Rapporteur: Suhasini Udayakumar
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.
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.