Human Rights & Armed Conflict Law Against Gender Violence

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“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

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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

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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

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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

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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

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The Problem

“It is perhaps more dangerous to be a woman

than a soldier in armed conflict.” – Retired Major General Patrick Cammaert, 2008.

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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

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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

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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

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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

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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

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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

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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”

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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

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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

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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

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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

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• Crime of rape prohibited under domestic criminal

justice laws• U.S. soldiers in Mahmudiya atrocity tried in military or

civilian court

Sexual Violence in Armed Conflict

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• 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)

International Criminal Law

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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

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• 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

Individual Liability – Direct Responsibility

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• 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

Individual Liability – Indirect Responsibility

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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

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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

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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

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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

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Lieutenant General Dallaire, Former UNAMIR Force

Commander, SHAKE HANDS WITH THE DEVIL: THE FAILURE OF HUMANITY IN RWANDA, 2003

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