Women in Armed Conflicts – Prosecuting Sexual and Gender based Crimes

Diskussionspanel "Frauen in bewaffneten Konflikten – Sexuelle und geschlechterbasierte Verbrechen strafrechtlich verfolgen“
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Diskussionspanel "Frauen in bewaffneten Konflikten – Sexuelle und geschlechterbasierte Verbrechen strafrechtlich verfolgen“

In the context of the Beijing +20 Review, the Gunda-Werner Institute and the European Center for Constitutional and Human Rights (ECCHR) hosted an event focused on the achievements and remaining gaps with regard to one of the critical areas mentioned in the Beijing Platform for Action: Women in Armed Conflicts. Focusing on Colombia's civil war, the event took as a starting point the recent peace talks between government and guerillas, the FARC and ELN, in Havana. Hopes and grievances, as well as the importance of a gender perspective in the peace process, are highlighted in our report of the event.

Globalization and new power configurations in the world have greatly changed the meaning of peace and security within the last 20 years. The number of armed conflicts and civil wars within different regions are increasing, and they are provoking a rise of militarization as well as brutalization in the affected societies, above all among commanders and combatants.

In all armed conflicts, civilians go through violence, especially gender-based and  - the extreme form - sexualized violence , and women and children are the most endangered groups. We know about these war crimes ever since courageous Bosnian and Croatian women at the end of the wars in former Yugoslavia in the 1990s reported on the extent and excessive brutality of such crimes.

In the meantime, we also learned from studies and reports from many regions of the world that gender based crimes like mass and group rapes, trafficking of women and girls, slave trades and forced marriages are used as war strategies and can lead to excessive brutality and even murder. Currently, we witness such crimes in Syria and Iraq as well as in Nigeria or South Sudan. We know that also men are victims of sexual crimes, although it is still much more of a taboo to speak about such crimes against men and boys. 

These crimes aim at the humiliation and destruction of the enemies, as well of the combatants and of society as a whole. They are committed by rebels and partisans, by terrorists, freedom fighters and by government troops – that means by regular members of the armed forces. Mainly men commit these crimes, but also women are partly involved (as we learned from examples of the US military in Iraq).

The attacks often have complex and varied effects on the victims and survivors and affect women and men in a different way. Many are extremely traumatized without having any chance of coping with this trauma. Especially – but not exclusively – in the case of men, victims of gender-based violence are often perpetrators as well. In any case, the experience of war and the brutalization caused by such atrocities leaves deep scars that continue to affect individuals and society as a whole even in the post-conflict phase, in the time of reconstruction, reconciliation and rebuilding. Women and men, victims and perpetrators, the entire post-war society and social interaction are affected in very different ways. Women and children particularly often experience domestic violence in their family surroundings from returning combatants, fathers or other relatives. However, this is rarely taken into account when it comes to conflict management and peace negotiations.

In recent years, concepts of transitional justice for dealing with the conflict-ridden past have become increasingly important. They are often emphasized by peace researchers and politicians as ways of securing peace. «Transitional justice» not only entails legal procedures based on the perception of Western democracies – such as international and national war tribunals. 

A number of different instruments and mechanisms have been developed for tackling these crimes in political and legal terms. These include truth and reconciliation commissions, compensation for the survivors of the crimes, their rehabilitation, symbolic reparations and reform of state institutions such as the police, the military and the judiciary, but it includes also international and national war tribunals.

They primary not aim at establishing justice but  reconciliation, or at least they aim to achieve improvements of the relations among the once conflicting parties. They are designed to help a divided society and enemy groups find their way to peaceful forms of coexistence and thus prevent future conflicts.

The problem is: the transitional justice approach in general has no gender perspective. So, gender- based and particularly sexualized violence is not on the agenda, if transitional justice instruments are negotiated and applied. As a result such crimes frequently never come to light – for example in certain truth and reconciliation commissions. Thus the responsible of those crimes, the perpetrators, not have to take the responsibility for their crimes in a court of law. And, very important, the survivors of sexualized violence in the conflicts do not find justice, which also includes they do not get any chance to restore their dignity. As a result of this gender-blind approach, existential needs, such as medical care, material support, advice, and also the protection which should ordinarily be provided, are neglected.

Opinions differ on the extent to which it is necessary to reveal past crimes and bring the responsible to justice. But from a feminist perspective, this is crucial, on behalf as well of the survivors as of the society to find long-lasting peace.

The first international tribunal was set up to deal with war crimes in former Yugoslavia. This was gradually followed by others. At the international level, sexual violence as a war crime and crime against humanity became the subject of international criminal law. With UN Resolution 1325, but especially with UN Resolution 1820, and following UN Resolutions on "Women, peace and security" this was confirmed by the UN Security Council and became binding, at least with regard to women and children.

International instruments like these make it clear: gender- based  and especially sexual violence must be punished by law as a crime against humanity and/or a war crime.

Despite these positive steps, it was not until June 2013 that the UN Security Council – by virtue of its new Resolution 2106 – sent a clear signal to all national governments that the war on sexualized violence must take utmost priority during conflicts. The Security Council calls on member states and the conflicting parties not just to avert any form of sexual violence but also to enforce a more stringent and more consistent investigation and pursuit of the perpetrators – also as a means of prevention. As a rule, no amnesties should be offered in these cases. In doing so, the UN Security Council is reacting to the current way in which past events are processed, during which gender dynamics and acts of sexual violence are either marginalized or not included at all.

Nevertheless, resistance to recognizing gender-based violence as a war crime or crime against humanity and to taking it into account during the processing phase is extremely high. In mainstream politics, but also in the scientific and academic fields, gender-based violence is still not given due seriousness in analyses and practical implementation. Instead, it is often trivialized as «collateral damage». This not only holds true for countries and regions in conflict but also for Western countries and (inter)national law enforcement authorities. Accordingly, political institutions as well as the judiciary, investigative authorities and the International Criminal Court are inadequately equipped to ensure that gender-based violence can be suitably processed.

The Gunda Werner Institute has, for many years, worked towards aligning peace and security policy to the principles of gender democracy. Among other things, the Institute pursues a strategy of seizing on issues that are traditionally male domains. It is in the spirit of this strategy that we have also seized upon aspects of transitional justice since 2011. In the course of expert talks and panel discussions open to the public, the GWI has drawn on a selection of examples from countries such as South Africa, Sierra Leone, the countries of the former Yugoslavia, Cambodia and the DR of the Congo. At the heart of those discussions lie questions on whether and to what extent transitional justice instruments, such as truth and reconciliation commissions, can do survivors of gender-based violence justice and can contribute to gender justice and reconciliation within society as a precondition for sustainable peacekeeping solutions. Through its own offices, the Heinrich Böll Foundation furthermore supports partners actively engaged in conflict management and conflict resolution in crisis-torn countries as well as post-conflict countries.

In this context, it is important to us that the Federal Republic of Germany, as a member of NATO and country that itself supports and conducts military interventions, and the EU ought to make an appropriate contribution towards reconciliation even after wars and military deployments have come to an end.

It is not enough that European countries, Germany and NATO have developed a National Action plan with regard to implementation of UN Res. 1325, including some measures to prevent gender-based violence or the intent to prosecute it. We need concrete proposals, steps and a lot of financial support, and - last, but not least- also the engagement in peace negotiations to bring women to the negotiation tables.

We shall exemplify a lot of these problems and questions with regard to the long-lasting conflict in Colombia, which has rarely been discussed from a gender perspective.

Continue reading a report of the event "Women in Armed Conflicts - Prosecuting Sexual and Gender-Based Crimes in Colombia and Beyond" here.