WOMEN’S HUMAN RIGHTS IN CONFLICTS AND CRISES
By Adil Hamid lone LLM scholar at school of law Pondicherry University
Sexual and gender-based violence in conflict and post-conflict settings
In armed conflict or political strife, violence against women takes severe forms. During the past decade, much international attention has been paid to the link between gender-based violence and conflicts. Conflict has far-reaching effects on women’s enjoyment of their human rights, whether civil and political or economic and social Despite increased global efforts to combat gender-based violence in conflict and post-conflict settings, women continue to be subjected to gender-based violence such as rape, sexual slavery, kidnapping or trafficking, forced impregnation or miscarriages, and sexual abuse such as forced nudity, strip searches and other publicly humiliating and violating acts in conflict and post-conflict. Studies have shown that while men and boys are also victims of gender-based violence, women account for the vast majority of those affected.69 The Committee on the Elimination of Discrimination against Women recognized, in its general recommendation No. 19 (1992), that “wars, armed conflicts and the occupation of territories often lead to increased prostitution, trafficking in women and sexual assault of women, which require specific protective and punitive measures.” Both State and non-State actors commit this violence. With the intent of intimidating and humiliating the adversary, rape and sexual abuse are also routinely used by all parties to conflicts as a tactic of war. Moreover, during the conflict, domestic violence and sexual assault also increase Rehn and Sirleaf, Women, War, Peace, p. 11 dramatically.
Review of Literature
Bernnett said that the after the Cold War armed conflict become more internal, ubiquitous and long drawn in which mostly civilians became targets. Cockburn explained the distinct experience faced by the men and women in a conflict situation. Though, in some conflicts like Sri Lanka women were found as active combatants. But women are traditionally being considered peace lovers and non-combatant. Amnesty International, USA explained that although men are the victims of violence, women, in general, is the victim of extreme violence and are targeted for abuses in war and are also victims of physical economic and psychological abuse.
Studies have shown that while men and boys are also victims of gender-based violence, women account for the vast majority of those affected The Committee on the Elimination of Discrimination against Women recognized, in its general recommendation No. 19 (1992), that “wars, armed conflicts and the occupation of territories often lead to increased prostitution, trafficking in women and sexual assault of women, which require specific protective and punitive measures.” Both State and non-State actors commit this violence.
Violence against women both during conflict and post-conflict can be seen as a continuum of the discrimination women experience in peacetime. Conflict exacerbates pre-existing patterns of discrimination based on sex and puts women and girls at heightened risk of sexual, physical and psychological violence.
This study describes the Sexual and gender-based violence in conflict and post-conflict settings This is an anthropogenic study and relies on both primary and secondary data. The author has analyzed the verdict of war crime Tribunals. The study is further supported by united nation active participation while establishing war crime tribunals. The secondary data constitutes books, articles, and reports. The content analysis is used for substantive understanding of the human rights of women in general and the rights of women in the conflict prone areas in particular.
The reality is that in every corner of the world women is subjected to violence epically in conflict-prone areas. It is tough to reach all these conflict parts. The study is limited to documents of a united nation, resolutions passed and rulings gave in war crime tribunals.
Delimitation of my studies
Though there is the paucity of actual records either by United Nations or by NGO’s. However, a commendable job has been done by the judiciary by interpreting the words in broad vision and protecting the rights of women in Rwanda and Yugoslavia. The study is merely descriptive and explanatory; therefore, it is limited to contextual analysis of individual reports and projects carried out by United Nations Human Rights Commission.
Violence against women both during conflict and post-conflict can be seen as a continuum of the discrimination women experience in peacetime. Conflict exacerbates pre-existing patterns of discrimination based on sex and puts women and girls at heightened risk of sexual, physical and psychological violence. The underlying causes of violence both in peace and in conflict are the same: historically unequal power relations between men and women, systemic or structural causes such as gender-based discrimination and a patriarchal value system. Also, conflict causes an acceptance of higher levels of violence, and in the post-conflict phase, deeply rooted inequalities that existed before the conflict are aggravated. Niamh Reilly, Women’s Human Rights (Polity Press, 2009), p. 98.
Thus, the end of conflict does not translate into an end to the violence that women and girls endure. Women continue to suffer from the medical, physical, psychological and socioeconomic consequences of the violence suffered during conflict long after it has ended. The stigma associated with sexual abuse is ever-present, in conflicts and their aftermath. Violence against women and girls also spikes in post-conflict societies, owing to the general breakdown of the rule of law, the availability of small arms, the breakdown of social and family structures and the “normalization” of sexual violence as an additional element of pre-existing discrimination.
Until the 1990s, wartime sexual violence was not prosecuted as an international crime, despite being prohibited under international humanitarian law. Patricia Viseur Sellers, “The prosecution of sexual violence in conflict: the importance of human rights as means of interpretation,” pp. 6–9. Available from http://www2.ohchr.org/english/issues/women/docs/
Paper_Prosecution_of_Sexual_Violence.pdf (accessed 2march 2017).
Sexual violence was viewed more as an attack against the honour of a woman or against morality than as a separate serious crime, e.g., the Fourth Geneva Convention expresses the need for the special protection of women “against any attack on their honour, in particular against rape, enforced prostitution or any form of indecent assault” (art. 27). Common Article 3 of the Geneva Conventions, which applies to both international and non-international armed conflict as customary law, prohibits violence to life and person, torture, the taking of hostages, outrages against personal dignity, in particular, humiliating and degrading treatment, but does not explicitly mention rape and sexual violence. The list of “serious breaches” of the Geneva Conventions also does not specifically mention rape or sexual abuse. The Additional Protocols of 1977 do specifically prohibit rape. See Reilly, Women’s Human Rights, p. 101.
Since the 1990s, international criminal jurisprudence has contributed enormously to clarifying the legal norms applicable to gender-based crimes during the conflict. Both the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda have stated in different landmark decisions that wartime rape and sexual violence can be considered as war crimes, crimes against humanity, acts of torture or constituent acts of genocide, as long as all the relevant elements of the crime are present.
International Criminal Tribunal for Rwanda
Prosecutor v. Akayesu, case No. ICTR-96-4-T, 2 September 1998: a reconceptualization and broad definition of rape The International Criminal Tribunal for Rwanda made a significant contribution to the evolving jurisprudence on rape as a war crime by articulating a broad definition that squarely places rape on an equal footing with other crimes against humanity. Its definition reconceptualizes rape as an attack on an individual woman’s security of person, not on the abstract notion of virtue and not as a taint on an entire family’s or village’s honor. According to the Tribunal, “rape is a form of aggression and … the central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts.” The Tribunal defined rape as a “physical invasion of a sexual nature, committed on a person under circumstances which are coercive.” Also, it identified sexual violence to include forced nudity, firmly establishing that acts of sexual abuse are not limited to those involving penetration or even sexual contact. The Akayesu decision also recognized for the first time that sexual violence could be prosecuted as constituent elements of a genocidal campaign. Jean-Paul Akayesu, the former mayor of Taba, was convicted of genocide for knowing, instigating, aiding and abetting the rapes and sexual violence in the community, specifically targeting Tutsi women, as part of a genocidal campaign that intended to destroy the Tutsi group as a whole.
International Criminal Tribunal for the former Yugoslavia Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, case No. IT-96-23/T and IT-96-23/1-T, Judgement of 22 February 2001: elements of rape The International Criminal Tribunal for the former Yugoslavia also found that rape was a constituent offense of crimes against humanity in the Kunarac case in 2001. This case concerned a campaign in the municipality of Foca which aimed to rid the area of Muslims, in particular through targeting Muslim women. Muslim women were held in various detention centers and subjected to systematic rape. The case was significant in offering the following definition of the elements of rape: “the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the aggressor; where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances. The men’s area is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim” (para. 460). This approach of the Trial Chamber was affirmed on appeal.
The Rome Statute of the International Criminal Court builds on this jurisprudence, defining a broad range of gender-based crimes as war crimes and crimes against humanity. Its article 7 (1) (g) lists rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity as a crime against humanity; its article 8 (2) (b) (xxii) lists rape, sexual slavery, enforced prostitution, forced pregnancy … enforced sterilization or any other form of sexual violence as a grave breach of the Geneva Conventions; and its article 8 (e) (vi) lists rape, sexual slavery, enforced prostitution, forced pregnancy … enforced sterilization or any other form of sexual violence as a serious violation of article 3 common to the four Geneva Conventions. See Viseur Sellers, “The prosecution of sexual violence in conflict,” for further analysis.
It also includes gender-sensitive provisions such as the establishment of a victim and witness protection unit within the Court, the provision of counseling and other necessary services to victims of gender-based violence, and the appointment of legal advisers with gender expertise and of female judges and personnel.
The adoption by the Security Council of resolution 1325 (2000) on women, peace, and security also represents a landmark in recognizing and addressing conflict-related gender-based violence. The resolution recognizes the devastating impact of conflict on women and girls and reaffirms the need to implement fully existing international humanitarian and human rights law obligations protecting the rights of women and girls during the conflict. It focuses on four main areas: prevention, participation, protection, and relief and recovery. It also urges States to take special measures to protect women and girls from gender-based violence during conflict, and end impunity by prosecuting those responsible for crimes during the conflict, including gender-based crimes. Furthermore, the resolution calls for increased representation of women at all levels of decision-making, and in all mechanisms for the prevention, management, and resolution of conflicts, and for gender mainstreaming in peacekeeping operations.
In follow-up resolution 1820 (2008), the Security Council recognizes that sexual violence may impede the restoration of international peace and security and is often used as a tactic of war. It stresses that sexual abuse should be excluded from any amnesty provisions in a peace process and that equal access to justice should be ensured for victims of sexual violence. The subsequent follow-up resolutions have focused on preventing and responding to conflict-related sexual violence, and called for, among other things, the appointment of a special representative on sexual violence in conflict, a team of experts and women protection advisers to advise Governments and peacekeeping missions in dealing with sexual abuse. Global indicators to track the implementation of resolution 1325 (2000) have been developed, as well as new monitoring and reporting mechanisms for conflict-related sexual violence.
Women’s participation in peace processes and their role as agents of change
Despite the challenges that the post-conflict vacuum poses for the enjoyment of women’s human rights, it can also be viewed as an opportunity for transformation—to change the societal structures and norms in place before the conflict which contributed to the violence against women in the first place. To ensure this transformation, it is imperative to take into account women’s various roles and diverse experiences of conflict, not only as victims but as combatants, as part of organized civil society and as human rights defenders, as members of resistance movements, and as active agents in both formal and informal peace processes. Reilly, Women’s Human Rights, pp. 93–98; and Committee on the Elimination of Discrimination against Women, general recommendation No. 30 (2013), paras. 36 and 42. Gender-sensitive transitional justice mechanisms and reparations can play an important role in the post-conflict transition, as can the inclusion of women at all stages of the peace process/negotiations and all levels of political decision-making post-conflict, taking into account their different roles and experiences.
The Security Council, in its resolution 1325 (2000) and subsequent resolutions, and the Secretary-General, in his reports on women, peace, and security, and sexual violence in conflict, recognize women’s role in peacebuilding efforts. Resolution 1325 (2000) referred to the disproportionate impact of armed conflict on women and children, while at the same time acknowledging that women are not mere victims of conflict, but also active agents with an important role to play in conflict prevention, peacekeeping initiatives, conflict resolution and peacebuilding efforts. Security Council resolutions 1325 (2000), 1820 (2008), 1888 (2009), 1889 (2009), 1960 (2010), 2106 (2013) and 2122 (2013); and the reports of the Secretary-General on women, peace and security (S/2002/1154, S/2004/814, S/2005/636, S/2006/770, S/2007/567, S/2008/622, S/2009/465, S/2010/498, S/2011/598, S/2012/732, S/2013/525), on women’s participation in peacebuilding (A/65/354–S/2010/466, A/67/499-S/2012/746), on sexual violence in conflict and implementation of the relevant resolutions (S/2009/362, S/2010/173, A/65/592–S/2010/604, A/66/657–S/2012/33, A/67/792–S/2013/149, S/2014/181). Note that Security Council resolutions are legally binding on United Nations Member States, which makes resolution 1325 (2000) and follow-up resolutions powerful advocacy tools.
This was a significant departure from references to women as victims or vulnerable groups. United Nations Security Council resolution 1889 (2009) reiterates the critical role of women in preventing conflict and in peacebuilding, and urges the participation of women in all phases of the peace process, including in conflict resolution and post-conflict planning. It emphasizes the development of strategies that address the needs of women and girls in post-conflict situations, including access to education, health services and justice, and gender equality. The resolution also urges the Member States to ensure gender mainstreaming in all aspects of post-conflict peacebuilding and recovery.
Some positive effect of implementing resolution 1325 (2000) can already be seen on the ground. By June 2012, 37 States had adopted national action plans on women, peace, and security, and some others were developing such programs. Report of the Secretary-General on women and peace and security (S/2012/732).
Importantly, the Committee on the Elimination of Discrimination against Women has requested States to include compliance with Security Council resolutions on women, peace, and security in their reports to it, adding to the monitoring of their implementation, since all areas of concern expressed in the resolutions reflect binding provisions of the Convention. Reilly, Women’s Human Rights, p. 113; and Committee on the Elimination of Discrimination against Women, general recommendation No. 30 (2013), paras. 25–28. See also its general recommendation No. 23 (1997) on women in political and public life.
Despite these advances and reform already in place, considerable challenges with implementing these standards remain. The Secretary-General’s 2012 report on conflict-related sexual violence (A/66/657–S/2012/33) illustrates these very well. Gender-based violence in those settings remains rampant, and women’s access to justice, decision-making and services remain limited. The Secretary-General’s previous reports also underlined the remaining challenges and obstacles to women’s meaningful participation in peace processes and came up with general recommendations and action plans for United Nations agencies in cooperation with other stakeholders to be able to address these challenges more effectively (A/65/354–S/2010/466). Recent civil society reports have also pointed out that women’s experiences of conflict and post-conflict continue to reveal exclusion, marginalization and limited decision-making power. Kavitha Suthanthiraraj and Cristina Ayo, Promoting Women’s Participation in Conflict and Post-Conflict Societies: How Women Worldwide Are Making and Building Peace (Global Action to Prevent War, NGO Working Group on Women, Peace, and Security, and Women’s International League for Peace and Freedom), pp. 82–94; Global Network of Women Peacebuilders, “Women Count: Security Council resolution 1325 – civil society monitoring report” (October 2010).
However, the global indicators set up by Security Council resolution 1899 (2009) as well as the Security Council’s request to the Secretary-General to ensure that relevant United Nations bodies, in cooperation with the Member States and civil society, collect gender-disaggregated data were designed to promote a more efficient implementation of resolution 1325 (2000). Also, resolution 1960 (2010) establishes a mechanism that allows the Secretary-General to list parties “that are credibly suspected of committing or being responsible for patterns of rape and other forms of sexual violence in situations of armed conflict” on the Security Council’s agenda. It also requests parties to armed conflict to make specific, time-bound commitments to combat sexual violence, and the Secretary-General to track and monitor the implementation of these commitments. Finally, it requests the Secretary- General to establish monitoring, analysis and reporting arrangements on conflict-related sexual violence.
These remaining challenges highlight the need for a comprehensive approach. The interrelatedness and interdependence of human rights require attention to be paid to all human rights of women and girls in conflict and post-conflict, both civil and political rights, as well as social, economic and cultural rights. The same applies to transitional justice reforms: securing all human rights of women and girls is critical for full post-conflict transformation. For example, the fulfillment of duties such as economic and social rights is imperative for the eradication of gender-based violence and for women to be able to take on more active roles in peacebuilding. Extreme poverty and unequal access to land, property, education and services have been mentioned as some of the reasons for women’s low participation in peace processes and politics, and structural inequalities including socioeconomic ones are often raised as root causes for gender-based violence. Thus, treaties such as the Convention on the Elimination of All Forms of Discrimination against Women and the International Covenant on Economic, Social and Cultural Rights have an important role to play in ensuring women’s rights both during the conflict and during post-conflict transitions.
Women’s economic, social and cultural rights and conflict
Women’s particular vulnerability to social and economic deprivation worsens in conflict and post-conflict situations, as conflict exacerbates gender-based discrimination and is accompanied by the loss of livelihoods and the destruction of family and community structures.See the Montréal Principles on Women’s Economic, Social and Cultural Rights; and the Centre for Housing Rights and Evictions (COHRE), the International Network for Economic, Social and Cultural Rights (ESCR.net) and International Women’s Rights Action Watch IWRAW Asia-Pacific, “A primer on women’s economic, social, and cultural rights”. Available from www.escr-net.org/usr_doc/Primer_WESCR_English_rev1.pdf (accessed 27 November 2013). Today, women represent 70 percent of the 1.2 billion people living in poverty worldwide.
Former women combatants may experience discrimination since in some cases disarmament, demobilization and reintegration programs or other assistance to former combatants exclude women. Women who have been combatants also experience more difficulties reintegrating and getting back to civilian life than male ex-combatants, since they defied traditional gender roles by becoming fighters, which is not readily accepted by their families and communities. Discriminatory laws might prevent women and women-headed households from owning, inheriting, occupying or accessing land or other forms of property, or keep them from obtaining credit or loans without a male guarantor. Other serious challenges are the lack of appropriate institutional responses to gender-based violence, such as health care, counseling or shelters, as well as inadequate access to education or employment opportunities.
Particular attention should be paid to the judicial enforcement of economic, social and cultural rights in transitional contexts, especially women’s economic, social and cultural rights given their increased vulnerability in conflict and post-conflict. Rule-of-law reforms such as the review of critical legislation and constitution writing, peace agreements, transitional justice mechanisms and reparations programs or other post-conflict reform should take into account violations of women’s economic, social and cultural rights and civil and political rights equally, also because these rights are intrinsically linked. This will secure a comprehensive and lasting post-conflict transformation and an environment where women fully enjoy their fundamental rights.
Women and children also make up the majority of the world’s refugees and persons internally displaced by conflict, who are particularly exposed to gender-based violence and threats to their personal security and also face discrimination in accessing food, water, housing, education, adequate medical care, and sanitation. Also, women’s right to adequate shelter is particularly threatened during the conflict, mass displacement or forced relocation when forced evictions tend to happen and affect women disproportionally. See Committee on Economic, Social and Cultural Rights, general comment No. 7 (1997) on the right to adequate housing: forced evictions; and “Women and appropriate housing” (E/CN.4/2003/55).
During conflict women often become de facto heads of households and thus responsible for everything, from taking care of the children, their education, access to food, water, and essential services, to generating income. A positive aspect of this is that these responsibilities provide women with an opportunity to make decisions regarding the running of the household and the cultivation of land which they would not normally have. However, studies show a reduction in women’s participation in public life and decision-making post-conflict, suggesting that women are often forced back into their traditional domestic roles. Women and women-headed households experience several obstacles in realizing their rights in transition.
The Committee on Economic, Social and Cultural Rights has underscored, in its general comments Nos. 15 (2002) on the right to water and 14 (2000) on the right to the highest attainable standard of health that certain core obligations of the State are non-derogable and thus apply in all situations including conflict, internal strife or emergencies. According to the Committee, States have a core obligation to ensure safe access without discrimination at all times to the minimum essential amount of water. Other on-derogable, core responsibilities include providing, without any discrimination and especially for vulnerable or marginalized groups, access to health facilities, goods, and services, to minimum essential food, basic shelter, housing and sanitation, to basic drugs, and reproductive, maternal (prenatal as well as postnatal) and child health care. Its general comment No. 18 (2005) on the right to work explains that access to employment, especially for marginalized groups, as well as the obligation to avoid any measure that results in discrimination or unequal treatment in the private or public sectors of disadvantaged individuals or groups, are core (non-derogable) obligations of the State.
Importantly, the Convention on the Elimination of All Forms of Discrimination against Women also guarantees women’s access to health care and services (art. 12), training and education (art. 10), and employment opportunities (art. 11). The Convention also grants special protection to those who have been displaced or rendered stateless or have become refugees or asylum seekers by providing for women’s right to a nationality, movement and choice of domicile (arts. 9 and 15.4).