sexual violence

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. 

Sexual violence as politics

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Rakhi Chakraborty, Raped repeatedly, Naxal leader quits Red ranks, Times of India, August 24, 2010.

Today’s TOI carries this report about a Maoist commander who experienced sexual violence over a period of six years, after first being raped at 17 by a fellow-rebel.

“Somewhere On The Bengal-Jharkhand Border: The eerie calm in the dense sal forest is deafening. Walking along a snaking dirt track, a clear patch appears. Sitting on a rock, hidden by thick, emerald green foliage, is the diminutive figure of a woman, a gamchha (thin towel) covering her head. Her blue salwar-kameez meld with the surroundings. Her eyes dart around at the slightest hint of sound. Shobha Mandi, alias Uma, alias Shikha, gives a searching look and then smiles. The 23-year-old CPI-Maoist Jhargram area commander says she was expecting us.

“From commanding 25-30 armed Maoist squad members, Uma turned a fugitive four months ago. She fled her command post on the plea of seeing a doctor. She hid with her aunt for a short while; and now she says she wants the world to know her story. She wants to surrender and is likely to give up Naxalism on August 26.

“Why did she decide to shed her battle fatigues seven years after she joined the Naxals? “They committed injustices against which they claimed they were fighting,” said Uma. “As a recruit, I protested against the habits of some leaders in the presence of Kishanji. Nobody liked it. The leaders instructed the squad members not to speak to me. I was isolated and warned of dire consequences if I protested,” she said.

What didn’t she like about the leaders? “They rape,” she shot back, eyes flashing with rage. “After about a year of joining Naxals, I was put on night-long sentry duty at a forest camp in Jharkhand. Suddenly, out of the dark, Bikash (now, head of the state military commission) came up and asked me for water. As I turned to fetch it, he grabbed me and tried to do ‘kharap kaaj’ (indecent acts).” When she objected, Bikash threatened to strangle her. After forcing her into submission, Bikash raped her, she said. She was 17 then.

“He warned me against telling anyone about this. But, I told Akash (Kishanji’s confidant and a state committee member). He said he would look into it but did nothing. In fact, Akash’s wife, Anu, lives with Kishanji,” Uma said.

“Most women recruits are exploited by senior Maoists. Senior women leaders, too, have multiple sexual partners, Uma said. “If a member gets pregnant, she has no choice but to abort: A child is seen as a burden that hampers the agility of guerrillas.”

“Uma has heard tales of brutalization of other women Naxals, too. “Seema (then a recruit) told me that Akash raped her as well. Rahul (alias Ranjit Pal) raped Belpahari squad commander Madan Mahato’s wife, Jaba. In this case, the party punished Rahul, who is a key weapons trainer at Maoist camps. He was removed from the regional committee for three months,” said Uma.

“State committee secretary Sudip Chongdar, alias Goutam, was also punished for similar acts, she said, and transferred to Jharkhand’s West Singbhum district. Maoists divide time between forest camps and hideouts in villages. Villagers can’t refuse shelter to gun-toting Maoists. Also, they must keep all night vigil to alert them against police raids. “When Sudip took shelter in villages, he raped women in their homes. They were too scared to protest,” said Uma.

“Many of her senior leaders exploited her sexually. One day, says Uma, Kamal Maity, who is a Bengal-Jharkhand-Orissa regional committee member, came to her rescue. At a meeting attended by Kishanji and other top Maoists, Kamal proposed a relationship with Uma. The leaders agreed. “After Jaba’s incident, I learnt that a woman cadre is protected against sexual exploitation only if she is with a senior leader,” she said. That was a turning point and she rose steadily in Naxal ranks.

“Uma is on the police’s most wanted list. She is suspected to have planned and executed a series of attacks, including the massacre of 24 EFR jawans in Silda (February 2010); a raid on Sankrail police station in which two policemen were killed and an officer abducted (October 2009). She is also one of the suspects in Jharkhand MP Sunil Mahato’s murder in 2007.

“She mentored PCPA members, including Bapi Mahato who is in jail for the Jnaneswari train sabotage. Last year, when the joint central and state forces advanced into Lalgarh to break an eight-month siege, she along with other Maoists fired at the police. In Jhargram, she is known as didi. According to a source, Uma single-handedly built up the PCPA at Jhargram.

“Uma joined the rebels in 2003. CPI-Maoist hadn’t been formed then. “I joined the People’s War (PW) which later merged with MCC in 2004 to form CPI-Maoist,” she said. She was given a new name, Uma. “I was plump. Anu (Akash’s wife; Kishanji’s companion) said I looked like Uma Bharti. So, she named me Uma.”

“Maoist leaders spotted her organizational skills. She was asked to mobilize tribals women at Jamboni and Dahijuri in West Midnapore. She also underwent three-month arms training at Jharkhand’s Gorabandha forest. “First, we are taught with dummy weapons using tree branches. All recruits have to fire three bullets in their first session. Those who hit the target are picked for armed squads,” she said.

“In spite of guns and guerrilla warfare, the woman in her sometimes longs for simple pleasures like painting her nails or wearing earrings. But, she says, “We were not permitted to use even fragrant soaps, lest we get detected. Only Lifebuoy is used by cadres.”

“Did she join the rebels of her own free will? Circumstances, she said. Uma is second of four siblings. Along with their parents, they worked as wage earners on farms or collected sal leaves, mahua and red ants (kurkut) to sell. “I was good in studies but weak in math. I worked all day and studied at night,” the girl from Khayerpahari village in West Bengal’s Bankura district recounted. “I couldn’t pass the Class X board.”

“This was in 2002. Younger brother Sanjay, who was in Class VIII, was already taken away by the extremists. He became a Lalgarh squad member and is in jail now. “My father, Jamadar Mandi, was an alcoholic suffering from tuberculosis. There was no money to buy him medicines. We sold our land and also borrowed money,” Uma said.

“While the family struggled, some “party” members offered help. “They gave my father some money and told me to join them. They said I could leave if I didn’t like working with them,” said Uma. The prospect of a job spurred her.

“But only after she signed up did she realize she could never go home. “Whoever comes here, never returns,” a senior leader told her. She wanted freedom from poverty but found herself chained to an ideology she couldn’t understand.

“After seven years of witnessing bloodletting, she has no fear of death. She now hopes the state she has fought against will rehabilitate her. “There are many in the Maoist ranks who would flee given half a chance,” she said.”

Outrageous. Particularly in an organization that is supposed to be fighting exploitation. Outrageous, but not entirely surprising, perhaps.
But even as I am outraged, I cannot help wondering about the timing of the report. Is this true? Is this part of some counter-insurgency disinformation campaign?
This is the challenge that most of us face on issues like this: our hearts go out to the cause in its purest essence–equity, justice, rights–but our minds tell us that that neither side has a monopoly over virtue or vice, integrity or dishonesty.
The problem with gender violence in conflict situations is precisely this: there are so many layers of complications and so many shadows, that complete certainty beyond the principle, is hard. Even if you really want to be completely sympathetic.