Human Rights & Armed Conflict Law Against Gender Violence

1. Human Rights & Armed Conflict Law Against Gender Violence

2. “One might wonder why the RDF is at the forefront of combating gender violence…but our experience during the genocide opened our eyes . Who cannot combat this heinous crime if it impacted on him directly? Rwandese women were victims of this evil during the genocide. The same spirit drives us in peacekeeping missions. Whether in Khartoum, Darfur or the Comoros, we see the women as our own mothers, sisters and aunties. And we do for them as we would do for our mothers and sisters back home.” LTGEN Charles Kayonga Rwanda Defense Force Army Chief of Staff March, 2008

3. Introduction • A violation of human rights • Widespread, serious obstacle to equality, development and peace • State’s duty to prevent, investigate, prosecute, punish and provide redress

4. The Problem • Number of victims and the prevalence is staggering • Most violence involves an intimate partner • Forced early marriage of young girls, including forced sex, causes health risks • Women in proximity to conflict are most vulnerable

5. The Problem • HIV/AIDS and forced sex are closely linked • Genital mutilation/cutting still widely practiced • Dowry murder still occurs when women’s family can’t meet dowry demands • “Honor” killings still accepted in many areas

6. The Problem • 80% of victims of trafficking in persons are female • Other forms of discrimination compound the violence • Women in police custody commonly victims of sexual violence • Extremely high costs to victims, family, community and society

7. The Problem “It is perhaps more dangerous to be a woman than a soldier in armed conflict.” – Retired Major General Patrick Cammaert, 2008.

8. International Attention • Early 1980s- Initial women’s rights activism at the UN • 1985 Third World Conference on Women in Nairobi recognition of prevalence of gender violence • 1993 World Conference on Human Rights in Vienna - women lobby to redefine the understanding of human rights law

9. A Human Rights Violation • 1982 CEDAW championed recognition of gender violence as a violation of human rights • 1993 World Conference on Human Rights in Vienna saw women from all regions organizing to increase visibility of women’s human rights • Declaration on the Elimination of Violence Against Women highlighted gender violence / discrimination

10. A Human Rights Violation • 1995 Beijing Declaration at the Fourth World Conference on Women- gender violence is a violation of women’s human rights – focus shifted to State accountability for action to prevent /eliminate it • 2000 U.N. Security Council Resolution on women and security in situations of armed conflict, called for special measures to protect against gender violence

11. Consequences of Addressing Gender Violence as a Human Rights Concern • States obligated to prevent, eradicate and punish • Women as active human rights holders • Women’s experience added to human rights discourse • Evolution of policy and practice • Regional human rights systems & States laws, policies and programs address gender violence

12. Legal Basis for State Responsibility • Human rights treaties • International refugee law provides protection to refugees • Law of Armed Conflict (LOAC) also protects women during armed conflict

13. Legal Basis for State Responsibility • Rights of women specified in treaties • Human rights treaty bodies monitor implementation and address gender violence in relation to rights • Increasing body of influential court rulings on gender violence at the international and regional level • Legislative and judicial developments - national level

14. States’ Responsibility • States’ obligated to respect and protect human rights – responsible to prevent, investigate, prosecute • States accountable for actions of non-State actors if they fail to act with due diligence to prevent, investigate or punish and provide effective remedy • International and regional legal and policy instruments and court rulings hold States to “due diligence”

15. Addressing Violence - Legal & Policy • Adherence to human rights treaties and removal of reservations • Principle of equality of men and women in national constitutions or similar legislation • Requirement to enact, implement and monitor legislation covering gender violence set out in a number of instruments • Review and revise existing laws and policy and to monitor enforcement of existing legislation

16. Addressing Violence - Criminal Justice • Investigate acts of gender violence • Prosecute and punish • Conduct criminal proceedings in a gender-sensitive manner • Just and effective remedies - access to justice, reparation, restitution, compensation and rehabilitation • Access to shelters, medical, psychological support, legal aid and other services • Responder training

17. Accountability in Armed Conflict • Sexual violence, a sub-set of gender violence, occurs in wartime, aftermath or a period of societal breakdown • Rise of sexual violence during war • Prohibitions against wartime sexual violence in the Geneva Conventions pre-date modern instruments

18. Sexual Violence in Armed Conflict • Prohibitions on sexual violence part of early LOAC • Warrior codes included sexual violence prohibitions • 19th & 20th century LOAC treaties codified restrictions • 1949 Geneva Conventions and Additional Protocols

19. Sexual Violence in Armed Conflict • Crime of rape prohibited under domestic criminal justice laws • U.S. soldiers in Mahmudiya atrocity tried in military or civilian court

20. International Criminal Law • Crimes Against Humanity • Widespread and systematic attack on civilians • Rape & other serious forms of sexual violence • International criminal tribunals empowered to try rape: • International Criminal Tribunal for the former Yugoslavia (ICTY) • International Criminal Tribunal for Rwanda (ICCR) • Special Panels for Serious Crime (SPSC) • Special Court for Sierra Leone (SCSL) • International Criminal Court (ICC) • Extraordinary Court Chambers for Cambodia (ECCC)

21. International Criminal Law • Judicial interpretations of the ICTY, ICTR, SCSL, SPSC and ICC Statute - provisions other than explicit sexual assault can be the basis of sexual violence • List of sexual assault crimes / jurisdiction of the international and mixed international forums has expanded • Rome Statute ‘Elements of the Crime’ Document establishes elements of each crime under Statute

22. Individual Liability – Direct Responsibility • One who planned, instigated, committed, ordered, aided or abetted the execution of crimes • Physical contact with victim not always required • Joint criminal enterprise (JCE) theory • Three categories of JCE

23. Individual Liability – Indirect Responsibility • Superior liable for crimes of subordinates when he knew or should have known crime was about to be or was committed and he failed to act to prevent or punish • ICTY & ICTR confirmed superiors are required to prevent or punish rape

24. Convergence of Human Rights and Law of Armed Conflict • Common ground in HR & LOAC • CEDAW: gender violence is discrimination & women have right to equal protection of LOAC rules • 1995 Beijing Declaration and Platform for Action • 2000 UN Security Council Resolution on Women’s Peace and Security • 2002 Cairo-Arusha Principles on Universal Jurisdiction in Respect of Gross Human Rights Offences

25. Convergence of Human Rights and Law of Armed Conflict • 2003 Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa • 2006 UN General Assembly Resolution • 2008 UN Security Council Resolution

26. Conclusion • Gender violence is a widespread and serious problem • It is a violation of human rights, of international criminal law, of LOAC, and usually of domestic law • Forms & experience of gender violence shaped by factors such as race, ethnicity, class, age, sexual orientation, disability, nationality, legal status, religion and culture

27. Conclusion • Significant progress made in international rules against gender violence • States have duty to prevent, investigate, prosecute and punish; and to provide remedies and redress • Coordinated multi-sector approach required • All States and peoples must make gender violence a priority

28. Lieutenant General Dallaire, Former UNAMIR Force Commander, SHAKE HANDS WITH THE DEVIL: THE FAILURE OF HUMANITY IN RWANDA, 2003