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 || Trials of Sexual Violence in Conflict against Men

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CRIMINAL TRIALS AND TRIBULATIONS OF CONFLICT-RELATED SEXUAL VIOLENCE AGAINST MEN

Anjali Manivannan

Introduction

It is common knowledge today that rape and sexual violence are weapons of war. What is less commonly known is that war puts both women and men at risk of rape and sexual violence. In the post-conflict era, transitional justice processes must wrestle with achieving accountability for mass atrocities, including sexual violence crimes, and the challenges inherent in finding meaningful ways to redress victims. This contribution will discuss the obstacles to and effectiveness of justice for male victims of conflict-related sexual violence in the context of prosecutions—with the caveat that other transitional justice mechanisms, like truth commissions, also tend to significantly sideline these victims. Conflict-related sexual violence against men is a salient topic in many war-torn and postwar countries today, including Sri Lanka, which is presented here as a case study to highlight the complexities of the issue. Prosecutions of this crime are necessary to both provide accountability for Tamil male victims of sexual violence and end impunity for gross human rights violations.

Sexual Violence Is a Weapon Used Against Both Women and Men

The use of sexual violence against men dates back to ancient times and remains a widespread and recurring war tactic.[1] Against men, conflict-related sexual violence may be even more widespread than we think; unfortunately, due to enormous under-reporting, statistics are limited. Conflict-related sexual violence can terrorize and traumatize males as much as females and is committed against the backdrop of patriarchal norms of dominance, power, and gender. Perpetrators of sexual violence against men use it as a tool to emasculate or feminize, homosexualize, and prevent procreation, the last of which is also one of many reasons women are sexually violated. All three motivations aim to privilege perpetrators over male victims, in keeping with the patriarchal frameworks that are arguably even more entrenched during hypermasculinized situations like war.

Conflict-related sexual violence against men takes many forms. The reality of the harms suffered goes against popular perception, which holds that sexual violence against men is analogous to the experiences of women and takes the form of rape. Instead, conflict-related sexual violence against men includes not only oral and anal rape by perpetrators or “enforced rape” between victims, but also enforced sterilization, including castrations; sexual slavery; forced masturbation; enforced nudity; and other violence to the genitals, such as genital beatings.[2] Given this wide range of sexual violence harms, when the conception of sexual violence against men is reduced to rape, non-penetrative acts are mischaracterized as non-sexual violence. Misidentification of these crimes ignores numerous victims and conceals different gendered experiences of sexual violence. It also reinforces stereotypes of men as perpetrators and women as victims, instead of addressing the varied positions of men and women during war and postwar periods. Moreover, a complete picture of human rights violations, against men and women, sexual and non-sexual, is necessary to determine the form and substance of transitional justice to move the country forward.

Victories and Shortcomings of International Criminal Trials for Male Victims

Under international law, victims have a right to remedies and reparations for human rights violations. This includes the right to effective justice, which may be fulfilled through prosecutions of perpetrators. Accordingly, criminal trials are an important, arguably essential, component of transitional justice. They mete out retributive justice, contribute to ending impunity for mass atrocities, and potentially deter the future commission of such crimes.

Unfortunately, most of the time, conflict-related sexual violence against men is not prosecuted. When it is, this crime is rarely characterized as sexual violence with attached consequences.[3] Thankfully, this appears to be changing, particularly at the International Criminal Court (ICC). In March 2016, the ICC handed down a landmark decision in the Bemba case, in which the accused was found guilty of crimes against humanity and war crimes, including rape.[4] Bemba had the first indictment charging sexual violence against men as rape and the first conviction for rape based on the testimony of male victims in international criminal jurisprudence.

The sexual violence against men in Bemba concerned rape. There is still, however, a need for progress in non-rape crimes of sexual violence against men. For example, in the ICC’s now-dropped Kenyatta case, the Pre-Trial Chamber rejected the prosecution’s charges of forcible circumcision and penile amputation as “other forms of sexual violence.” The Pre-Trial Chamber ignored the sexual nature of these acts and their intent to destroy men’s identities and masculinities, ultimately subsuming these crimes into “other inhumane acts.”[5] In this respect, we have not come far from the first international criminal trial for sexual violence and sexual violence against men: the Tadić case at the International Criminal Tribunal for the Former Yugoslavia (ICTY) nearly twenty years ago. Tadić was convicted, but his crimes of sexual violence against men were subsumed under “cruel treatment” and “inhumane acts.”[6] Today, overcoming the hurdles to prosecuting conflict-related sexual violence against men remains critical to transitional justice everywhere, as illustrated in Sri Lanka’s nascent accountability processes.

Case Study of Sri Lanka: The Need for Internationalized Prosecutions of Conflict-Related Sexual Violence Against Men

Sri Lanka’s protracted civil war ended violently in May 2009 following the government’s decisive defeat of the Liberation Tigers of Tamil Eelam (LTTE), also known as the “Tamil Tigers.” Twenty-six years of fighting bore witness to violations of human rights and the laws of war committed by both sides. The government, however, was the only party responsible for sexual violence, which its security forces perpetrated and continue to perpetrate against women and men on an equal basis. Since the breakdown of the Norwegian-brokered ceasefire in 2006, numerous forms of sexual violence against Tamil male detainees have been reported. These acts include rape, often by inserting objects such as pipes and barbed wire into the anus; forcing detainees to perform oral sex on security forces; crushing, beating, kicking, and burning the genital area; inserting thin rods, metal, or wire into the penis; and placing chili powder on the genital area.[7] Security forces often perpetrated acts of rape and sexual violence alongside other kinds of torture. Unfortunately, the perpetrators of conflict-related sexual violence against both women and men continue to enjoy impunity.

In Sri Lanka, as in many postwar countries, justice is a painstakingly slow process; seven years after the war ended, the implementation of transitional justice processes is only just getting underway. However, the government continues to drag its feet, despite co-sponsoring UN Human Rights Council Resolution 30/1 (October 2015), which recommended prosecutions of alleged war criminals. In fact, the government has since backtracked on significant commitments to the Human Rights Council by forbidding international involvement in justice and accountability processes. Sri Lanka’s rejection of international participation naturally has strong implications for achieving credible justice for Tamil victims in general. It also precludes criminal accountability for conflict-related sexual violence against men.

Domestic capacity to prosecute mass atrocities is often non-existent or greatly compromised in the aftermath of war, exacerbating the difficulties in addressing conflict-related sexual violence. Accordingly, a best practice for the prosecution of conflict-related sexual violence is appointing advisers with legal expertise on this specific issue. Due to the large number of male victims, expertise in investigating and prosecuting conflict-related sexual violence against women and men is necessary to secure justice in Sri Lanka. However, as the Kenyatta case shows, even an international court staffed with experts may struggle with addressing non-penetrative acts of sexual violence against men. Given the widespread lack of specialists and experts on conflict-related sexual violence against men across the board, it is extremely unlikely that such professionals exist domestically in Sri Lanka. Instead, Sri Lanka must allow all of its transitional justice mechanisms to incorporate substantive and technical assistance from international partners. Such involvement is essential to the credibility and success of all justice initiatives, including non-criminal accountability processes, and experts should thus be actively invited to assist Sri Lanka.

Due to the misunderstandings and mischaracterizations involved in investigating and prosecuting conflict-related sexual violence against men, sexual violence and gender experts are critical to criminal justice. The lessons learned from international criminal jurisprudence on sexual violence against men, albeit limited, must be applied to Sri Lanka. Tamil men and women alike must receive recognition, remedies, and reparation for any sexual violence suffered.

Unfortunately, as long as Sri Lanka refuses to allow outside experts, perpetrators who have continued to rape and otherwise sexually violate Tamil men—again, on an equal basis with women—are unlikely to even be charged for this particular crime. Postwar countries like Sri Lanka with high-levels of conflict-related sexual violence against men must implement trials that are expertized and equipped to effectively investigate and prosecute both rape and non-penetrative sexual violence against men. The international community must ensure that Sri Lanka heed the call to internationalize its transitional justice processes in order to punish and deter conflict-related sexual violence against both women and men.

Anji Manivannan is a New York-based human rights lawyer and longtime advocate for justice in Sri Lanka.

Bibliography

Nimmi Gowrinathan & Kate Cronin-Furman, The Forever Victims? Tamil Women in Post-War Sri Lanka (2015), http://www.deviarchy.com/wp/wp-content/uploads/2015/09/The-Forever-Victims-Tamil-Women-in-Post-War-Sri-Lanka.pdf.

International Truth & Justice Project Sri Lanka, A Still Unfinished War: Sri Lanka’s Survivors of Torture and Sexual Violence 2009–2015 (2015), http://www.itjpsl.com/wp-content/uploads/2015/07/Stop-Torture-Report.pdf

Anjali Manivannan, Seeking Justice for Male Victims of Sexual Violence in Armed Conflict, 46 N.Y.U. Journal of International Law & Politics 635 (2014), http://nyujilp.org/wp-content/uploads/2010/06/46.2-Manivannan.pdf

Sandesh Sivakumaran, Lost in Translation: UN Responses to Sexual Violence Against Men and Boys in Situations of Armed Conflict, 92 International Review of the Red Cross 259 (2010), http://www.icrc.org/eng/assets/files/other/irrc-877-sivakumaran.pdf.

Sandesh Sivakumaran, Sexual Violence Against Men in Armed Conflict, 18 European Journal of International Law 253 (2007), http://ejil.org/pdfs/18/2/224.pdf.

People for Equality and Relief in Lanka, Withering Hopes (2015), http://pearlaction.org/wp-content/uploads/2016/04/Withering-Hopes-PEARL.pdf.

Prosecutor v. Muthaura, Kenyatta & Ali, Case No. ICC-01/09-02/11, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute (January 23, 2012), https://www.icc-cpi.int/CourtRecords/CR2012_01006.PDF.

Prosecutor v. Gombo, Case No. ICC-01/05-01/08, Judgment (March 21, 2016), https://www.icc-cpi.int/CourtRecords/CR2016_02238.PDF.

Prosecutor v. Tadić, Case No. IT-94-1-T, Opinion and Judgment (May 7, 1997), http://www.icty.org/x/cases/tadic/tjug/en/tad-tsj70507JT2-e.pdf.

U.N. OHCHR, Report of the OHCHR Investigation on Sri Lanka (OISL), U.N. Doc. A/HRC/30/CRP.2 (September 16, 2015), http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session30/Documents/A.HRC.30.CRP.2_E.docx.

 

[1] The Ancient Chinese, Egyptian, Greek, Norse, and Persian armies perpetrated acts of sexual violence against men. Much more recently, sexual violence against men has also occurred in armed conflicts in Argentina, Burundi, the Central African Republic, Chechnya, Chile, the Democratic Republic of the Congo, El Salvador, Greece, Guatemala, Iraq, Kenya, Kuwait, Liberia, Northern Ireland, Rwanda, Sierra Leone, South Africa, Sri Lanka, Sudan, Turkey, Uganda, the former Yugoslavia, and Zimbabwe. Sandesh Sivakumaran, Sexual Violence Against Men in Armed Conflict, 18 European Journal of International Law 253, 257–58 (2007).

[2] Id. at 263.

[3] Sandesh Sivakumaran, Lost in Translation: UN Responses to Sexual Violence Against Men and Boys in Situations of Armed Conflict, 92 International Review of the Red Cross 259, 272–73 (2010).

[4] Prosecutor v. Gombo, Case No. ICC-01/05-01/08, Judgment (March 21, 2016).

[5] Prosecutor v. Muthaura, Kenyatta & Ali, Case No. ICC-01/09-02/11, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ¶¶ 254, 264–66 (January 23, 2012).

[6] This was the first case before the ICTY in which sexual violence against men was prosecuted. Tadić forced two male detainees to perform oral sex on each other and also forced a male detainee to sexually mutilate another by hitting and biting his genitals until one testicle was bitten off. Prosecutor v. Tadić, Case No. IT-94-1-T, Opinion and Judgment (May 7, 1997).

[7] U.N. OHCHR, Report of the OHCHR Investigation on Sri Lanka (OISL), ¶¶ 571, 594, 600, U.N. Doc. A/HRC/30/CRP.2 (September 16, 2015).