FAAE Committee Report
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CHAPTER 1: SEXUAL VIOLENCE IN TIMES OF CONFLICT AND CRISISA. A brief profile of the problemSexual violence is defined by the World Health Organization (WHO) as
“is any sexual act, attempt to obtain a sexual act, or other act directed
against a person’s sexuality using coercion, by any person regardless of their
relationship to the victim, in any setting. In their appearances before the Subcommittee, a number of witnesses argued that sexual violence in times of conflict and crisis is a particularly acute manifestation of the broader phenomenon of violence against women.[7] The Subcommittee notes that almost two decades ago, in the Beijing Platform for Action, world leaders agreed that Violence against women is an obstacle to the achievement of the objectives of equality, development and peace. Violence against women both violates and impairs or nullifies the enjoyment by women of their human rights and fundamental freedoms.[8] Witnesses stressed that, like other forms of violence against women, sexual violence in conflict and crisis is rooted in — and perpetuated by — gender inequality and persistent discrimination.[9] Louise Arbour, a former Justice of the Supreme Court of Canada and former UN High Commissioner for Human Rights, reminded the Subcommittee that “sexual violence is nearly always a hidden by-product of war, just as it is often overlooked in peace time by countries whose cultures either deny its existence or tolerate it.”[10] 1. Conflict-related Sexual ViolenceThe Subcommittee heard that the changing dynamics of armed conflict in recent decades have increased the exposure of civilians to crimes of sexual violence. As the former UN Secretary-General’s Special Representative on Sexual Violence in Conflict, Ms. Wallström explained to the Subcommittee: We have traditionally thought of war as a conflict between two well-disciplined and well-trained armies on the battlefield, but this is no longer the common feature. Modern wars and conflicts are often in failed states, or they are civil wars; they are intra-state. … This has left women and children, that is, civilians, on the front line not as armed soldiers but as victims.[11] Sexual violence has been used increasingly and intentionally by armed factions as a weapon to achieve strategic goals; for example, to disrupt, terrorize and displace communities in order to achieve control of a certain population or territory. Witnesses before the Subcommittee consistently said that conflict-related sexual violence disproportionately affects women and girls, although men and boys are also victimized in this way.[12] According to witnesses, this type of strategic use of sexual violence in conflict has occurred in modern wars such as those in Sierra Leone, Liberia, the Darfur region of Sudan, Bosnia and Herzegovina, and during the Rwandan genocide.[13] Ms. Coutu informed the Subcommittee that various armed actors, including “soldiers of national armies, militia members, paramilitary troops and mercenaries” commit crimes of sexual violence.[14] A fellow parliamentarian, Jürgen Creutzmann, Member of the European Parliament, raised the case of the region of Gilgit-Baltistan, located in Pakistani-controlled Kashmir.[15] He told the Subcommittee that Pakistani “security forces present in Gilgit-Baltistan commit terrible crimes against the native women with impunity. Police and security forces act as sexual predators and use rape as a psychological weapon” to instil fear in the population.[16] Armed conflict can also affect the nature of and responses to sexual violence in situations where it is not explicitly used as a weapon. The social breakdown associated with armed conflict modifies and in some cases intensifies existing patterns of discrimination and violence against women.[17] In her capacity as President of the International Crisis Group, Ms. Arbour stressed that in Afghanistan, for example, although conflict limits the ability of the Afghan government to meet many of the basic needs of its people, the failure to ensure that women and girls enjoy their rights under the Afghan Constitution and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) has been “especially stark.” She identified “pervasive impunity” as a key driver of widespread violence against women and girls perpetrated principally by family members. Impunity also facilitates sexual violence against boys, committed equally by members of pro-government militias and members of insurgent groups. Ms. Arbour argued that this climate of impunity has been created by the weakness of Afghan state institutions, a lack of political will and pervasive discrimination against women in the formal and informal justice systems. These factors work to entrench “cultural attitudes and abusive practices that deny women their rights, including protection against sexual violence.”[18] Witnesses informed the Subcommittee that even after the fighting ends, sexual violence can persist on a large scale in post-conflict societies, which often lack the legal framework, institutional strength and reformed security sector necessary to address the phenomenon. Liberia and South Sudan were cited by witnesses as two post-conflict countries struggling to address high levels of sexual violence. In South Sudan, for example, women and children have increasingly been targeted in inter-communal clashes, and sexual violence committed by members of security forces is rarely punished. Witnesses also suggested that untreated psychological trauma from sexual violence experienced by individual survivors and perpetrators, including child soldiers,[19] can increase levels of post-conflict sexual violence.[20] 2. Sexual Violence in Other Times of CrisisOutside situations of armed conflict, the prevalence of sexual violence can also increase during other times of crisis such as periods of political instability, civil disturbances or tensions. Just as in conflict and post-conflict situations, those with power can use sexual violence as a mechanism to control or punish others. For example, Ms. Wallström told the Subcommittee that sexual violence has been employed as a tool of repression to punish political opponents in countries including Kenya, Guinea and Côte d’Ivoire.[21] Similarly, Rachel Gouin, Africa Program Manager at Inter Pares, told the Subcommittee that rape has been used against protesters in Sudan “as a form of punishment for participating [in protests] or speaking out.”[22] Population displacement, which is often related to armed conflict, political violence or natural disasters, also increases individuals’ vulnerability to sexual violence, especially for women and girls. In Angola, for example, significant levels of sexual violence reportedly have occurred in the context of the chaotic expulsion of illegal migrants to the DRC.[23] Vulnerability to human trafficking also increases when people flee their homes and communities, exposing them to both physical and economic insecurity.[24] For many women and girls, trafficking can lead to sexual violence and/or sexual slavery. Sexual violence can also rise following natural disasters, as in Haiti following the 2010 earthquake that killed at least 217,300 people.[25] Ms. Arbour told the Subcommittee that sexual violence was pervasive in Haiti even before the earthquake and the subsequent humanitarian disaster, as the rule of law was weak and years of development efforts failed to construct a functioning criminal justice system. The crisis has further increased the vulnerability of many women and girls. Data are unreliable, but widespread abuse and rape have been reported in the … IDP [internally displaced persons] camps in the capital.[26] The Subcommittee heard that it is vitally important for refugee and internally displaced persons camps to be designed and run in a way that minimizes the vulnerability of women and girls to sexual violence. Examples of actions that can be taken include:
According to Ms. Wallström, UN agencies have begun working to improve camp design as well as the delivery of gender-sensitive services in humanitarian and peacekeeping operations. In addition, training programs to help UN peacekeepers and other personnel working with displaced populations better prevent and respond to sexual violence are being delivered.[28] B. Sexual violence in conflict and crisis as a criminal and human rights issueIn keeping with its mandate,[29] the Subcommittee examined the issue of sexual violence in conflict and crisis with a view to promoting respect for international human rights. The Subcommittee notes at the outset that sexual violence in situations of armed conflict is clearly prohibited by international humanitarian law. In situations of armed conflict and in other situations of crisis, sexual violence represents a serious violation or abuse of human rights. Sexual violence can negatively affect the right to life, liberty and security of the person, to equal protection in armed conflict, and the right not to be subject to torture.[30] It also prevents survivors from fully enjoying their economic, social and cultural rights.[31] For example, fear of conflict or crisis-related sexual violence can prevent women from participating in economic activities and all too often prevents girls from going to school.[32] The short and long-term physical and psychological consequences of sexual violence for survivors, their families and their communities can also be far-reaching. Under international human rights law and standards, survivors of sexual violence have a right to an effective remedy in the state where the acts occurred, which includes access to justice in order to see the perpetrators held to account.[33] In certain circumstances, sexual violence can amount to an international crime for which individual perpetrators may be held criminally responsible. The Geneva Conventions of 1949 and their Additional Protocols, as well as the Rome Statute of the International Criminal Court (Rome Statute) establish that, when committed in the context of an armed conflict by soldiers or fighters in non-state armed groups, sexual violence can constitute a war crime.[34] Similarly, the Rome Statute provides that when civilian populations are subject to widespread and systematic attacks, including acts of sexual violence, during and outside of armed conflict situations, such acts can amount to crimes against humanity.[35] In addition, if “committed with the intent to destroy, in whole or in part a national, ethnical, racial or religious group, as such,” sexual violence can also be a constituent act of genocide.[36] Sexual violence also may be a constituent act of torture.[37] Despite the existence of strong prohibitions under international law and the right of survivors to a remedy, acts of sexual violence usually go unpunished during times of conflict and crisis.[38] Witnesses informed the Subcommittee that a close relationship among three factors underpins this failure: discriminatory attitudes and prejudices towards women; the persistent failure by many to characterize sexual violence as criminal during conflicts and crises; and the problem of impunity.[39] The Subcommittee agrees with Ms. Wallström, who emphasized that sexual violence in times of conflict and crisis “is not cultural. It is not even sexual. It's criminal, and that is how we have to treat it.”[40] In the Subcommittee’s view, sexual violence in times of conflict and crisis raises specific concerns and requires carefully tailored responses. A focus on strengthening justice-sector responses is vital in order to combat impunity up to the highest levels. In addition, successful action against sexual violence in conflict and crisis also requires sustained effort to address discrimination and violence against women and to ensure their full participation in crisis response, reconstruction and reconciliation. [4] World Health Organization, “Violence against women – Intimate partner and sexual violence against women,” Fact Sheet no.239, October 2013. [5] SDIR, Evidence, Meeting No. 32, 3rd Session, 40th Parliament, 18 November 2010. The Rome Statute of the International Criminal Court (“Rome Statute”) criminalizes specific acts of sexual violence under international law. The European, African and Inter-American human rights systems have developed treaties specifically defining and prohibiting types of conduct constituting sexual and gender-based violence in violation of international law. See, e.g. in the European system, the new Council of Europe Convention on Preventing and Combatting Violence against Women and Domestic Violence (European Convention on Violence against Women) (not yet in force); in the African system, the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (African Protocol on Women’s Rights); and in the Inter-American system, the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belem do Para) (Inter-American Convention on Violence against Women). Canada has ratified the Rome Statute, but not the Inter-American on Violence against Women or the European Convention on Violence against Women. The African Protocol on Women’s Rights is only open to ratification by member states of the African Union and has been ratified by the DRC, which has also ratified the Rome Statute. [6] Secretary-General of the United Nations, Sexual Violence in Conflict – Report of the Secretary General, UN General Assembly and UN Security Council, 14 March 2013, UN Doc. A/67/792-S/2013/149. [7] SDIR, Evidence, Meeting No. 87, 1st Session, 41st Parliament, 11 June 2013 (Jocelyn Kelly, Director, Women in War Program, Harvard Humanitarian Initiative, as an individual); SDIR, Evidence, Meeting No. 33, 3rd Session, 40th Parliament, 23 November 2010 (Kristine St-Pierre, Research Analyst, Pearson Peacekeeping Centre); SDIR, Evidence, Meeting No. 44, 3rd Session, 40th Parliament, 10 February 2011 (Louise Arbour, President and Chief Executive Officer, International Crisis Group). Ms. Arbour was formerly a justice of the Supreme Court of Canada. She has also served as the United Nations High Commissioner on Human Rights and as the Prosecutor for the International Criminal Tribunal for Yugoslavia and the International Criminal Tribunal for Rwanda. [8] The United Nations Fourth World Conference on Women, Platform for Action, Beijing, China, 1995, para. 112. See also: Committee on the Elimination of Discrimination Against Women, General Recommendation 19: Violence against Women, 1992 (CEDAW Committee, General Recommendation 19). The Committee’s General Recommendations provide a persuasive interpretation of the meaning of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), but do not have binding legal force. Canada and the DRC have ratified CEDAW. The Beijing Platform for Action represents a political, rather than a legal commitment. [9] SDIR, Evidence, Meeting No. 87, 1st Session, 41st Parliament, 11 June 2013 (Jocelyn Kelly); SDIR, Evidence, Meeting No. 32, 3rd Session, 40th Parliament, 18 November 2010 (Mélanie Coutu, Centre for Peace Missions and Humanitarian Studies at the Raoul-Dandurand Chair of Strategic and Diplomatic Studies); SDIR, Evidence, Meeting No. 32, 3rd Session, 40th Parliament, 18 November 2010 (Gaëlle Breton-Le Goff, Associate Professor, Department of Law, Université du Québec à Montréal). CEDAW, art. 1, defines discrimination against women as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” The connection between violence against women and discrimination has been acknowledged by UN member states in UN Commission on the Status of Women, “Agreed conclusions on the elimination and prevention of all forms of violence against women and girls,” Report on the fifty-seventh session (4–15 March 2013), Economic and Social Council, Official Records, 2013, Supplement No. 7, UN Doc. E/2013/27, E/CN.6/2013/11, paras. 10, 13. The relationship is discussed in more detail in CEDAW Committee, General Recommendation 19. [10] SDIR, Evidence, Meeting No. 44, 3rd Session, 40th Parliament, 10 February 2011 (Louise Arbour). [12] SDIR, Evidence, Meeting No. 25, 1st Session, 41st Parliament, 1 March 2012 (Patricia Malikail, Director General, Africa Bureau, Department of Foreign Affairs, Trade and Development [DFATD]); SDIR, Evidence, Meeting No. 32, 3rd Session, 40th Parliament, 18 November 2010 (Mélanie Coutu). [13] SDIR, Evidence, Meeting No. 37, 3rd Session, 40th Parliament, 7 December 2010 (Peter Miller, Vice-President, Programs, Pearson Peacekeeping Centre); SDIR, Evidence, Meeting No. 51, 3rd Session, 40th Parliament, 22 March 2011 (Rachel Gouin, Africa Program Manager, Inter Pares); SDIR, Evidence, Meeting No. 52, 3rd Session, 40th Parliament, 24 March 2011 (Margot Wallström); SDIR, Evidence, Meeting No. 44, 3rd Session, 40th Parliament, 10 February 2011 (Louise Arbour). [14] SDIR, Evidence, Meeting No. 32, 3rd Session, 40th Parliament, 18 November 2010 (Mélanie Coutu). [15] Gilgit-Baltistan is part of the disputed Kashmir region and is
strategically located between Pakistan, India, Afghanistan, Tajikistan and
China. It has been under the administrative control of Pakistan since the
partition of British India in 1947. Long-standing conflict with India over
control of Kashmir, decades of armed conflict and instability in Afghanistan,
the presence of nationalist and separatist movements in the region, and
continuing violent sectarian clashes between the Shi’ite Muslim majority and
Sunni minority ensure a heavy military presence and contribute to instability
in the region (Izhar Hunzai, “Conflict Dynamics in
Gilgit-Baltistan”, Special Report, US Institute of Peace; Pakistan
Institute of Legislative Development and Transparency, “Sectarian
Conflict in Gilgit-Batlistan”, Background Paper, May 2011). Islamic
terrorist organizations active elsewhere in Pakistan are also increasingly
targeting Gilgit-Baltistan. Ten foreign mountain climbers in the region were
murdered, allegedly by members of the Taliban, in June 2013 [16] SDIR, Evidence, Meeting No. 36, 3rd Session, 40th Parliament, 2 December 2010 (Jürgen Creutzmann, Member of the European Parliament, as an individual). [17] SDIR, Evidence, Meeting No. 44, 3rd Session, 40th Parliament, 10 February 2011 (Louise Arbour); SDIR, Evidence, Meeting No. 51, 3rd Session, 40th Parliament, 22 March 2011 (Rachel Gouin). [18] Ibid. (Arbour). [19] The term “girl child soldier” is used here in the colloquial sense, to denote a female child under the age of 18 years who has been associated with the fighters of a non-state armed group or with state forces. The DRC and Canada have both ratified the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (OP-CRC-AC), which sets the minimum age direct participation in hostilities at 18 years. [20] SDIR, Evidence, Meeting No. 44, 3rd Session, 40th Parliament, 10 February 2011 (Louise Arbour); SDIR, Evidence, Meeting No. 52, 3rd Session, 40th Parliament, 24 March 2011 (Margot Wallström); SDIR, Evidence, Meeting No. 32, 3rd Session, 40th Parliament, 18 November 2010 (Mélanie Coutu); SDIR, Evidence, Meeting No. 51, 3rd Session, 40th Parliament, 22 March 2011 (Rachel Gouin); SDIR, Evidence, Meeting No. 37, 3rd Session, 40th Parliament, 7 December 2010 (Peter Miller, Vice-President, Programs, Pearson Peacekeeping Centre). [21] Ibid. (Wallström). [23] SDIR, Evidence, Meeting No. 52, 3rd Session, 40th Parliament, 24 March 2011 (Margot Wallström). [24] SDIR, Evidence, Meeting No. 44, 3rd Session, 40th Parliament, 10 February 2011 (Louise Arbour). Under the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (the Trafficking Protocol), art. 1, trafficking in persons means “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.” The consent of a victim is irrelevant if the means of trafficking listed in the definition are used and “the recruitment, transportation, transfer, harbouring or receipt” of a child under the age of 18 years for the purpose of exploitation amounts to trafficking, even if it does not involve the means set out in the definition. Canada and the DRC have ratified the Trafficking Protocol (making them state parties to the treaty) and, therefore, are bound under international law to abide by its terms. [26] SDIR, Evidence, Meeting No. 44, 3rd Session, 40th Parliament, 10 February 2011 (Louise Arbour). [27] SDIR, Evidence, Meeting No. 52, 3rd Session, 40th Parliament, 24 March 2011 (Margot Wallström). [28] Ibid. [29] House of Commons, Standing Committee on Foreign Affairs and International Development (FAEE), Minutes, Meeting No. 1, 2nd Session, 41st Parliament, 29 October 2013, motion adopted pursuant to the Standing Orders of the House of Commons, July 2011, 108(1) and 108(2). [30] CEDAW Committee, General Recommendation 19, para. 7. [31] Economic, social and cultural rights are guaranteed under the International Covenant on Economic, Social and Cultural Rights (ICESCR); the Convention on the Rights of the Child (CRC); and enshrined in the Universal Declaration of Human Rights (UDHR). Canada and the DRC have ratified the ICESCR and the CRC. The UDHR is not a legally binding treaty, but many of its provisions are now considered to have legally binding force as part of customary international law (James Crawford, Brownlie’s Principles of Public International Law, 8th ed., Oxford University Press, 2012, p. 636). [32] SDIR, Evidence, Meeting No. 52, 3rd Session, 40th Parliament, 24 March 2011 (Margot Wallström); SDIR, Evidence, Meeting No. 4, 1st Session, 41st Parliament, 27 October 2011 (Nicole Mwaka, Congo Yetu Initiative). [33] International Covenant on Civil and Political Rights (ICCPR), art. 2(3); CEDAW, art. 2(2); Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (“Basic Principles on the Right to a Remedy”), Adopted and proclaimed by General Assembly Resolution 60/147, 16 December 2005, paras. 3–4; CEDAW Committee, General Recommendation 19, paras. 10, 24(i)(t)(i); Human Rights Committee, General Comment No. 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (Human Rights Committee, General Comment No. 31), 2004, UN Doc. CCPR/C/21/Rev.1/Add.13, paras. 15, 18. Canada and the DRC have ratified the ICCPR. The Basic Principles on the Right to a Remedy set out international standards agreed by the UN General Assembly, but are not legally binding under international law. The Human Rights Committee is the UN expert body charged with overseeing states’ compliance with their obligations under the ICCPR and issuing guidance on the meaning of its provisions. Like the CEDAW Committee, the Human Rights Committee’s general comments are not legally binding. [34] Rome Statute, art. 8. The prohibition is also found in the four Geneva Conventions of 1949 and their Additional Protocols: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, arts. 3, 50; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, arts. 3, 51; Convention (III) relative to the Treatment of Prisoners of War, arts. 3, 130; and Convention (IV) relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), arts. 3, 147; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (API), 8 June 1977, art. 85; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (APII), 8 June 1977, arts. 4, 13. See also the interpretation of international law on this point in International Criminal Tribunal for the Former Yugoslavia (ICTY), Prosecutor v. Furundžija ('Lašva Valley'), Case No. 1CTY-95-17/1, Judgment of the Trial Chamber, 10 December 1998, para. 169, as well as UN Security Council Resolution (UNSCR) 1820 (2008), para. 4 and UNSCR 2106 (2013), para. 2. Canada and the DRC are parties to all four of the Geneva Conventions of 1949 as well as API and APII. [35] Rome Statute, art. 7(1)(g); UNSCR 1820 (2008), para. 4; UNSCR 2106 (2013), para. 2. [36] Convention on the Prevention and Punishment of the Crime of Genocide, Art. II; International Criminal Tribunal for Rwanda, Prosecutor v. Akayesu, Case No. ICTR-96-4, Judgment of the Trial Chamber, 2 September 1998; Rome Statute, art. 6; UNSCR 1820 (2008), para. 4; UNSCR 2106 (2013), para. 2. Both Canada and the DRC are parties to the Genocide Convention. [37] Prosecutor v. Furundžija (“Lašva Valley”), Case No. 1CTY-95-17/1, Judgment of the Trial Chamber, 10 December 1988, para. 163; UN Commission on the Status of Women, “Agreed conclusions on the elimination and prevention of all forms of violence against women and girls”, Report on the fifty-seventh session (4-15 March 2013), Economic and Social Council, Official Records, 2013, Supplement No. 7, UN Doc. E/2013/27, E/CN.6/2013/11, p. 1, para. 5. Under the Rome Statute, torture can constitute a crime against humanity (art. 7(1)(f)) and/or a war crime (art. 8(2)(a)(ii)), 8(2)(c)(i). Torture is prohibited under international human rights law in the ICCPR, art. 7 and in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), art. 2. [38] SDIR, Evidence, Meeting No. 3, 1st Session, 41st Parliament, 25 October 2011 (Jillian Stirk, Assistant Deputy Minister, Europe, Eurasia and Africa Bureau, (DFATD); SDIR, Evidence, Meeting No. 33, 3rd Session, 40th Parliament, 23 November 2010 (Kristine St-Pierre). [39] SDIR, Evidence, Meeting No. 44, 3rd Session, 40th Parliament, 10 February 2011 (Louise Arbour); SDIR, Evidence, Meeting No. 52, 40th Parliament, 24 March 2011 (Margot Wallström); SDIR, Evidence, Meeting No. 51, 3rd Session, 40th Parliament, 22 March 2011 (Rachel Gouin); SDIR, Evidence, Meeting No. 36, 3rd Session, 40th Parliament, 2 December 2010 (Jürgen Creutzmann); SDIR, Evidence, Meeting No. 32, 3rd Session, 40th Parliament, 18 November 2010 (Mélanie Coutu). |