreme Court.

While the Ninth Circuit opinion was not a full-fledged decision on the merits (as it was merely reviewing whether or not to lift the district court’s temporary restraining order), as Jen Daskal helpfully notes on Just Security, the court drew a number of important conclusions. First, while it found that the President’s power over immigration is entitled to substantial deference, the court rejected the Trump administration’s claim that this power is unreviewable, particularly when constitutional rights are at stake.  Second, the Ninth Circuit noted due process rights cover all persons in the United States, including aliens. Third, the court indicated its concerns that the EO is intended to disfavor Muslims, potentially violating the Establishment and Equal Protection Clauses, but ultimately noted it would “reserve consideration of these claims” until the merits have been fully briefed.   Fourth, the court emphasized deep skepticism of the national security claims asserted by the government, noting that the administration has presented “no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.” In fact, ten top national security experts from across parties and across several administrations filed a declaration with the court indicating that the Executive Order did not, in fact, achieve national security goals and may, in fact, undermine them.

Indeed, refugees scheduled to arrive in the United States have already undergone an intensive vetting process.

*This post is cross-posted at cfr.org.

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

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).

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 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)