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International Law and Gender Based Violence in Times of Armed Conflict

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International Law and Gender Based Violence in Times of Armed Conflict

 By Vayuna Gupta

On October 7, 2023, Gaza militants (Hamas) fired rockets into Israel territory killing more than 1400 civilians and taking nearly199 Israelis as hostages.[1] In response, Israel declared war on Gaza.[2] Since then there have been continuing atrocities in the region, including gender-based violence (GBV). This article seeks to elucidate the existing international legal framework in place for holding those responsible for GBV violations accountable.

What is Violence Against Women in International Law?

The CEDAW[3] Committee (a committee consisting of 23 independent experts on women’s rights from around the world focused on the Convention for Elimination of Discrimination Against Women) described GBV as “violence that is directed against a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty.[4]

GBV is violence that is gender-dependent, i.e. it derives from one’s socially prescribed gender. Common forms of  of GBV include domestic violence, sexual violence, honor killings, female feticide, forced marriage or prostitution and female genital mutilation.

While sexual violence is not defined in any international treaty or document, in the Akayesu case, the International Criminal Tribunal for Rwanda, Trial Chamber defined sexual violence as “any act of a sexual nature which is committed on a person under circumstances which are coercive.[5] Later in the case, the Trial Chamber expanded further stating “Sexual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact.[6]

Disproportionate increase of GBV during conflicts

During armed conflicts there is always a surge in acts of gender based violence (“GBV”).[7] Sexual violence, sexual slavery, forced marriages etc. as methods of systemic warfare are aggravated by lack of access to healthcare, to legal remedies, legal protection and education.[8]

Numerous prior armed conflicts such as those during World War II, Bangladesh in 1971, former Yugoslavia, Rwanda, have demonstrated a notable increase in GBV. In 2000, the UN Security Council Resolution 1325 called upon all parties to an armed conflict to protect women and girls from GBV, particularly rape and other forms of sexual abuse, highlighting the concern.[9]

Various factors contribute to the escalation of GBV during armed conflicts, including notions equating women to property, spoils of war to which soldiers are entitled, or using women to destroy national pride.[10]

Sexual violence in times of conflict is rooted in the abuse of authority, based out of a militaristic need to conquer an enemy and display gender-based dominance. Specific groups such as ethnic minorities, detainees, single women, and internally displaced women, may be particularly vulnerable to sexual violence. Moreover, it’s important to note that acts of sexual violence are not isolated incidents; they are often intertwined with other human rights violations. They form a part of a broader pattern of GBV.[11]

International legal framework for protection of women and girls

Accountability for acts of GBV is addressed within international humanitarian law, international human rights law and international criminal law, along with domestic and regional laws.

International humanitarian law is a set of rules that apply in times of armed conflicts for the protection of people no longer taking part in the conflict[12] aiming to restrict methods of warfare. But since Hamas is a military group and not a state under international law, the question that arises is – does the international legal framework for accountability apply to non-state actors?

Over time it has been established through case law, customary international law and practices of states that rules of international humanitarian law govern non-state actors as well[13] and that A. 3, common to all Geneva Conventions, applies to non-state actors.[14] This is further reinforced by Additional Protocol II to the Geneva Conventions, A.1.[15]

The 4th Geneva Convention, 1949 specifically addresses protection of civilian personnel during armed conflicts. A. 27 of the Convention states that within all armed conflicts territories “women shall be protected against attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault.”[16] Optional Protocol II to the Geneva Conventions prohibits outrages on dignity, humiliating treatment, forced prostitution and indecent assault of any kind for those not taking part in hostilities as a fundamental guarantee.[17]

The Rome Statute expands on the 4th Geneva Convention stating that instances of grave torture or inhuman treatment, outrages upon personal dignity and serious injuries to body constitute ‘war crimes.’ [18] Additionally, crimes against humanity[19] under the Rome Statute include ‘widespread or systemic’ attacks of rape, sexual slavery, enforced prostitution and other form of comparable sexual violence against the civilian population.[20]

Lastly, acts causing bodily harm with an intent to destroy in whole or in part a national, ethnic, racial or religious group are considered acts of genocide. [21] The statutes of both, the International Criminal Tribunal for the former Yugoslavia (ICTY)[22] and International Criminal Tribunal for Rwanda (ICTR)[23] explicitly recognize rape, when committed as part of a widespread attack against the civilian population, as a crime against humanity.

In contrast to international humanitarian law and international criminal law, mentioned above, which apply during specific circumstances, international human rights law is applicable at all times. Both state and non-state actors can be held accountable for acts of gender-based violence through international agreements such as the Convention on the Elimination of Discrimination Against Women, the Convention against Torture and Other Cruel, Inhuman, and Degrading Treatment and customary international law.

In a world where impunity for GBV is the norm, is there accountability for GBV?

Accountability for GBV acts

In recent decades, encouraging progress has been made to enforce accountability for violence against women cases at International Tribunals and the International Criminal Court,  For instance, the International Criminal Tribunal for the former Yugoslavia found the Bosnian Serb army guilty of sexual violence and GBV against civilian Bosnian Muslim women in the 1990s, constituting violations of the laws of war and crimes against humanity. [24]

This groundbreaking judgment marked the first-ever conviction for rape as a crime against humanity and led to the prosecution of approximately 120 individuals. [25]

The Trial Chamber held Akayesu[26] guilty for crimes against humanity and acts of genocide for taking no measures to prevent systematic rape and other acts of sexual violence over a period of 10 years on Tutsi women and girls ruling that Akayesu had in fact ordered, and encouraged the violence.[27]

In 2021, the International Criminal Court held Dominic Ongwen, a Uganda Military leader liable for forced marriage, sexual slavery, forced pregnancy and outrages of personal dignity in addition to rape as crimes against humanity and war crimes. [28]

Gender-based violence remains a brutal reality in the context of armed conflicts. Although there exists an international legal framework to hold violent perpetrators accountable for this violence, it should be accompanied by increased attention from our global community and officials who hold authority or influence in conflict interventions.

Vayuna Gupta is the Legal and Policy Advisor for Global Rights for Women.

GRW condems VAW as an act of war in any armed conflict.

The international legal community including NGOs and states have come together with proposals to make the draft articles of the crimes against humanity convention more gender inclusive. Global Rights for Women supports this endeavor. Recognizing GBV as a crime against humanity is a need of the hour!

Footnotes

[1]Abbas Al Lawati, Eoin McSweeny and Nadeen Ebrahim, Israel is at War with Hamas. Here’s What to Know,CNN (Oct. 16, 2023), https://www.cnn.com/2023/10/16/middleeast/israel-hamas-gaza-war-explained-week-2-mime-intl/index.html.

[2] Abbas Al Lawati, Eoin McSweeny and Nadeen Ebrahim, Israel is at War with Hamas. Here’s What to Know,CNN (Oct. 16, 2023), https://www.cnn.com/2023/10/16/middleeast/israel-hamas-gaza-war-explained-week-2-mime-intl/index.html.

[3] Convention for Elimination of Discrimination Against Women, Dec. 18, 1979, A/RES/34/180.

[4] Gen. Recommendation No. 19, Violence against Women, Comm. on the Elimination of Discrimination against Women, Eleventh session, para 6, U.N. Doc. CEDAW/C/1992/L.1/Add.15 (1992), https://www.refworld.org/docid/52d920c54.html.

[5] Prosecutor v. Akayesu, ICTR-96-4-T, Trial Judgment, (Sept. 2, 1998), https://www.refworld.org/cases,ICTR,40278fbb4.html. The Trial Chamber ruling was reaffirmed by the Appeals Chamber.

[6] Prosecutor v. Akayesu, ICTR-96-4-T, Trial Judgment, (Sept. 2, 1998), https://www.refworld.org/cases,ICTR,40278fbb4.html. The Trial Chamber ruling was reaffirmed by the Appeals Chamber.

[7]Q&A: Sexual Violence in Armed Conflict (Aug 19, 2016), https://www.icrc.org/en/document/sexual-violence-armed-conflict-questions-and-answers#:~:text=Rape%20and%20other%20forms%20of,the%20prohibition%20of%20sexual%20violence.

[8]Kay Fanm, Tackling Gender Based Violence in Fragile Contexts, (March 8, 2023), https://press.un.org/en/2019/sc13917.doc.htm#:~:text=In%20a%20global%20landscape%20marked,considered%20the%20relevance%20of%20international.

[9] S.C. Res. 1325, para 10 (Oct. 31, 2000).

[10] Sexual Violence and Armed Conflict: U.N Response, U.N Division for the Advancement of Women Dept. of Economic and Social Affairs, https://www.un.org/en/preventgenocide/rwanda/pdf/sexual-violence-and-armed-conflict-1998-UN-report.pdf, (last visited Oct. 18, 2023).

[11]Q&A: Sexual Violence in Armed Conflict (Aug 19, 2016), https://www.icrc.org/en/document/sexual-violence-armed-conflict-questions-and-answers#:~:text=Rape%20and%20other%20forms%20of,the%20prohibition%20of%20sexual%20violence.

[12] Eg. civilians, wounded soldiers etc.

[13] Kay Fanm, Tackling Gender Based Violence in Fragile Contexts, (March 8, 2023), https://press.un.org/en/2019/sc13917.doc.htm#:~:text=In%20a%20global%20landscape%20marked,considered%20the%20relevance%20of%20international ; Though there is some debate on which legal theory may explain it best.

[14] Annyssa Bellal, Gillas Giacca and Stuart Casey-Malen, International Law and Armed Non-State Actors in Afghanistan, 93(881), INT’L REV. OF THE RED CROSS, 1 (2011), https://international-review.icrc.org/sites/default/files/irrc-881-maslen.pdf

[15] Under the article the non-state actor must be (1) under responsible command ; (2) exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and (3) enable them to implement the Protocol.

[16] Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), art.27, Aug 12, 1949, 37 U.N.T.S 287. This article may be read with A. 127 prohibiting torture or inhuman treatment and serious injuries to body.

[17] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), art. 4(e), June 8, 1977, 1125 U.N.T.S 609.

[18] Rome Statute of the International Criminal Court, art.8(2), July 17, 1998, ISBN No. 92-9227-227-6, https://www.refworld.org/docid/3ae6b3a84.html.

[19] It must be noted that the Statute does not define crimes against humanity but enlists acts that may fall under it. States along with the UN are working on a new treaty discussing crimes against humanity. Draft articles may be found here: https://legal.un.org/ilc/texts/instruments/english/draft_articles/7_7_2019.pdf.

[20]Rome Statute of the Int’l Criminal Ct., art.7(1)(g), July 17, 1998, ISBN No. 92-9227-227-6, https://www.refworld.org/docid/3ae6b3a84.html.

[21] Rome Statute of the Int’l Crim. Ct., art.6, July 17, 1998, ISBN No. 92-9227-227-6, https://www.refworld.org/docid/3ae6b3a84.html.

[22] Statute of the Int’l Crim. Tribunal for the Former Yugoslavia, art.5, May 25, 1993 (amended on May 17, 2002), established by UN Security Council Resol. 808/1993, 827/1993 and amended by Resol. 1166/1998, 1329/2000, 114/2002, https://www.refworld.org/docid/3dda28414.html.

[23]Statue of the Int’l Crim. Tribunal for Rwanda, art. 3 read with art. 4, Nov. 8, 1994, established by Security Council Resol. 955/1994 and amended by Resol. 1717/2006, https://www.refworld.org/docid/3ae6b3952c.html.

[24] Prosecutor v. Kovac & Vukovic, IT-96-23-T & IT-96-23/1-T, Appeals Chamber judgment, (June 12, 2022), https://www.icty.org/x/cases/kunarac/acjug/en/.

[25] Sexual and Gender Based Violence in Armed Conflict, https://www.osce.org/files/f/documents/1/9/524088.pdf, (last visited Oct. 18, 2023).

[26] Akayesu was a mayor of the Taba commune responsible for maintaining law and order in the Taba community in Rwanda in 1994.

[27] Prosecutor v. Akayesu, ICTR-96-4-T, Trial Judgment, (Sept. 2, 1998), https://www.refworld.org/cases,ICTR,40278fbb4.html. The Trial Chamber ruling was reaffirmed by the Appeals Chamber.

[28] Prosecutor v. Ongwen, ICC-02/04-01/15, Trial Judgment, (Feb. 4, 2021), https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2021_01026.PDF. The judgment was re-affirmed on appeal.