1. Background
1. With the war of aggression
by the Russian Federation against Ukraine, open conflict has returned
to the heart of Europe. And with the conflict, the European public
is directly confronted with the horrors of wartime in its midst:
violence, oppression, destruction, displacement, flight and exile.
The war is sadly repeating patterns and forms of aggression between
peoples as old as war itself, and which have continued in different
parts of the world ever since. As the motion for a resolution recalls,
as well as armed combat, torture and rape are being used to break,
demoralise and destroy individuals, homes, families and peoples.
2. Globally, state and non-state entities are turning away from
political and diplomatic solutions towards military force, within
countries and across borders, increasing spending on armaments and
reducing funding previously devoted to social and medical services,
which in turn increases the vulnerabilities of parts of populations
during tension and conflict, especially women, children, people
with disabilities and minorities.
3. Thus whole countries are neglecting the education and training
needed to address the root causes of gender-based violence, which
is gender-based inequality. According to the UN, “Intersecting humanitarian, security
and political crises exacerbated the root causes of conflict-related
sexual violence, including militarisation, the proliferation of
arms, impunity, institutional collapse, structural gender-based
inequality and harmful social norms.”
In
the same report the UN counted 18 countries affected by conflict-related
sexual violence in 2021, committed by different actors including
12 national military and police forces and 49 credibly suspected
bodies, mostly non-state actors.
4. Taking the previous
Resolution
1670 (2009) of the Parliamentary Assembly “Sexual violence against women
in armed conflict” as a starting point, this report re-examines
the issue in the light of the current context and makes recommendations
on preventive and dissuasive measures against conflict-related sexual
violence, for urgent implementation by member States.
2. Working methods
5. The Assembly General Rapporteur
on Violence against Women’s statement of 6 April 2022 denounces the
horrifying sexual violence reportedly perpetrated on civilians by
Russian military forces during the first month of the war in Ukraine,
evidenced by the daily reports by journalists, international organisations
and by medical staff and first-hand witnesses of rape and other
atrocities. On 24 November 2022, on the occasion of the International
Day on the elimination of violence against women, the Council of
Europe Secretary General Marija Pejčinović Burić made a powerful
statement on the need to assist Ukrainian women who are victims
of sexual violence and trafficking at the hands of the Russian army.
6. Sexual violence perpetrated in the context of the war against
Ukraine is one of the key subjects examined, and the atrocities
committed are given visibility in this report; in this perspective
it was important both to find evidence of violence against women
as well as to raise awareness of the fact that children, both girls
and boys, are also victims of conflict-related sexual violence (CRSV).
I have used testimonies gathered on a fact-finding mission in June
2022 by the European Parliamentary Forum for Sexual and Reproductive Health
and Rights, which I have the honour of presiding, to illustrate
how the international definitions of CRSV are played out to the
letter in the tragic realities of war.
7. On 22 June 2022, the committee held a joint hearing with the
Parliamentary Network Women Free from Violence on a proposal by
our colleague Maryna Bardina (Ukraine, ALDE), entitled “Developing
mechanisms and concrete means to detect crimes of sexual violence
of armed conflict and support the rehabilitation of survivors.”
The meeting was chaired by the Assembly’s General Rapporteur on
Violence against Women, Zita Gurmai (Hungary, SOC), and speakers
were Council of Europe Commissioner for Human Rights, Dunja Mijatović,
Deputy Minister of the Interior of Ukraine, Kateryna Pavlichenko
(online), and Adrijana Hanušić Bećirović, Senior Legal Advisor,
TRIAL International, Sarajevo (Bosnia and Herzegovina). The hearing provided
essential input for my report, on the work of the Council of Europe,
the situation in Ukraine and in particular on addressing the long-term
consequences of CRSV.
8. A second hearing took place on 16 September 2022 in Paris,
with the participation of Ajna Jusić, President of the Bosnian NGO
“Forgotten Children of War”, herself a child born of rape, and Céline
Bardet, international lawyer, founder and President of the NGO “We
Are NOT Weapons of War”.
I was also able to meet in Vienna
with Pramilla Patten, United Nations Special Representative of the
Secretary-General on Sexual Violence in Conflict, and took the opportunity
of a visit to New York to meet with Letitia Anderson, Advocacy and
Women’s Rights Specialist with the Special Representative’s Office.
Finally, I held online interviews with Patricia Viseur Sellers,
international criminal lawyer and International Criminal Court Special Advisor
on Slavery Crimes, and with experts from the NGO Nadia’s Initiative,
founded by Yezidi survivor and international
activist, Václav Havel, Sakharov and Nobel Peace Prize winner Nadia
Murad. During a conference of Parliamentarians for Global Action
in November 2022 in Buenos Aires, I spoke at length with Minerva
Tavarez Mirabal, chair of the International Criminal Court victims’
fund, and later had a video conference with Urszula Grycuk, International
Advocacy Coordinator with FEDERA, the Polish Foundation for Women
and Family Planning. All of these exchanges enabled me to acquire
good knowledge of the issues and challenges involved in protection
against CRSV.
3. Scope
of the report
9. The examination of cases of
CRSV and their processing beyond Europe enabled further dimensions
to be explored and, I hope, may serve to gain a better vision of
long-term consequences, as well as to identify best and most effective
means of assisting survivors, providing redress and enabling rehabilitation.
In Europe itself, the war in the former Yugoslavia has shown in
particular how violence and trauma persist over decades after conflict,
fuelled by repressed and untreated psychological damage, weakness
of state-led measures to re-create a space for peaceful coexistence,
lack of proper recognition of victims, stigmatisation of rape victims and
their children, and in some cases “social rehabilitation” of the
convicted war criminals who oversaw, ordered or tolerated the gender-based
violence.
10. The Balkan war also shows how ideology may provide strong
motivation for committing sexual violence, and specifically rape,
used as a means of either repopulating a country or region by the
aggressor or removing by destruction enemy populations’ sexual and
reproductive health and rights, in two opposing forms of ethnic cleansing
using the same crimes and with the same ultimate intention. Violence
can also be part of a plan to extinguish a whole people, which amounts
to genocide.
These aggravating factors are added to the
concept of corporal humiliation, which is the playing out of the
“domination” of one nation or ethnic group over another.
11. In recent years there have been several shocking revelations
about international organisations active in military (peacekeeping)
operations, notably in the African continent, where the position
of dependency of local populations has led to abuses committed by
their members, manifested in particular in the form of sexual abuse and
exploitation. It is also relevant to look at sexual violence perpetrated
during different types of conflict, for instance in the case of
sporadic flare-ups in so-called “frozen” border conflicts and in
regions where conflict – and the sexual violence which it perpetuates
– have become the way of life of generations.
12. My aim in this report is to describe the contours of CRSV
and its consequences, to raise awareness of the lasting damage to
survivors, to identify good practices and measures of prevention,
protection and reparation that can be promoted and taken up in Europe,
by legislators, international organisations, NGOs and individuals.
I would particularly like to make a contribution to the promotion
of justice, assistance and remedies for women and other victims
and survivors of conflict-related sexual violence in Ukraine.
4. What
is conflict-related sexual violence?
4.1. Definition
of conflict-related sexual violence in international law
13. Rape and other forms of sexual
violence are constituent elements of genocide, which is defined
in the Convention on the Prevention and Punishment of the Crime
of Genocide as “acts committed with the intent to destroy, in whole
or in part, a national, ethnic, racial or religious group”. Genocide
has attained
jus cogens status
(a norm that pre-empts other norms) and is prohibited both in its
own right and as a crime against humanity. The Convention on the
Prevention and Punishment of the Crime of Genocide, adopted on 9 December
1948, entered into force on 12 January 1951.
Referring to this early definition
helps to see how sexual violence can be used as part of a plan,
sometimes as a tool of ethnic cleansing through impregnation, always
as a demonstration of male domination, humiliation and cruelty.
However, the convention falls short on some provisions, such as
the obligation of measures to prevent genocide.
14. Article 7 of the Rome Statute of the International Criminal
Court on crimes against humanity qualifies rape, sexual slavery,
enforced prostitution, forced pregnancy, enforced sterilisation,
or any other form of sexual violence of comparable gravity as crimes
against humanity, when committed as part of a widespread or systematic
attack directed against any civilian population, with knowledge
of the attack. Both the International Criminal Tribunal for the
former Yugoslavia and the International Criminal Tribunal for Rwanda
have played a critical role in setting precedents in the prosecution
of CRSV, including articulating definitions and elements of many
gender-related crimes.
15. Crimes against humanity, as serious international atrocities,
are also subject to universal jurisdiction, meaning that national
courts can be given jurisdiction to try a person suspected of a
crime against humanity even if neither the suspect nor the victim
are nationals of the country where the court is located and the
crime took place outside that country. The existence and scope of
universal jurisdiction depends on national legislation. As an example,
universal jurisdiction investigations of war crimes in the 2022
Russian invasion of Ukraine have been started in several individual
States, including Germany, Lithuania, Spain and Sweden.
16. In 2008, the United Nations recognised in Security Council
Resolution 1820 (2008) on women, peace and security that rape and
other forms of sexual violence can constitute war crimes, crimes
against humanity and constitutive acts with respect to genocide.
17. As the motion for a resolution points out, the Council of
Europe Convention on combating and preventing violence against women
and domestic violence (CETS No. 210, “Istanbul Convention”) criminalises
rape and other forms of violence and provides for the protection
of women in conflict as well as women seeking asylum.
18. Women are not the only victims of CRSV. In all conflict situations
a (usually much smaller) proportion of crimes are perpetrated against
men, and especially against children regardless of gender. In particular
cases, such as the sexual exploitation and abuse perpetrated by
peacekeepers described in chapter 4.3 below, the proportion of men
and children affected is higher, and in a few cases such as in Sierra
Leone, boy children were the main victims.
19. In this report I have chosen to retain “conflict-related sexual
violence” as the legally and generally recognised term for the different
types of gender-based violence in conflict,
despite my reluctance
to associate the idea of sexuality with this type of deliberate,
despicable conduct fuelled by tactical and political intentions.
I also refer to the persons subjected to CRSV as “survivors” rather
than as “victims” in most occurrences, which is generally accepted
as the more positive term, encompassing the processes of healing and
reparation, and implying an active rather than passive role. However,
it should be noted that many legal provisions require a person to
be recognised as a victim in order to be eligible for assistance
and support.
4.2. Realities
on the ground
And
then... (silence) ‘A friend’, Svetlana gasps and thinks for a moment.
Suddenly she seems to realise what exactly she is saying. She swallows
her tears, clears her voice, and continues. Suddenly her story is
no longer about herself, but about 'a friend'. She tells how that
'friend' in the basement in Mariupol was raped by the Russian soldier,
while the other soldier held her son and forced him to watch. Svetlana
also says that the soldiers then turned to rape another woman in
the air-raid shelter, and that her 'friend' saw the Russian soldier
push a gun into the woman's vagina and fire after the rape. He said
he wanted to make sure she would never give birth to “new Ukrainians”
again.
20. Sexual violence have serious
consequences for women’s reproductive systems. The physical and psychological
violence of rape on women who are already pregnant causes miscarriages,
and the tendency not to report often leads in these cases to further
medical complications from injuries during the rape. Depression,
insomnia, anxiety, and other forms of emotional distress are also
common among survivors, as well as family members who witnessed
the abuses. Another consequence, notably observed in the Sierra Leone
civil war, is a sharp rise in cases of HIV/AIDS and other STIs due
to the prevalence of rape and sexual violence. In Rwanda, many HIV-positive
militiamen purposefully raped Tutsi women to infect them with the disease.
A study conducted by the Association of Genocide Widows of Rwanda
in 2 000 gathered testimony from 1 000 genocide sexual violence
survivors. 67% were HIV-positive.
21. Evidence of rape and other forms of sexual violence committed
by Russian forces in Ukraine has been present since the occupation
of Crimea and installation of Russian-controlled forces in Donbas
in 2014.
The United
Nations Office of the High Commissioner for Human Rights documented
multiple examples of CRSV between 2014-21 against both women and
men. Before the open war of aggression began, most incidents occurred
while the victims were in detention or otherwise deprived of their
freedom by armed groups and government forces. Perpetrators used
beatings and electrocution of the genitals, rape, threats of rape
and forced nudity to torture, punish, humiliate or extract confessions
from the victims. To further pressure the victims, the perpetrators
threatened also to detain, abduct, rape, injure or kill the victims'
children and other relatives.
22. Sexual violence against women was also documented outside
of detention, including in residential areas close to military positions.
Female victims reported being subjected to forced nudity, sexual
touching and sexual assault in exchange for passage through checkpoints.
In 2019, the Prosecutor of the International Criminal Court (ICC)
concluded that there was reasonable basis to believe that the war
crimes of rape and other forms of sexual violence had been committed
in eastern Ukraine.
23. Russia’s war of aggression in Ukraine from February 2022 and
the subsequent occupation of Ukrainian towns and cities have significantly
magnified the risk factors for CRSV, with the presence of armed
forces in populated areas, internal displacement, destruction of
homes and infrastructure, deprivation of liberty, restrictions on
freedom of movement and the collapse of law and order. In April
2022, following the attacks by Russian forces in Bucha, Ukraine's
human rights Ombudsperson documented cases of approximately 25 girls and
young women aged 14 to 24 who were detained, raped and impregnated
by occupying Russian soldiers in a basement. The UN High Commissioner
for Human Rights, the UN Secretary-General's Special Representative
on Sexual Violence in Conflict, the Organization for Security and
Co-operation in Europe and others have reported cases of CRSV, particularly
rape and forced nudity, across the country.
24. Challenges to investigation of these crimes include difficult
access to Russian-occupied areas and areas of live warfare, physical
insecurity of survivors who could also be subjected to an atmosphere
of impunity, fearing retaliation and stigma and may be suffering
from physical and psychological trauma. Survivors may be focused
on providing for their and their families' immediate needs and may
not have access to health care or other assistance. Investigations
of CRSV by the ICC, the Government of Ukraine and others require
a co-ordinated, survivor-centred and trauma-informed approach.
4.3. Sexual
exploitation and abuse perpetrated by peacekeepers
25. In his annual report to the
UN Security Council, António Guterres underlined that for the organisation, incidents
of sexual exploitation and abuse (SEA) committed by peace-keeping
and humanitarian personnel in “complex operating environments” are
not defined as CRSV. But the very mention of SEA in the report on CRSV,
and the similarity of characteristics (abuse of positions of vulnerability,
power and trust for sexual purposes in an environment of fear; systematised
acts of a sexual nature committed by a dominant group of individuals,
by force or under coercion; low accountability and relative impunity)
point to the inclusion of this form of sexual violence, related
to conflict situations, in the present report.
26. Allegations of SEA in the context of peace-keeping emerged
during the UN Transitional Authority in Cambodia (UNTAC) in 1992,
when the number of prostitutes rose from 6 000 before the mission
to more than 25 000 in 1993.
In
1995, evidence in Bosnia and Herzegovina showed that women and girls
were being trafficked to work as sex slaves in brothels frequented
by UN personnel, and later, that interveners were complicit in sex
trafficking.
In
2002, independent consultants reported that UN and NGO staff were
abusing and exploiting local women and girls in refugee camps in
Guinea, Liberia and Sierra Leone. From 2004 to 2007, Sri Lankan
peacekeepers exploited nine children in a sex ring in Haiti, according
to an investigation from the Associated Press,
based on an internal UN report. Although
114 soldiers were sent back to Sri Lanka as a result, none faced
criminal charges. Similar cases occurred in the Central African
Republic (Burundian and Gabonese peacekeepers), and during the 2018-2020
Ebola crisis in the Democratic Republic of Congo, more than 50 women
accused aid workers (from WHO, UNICEF, Oxfam, Médecins Sans Frontières,
World Vision, ALIMA and the International Organisation for Migration)
of SEA.
27. Sexual exploitation and abuse by peacekeeping staff and NGOs
has taken different forms:
opportunistic
sexual abuse (namely, perpetrated for private reasons, as a “practice
of war”); planned, sadistic abuse; transactional sex (“survival
sex”, which represents the vast majority of SEA allegations and
is not necessarily criminalised depending on the country, eg. the
exchange of sex for money or a job); networked SEA by peacekeepers
implicated in criminal networks through use of prostitution, sex
trafficking, purchasing sex slaves and covering up illegal activities,
for instance the involvement of peacekeepers in trafficking of women
in the Balkans, driving a rapid expansion of the exploitative sex
industry, which outlasted the operation and engendered long-term
consequences on the post-war economy.
28. The lack of data on SEA has always been problematic; and countries
keeping the names of those found guilty confidential makes accountability
impossible. Under-reporting through fear or ignorance of procedures also
makes the number of perpetrators very difficult to estimate.
In addition, under the
international agreements governing UN peacekeeping forces, military
forces remain under the exclusive jurisdiction of their own governments.
Therefore, any allegations against soldiers are referred to the
troop-contributing country.
29. A 50-page internal UN report obtained by
The New Humanitarian from a former
UN agent details mistakes and problems in investigations, in particular
interviews with the alleged victims: UNICEF failed to take accurate
victim testimonies and waited weeks before informing the UN’s investigatory
and oversight body of the allegations; the atmosphere for women
and girls making the allegations was described as “threatening”, with
investigators asking “humiliating” and “irrelevant” questions; the
system of DNA collection and storage allowed samples that could
have identified perpetrators to decay. As a result, the majority
of allegations were dismissed.
30. Between 2003 and 2006 various bulletins and strategies were
adopted, outlining strict rules for staff, including staff of organisations
entering into “co-operative arrangements” with the UN, and later
consultants and contractors, stipulating a ban on paying for sex
and strongly discouraging relations between UN staff and “beneficiaries
of assistance”. A “zero tolerance” policy was announced by then
Secretary-General, Kofi Annan.
31. 2008 saw the launch of an online global Misconduct Tracking
System to confidentially track and compile allegations of SEA, and
the UN General Assembly introduced the first Comprehensive Strategy
on Assistance and Support to Victims of SEA by UN Staff and Related
Personnel, aimed to ensure that complainants, survivors and children
receive appropriate medical, legal, psycho-social and other assistance.
In 2015, the allegations of abuse in the Central African Republic
prompted the removal of UN mission chief Babacar Gaye ordered by
former UN Secretary-General Ban Ki-moon.
32. A global review of protection from SEA was commissioned by
the Inter-Agency Standing Committee in 2010. It concluded that despite
years of policy implementation, understanding and acceptance of
policies by staff and managers remained low or even absent, policies
and guidance had generally not been communicated to the field, and
implementation was “patchy, poor or non-existent”.
SEA
continues to occur across all peace-keeping operations, perpetrators
are rarely held accountable, and actual rates of SEA are probably
much higher than reported. The advancement of SEA policies has been
largely reactive, occurring in response to public outcry at incidents
reported in the international media, raising criticism about whether
the Organisation was more concerned with image control than with
protecting civilians. The UN has nevertheless taken various measures
to better train and oversee the work of peacekeeping missions in
the field.
4.4. The
specific case of the Yezidi women
33. In August 2014, over a period
of two weeks the Sinjar massacre marked the beginning of a strategised campaign
by the so-called Islamic State of Iraq and the Levant (ISIL) of
ethnic cleansing aimed to annihilate the Yazidi people (recognised
as genocide), with the killing and abduction of thousands of Yazidi
men, women and children in and around the Kurdish Iraqi town of
Sinjar. Approximately 400 000 Yazidis fled to a neighbouring region
and tens of thousands took refuge on Mount Sinjar. The others were
killed or taken prisoner and subjected to violence including enslavement,
forced labour, torture, and rape. Men were ordered to convert or
die, and women were taken captive, married off to the highest bidder,
sexually enslaved, and forced to convert. More than 6 000 women
and children were taken captive and nearly 2 800 are still missing today.
Sexual violence was strategically used as a weapon of war and ISIS
(“Islamic State of Iraq and Syria”) manuals have been revealed,
codifying how to traffic Yazidi women, in the belief that violating
women would destroy the community from within.
34. ISIL lost control of the region in December of the same year,
following responses by Kurdish Peshmerga, Kurdistan Workers Party
and People's Defense Units forces, supported by American and British
airstrikes. Since then, efforts have been made to rehabilitate survivors
in and around Sinjar and create the conditions for return. During
my discussion with members of the NGO Nadia’s Initiative, founded
in 2018 by Yezidi survivor Nadia Murad, I heard how international
contributions have improved living conditions and prepared the safe return
of 150 000 internally displaced persons. Work is carried out by
and with Yezidi people themselves, and centres around education,
healthcare (in particular obstetrical and gynaecological care including
in rural areas), clean water supply, rebuilding livelihoods, culture
and memorialisation and women’s empowerment.
35. The example of Yezidi reconstruction is a very positive one
and helped me to form several recommendations. One is that the expression
“nothing about me without me” applies everywhere: no supportive
action for survivors of violence can be successful without their
participation at all stages from design to implementation. Another
important feature is the power of “champions”; the work of Nadia
Murad (and that of her Nobel co-laureate Denis Mukwege in Democratic
Republic of Congo) has given great visibility to the cause of Yezidi
women and attracted substantial funding; this model can be taken
up in many other circumstances. On the other hand, the situation
in Iraq is very different from other cases, not only because of the
geo-political context: for instance, the Iraqi Government recognises
the usefulness of the rehabilitation and infrastructure programmes
for the country and does not intervene in programmes.
5. Legal
provisions for prevention, protection, prosecution and reparation
for sexual violence in conflict situations
5.1. United
Nations
36. The UN Secretary General presents
an annual report to the Security Council on conflict-related sexual violence,
on the implementation of the
provisions of Security Council Resolutions 1820 (2008), 1888 (2009), 1960
(2010), 2106 (2013) and 2467 (2019). Within the UN system, the Special
Representative on Sexual Violence in Conflict is the highest responsible
authority, backed up by a UN Action against Sexual Violence in Conflict
Network, which works on prevention, responding to the needs of survivors
and enhancing accountability.
37. For Special Representative Pramila Patten, the founding vision
of the creation, in 2007, of the interagency network was to bring
political, peacekeeping, peacebuilding, and human rights actors
together with humanitarian responders and programmatic specialists,
in a mutually reinforcing manner, to amplify action to address sexual
violence as a political, rather than exclusively technical challenge.
Prevention was the driving impetus behind this agenda, which aimed
to avoid perpetually reacting to the consequences of sexual violence downstream,
in the absence of concerted upstream preventive diplomacy.
38. Against that backdrop, the above-mentioned UN resolutions
required zero tolerance and “credible consequences” for CRSV. Cumulatively,
they represent a political commitment to lift the veil of silence
and bring the full repertoire of diplomatic and enforcement tools
to bear to convert the vicious cycle of violence and impunity into
a virtuous cycle of recognition, reporting, and real-time response.
Resolution 2467 (2019) set up a CRSV multipartner trust fund, enabling
the network to support survivor-centred national projects in conflict-affected
regions.
39. In June 2021, the Office of the Special Representative published
extremely detailed and comprehensive “Model legislative provisions
and guidance on investigation and prosecution of conflict-related
sexual violence”
,
drafted by Partners in Justice International in consultation with
experts, practitioners and litigators, as well as directly with
victims and survivors. It is an impressive volume of recommendations
and model provisions, based on assessments of existing legislation
and seeking to remove barriers to access to justice for victims,
survivors, and their families. They represent a victim and survivor-centric
codification of both substantive and procedural criminal law on
CRSV. Legislators should be strongly encouraged to make use of these
models, aimed to support them to enact or review and revise – within
their national law – the legal provisions codifying CRSV crimes
as international crimes at the national level.
40. In March 2016, the Secretary-General created the Trust Fund
in Support of Victims of Sexual Exploitation and Abuse, to support
United Nations and non-UN entities and organisations providing victim assistance
and support services. Most recently, in September 2022, the UN Action
Against Sexual Violence in Conflict programme (UN Action and Stop
Rape Now campaign) published a unique and globally applicable tool entitled
a Framework for the Prevention of Conflict-Related Sexual Violence.
5.2. International
tribunals: the International Criminal Court
41. Ukraine is not a State Party
to the Rome Statute, but it has twice accepted the Court's jurisdiction
over alleged crimes under the Rome Statute occurring on its territory,
firstly with respect to alleged crimes committed on Ukrainian territory
from 21 November 2013 to 22 February 2014, and secondly on an open-ended
basis to encompass ongoing alleged crimes committed throughout the
territory of Ukraine from 20 February 2014 onwards. On 28 February
2022, the ICC Prosecutor announced he would seek authorisation to
open an investigation into the situation in Ukraine on the basis
of the Office's earlier conclusions arising from its preliminary
examination and encompassing any new alleged crimes falling within
the jurisdiction of the Court. This authorisation has now been given.
Since then, State Party referrals have also been made by 43 States Parties
either separately or as a group.
42. The ICC has developed comprehensive programmes for witness
protection which apply in particular to survivors of CRSV who come
forward to testify. It has also created a Trust Fund for Victims
(see Chapter 8 below) which not only provides funding for individuals
but organises individual and collective programmes for care and
rehabilitation.
5.3. Council
of Europe
43. The Preamble to the Istanbul
Convention recognises “the ongoing human rights violations during
armed conflicts that affect the civilian population, especially
women in the form of widespread or systematic rape and sexual violence
and the potential for increased gender-based violence both during
and after conflicts”. Its Article 2 on scope specifies that the
convention applies in peacetime and in situations of armed conflict,
without any further particular provisions, which means that they
should be implemented in their entirety in all circumstances.
44. At the hearing on 22 June 2022, Council of Europe Commissioner
for Human Rights, Dunja Mijatović, stressed that sexual violence
in conflict had been placed high on the agenda of the Council of
Europe by the developments in Ukraine. Preventing and combating
violence against women and domestic violence, especially through
the promotion of the ratification and implementation of the Istanbul
Convention, remained an essential component of her work in this
field. Conflict and displacement had shown once again how women and
girls were at even greater risk of violence during times of crisis.
5.4. National
legal provisions
45. Developing national capacities
to prosecute CRSV is seen by international humanitarian organisations and
courts alike as essential, as the most effective and appropriate
means of achieving individual accountability for these crimes.
The United Nations
Team of Experts on the Rule of Law and Sexual Violence in Conflict, set
up under Security Council Resolution 1888 (2009), assists national
authorities in strengthening rule of law institutions to enhance
accountability for CRSV. Its work has so far been concentrated in
the African continent, (Central African Republic, Democratic Republic
of Congo, Mali, South Sudan) but it has also worked in Iraq, working
to support the finalisation of the Law on Support to Female Yazidi
Survivors (2021).
46. In this respect, the example of Bosnia and Herzegovina is
worth noting. At the hearing on 22 June 2022, TRIAL International
lawyer, Adrijana Hanušić Bećirović, explained that Bosnia was known
for its solid CRSV prosecution rate, but it had taken a long time,
involving the alignment of domestic definitions of sexual violence and
Criminal Procedure Code provisions with international standards,
the setting up of a full system of special protection measures and
specialised training of legal professionals. She recommended that
parliamentarians start working on this by looking into legal loopholes
in national legislation, especially in criminal codes and criminal
procedure codes.
It was of utmost importance to start
devising administrative reparation frameworks and related policies
early. She also stressed the need for survivor-centred approaches
including broad consultation and diversified needs assessments.
47. In May 2015, Croatia adopted a law awarding a one-off payment
of 100 000 kuna (US$14,504) and a monthly allowance of 2 500 kuna
to survivors of rape in the conflict in former Yugoslavia in the
90s, as well as free legal advice and medical aid. The law took
effect in January 2016.
Although coming very late as a post-conflict
measure, the law may be seen as a model for other countries in this
context. At the same time, it is necessary to accompany any legislation
in favour of survivors by recognition of the crimes committed even without
an identified perpetrator. According to one beneficiary: “The law
and the compensation are worth nothing if the perpetrators continue
to walk free. I want them to answer for their crimes, to say why
they came to Vukovar to kill and rape.”
48. During the above-mentioned hearing on this report, Deputy
Minister of the Interior of Ukraine, Kateryna Pavlichenko, insisted
that the war in Ukraine had already been going on for eight years,
since the illegal occupation of Crimea by the Russian Federation.
The Ukrainian Government, the law-enforcement system and the public
sector were devoting all their efforts to documenting and investigating
war crimes and assisting the victims. At the initiative of the Ministry
of Internal Affairs, special mobile police units had been established
to identify criminal offences committed by military personnel of
the Russian Federation, encourage victims to report cases to law-enforcement
authorities, taking into account the need to address both physical
and psychological factors.
49. The Deputy Minister insisted that Ukraine’s institutions for
the prevention of sexual violence were committed to co-operating
with international partners in preventing and investigating war
crimes, as well as providing comprehensive assistance to victims.
The government has signed a Memorandum of Co-operation with the
UN on Combating and Responding to Sexual Violence in Conflict, building
on the engagement between the Government of Ukraine and the United
Nations Special Representative of the Secretary-General on Sexual
Violence in Conflict, as well as Ukraine’s National Action Plan
for the implementation of Security Council Resolution 1325 on Women,
Peace and Security (2020-2025). The National Action Plan specifically outlines
measures to prevent and respond to conflict-related sexual violence,
present in the Russian occupied regions since 2014.
5.5. Using
universal jurisdiction
50. Universal jurisdiction is an
extremely important and effective means for States to demonstrate
their determination to pursue and prosecute perpetrators of CRSV
which has proved its usefulness in other contexts. It is possible
in countries where the law recognises universal jurisdiction over
certain of the most serious crimes under international law. That
allows for the investigation and prosecution of these crimes, no
matter where they were committed and regardless of the nationality
of the suspects or victims. Universal jurisdiction remains one of
the only options for bringing the perpetrators of crimes committed
in Syria to justice, for example.
51. As of 11 July 2022, Estonia, Germany,
Latvia,
Lithuania,
Norway, Poland,
Romania, the Slovak Republic, Spain, Sweden and Switzerland had
all declared their intentions of using universal jurisdiction investigations
of war crimes committed during the Russian invasion of Ukraine.
In France, where the law does not allow for universal jurisdiction,
prosecutors have opened a war crimes investigation under national jurisdiction,
for cases in which French citizens or residents were possible victims
or suspects. These initiatives must be supported and multiplied.
6. Preventing
sexual violence as a systematic tactic of war
Mariya
wipes her tears and tells how one Russian soldier commanded his
younger colleagues. “He told them to rape the women in the basement
again, and then again, and again. Until they were completely mentally
destroyed. It's not about a 'pull out' by one Russian soldier on
the loose, but about clear orders from the Kremlin — even though
they vehemently deny it there”.
52. The acts of “individual aggressors”
committing sexual violence, apart from responding to the basest
of human behaviours, result both from a culture of impunity within
state and non-state belligerent forces, and from deliberate tactics
of war makers to include rape, sexual slavery and torture as part
of the indicators of success in conflict. Every effort must be made
to put an end to this glorification of physical domination and psychological ascendence,
which persists at various levels in many societies and traditions
and translates at wartime into blatantly inhuman treatment. In the
Balkans, one of the obstacles to lasting reparation and transitional
justice is the renewed glorification of certain war criminals, which
the authorities must make significant efforts to stop.
53. For the UN Special Representative on conflict-related sexual
violence, a paradigm shift is necessary to dispel the myth of rape
as mere “collateral damage” or an “inevitable by-product of war”,
implying that rape would always be pervasive in wartime and could
not be prevented. According to Pramilla Patten, “in international
relations, the framing of a phenomenon as inevitable generally reflects
a lack of political will to change it, and is code for complacency
and acceptance, which in turn breed fatalism and passivity.”
54. It is self-evident that individual rapists must be held legally
accountable, as must their superiors in the chain of command who
supervised, tolerated, or even encouraged or ordered rape. In this
context, deterrent punishment must reply to both individual and
general prevention requirements. Patricia Viseur Sellers explained
during our meeting that the UN framework for international justice
provides for criminal accountability for “aiding and abetting” in
the commission of war crimes, which means that leaders, who have
a duty to prevent and punish crime, can be held responsible for
perpetrating war crimes, including CRSV, without their physical presence
and without a direct order having been given (for instance, in the
case of Charles Taylor in Liberia).
55. In order to have a deterrent effect and prevent sexual violence
in conflict, it is essential that courts – be they ad hoc tribunals, the ICC or national
courts – are able to present evidence in proceedings against perpetrators
and instigators alike. In order to secure the necessary evidence,
it is important that well before the outbreak of conflict, hospitals
and gynaecologists, for instance, have the knowledge and equipment
to secure forensically correct evidence using the appropriate means.
56. The 2016 report by Maryvonne Blondin, “Women in the armed
forces: promoting equality, putting an end to gender-based violence”
provides a useful basis for studying
how violence within the armed forces creates an atmosphere of impunity
and probably of normalcy in the face of violent behaviour in the
military.
7. How
can survivors obtain the lasting justice they seek?
7.1. Under-reporting,
stigma and impunity
I
am not a child of rape, I am the child of my mother
Anja Jusić
57. At the hearing in June 2022,
Adrijana Hanušić Bećirović, from TRIAL International, underlined
that one of the main hurdles in dealing with and prosecuting CRSV
and supporting the victims was the social stigmas surrounding those
crimes. It was necessary to provide safe spaces for victims enabling
them to open up, those usually being victims’ associations and local
NGOs. In her opinion, governments should remain the primary duty-bearers
in providing support services, but they should do so in partnership
with NGOs. Prosecutions had a deterrent effect and were important
to victims because they provided them with an opportunity for a
measure of satisfaction as well as support during the healing process.
These comments have been backed up by my research into the requirements
for assisting survivors of CRSV and for achieving closure for all
the communities concerned by conflict.
58. In many countries and regions, victims of sexual violence,
in particular rape, are stigmatised as a result of social and cultural
contexts. In the Democratic Republic of Congo, victims of sexual
violence are ostracised from their families and villages. Whole
communities are disrupted, and this results in a lack of respect
for all women. Since Sierra Leone’s civil war in the 1990s, victims
of rape are marginalised because of the social stigma still widely
attached to it, shunned by their husbands, families and communities,
or reduced to silence to avoid ostracisation.
59. In particular women who have become pregnant as a result of
rape are most likely to suffer further trauma and abuses of their
rights, as the child will be considered as a child of the enemy.
As a result, survivors of rape and their children are most likely
to be ostracised by their community and married women rejected by their
husbands. Married women can be disowned by their husbands, and unmarried
women may never be able to marry because they are considered “spoiled”
by their communities, becoming at the same time socially and economically
even more vulnerable.
60. Our exchange with Forgotten Children of War President, Anja
Jusić, was an immensely touching, as well as instructive look into
the harm done by CRSV over several generations. She recounted how
she had carried the stigma of being born as a consequence of a war
crime at every moment of her young life, from birth to school and
employment, in societies where the absence of a father’s name on
identity documents could only point to one thing, where the reminder
of the crime that caused a child’s birth showed in a mother’s eyes,
and where breaking the silence between mother and child was almost
too much to bear. Psychological support was essential for families
to overcome the consequences of the crimes committed on them.
61. Among much advice for helping survivors, Ms Jusić underlined
that a survivor-centred approach was essential, but that it was
also essential to turn public attention away from the victims/survivors
towards finding and naming the perpetrators. Too often, survivors
were judged as having in some way attracted and brought rape on
themselves. There was no excuse for CRSV, but society was still
suspicious and blamed many young women and girls for bringing violence
upon themselves.
7.2. Data
collection
62. Fear of stigmatisation and
ostracism is also instrumental in provoking under-reporting and
thus complicating data collection. In all these conflicts, it seems
that only a fraction of the reality of violence against women can
be presented. In Kosovo*
, for instance,
victims only started opening up 20 years after the war. Women, survivors
of sexual violence in Bosnia and Herzegovina, for instance, had
used silence as a coping strategy and only began to reflect on what
they had experienced and the resulting trauma when their parental occupations
had become less pressing.
63. In September 2022, the Office of the ICC Prosecutor and Eurojust
launched practical guidelines for documenting and preserving information
on international crimes, aimed to assist civil society organisations
in documenting core international crimes, such as war crimes and
crimes against humanity and intended to empower and support civil
society organisations seeking to collect and preserve information
in order to contribute to investigations.
64. French lawyer Céline Bardet has used both her substantial
experience with survivors of CRSV worldwide and her academic knowledge
to develop practical programmes and tools for assisting survivors
both in submitting proof of the sexual crimes committed against
them and in coming to terms with their experiences, in order to
rebuild their lives.
She founded the NGO We Are NOT Weapons
of War (WWoW) with the threefold aim of raising awareness of the
crime of rape during conflict, of fighting impunity as the main
reason of war rape’s spreading and of helping victims to access
the medical and psychological care they need and to foster their
empowerment through access to legal redress. The mobile application
“Backup” developed by the organisation uses an encrypted (blockchain)
system which enables the reporting of victims of war rape, the co-ordination
of professionals involved and the collection of reliable data on
the phenomenon. Currently at the end of successful pilot phases
in the Central African Republic, Libya, and Iraq, the application
will soon be available in any regions where war is being waged.
65. At the Assembly’s Autumn 2022 session, the NGO Ukraine 5AM
Coalition (named after the hour at which the bombing of Ukraine
by Russia began) was one of the three shortlisted candidates for
the Václav Havel Human Rights Prize. It is a group of Ukrainian
human rights organisations whose aim is to uncover, document, collect
and preserve evidence, while raising awareness of alleged war crimes
and crimes against humanity committed during the war. This type
of initiative must be encouraged as a bridge between the crimes
committed on the ground and the national and international courts.
66. A global in-depth study of CRSV using all available data is
also lacking, and would be essential in seeking to understand the
systematic nature and extent of conflict-related sexual violence,
to co-ordinate efforts to eradicate and prevent it in future and
to raise public awareness.
8. Dealing
with the consequences of sexual violence during conflict
8.1. International
measures
67. As well as working on prevention,
the United Nations has produced guidelines on reparations for conflict-related
sexual violence. A guidance note by the UN Secretary General published
in 2014
states
that “all victims, including those of conflict-related sexual violence,
shall be treated with humanity and respect for their dignity and
human rights, always avoiding further harm and trauma. Their right
to a remedy and reparation should be fulfilled without discrimination
on the basis of sex, gender identity, ethnicity, race, age, political affiliation,
class, marital status, sexual orientation, nationality, religion
and disability, or any other status”.
68. In 2002 the Assembly of State Parties to the Rome Statute
of the ICC established a Trust Fund for Victims with a two-fold
mandate. Firstly for reparations in implementation of Court rulings
against a convicted person, either through distribution of sums
from the sentence or by using voluntary contributions upon decision by
the Board of Directors, with the aim of helping survivors towards
healing and reintegration. Secondly, the Trust Fund for Victims
assistance mandate provides reparative value to the most vulnerable
victims and those having suffered the gravest forms of violence,
their families and communities. The Trust Fund for Victims teams work
in collaboration with local partners to deliver life-changing programmes
including mental health, medical care, and material support programmes.
69. Eligibility for the assistance mandate depends on quite restrictive,
special criteria for identification. Besides collective reparations,
individual victims may receive additional support. Survivors of
gender-based violence (for instance in the case of Mali) have access
to both collective and individual reparation. I was informed by
Minerva Tavarez Mirabal, Chairperson of the Board of Directors of
the Trust Fund for Victims, during my interview with her, that only
14 countries of the 123 States Parties to the Rome Statute contribute regularly
and sustainably to the Fund (while 48 make occasional payments),
therefore an increase in these payments is essential.
70. In her speech at the 12th Consultative Assembly of Parliamentarians
on the International Criminal Court and the Rule of Law on 4th November
2022 in Buenos Aires, Ms Tavarez Mirabal reported that since the
Court issued its first reparations order in 2012 (modified on appeal
in 2015) the judges had awarded reparations to victims in each of
the four convictions handed down. In all four cases, reparations
were ordered through the Trust Fund and a fifth case is pending,
where reparations proceedings have already taken place while the conviction
is still being appealed. In order of value, the convicted persons
were ordered, respectively, to award reparations of US$ 1 million
(Katanga), € 2.7 million (Al Mahdi), US$ 10 million (Lubanga) and
US$ 30 million (Ntaganda).
71. Around 900 beneficiaries in Ituri province (Democratic Republic
of Congo) and 800 in Mali have so far received compensation or rehabilitation
measures through seven implementing partners or directly from the Trust
Fund itself. In addition, in line with the assistance mandate, the
Trust Fund has been implementing programmes since 2008 in Uganda
and the Democratic Republic of Congo, and since 2020 in the Central African
Republic and Côte d'Ivoire. In 2021 alone, these programs have benefited
some 17 000 victims. Trust Fund for Victims programmes outside of
court-ordered reparations have laid the foundations for court-ordered reparations
programmes and can build up victim support for the ICC's work even
in situations where accused persons have been acquitted or arrests
have proved difficult.
72. Reparation orders to date have amounted to almost € 38 million,
only € 330 000 of which came from fines, forfeiture proceeds or
reparations payments. The number of survivors means that financial
reparations from the fund, even in low-income countries, are in
most cases symbolic, but as a sign of recognition of suffering,
rehabilitation and status, both for individuals and whole communities,
they represent much more than cash compensation. Health and infrastructure
programmes also help to rehabilitate victims both economically and
socially.
8.2. National
measures: governments and civil society
73. Medical and psychological care
is vital for persons who are survivors of sexual violence. In the
present European context of backlash against women’s rights, wartime
displacement can have serious consequences for the extent and quality
of care they may receive. Women’s access to their rights (among
them to their sexual and reproductive rights) and to appropriate
care vary from country to country according to law and policies. Highly
restrictive abortion rights in Poland are problematic for women
who find themselves pregnant after being raped in Ukraine. The socio-economic
resources of the host country also count in the quality of professional help
provided.
See
in relation to the Republic of Moldova, for instance, the statement
by the Council of Europe’s Special Representative on Migration and
Refugees: “Moldova needs more resources and expertise to welcome
refugees fleeing the war in Ukraine”, 17 June 2022.
74. According to Urszula Grycuk International Advocacy Coordinator
of the Polish Foundation for Women and Family Planning (FEDERA),
it is very hard for these women to understand the structures of
a State in which they have just arrived, and they are often not
provided with sufficient accessible information. For an abortion to
be legal in Poland a certificate from a judge is required, stating
that the pregnancy is the result of rape. For exiles in the country
this is an almost insurmountable obstacle, especially in an environment
prone to stigma around reporting of any kind of sexual violence.
Ukrainian women seeking abortion care in Poland after surviving
CRSV are dependent on FEDERA and other NGOs that provide them with
information on access to medical abortion or abortion care abroad.
From another source I was also informed that registration of possible pregnancy
is becoming mandatory on entry into the country as a refugee, so
even these existing limited possibilities are becoming less and
less feasible.
75. More generally, States must ensure that women fleeing conflict
have access to sexual and reproductive health and rights (SRHR)
services which should be prioritised across the humanitarian and
refugee response. All restrictions and barriers to SRHR, including
time-sensitive and essential care, must be removed, and civil society
organisations should be consulted and participate in the design
of SRHR response efforts. Sustainable, long-term funding and flexible
support needs to be provided in national health systems for SRHR
programming, service provision and advocacy.
76. For the Council of Europe’s Human Rights Commissioner,
psycho-social and psychological support
to survivors of CRSV is not an issue that NGOs could manage alone
– there is a need for experts, medical doctors and people with professional
experience to address this brutal and humiliating crime, even if
many of these competencies are present within NGOs themselves. She
had seen the extraordinary work Ukraine was doing with international
partners in documenting and prosecuting perpetrators, and the ratification
by Ukraine of the Istanbul Convention is “a great and important
step taken by the country”. The Council of Europe could also play a
role in supporting medical rehabilitation and psycho-social support
in different member States, including Ukraine.
77. Adrijana Hanušić Bećirović, Senior Legal Advisor with TRIAL
International in Sarajevo, Bosnia and Herzegovina, explained that
the NGO fights against impunity and supports victims in seeking
justice and access to reparations, mainly helping victims of conflict-related
sexual violence. The work consists in influencing case law and policies
and helping to improve legal texts, from criminal codes and criminal procedure
codes to administrative reparation, striving for systemic solutions.
In Bosnia and Herzegovina, sexual violence was widespread during
the war. It had long-lasting consequences for victims and their
families. It was necessary to undertake a wide area of reparation
measures, ranging from rehabilitation to compensation, restitution,
measures of satisfaction and guarantees of non-repetition.
9. Conclusions
and recommendations
78. Conflict-related sexual violence
is a chain of events beginning with fundamental inequalities in
a struggle for power and ending in war crimes and crimes against
humanity. Recommendations must therefore start with the need to
empower individuals, especially women and girls, physically, psychologically
and socially through a real and measurable change in policies, education
and mentalities.
79. Specific measures concern early warning and self-protection
tools, prevention through training of police and military forces,
but also of international staff as well as NGOs working in the humanitarian
programme framework with exiles and oppressed populations in positions
of vulnerability, all susceptible to find themselves in positions
of domination during periods of conflict.
80. Reliable data collection is vital in crimes of CRSV, although
jurisdictions now lean towards witness and survivor testimony as
sufficient to bring perpetrators to justice. Data collected should
also be drawn together in a global study of the phenomenon.
81. Mechanisms for redress, reparation and reconstruction of survivors’
lives must avoid retraumatising, stigmatisation and marginalisation.
There is a need for safe spaces where survivors can speak freely,
or choose not to speak. I was struck by international lawyer Céline
Bardet’s comments that survivors should be understood and be able
to avail themselves of recognition and reparation for the crimes
committed against them without necessarily being obliged to go before
the courts. This can only be the case in societies where transitional
justice has enabled political and societal change to come about.