This is part 7 in a series of articles based on the dissertation of Diana Amneus with the title International Legal Accountability for Conflict-related Sexual Violence – ‘Meron’s Gap for Sexual Violence in Post-Conflict Settings published at the University of Uppsala.
The initiatives and efforts of the UN and the international community combatting ‘conflict- related sexual violence’ (CRSV) have increased and expanded through new approaches and frameworks in the last decades, through a development of terminology, definitions, forms of reporting, programming, sanctions, case law and international standards to bring perpetrators to justice and combat impunity. Sexual violence continues at high rates in the aftermath of many conflicts but has received much less international attention than wartime sexual violence. This article examines remaining international normative and accountability gaps for post-conflict sexual violence analysing the shortcomings in the interplay between international humanitarian law, human rights law and international criminal law in this context and by revisiting the Fundamental Standards of Humanity. The author also examines the new concept of CRSV in relation to international legal accountability, the boundaries of the definition on ‘crimes against humanity’ under the ICC Statute for sexual violence committed by non-state actors in post-conflict settings. The author concludes by claiming Meron’s ‘legal gap’ is found to be widely entrenched for these crimes of sexual violence.
The term ‘gender’ is defined in the ICC Statute in Article 7(3) as referring to “the two sexes, male and female, within the context of society”, and the Statute furthermore provides that gender “does not indicate any meaning different from above”.60 This definition was criticised for relying on the two sexes without considering the social construction of gender.61 The final formulation in the Statute sharply reflects the use of ‘constructive ambiguity’ by the negotiators in order to accommodate the opposition against a broad interpretation of gender that would include sexual orientation for the purpose of prosecuting gender-based persecution (broadly), while at the same time avoiding sanctioning rights under the Statute based on sexual orientation.62 The ICC Statute furthermore separates ‘sexual violence’, ‘gender violence’ and ‘violence against children’.63 De Brouwer formulates ‘gender violence’ in the ICC context as “violence that is targeted at women or men because of their sex and/or their socially constructed gender roles”, sexual or non-sexual.64
Security Council resolution 1820 (2008), the first resolution to recognise sexual violence in conflict as a ‘tactic of war’, contains a continued focus on sexual violence ‘particularly targeting women and girls’, albeit with a few statements on sexual violence targeting civilians more generally. However, with resolution 1888 (2009), the Council began to express a more ‘gender-neutral’ understanding of sexual violence in conflict, and this language continued in resolutions 1960 (2010) and 2106 (2013).65
Since the adoption of resolution 1960 the term ‘CRSV’, referring to sexual violence against women, men and children, was introduced and has gained terrain and been used more frequently since. In May 2011 it became the working definition for the whole UN system through the endorsement by the UN Action Against Sexual Violence in Conflict (UN Action) of the Analytical and Conceptual Framing (the Analytical Framing), which defines the scope of CRSV.66 UN Action was launched in 2007 as a concerted effort by the UN to improve coordination and accountability, amplifying advocacy and supporting country efforts to prevent CRSV and respond more effectively to the needs of survivors.67 It functions as a global platform of UN action and commitment on sexual violence in conflict. UN Actions states that its agreed framing of CRSV is made in ‘narrow’ terms, as it primarily relates to the mandate and concerns of the Security Council for the purpose of listing of persons in accordance with resolution 1960 (see more on the sanctions mechanism in section 4.3.1.).68
The Analytical Framing describes the forms of sexual violence falling under the resolution and the mandate of the Security Council as a ‘threat to international peace and security’ in accordance with the UN Charter (separate from other forms of sexual violence to be addressed under domestic jurisdiction), that is CRSV which amount to a crime under international criminal law as a war crime, crime against humanity or a constituent act of genocide. Also gross violations of human rights, for example sexual violence as torture, are included on the list of the Analytical Framing.69 Sexual violence related to conflict which is less severe and therefore does not amount to an international crime as defined under international criminal law (‘not of comparable gravity’),70 but nevertheless would constitute a violation of human rights law or humanitarian law, would thus falls outside of this formulation of CRSV.
The working definition of CRSV agreed on for the UN system is a synthesis definition combining legal and political thresholds aimed primarily for standardised reporting to the Security Council and other bodies on CRSV and for the listing procedure. It was developed for the standardising reporting, and for the support of the collection, classification and analysis of information that is to be provided to the Security Council and other global bodies with comparable data across field situations and over time, by fostering greater attention to the links between sexual violence and the broader context of conflict and peacebuilding. The Analytical Framing explicitly states that CRSV should no longer be treated as synonymous or interchangeable with the other categories of sexual violence or terms used by the UN: 1) GBV (an overly-broad category for 1960 reporting purposes); 2) VAW (which does not reflect the need to also address conflict- related sexual violence against men, girls and boys in a comprehensive sense); 3) Harmful traditional practices (unless specific justification can be provided); 4) SEA (addressed elsewhere in the UN system); 5) ‘Survival sex’ (falls outside CRSV as premised on international law, unless the circumstances are coercive and vitiate consent).71
In 2012, the Security Council reinforced the Analytical Framing of CRSV by a Presidential statement endorsing CRSV not only as a ‘tactic of war’ but also as ‘a tool of political intimidation’, in order to include incidents, trends, and patterns of sexual violence in armed conflict and post-conflict situations when the deliberate targeting of civilians for sexual violence are made for inter alia ‘political motivations’.72 Sexual violence has been reported by the Secretary-General to have been used to serve political ends and to target opponents in the context of elections, political strife and civil unrest in Egypt, Guinea, Kenya and Syria – mainly by members of the police, detention facilities, security forces, armed forces or armed groups.73
The most recent initiatives to tackle the culture of impunity for CRSV and raise compliance with international standards in the prosecution of such violence is the UK Preventing Sexual Violence Initiative (PSVI) launched on 29 May 2012 by William Hague, Foreign Secretary of State and the Foreign Commonwealth. The initiative was spread to the G8 which on 11 April 2013 pledged to take action against ‘sexual violence in conflict’ (SVIC) in the ‘Declaration to Prevent Sexual Violence’. It was disseminated and endorsed as a ‘Declaration of Commitment to End Sexual Violence in Conflict’ – a political will mobiliser – by over 140 states in New York during the UN General Assembly in September 2013.74 The UK initiative culminated with the launch of the International Protocol on Documentation and Investigation of Sexual Violence in Conflict on 12 June 2014 in London at the ‘Global Summit to End Sexual Violence in Conflict’ taking place 11-13 June.75 Over 148 governments and international bodies attended the conference on SVIC.
The defined scope of the term CRSV may most likely influence and impact on the continued UN and international approaches, data collection, reporting, attention and responses to (including accountability for) sexual violence related to conflict. Just as previous terminology and UN approaches has had their limitations and constraints in their application due to their specific policy considerations, also the new UN working definition has its clear limitations in providing a terminology for an overall approach to the phenomenon of such violence, as the scope of the term has been framed and delimited mainly for Security Council purposes and the specific reporting and sanctions mechanisms under resolution 1960 for the listing of primarily NSAs credibly suspected of CRSV. Other forms of existing sexual violence fall outside the definition, for example when not amounting to an international crime or gross violations of HRL but still constitutes a violation of HRL and IHL. The limitations of the term CRSV has restraining implications on the reporting, analysis and responses of the international community to various forms of sexual violence with a link to conflict.
Therefore, gaps will remain to be addressed not only in data collection of sexual violence linked to conflict, but also in formulating a comprehensive terminology and taxonomy that is useful for the whole UN system and the international community’s efforts to combat conflict- related sexual violence, not only for those limited cases of ‘securitised sexual violence’ relevant for Security Council purposes. All the current existing terminology presented above is unfortunately all too narrow, not necessarily reflecting the full reality of sexual violence with a link to conflict. These limited political and legal conceptual definitions and understandings of conflict-related sexual violence influence the international approaches and responses to this violence, and this also has restrictive impacts on the scope of the international legal accountability to post-conflict sexual violence, which this article shows (see sections 5.2. and 7).
60 V. Oosterveld, ‘The Definition of ”Gender” in the ICC Statute of the International Criminal Court: A Step Forward or Back for International Criminal Justice?’, 18:55 Harvard Human Rights Journal (2005) p. 66. The author also presents the various different UN definitions and approaches to ‘gender’ used by various UN agencies.
61 See e.g., Special Rapporteur on Violence Against Women, its Causes and Consequences, Violence Against Women Perpetrated and/or Condoned by the State During Times of Armed Conflict (1997-2000), E/CN.4/2001/73, 23 January 2001, p. 9.
62 See a thorough presentation of the negotiation history of Article 7(3), Oosterveld, supra note 60, pp. 57-58, 63, and on the criticism of the narrow ICC definition formulated as equivalent to the two sexes, see p. 71. The reference to ‘context of society’ is meant by the negotiators to be a reference to socially constructed gender roles. However, despite the fears and risks of the ICC conflating ‘sex’, ‘gender’ and ‘sexual orientation’ due to these definitional ambiguities, the sensitive interpretation of the relevant gender articles of the Statute has been left to the Court itself, see pp. 75-82.
63 See Article 54(1)(b) of the ICC Statute.
64 De Brouwer, supra note 11, p. 26.
65 Resolution 1960, however, uses more ‘women centered language’, for example when recognising ‘the need for more systematic monitoring of and attention to sexual violence in armed conflict and post-conflict situations and other women and peace and security commitments in its own work’, and highlights the importance of women’s participation in all aspects of conflict resolution and peace-building, see SC Res. 2106 (2013), op. 5.
66 UN Action Against Sexual Violence in Conflict (Stop Rape Now), ‘Analytical and Conceptual Framing’ (UN, New York, 2011) p. 1. The WHO definition of sexual violence was used in this context.
67 In June 2007, the UN Secretary-General’s Policy Committee endorsed UN Action as a critical joint UN system-wide initiative to guide advocacy, knowledge building, resource mobilisation and joint programming around sexual violence in conflict, see UNDP, Fourth Consolidated Annual Progress Report on Activities Implemented under the UN Action Against Sexual Violence in Conflict Fund, 31 May 2013, p. 7. UN Action complements other UN coordination mechanisms and is led by the Special Representative of the Secretary- General on Sexual Violence in Conflict (SRSG-SVC), currently held by Ms Zainab Hawa Bangura since September 2012.
68 UN Action Against Sexual Violence in Conflict, ‘Progress Report 2010-2011’ (UN, New York, June 2011) p. 13.
69 The definition on torture in the Analytical Framing leans more to the human rights context than the humanitarian law or international criminal law definitions of torture by requiring a state nexus. UN Action, Analytical Framing, supra note 66, p. 2. Cf. the Elements of Crimes for torture as a war crime and crime against humanity under the ICC Statute, Articles 7(1)(f), 8(2)(a)(ii)-1, and 8(2)(c)(i)-4, pp. 8, 15, 35.
70 De Brouwer, supra note 11, pp. 430-431. The category ‘any other form of sexual violence of comparable gravity’ is a rest category for sexual violence not falling under any of the other specific sexual violence crimes in Article 7(1)(g), 8(2)(b)(xxii), and 8(2)(e)(vi) of the ICC Statute. On its relationship to the residual category of ‘other inhuman acts’ for crimes against humanity, see ibid., p. 166.
71 UN Action, Analytical Framing, supra note 66, p. 3.
72 Statement by the President of the Security Council, S/PRST/2012/3, 23 February 2012, p. 1 and UNDP, supra note 67, p. 8 (emphasis added). This inclusion is visible in the Secretary-General’s report, A/66/657*-S/2012/33, supra note 40.
73 A/66/657*-S/2012/33, supra note 32, pp. 21-23.
74 S/2014/181, supra note 31, para. 10.
75 International Protocol on the Documentation and Investigation of Sexual Violence in Conflict Basic Standards of Best Practice on the Documentation of Sexual Violence as a Crime under International Law, First Edition (June 2014).
Diana Amnéus, LL.D public international law, Juridicum at Stockholm University, Former Lecturer in International Law, at Juridicum Uppsala University; Former Senior Researcher at Raoul Wallenberg Institute for Human Rights and Humanitarian Law, Lund University.