There is now overwhelming evidence that conflicts exacerbate pre-existing gender discrimination and put women and girls at heightened risk of sexual, physical and psychological violence. One appalling example of this evidence is the report recently to the Human Rights Council by the International Commission of Inquiry on Syria, which highlights the threat and use of sexual violence in this terrible conflict, and the vulnerability of women and girls in refugee camps to sexual exploitation, forced marriage and trafficking.
It is essential to promote accountability for war crimes suffered by women and girls. Without accountability, women’s human rights will be denied. Violence against women will become normalized and it will spread, denying enjoyment of any women’s rights, smothering all hope of sustainable peace and development.
To ensure accountability and deliver justice, remedies and reparations for the harm that women and girls have suffered, we need transitional justice, a process expressing society’s desire to rebuild social trust, repair a fractured justice system and build a democratic system of governance. Transitional justice encompasses measures to impose adequate sanctions on perpetrators, ensure remedies for survivors, address impunity for past crimes and avoid the repetition of violations. The processes, norms and structures of transitional justice must be built on the basic principles of equality and nondiscrimination, and they must fully take into account women’s and girls’ stories, feelings and experience.
Let me go through some of these elements, starting with criminal prosecution.
Both treaty and customary international law impose a duty to prosecute serious violations of international humanitarian or human-rights law. Yet, for far too many women who have been victims of serious crimes, prospects of having the perpetrators brought to justice are remote. Estimates of the number of women raped during the war in Bosnia-Herzegovina range from 20,000 to 50,000. Only a few dozen perpetrators, however, have been convicted by the local courts and the International Criminal Tribunal for the Former Yugoslavia. In countries like Colombia, Democratic Republic of the Congo, Ivory Coast, Kosovo, Liberia and Nepal, the number of convictions for cases of sexual and gender-based crimes, which mainly affect women, remains very low.
Worldwide, women continue to face substantive and procedural obstacles in their pursuit of justice. In countries emerging from conflict and instability, these obstacles to judicial accountability can be made worse by a highly politicized and often polarized environment and weakened judicial institutions that lack the capacity and ability to investigate and prosecute complex crimes, which often involve multiple victims and perpetrators.
Efforts to strengthen the capacities of the justice system, however, have shown positive results in some countries. For example, in Congo, the Joint Human Rights Office of the UN Organization Stabilization Mission in Congo (Monusco) supports legal clinics that represent victims of sexual violence. The office also trains police, prosecutors and magistrates to better handle sexual violence investigations and trials. As a result of these and other efforts, such as Congo’s innovative mobile gender courts, more convictions have been registered.
On the other hand, the prosecution of high-ranking officers, with a few exceptions, has remained a challenge. The task of prosecution can be difficult and complex, and we need leadership as well as resources. We must ensure that the judicial institutions have the required capacity, resources and authority. In Congo and other countries, insecurity, insufficient financial resources, piecemeal interventions and lack of political will to prioritize comprehensive structural reforms all continue to pose major obstacles to judicial accountability.
It is clear that justice should be achieved through national processes first. However, when states are unable or unwilling to ensure accountability at the national level, international justice should come into play. In recent years, international tribunals have played an immensely useful role in advancing international recognition for gender-based crimes.
Both the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda have recognized sexual violence, including rape, as acts of torture and crimes against humanity. Sexual and gender-based crimes were reportedly committed in all eight situations under consideration by the International Criminal Court, and more than half of the individuals indicted are charged for sexual and gender-based crimes. This indicates a positive trend toward more recognition of women’s experience of conflict and repression.
Let me turn to reparations. Under international law, reparations encompass a number of measures, including restitution, compensation, satisfaction, rehabilitation and guarantees of nonrepetition.
Ensuring that reparations are just and adequate requires full understanding of the gender dimensions of the problem and consequences of the harm that was suffered. We need to also invest more effort in ensuring that a proper understanding of gender issues shapes the structure and system of reparations operations, so as not to exclude, marginalize or penalize women. Regardless of whether reparations are ordered by courts or are part of an administrative program, these general principles and guidelines should be kept in mind:
¶ It is crucial to have women’s genuine, informed participation in designing and delivering reparations. The views of the victims is crucial to determine what forms of reparation are best suited to their situations. Ensuring meaningful participation requires an investment of time and resources to reach out to victims and overcome barriers like the risk of exposure or retaliation and related stigma, poverty and the physical and mental health consequences of the violence suffered. My office has undertaken consultations with survivors and produced recommendations to inform reparation efforts in Congo, Kosovo and Uganda.
¶ Reparations should be guided by the imperative to ensure an adequate and gender-sensitive assessment of the harm suffered. For instance, in Congo, women noted that apart from the physical and psychological consequences of sexual violence, they had also been stigmatized and ostracized from their families and communities, lost access to their livelihoods, become the sole breadwinner and faced enormous difficulties in providing for themselves and their children. In Kosovo, victims asked for medical and psychological care, financial compensation, additional monetary support to assist with the education of their children and an official declaration aimed at restoring their dignity and reputation.
¶ Reparations should be guided by the desire to transform the structural conditions within society that allowed the violence to happen in the first place. Priority should therefore be given to reparations that can help enhance women’s autonomy and offer opportunities traditionally denied to them, such as meaningful employment, education, skills training and title deed and access to land. Guarantees of nonrepetition offer great potential for transforming gender relations.
¶ In deciding the forms of reparations, one must take into account existing obstacles and challenges that women may face in their ability to own land or receive and manage money.
¶ Finally, reparation processes should be inclusive, involving conscious effort to avoid directly or indirectly marginalizing women. The process should allow women and girls to come forward when they are ready. Eligibility standards should ensure inclusiveness. For example, documentation required for restitution should take into account greater difficulties faced by women in proving title to property.
For their part, states must fully acknowledge their responsibility for human-rights violations and use their financial and institutional capacity in a diligent way to repair the hurt suffered by victims. Where political will exists but capacity is lacking or limited, outside actors also have a role to play, including assisting in the design and implementation of reparations programs.
In eastern Congo, my office carried out five pilot initiatives. Through grants provided to local organizations, victims have been provided with, among other things, psychosocial assistance, medical insurance, payment of school fees, training and coaching for the creation and management of small businesses and economic kits. These projects are intended to inform and inspire the establishment of comprehensive reparation programs for all victims. With UN Women, we are producing a guidance note on reparations for victims of conflict-related sexual violence, which should promote further progress in this area
There is a growing recognition that efforts to uncover the truth about past human-rights violations must be fully gender-sensitive. In more and more countries, the mandates, composition and modus operandi of truth and reconciliation commissions and similar bodies are increasingly designed so that women’s and girls’ experiences are taken into account.
Reports from the Truth and Reconciliation Commissions in Guatemala, Peru, Sierra Leone and Timor-Leste have explicitly acknowledged the serious harm women and girls suffered from conflict-related sexual violence. The recently published report of the Kenya commission also includes a chapter on sexual violence, as well as gender-specific recommendations. Four UN-supported truth commissions are continuing (Kenya, Ivory Coast, Brazil and Mali). Two of them, Kenya and Brazil, have internal gender mechanisms. The percentage of women’s representation among commissioners has also grown in some cases, although over all, we are far from achieving equal gender representation on these bodies.
As with reparations, Truth and Reconciliation Commissions must make specific efforts to encourage and facilitate women’s full and meaningful participation. These must take into account all procedural factors that may hinder or discourage participation, such as lack of measures to protect confidentiality, poverty, illiteracy, mobility limitations and relevant cultural and societal norms.
For instance, the South African Truth and Reconciliation Commission found that women downplayed or remained silent about their own suffering, particularly sexual violence. So it decided to take certain steps to encourage women to testify, including holding three special women’s hearings. In its final report, the commission wrote, “These hearings brought to light the particularly gendered ways in which women experienced human rights violations.”
Commissions of Inquiry are also crucial bodies to investigate serious violations of women’s rights. Different arrangements have been put in place to provide different Commissions of Inquiry expertise on sexual and gender–based violence and gender integration. Rapid-deployment fact-finding missions are investigating violations of international human-rights law and international humanitarian law.
I am pleased that my office, which supports international Commissions of Inquiry, has provided experts on sexual and gender-based violence in situations such as in Guinea, Ivory Coast, Libya and Syria, partly also thanks to our promising collaboration with UN Women.
Yet there is a need to strengthen the capacities of all these bodies to address the gendered impact of conflict and to measure fully the interdependence and interrelatedness of all human-rights violations that occur during conflict. My office is undertaking an internal lessons-learned exercise on the provision of sexual and gender-based violence expertise to Commissions of Inquiry. We will undertake a broader assessment of gender integration into the work of these commissions in 2014.
In the aftermath of conflict, as states and international actors are reforming the security sector, they should take the opportunity to strengthen the transparency, accountability and professionalism of the security apparatus and to make it more gender-aware. Doing so enables women to have greater access to justice and strengthens accountability for gender-based crimes. Security-sector reform should include efforts to remove gender biases and strengthen the capacity of security sector agents to understand and respond to threats for women. Internal and external oversight may be needed to increase institutional accountability on gender.
Security sector reform can also help ensure that there are enough women in the security forces, which apart from creating jobs encourages higher rates of reporting of incidents of gender-based violence and improves gender-sensitive treatment of female witnesses, victims and suspects.
The disarmament, demobilization and reintegration of former armed combatants, which often follows a peace agreement, is also closely linked to security sector reform. Former combatants are often encouraged to transition into security forces. Vetting ex-combatants applying for security jobs should include appropriate checks to disqualify known perpetrators of sexual and gender-based violence. This alone can offer some satisfaction to victims who cannot achieve a prosecution or a conviction. If this is not done, and if these perpetrators are placed in positions of authority, this humiliates victims, sends the message that violence against women is socially acceptable, discourages victims from coming forward and can expose other women and girls to violence.
In this respect, I am pleased that the UN has adopted and is implementing a policy to screen its personnel to ensure that they are not implicated in human-rights violations.
I also believe that according to the spirit and letter of the Convention to Eliminate All Forms of Discrimination Against Women and other human-rights instruments, approaches to nonrecurrence must be framed in countries’ obligations to address structural and systemic gender inequality and discrimination through comprehensive legislative, policy and institutional reforms.
Developments in the Middle East-North Africa region exemplify the need for transitional justice processes and institutional reforms that are mindful of the interdependence and interrelatedness of human rights. In some countries in this region, women parliamentarians face fierce opposition when they propose laws that address women’s rights, while in others women’s public space is shrinking because of threats and intimidation. It is crucial that while we look into quotas and other mechanisms to support women’s participation in political systems of countries emerging from conflict, we also consider how illiteracy, poverty, discrimination and violence conspire to prevent their effective participation.
Let me conclude by stressing that accountability for crimes against women in times of conflict and instability must be pursued through gender-sensitive transitional justice processes that address perpetrators’ impunity and promote women’s access to justice; adequately recognize and consider women’s and girls’ experience in efforts to uncover the truth; and promote the design and delivery of gender-sensitive and comprehensive reparation programs.
Preventing recurrence of violations further requires seizing the opportunity that societies emerging from conflict and instability present to develop and institutionalize legislative, policy and other measures to advance women’s human rights and to overcome deeply rooted patriarchal customs and norms. In all cases, we need genuine commitments by the states, working in collaboration with civil society, to tackle all the above to ensure accountability to women and girls.
This essay is based on a speech by the author delivered at a Women, Peace and Security lecture series on Oct. 21, 2013, organized by PeaceWomen, the UN mission of Liechtenstein and Princeton University.
This is an opinion essay.
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Navi Pillay served as president of the International Criminal Tribunal for Rwanda from 1999 to 2003 and as presiding judge in the trial of Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze (the “Media Trial”). She subsequently served as a judge on the International Criminal Court and as United Nations High Commissioner for Human Rights from 2008 to 2014.