Prajnya Gender Talks, October 2020 || Addressing Impunity for Conflict-Related Sexual Violence in International Law by Priya Pillai

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October 2020

Rapporteur: Suhasini Udayakumar

Context

Priya Pillai is an international lawyer with over two decades of experience in international and transitional justice, human rights, and humanitarian issues. She holds a PhD in international law and transitional justice from the Graduate Institute of International & Development Studies, Geneva. Priya has worked at the International Federation of Red Cross and Red Crescent Societies (IFRC) headquarters in Geneva, at the United Nations International Criminal Tribunal for the Former Yugoslavia (ICTY), and with various civil society organisations on the implementation of international law. She also consults with organisations such as Amnesty International, WHO and the IFRC. 

Priya’s talk on “Addressing Impunity for Conflict-Related Sexual Violence in International Law” stems from the knowledge that conflicts have changed and evolved but conflict-related sexual violence (CRSV) continues to remain a huge problem. Sexual violence is underreported even in ordinary circumstances, mainly because of the huge repercussions that one faces upon reporting; so one can imagine how exacerbated these repercussions become during or post-conflict. 

This type of violence has historical roots in conflict over the ages and has been used as a means to control and subjugate entire populations. It includes a wide ambit of crimes such as rape, enslavement, trafficking, forced prostitution, pregnancy or sterilisation, or any other sexual violence of comparable gravity.

International Legal Framework

A few milestones in the acknowledgement and redressal of CRSV include the UN security resolutions 1325 (2000) and 1960 (2010). However, conflict areas have been no less rife with CRSV even after the passing of the resolutions, as exhibited by the recent atrocities against the Yazidi and Chibok girls in Nigeria and the Rohingya women in Myanmar. 

In their wake, the 11th Report of the United Nations Sustainable Goals on CRSV (2020) yielded a factsheet that highlights problems with underreporting, accountability of perpetrators in the context of peace negotiations (Eg: Afghanistan, Colombia, the Central African Republic), legal aid and implementation of legislation and reparation funds (Eg: Democratic Republic of Congo), prosecution of crimes (Eg: Iraq, Mali), access to detention facilities (Eg: Libya), and the impact on men and the LGBTQIA+ community. The factsheet also shares the recommendations of the International Fact-Finding Mission and the provisional measures by the International Court of Justice (Myanmar). 

Priya proceeded to lay out the international legal framework and traces its history and evolution. Under domestic and international law, CRSV has been historically unrecognised as a crime. There was persisting legal blindness for several decades; for instance, there was no mention let alone prosecution of CRSV in the Nuremberg trials, or in the International Military Tribunal for the Far East (IMTFE), leading to the invisibility of both perpetrators and victims. 

The tide slowly began to turn in the 2000s. For instance, the South-East Asian Comfort Women’s struggle for recognition, acknowledgement and justice had faded into the background of patriarchal military politics. The Women’s International War Crimes Tribunal on Japan’s Military Sexual Slavery, a civil initiative by Asian women’s and human rights organisations, brought this struggle to the forefront and gave it visibility.

Intersections of International Law

Priya emphasised the need to explore the broad intersecting areas of international law such as International Human Rights Law (IHRL), International Humanitarian Law (IHL) and International Criminal Law (ICL). 

A. International Human Rights Law

IHRL for women is governed by CEDAW obligations, primarily Article 1 which dictates the right to equal protection and General Recommendation No.19 (1992). It is bolstered by the Beijing Platform for Action (1995); human rights case law at regional courts including the Inter-American Court, the European Court, and the African Court; and is operational in all contexts, including armed conflict. 

B. International Humanitarian Law

IHL for women is governed by the Geneva Conventions, which uses oblique, archaic, and questionable references such as “women shall be especially protected against any attack on their honor, in particular, against rape, enforced prostitution or any form of indecent assault,” (GC IV, Article 27) and “…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,” (AP II, Article 4(2)(e)). 

C. International Criminal Law

International Criminal Law, on the other hand, has witnessed quite a bit of evolution. In the aftermath of the Bosnian conflict and the Rwandan genocide of the 1990s, it became critical to include CRSV in the statutes of the International Criminal Tribunal for Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). Rape began to finally be seen as a crime against humanity, and proven to be so during the Furundzija and Kunarac cases by the ICTY and the Akayesu case by the ICTR. The UN security council resolutions were empowered by UN charters, and CRSV crimes were defined, their time frames delineated, and their perpetrators to be brought in for the purpose of trials. All kinds of CRSV crimes were brought into the legal framework, including rape as torture, rape as a war crime and crime against human rights (Eg: Furundzija), and rape as genocide (Akayesu).

The Rome Statute which established the International Criminal Court was a major turning point for ICL for women. It defined rape as a crime against humanity (Article 7) and a war crime (Article 8). This was not without failings, however. Low sensitisation while handling CRSV lingered and plaintiffs struggled to secure justice on grounds of lack of evidence or leniency with appeals. For example, in the Lubanga case in the Democratic Republic of Congo, the court declined to confirm charges of CRSV; in the Katanga case, charges were dropped; in the Bemba case in the Central African Republic, the court allowed an acquittal on appeal, and in the Bosco Ntaganda case, the perpetrators convicted on 18 counts are on appeal three years after. Overall, legal developments have been sluggish and few prosecutions have emerged with CRSV as the focus.

International Court of Justice

Priya brings attention to the fact that CRSV cases tend to try individuals for crimes, overlooking state responsibility, apparatus, and governance structures.  A few exceptions have managed to look at broader concepts: in the Gambia vs. Myanmar case at the International Court of Justice, the court enforced that the state must provide access to all relevant evidence, prevent the destruction of evidence, and report back on the actions it undertakes to protect the Rohingya. Canada and the Netherlands’ joint statement highlighted the state’s responsibility to focus on CRSV and associated policies. Priya notes that ICJ cases appear to be starkly different from ICC ones, with the former addressing state responsibility, displaying a higher threshold for genocide findings, and indicating the gender component as the primary focus of the Genocide Convention.

Conclusion

Priya concluded the talk by restating that there remains continued impunity with regard to CRSV under domestic law; sexual and gender-based violence during and post-conflict remains the domain of peacekeepers and humanitarians; the role of international courts in tackling CRSV continues to grow; overall, there has been a growing involvement of women; and international law standards are gradually evolving based on case law and jurisprudence. 

#NoMoreImpunity || Blog Symposium || Re-imagining Justice: The Courts of Women Story

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RE-IMAGINING JUSTICE: THE COURTS OF WOMEN STORY

(An extract from a longer essay, Trespass, or Re-imagining Justice.)

Corinne Kumar

Let me gather some stars and make a fire for you and sitting around it, let me tell you a story.

It is a story of the Courts of Women.

It was a dream of many years ago. It began in Asia through the Asian Women’s Human Rights Council who with several other women’s rights groups has held Courts in the Asia Pacific region; El Taller International, a sister organization based in Tunisia has taken these Courts to the other regions of the world- Africa, Arab, Central and Latin America.

The Courts of Women are an unfolding of a space, an imaginary: a horizon that invites us to think, to feel, to challenge, to connect, to dance, to dare to dream.

It is an attempt to define a new space for women, and to infuse this space with a new vision, a new politics. It is a gathering of voices and visions of the global south, locating itself in a discourse of dissent: in itself it is a dislocating practice, challenging the new world order of globalization, crossing lines, breaking new ground: listening to the voices and movements in the margins.

The Courts of Women seek to weave together the objective reality (through analyses of the issues) with the subjective testimonies of the women; the personal with the political; the logical with the lyrical (through video testimonies, artistic images and poetry) the personal with the political, urging us to discern fresh insights, offering us other ways to know, inviting us to seek deeper layers of knowledge; towards creating a new knowledge paradigm.

While the Courts of Women listen to the voices of the survivors, they also listen to the voices of women who resist, who rebel, who refuse to turn against their dreams. They hear the voices of women from the women’s and human rights movements; they hear of survival in the dailiness of life; they hear of women and movements resisting violence in its myriad forms- war, ethnicity, fundamentalism; they hear of women struggling for work, wages, their rights to the land; they hear of how they survive- of their knowledges, their wisdoms that have been inaudible, invisible. They hear challenges to the dominant human rights discourse, whose frames have excluded the knowledges of women. The Courts of Women hear of the need to extend the discourse to include the meanings and symbols and perspectives of women.

The Courts of Women are public hearings: the Court is used in a symbolic way. In the Courts, the voices of the survivors are listened to: women bring their personal testimonies of violence to the Court, which are sacred spaces where women, speaking in a language of suffering, name the crimes, seeking redress, even reparation.

It speaks of a new generation of women’s human rights.

It is an expression of a new imaginary that is finding different ways of speaking truth to power; of challenging power, recognizing that the concepts and categories enshrined in the ideas and institutions of our times are unable to grasp the violence; the Courts of Women are more than speaking truth to power, more than being a critic of power; it is about creating another authority. The Courts of Women also speak truth to the powerless, seeking the conscience of the world, creating reference points other than that of the rule of law, returning ethics to politics. It invites us to the decolonization of our structures, our minds and our imaginations; moving away from the master imaginary, finding worlds, as the Zapatista say, that embrace many worlds. The Courts of Women are about subsumed cultures, subjugated peoples, silenced women reclaiming their political voice and in breaking the silence refusing the conditions by which power maintains its patriarchal control.

The new imaginary invites us to another human rights discourse; one that will not be trapped either in the universalisms of the dominant thinking tied as it is to a market economy, a monoculturalism, a materialistic ethic and the politics and polity of the nation state; neither must it be caught in the discourse of the culture specific but one that will proffer universalisms that have been born out of a dialogue of civilizations, of cultures. And this will mean another ethic of dialogue. We need to find new perspectives on the universality of human rights, in dialogue with other cultural perspectives of reality, other notions of development, democracy, even dissent; other concepts of power (not power to control, power to hegemonize, but power to facilitate, to enhance) and governance; other notions of equality – equality makes us flat and faceless citizens of the nation state, perhaps the notion of dignity which comes from depth, from roots, could change the discourse. Through its very diverse voices, the Courts of Women speak of equality not in terms of sameness, but in terms of difference, a difference that is rooted in dignity, from the roots of peoples, of women who have been excluded, erased; other concepts of justice—justice without revenge that proffers many horizons of discourse and because our eyes do not as yet behold those horizons, it does not mean that those horizons do not exist.

The new political imaginary speaks to an ethic of care:

The Courts of Women are an articulation of this new imaginary.

The Courts of Women invite us to write another history,

to re-tell history, to re-claim the power of memory:

A counter hegemonic history, a history of the margins. The Courts of Women are a journey of the margins, a journey rather than an imagined destination; a journey in which the  dailiness of our lives proffer possibilities for our imaginary, for survival and sustenance, for connectedness and community. For the idea of imaginary is inextricably linked to the personal, political and historical dimensions of community and identity. It is the dislocation expressed by particular social groups that makes possible the articulation of new imaginaries. These social groups, the margins, the homeless, the social movements, the Occupy movements, the Arab spring, the indigenous, the dalits, the women, are beginning to articulate these new imaginaries.

Women through the Courts are writing another history, giving private, individual memory its public face, its political significance; transforming memory and experience into political discourse. The Courts of Women are communities of the suffering, communities of the violated but they are also communities of survivors, of knowers, of healers, of seed keepers, of story tellers, of people telling history as a way of reclaiming memory and voice.

The peasants in Chiapas, Mexico, describing their new imaginary explain their core vision in their struggle for their livelihoods and for retaining their life worlds. And in their profound and careful organization, in their political imagining and vision do not offer clear, rigid, universal truths, knowing that the journey is in itself precious, sum up their vision in three little words :

asking, we walk.

The asking in itself challenges master narratives, masters’ houses, houses of reason; universal truths, of power, of politics, of patriarchy. The Courts of invite us to dismantle the master’s house, for as the poet, Audre Lorde says the master’s tools will never dismantle the master’s house. There is an urgent need to challenge the centralising logic of the master’s narrative implicit in the dominant discourses –of class, of caste, of gender, of race. This dominant logic is a logic of violence and exclusion, a logic of civilised and uncivilised, a logic of superior and inferior.

This centralising logic must be decentered, must be interrupted, even disrupted. 

The Courts of Women speak to this disruption, to this trespass. The Courts of Women are finding new paradigms of knowledge and new paradigms of politics; a politics with an ethic of care, compassion, community, connectedness, a politics with ethics, a political vision that can offer change for all.

The Courts of Women are our dreams of trespass.

The Courts of Women return through testimony, the voices of the dispossessed to political discourse. In its search towards a new political imaginary, the Courts of Women work towards a politics with an ethic of care; for any theory of poverty (poverty lines, the World Bank one-dollar-a day, millennium development goals, poverty reduction strategies, etc.) that is disconnected from a theory of care will not listen to the voice of the other and simply leave the poor out: the new political imaginary speaks to an ethic of care, affirming one’s responsibility to the other, an ethic that will include conviviality (that wonderful phrase of Ivan Illich). The discourse and praxis of rights cannot mean only economic and political emancipation, but must challenge the current paradigms of thought and politics.

The Courts of Women is a tribute to the human spirit: in which testimonies are not only heard but also legitimized. It invites the subjugated and the silenced, to articulate the crimes against them; it is a taking away of the legitimizing dominant ideologies and returning their life-worlds into their own hands. The Courts of Women celebrate the subversive voices, voices that disobey and disrupt the master narrative of war and occupation, of violence, of patriarchy, of poverty.

We need to find new spaces for our imaginations: gathering the subjugated knowledges, seeking ancient wisdoms with new visions, listening to the many voices speaking, but listening too to the many voices, unspoken.

The Courts of Women offer another lyric, another logic,

lifting the human spirit, creating a new imaginary,

offering another dream.

Corinne Kumar is Secretary General of El Taller International, which has pioneered Courts of Women around the world. She is also a founding member of the Asian Women’s Human Rights Council (AWHRC) and of Vimochana.

 

#NoMoreImpunity || Blog Symposium || Impunity, Trust and Transitional Justice in Sri Lanka

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IMPUNITY AND TRUST: TRANSITIONAL JUSTICE IN SRI LANKA

Nimalka Fernando

In the post war context, Sri Lanka government has announced that it will facilitate a robust Transitional Justice process. As announced by the Foreign Minister, the mechanisms will guarantee truth seeking, provide reparation to those affected by the war and conflict, facilitate non-recurrence and assist in accountability.

One of the major challenges we human rights defenders faced over the past decade is the continuing and strengthening of the culture of impunity that prevailed in Sri Lanka. Violence perpetrated by political and security forces persons went unpunished. One of the major challenges we are facing in Sri Lanka is the failure to take action against perpetrators in spite of the existence of laws. In this regard torture though prohibited in law is a tool regularly used by all categories of the security forces. The Prevention of Terrorism Act provides the security forces and police to detain suspects for a prolonged period which has resulted in the use of torture to get evidence and commit degrading action against the victim. The majority of Tamil men and women survivors have revealed barbaric acts of torture including rape and sexual harassment. We are talking about transitional justice in such an environment. Victims and witnesses have repeatedly shown that they have no faith and confidence in national institutions. Even though the political leadership has changed they have failed to build a healthy environment to combat impunity.

The transitional justice process in Sri Lanka has to go beyond purely providing mechanisms to those affected.

Let me focus on the issue of violence against women. Often transitional justice advocacy will solely focus on addressing the issue of accountability more legalistically. Similarly when we are dealing with torture it is important to remember that a woman can be tortured without leaving marks on her body. In a war it is important to analyse the totality of the experience of women who has continued to be displaced, marginalised and forced to experience further acts of violence. Sri Lanka has to sign the optional protocol to the Convention Against Torture and provide a political environment of trust building if its commitment to TJ to become real to affected communities.

Nimalka Fernando is a prominent human rights defender, peace activist and lawyer from Sri Lanka.