Armed conflict brings forth its own form of diverse aggression, especially aggressions that are concerned with violence against women. These can comprise of acts of sexual assault by both hostile and domestic country. Few examples of sexual violence that results from such conflicts are:
- Mass rape used as a deliberate strategy in genocide,
- Forced prostitution (comfort women),
- Numerous gang rapes of young girls (with numerous perpetrators),
- Female genital mutilation, within the community under attack, to reinforce cultural identity,
- Military sexual slavery,
- Women forced to offer sex for survival, in exchange for food, shelter, or “protection”.
War crimes majorly have contributed to grave acts such as mentioned in above points. For example: Vietnam War, Nuremberg and Tokyo Trials are great real-life examples of heinous sexual violence committed against women. Even during the 1994 Rwandan genocide, specific ethnic group of women (mainly Tutsi women) were subjected to sexual violence on a massive scale, perpetrated by members of the infamous Hutu militia groups and the sole reason was to further their political objectives. Armed conflict is therefore also a political conflict. They should be held accountable for cruelties against women.
In this article, we would be discussing laws and their roles, cases on sexual violence against women in armed conflict. Defining the term ‘armed conflict’ and what it would mean. Understanding the general notion of law and order in armed conflict and incidence that lead to an increase form of all kinds of violence. In addition to this we will be analyzing the political tensions of conflict, the power role that also play a role in increased prevalence of domestic violence against women.
“In the area of violence against women, human rights ideas are powerful precisely because they offer a radical break from the view that violence is natural and inevitable in intimate relations between men and women. Defined as human rights violation, gender violence becomes a crime against the state that the state must punish”
~ Salle Engle Merry
Understanding armed conflict and its consequences?
The most vulnerable groups of society are women and children. Elderly women and especially those with physical or mental disabilities are also vulnerable. Likewise, there are also women who are held in detention or detention-like situations that which comprises of concentration camps. In addition to this, sexual violence against women also attracts major health risks, besides the obvious physical and psychological consequences. It is important to remember that these effects usually are often both negative and widespread. “Social bonds may be broken as women are isolated by their families and communities. A legacy of bitterness towards the perpetrators may make reconciliation and community reconstruction particularly difficult. To remedy this crisis two useful documents on how to support and help victims of violence in conflict and displacement situations have been produced by the International Federation of Red Cross and Red Crescent Societies and the United Nations High Commission for Refugees.”1
In every region – Africa, the Americas, Asia, Europe, and the Middle East – armed conflict has involved sexual violence against women and girls, and against men and boys, although less data is available on male victims.”2 “The underlying acceptance of violence against women which exists within many societies becomes more outwardly acceptable in conflict situations. It can, therefore, be seen as a continuum of the violence that women are subjected to in peacetime. The situation is compounded by the polarization of gender roles which frequently occurs during armed conflict. An image of masculinity is sometimes formed which encourages aggressive and misogynist behavior.”3
As stated earlier it is common for a military or army troop to make use of factors such as: mistreatment, exploitation, rape, or any other kinds of violence that can be used against women. This can be seen in form of psychological warfare which involves “the planned use of propaganda and other psychological operations to influence the opinions, emotions, attitudes, and behavior of opposition groups.”4 In addition to this, the image of masculinity projected back then might have in my opinion encouraged aggressive and misogynist behavior. The feeling of entitlement and the fact that men considered violence of sexual nature that which harbored the feeling of conquering a territory.
Let us now try to understand the concept of “armed conflict” through various definitions:
- “An armed conflict is a contested incompatibility that concerns government and/or territory where the use of armed force between two parties, of which at least one is the government of a state, results in at least 25 battle-related deaths in one calendar year. Comment: ‘Armed conflict’ is also referred to as ‘state-based conflict’, as opposed to ‘non-state conflict’, in which none of the warring parties is a government.”5
- “A political conflict in which armed combat involves the armed forces of at least one state (or one or more-armed factions seeking to gain control of all or part of the state), and in which at least 1,000 people have been killed by the fighting during the course of the conflict.”6
- “All cases of declared war or of any other armed conflict which may arise between two or more…[States], even if the state of war is not recognized by one of them.”7
Sexual violence against women is not merely a woman’s issue but makes it a human issue. Women suffer a great deal, despite their contribution in almost every walk of life. Sexual violence is merely one among factors that acts as a disadvantage to women who want to merely advance in life. In addition to this, you have gender discrimination, exploitation, harassment at workplace, and what not which not only silence or weaken women but also put them in a disadvantageous position in society. Although human rights are non-discriminatory not all human beings experience them equally throughout the world. Meaning that, for the mere fact that we are humans we should be not only enjoying them but are rightly entitled to them and cannot be excluded from the same.8
Firstly, countless international Declaration and Covenant came to be sanctioned to eradicate discrimination against women on a global level, To name a few:
- Universal Declaration on Human Rights,
- International Covenant on Civil and Political Rights,
- International Covenant on Economic, Social and Cultural Rights,
- Convention On “The Elimination of All Forms of Discrimination Against Women, 1979”.
Secondly, on more a domestic approach, we take a peek on the legal scenario of India, in which you have various constitutional provisions like Article 14, 15(3), 23, 39(d), 39(e), 42, 44, 51A(e) etc., that have been incorporated to eliminate discrimination against women. Moreover Article 15(3) of the Indian Constitution states that state is empowered to make special provision for women even in the personal laws some provisions are made to eliminate discrimination of women. Then gradually various legislation came in the form of:
- Sati Prevention Act,1987,
- Indecent Representation of Women (Prohibition),1986,
- Dowry Prohibition Act,1961,
- Family Courts Act, 1984,
- Protection of Human Rights Act,1993; etc.
Then through various judicial decisions the court struck down the provisions which violated human rights of women. India has ratified CEDAW which implies to honor the obligations imposed by convention. Aim of this convention was to eliminate discrimination against women. Thus, India ratified this convention to eliminated discrimination against women.”9 In further reference to International Covenants “the term “honor” is found in the Fourth Geneva Convention of 1949, but with two important innovations: first, women are specifically indicated as being persons ‘to be protected’; second, rape makes a reappearance, being expressly mentioned as an example constituting an attack on the ‘honor’ of women.
The International Committee of the Red Cross (ICRC) was instrumental in drafting the Geneva Conventions of 1949 and is its guarantor today. From the moment it was founded in 1863, the ICRC immediately set about relieving the brutalities of war. Surprisingly, however, it was not until the late 1990s that the ICRC became concretely involved in the issue of sexual violence committed during situations of armed conflict – it took resolutions from the International Conferences of the Red Cross and Red Crescent in 1996 and 1999 for the institution to take that step.”10
Rights may have been guaranteed by the law regarding enhancing a women’s standing in society and in matters regarding her protection. However, in my opinion we as a society are equally to blame that is in addition to the failure of the government, or state parties to not be able to judiciously promote and protect these rights. The Government should actively develop a concise
comprehensive human right education programme to raise awareness about women’s’ rights, create or strengthen national institutions for protecting human rights of women, publicize information on existing mechanism for redressing, human rights violation.
Justice for Sexual Violence in Armed Conflict
Isha Dyfan, a lawyer, an activist for peace and women’s issues, and a survivor of Sierra Leone’s civil war,11 stated that, ““We need to hear that these atrocities are condemned to at least relieve some of the shame and the grief. It is not just a legal issue. It is about people’s lives. Something must be done so the society that was affected by the conflict can invest in peace.” “The justice sector is responsible for providing justice for victims of sexual violence and other human right violations, ensuring accountability for the crimes committed, and supporting the long-term process of rebuilding communities. The right to justice for victims of violence and human rights violations has been extensively affirmed and developed in international law, from the International Covenant on Civil and Political Rights to the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law of 2005.”12
Since international law per se is not codified, it becomes difficult for someone to depend on certain aspects of international crime. As I do believe under the purview of international law the question remains unanswered of how national courts of a state can met out justice for victims of sexual violence in armed conflict. For example: questions regarding jurisdiction, becomes a tricky subject in armed conflict, or in case of mass rape, who do you hold accountable? This in itself makes it a challenge to provide justice for victims of conflict-related sexual violence. Good example of this can be seen In the Beijing Platform for Action, states committed to “develop strategies to ensure that the revictimization of women victims of violence does not occur because of gender-insensitive laws or judicial or enforcement practice.”13 And in addition to this The UN Model also Strategizes and takes Practical Measures on the elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice urges states to review, evaluate and revise their criminal procedure to ensure that: “Women subjected to violence have an opportunity to testify in court proceedings equal to that of other witnesses and that measures are available to facilitate such testimony and to protect their privacy.”14
Survivors of sexual violence face considerable economic, educational, and socio-cultural barriers in gaining access to justice. In most societies, they are stigmatized, and may be rejected by their spouse and even expelled from their community. Both their health and social needs must be addressed in order to effectively respond to the crimes committed against them. Legislation in many countries still does not adequately recognize sexual violence as a crime – for example, by failing to recognize male rape.”15
Justice delayed is Justice denied:
“The way that justice works is that you recognize harm, you take responsibility for it, and then you begin to repair it.”16 “But for this to happen, everyone impacted by sexual violence needs to feel they can speak openly. Expulsion hearings, tribunals, or courts of law are not designed to do this; rather, these forums disincentivize truth-telling because those who harmed us know they’ll be punished if they admit what really happened. The risks are also high for survivors, who face social stigma for coming forward about their experiences and are often forced to undergo painful questioning.”17
What kind of justice is the way to go?
In some communities, retributive justice – based on prosecution and punishment proportional to the crime – is considered to have a value in itself.18 Restorative justice on the other hand, brings those who have harmed, their victims, and affected families and communities into processes that repair the harm and rebuild relationships. This can take several forms, such as peacemaking circles and conferencing models. Restorative justice can help resolve nearly any kind of wrongdoing or conflict, including serious harms such as robbery, burglary, assault — even sexual and intimate partner violence, and even murder.19 Restorative justice is an approach to justice where one of the responses to a crime is to organize a meeting between the victim and the offender, sometimes with representatives of the wider community.20
Another opinion states that, “In searching for justice after violent conflict, some practitioners in the field have argued that “there is no peace and no reconciliation without punitive justice”.21 “However, among the objections to the use of trials and criminal prosecutions are that retributive justice tends to marginalize the feelings and needs of victims, and that in post-conflict contexts material obstacles can seriously hinder the delivery of adequate justice.”22
Is Transitional justice the way to go?
Transitional justice refers to a range of approaches that societies undertake to tackle legacies of widespread or systematic human rights abuses, as they move from a period of violent conflict or oppression towards peace, democracy, the rule of law, and respect for individual and collective rights.23 Broadly speaking, the primary objectives of transitional justice are twofold: to introduce processes of reconciliation among both the parties to the conflict and the affected populations by establishing a process of accountability and acknowledgement; and to deter reoccurrence, thus ensuring sustainable peace.24
Needless to say, each distinct communities have their own versions of defining the notion of “justice”. And while attempts have been made to make a sweeping statement about justice after conflict. It still remains a topic fraught with difficulty. It may be of some help if we consider how mechanisms seeking justice for victims of sexual violence can draw upon differently. Justice is also not a legal issue but that of each individuals’ issue.
Ad hoc criminal tribunals and the International Criminal Court
In a number of cases which built a pathway for the United Nations to form or establish various as doc international criminal tribunals and special tribunals. Keeping in mind to involve the larger international community to try individuals who committed crimes during an armed conflict. The International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) in this regard broke new records in prosecuting responsible criminals for genocide, war crimes, that which included sexual violence in armed conflict and other atrocious humanitarian destructions in those particular conflicts. In addition to this, these tribunals also secured the first convictions for rape and other forms of sexual violence and defined them under the definition of war crimes, crimes against humanity and acts of genocide.
The jurisprudence of the ICTY and ICTR has been of utmost importance in improving and understanding different forms of sexual violence in armed conflict as crimes under international law. However, international tribunals have only been of so much help, they proved less successful in protecting and assisting victims of sexual violence. The Nuremberg Trial in this regard was criticized for not having even spoken on the issue. The ICTR was also criticized for lacking the means to come up with a way to deal with protection of sexual violence victims and perpetrators were provided to go Scot free with minimal penal punishments. A number of witnesses for the ICTR were threatened or killed before or after testifying at the Tribunal.25 During trials, survivors of sexual violence are reported to have received inadequate witness preparation, and experienced aggressive cross-examination, which left them feeling re-victimized and humiliated. A decision by a survivor to testify sometimes led to their abandonment by their spouse or expulsion from their community. Women who contracted HIV/AIDS as a result of rape were also not always provided with adequate treatment.26
The International Criminal Court (ICC), established under the Rome Statute, has the complete authority and as part of its obligation to try parties alleged of the most serious crimes committed in the international circuit, that which includes genocide, war crimes and crimes against humanity. The Rome Statute recognizes the seriousness of sexual violence, as qualified of being an international crime for which offenders and their military commanders or other superiors may be held individually answerable. When rape and sexual violence are committed as part of a pervasive or systematic attack aimed at any civilian population (whether during armed conflict or not), they are considered crimes against humanity, and in some cases may be equivalent to the component of genocide as well.
- “Under Article Articles 42(9) and 43(6) of ICC Statute, explicitly requires that the Prosecutor appoint advisers with legal expertise on sexual and gender violence and that the Victims and Witnesses Unit includes staff with expertise in trauma related to crimes of sexual violence,
- Under Article 68 (1) of the Statute, ICC is obliged to take actions to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses, with regard to violence of sexual nature,
- Under article 43 (6) The Statute also establishes a Victims and Witnesses Unit to provide protection, security, counseling, and other assistance,
- Under Article 68 (2) ICC can institute measures to protect victims and witnesses during trials and pre-trial proceedings. In addition to the assumption that victims of sexual violence will bear witness and testify in closed hearings.
- The Rules of Procedure and Evidence (mainly Rule 88(5)) necessitates the ICC to be attentive in controlling the questioning of witnesses to avoid harassment or intimidation, especially in sexual violence cases. This Rule is designed to safeguard victims of sexual violence from any detrimental or invasive attacks on their sexuality or credibility.”27
The Rules outline principles to guide the ICC in handling sexual violence cases, making clear that a victim’s consent cannot be inferred where the perpetrator took advantage of a coercive environment (such as a detention Centre), and requiring special procedures for presenting evidence of consent to acts of sexual violence.28 The ICC’s Rules of Procedure and Evidence sets a new record for international standard of good practices in regard to prosecuting sexual violence.
Sexual violence in conflict destroys both individual lives and collectively communities as well. Addressing these issues not only provides justice to survivors but also to alleviate the consequences that these violence harbor. At the same time, meting out justice should be a common practice in law enforcement, on behalf of the state and the broader community. Justice is thus simultaneously personal to each individual survivor, an issue for entire communities, and has national and international dimensions. As yet only faltering steps have been taken to recognize what justice means for individual survivors of sexual violence and for communities in dispute of armed conflict. It is important to develop judicial mechanisms and strategies that deliver this justice. Whether one works through courts, reparations bodies or traditional justice systems, stigma against survivors of sexual violence recurs from time to time and serves as an unnecessary barrier to justice. Survivors include – men, women and even children – who are reluctant to come forward, due to the possibility of additional social exclusion and violence. The “justice” so extended and offered rarely and expressively addresses this reality. The attempts to bring about justice to survivors of sexual violence must inevitably begin with an endeavor to comprehend the silence that all too often veils sexual violence, and to find ways to transmute shame and stigma into revived dignity and respect.
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