Judicial responses to conflict-related sexual violence
DOMESTIC JURISDICTION
Increasing involvement of the national justice system in matters of conflict-related sexual violence
Following the United Nations resolutions and the case law of international courts, the national authorities in countries where sexual violence occurs have also taken up this issue. They face many challenges in judging these crimes, due to the disorganisation or collapse of institutions (specific to conflict or post-conflict contexts), or because of a lack of political will. However, the responsibility for prosecuting international crimes lies primarily with States, with international courts, including the International Criminal Court acting only as a last resort, in accordance with the principle of complementarity.
Some of the countries concerned by the use of rape as a weapon of war have shown their willingness to punish these crimes. The effectiveness of the judicial response can then be measured by the appropriate legal classification of the violence, the existence and practical application of laws criminalising such violence, the number of prosecutions and convictions on these grounds, and the level of training of the judicial personnel responsible for investigating and prosecuting these crimes.
[Last updated: June 2023]
National examples
© IFEX
COLOMBIA
Following the internal armed conflict involving the Revolutionary Armed Forces of Colombia (FARC), Colombia made exemplary commitments and developed a strong normative framework to punish sexual violence related to this conflict, which was even praised by the UN Secretary General in 2017 [1].
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In 2014, a law was passed classifying sexual violence committed in the context of the conflict as "crimes against humanity". The text also strengthens the status of survivors of sexual violence, enabling them to receive reparations, psychosocial support and free medical care. In addition, the Colombian government has taken a symbolic step for the victims by declaring 25 May the "National Day for the Dignity of Women Victims of Sexual Violence Caused by the Internal Armed Conflict" [2].
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This issue was taken into account in the peace agreement reached with FARC in 2016: it includes numerous provisions relating to gender, and includes sexual violence among the crimes not eligible for amnesty. Survivors of sexual violence were also able to participate directly in the talks, as they were invited by the sub-commission on gender [3]. However, the implementation of the main key provisions, including those relating to gender equality, remains unequal.
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Other measures taken by the government: In 2021, the UN Secretary General notes the training of more than 20,000 health professionals in the application of the protocol on the full range of health care for victims of this type of violence; or the publication by the Colombian President of guidelines on strengthening gender equality in the security forces, with the aim of improving their effectiveness and responsiveness to sexual and gender-based violence[4].
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Number of cases and trials for sexual violence: according to the UN Secretary-General's report of 2021, "of the 132 cases of conflict-related sexual violence referred to the Office of the Prosecutor General, 6 have been referred for trial, 4 are under investigation, 1 is still at the preliminary investigation stage and 121 are at the initial investigation stage". According to NGOs, the level of impunity remains at 90% for cases of sexual violence in the criminal justice system and 75% in the specialised chambers for crimes committed by paramilitaries [5].
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Prosecutions within the framework of Colombian transitional justice: according to the UN Secretary General, the Special Jurisdiction for Peace (JEP) has integrated strategies for investigating conflict-related sexual violence into 4 of its 7 emblematic ongoing cases. However, it has only investigated this crime in the context of broader cases. Victims and NGOs would like to see a full investigation into the crime of sexual violence, but this does not seem to be on the horizon. Furthermore, the strategies of the transitional justice system do not always meet the expectations of sexual victims in Colombia [6], since they allow for more lenient sentences than ordinary criminal justice.
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The International Criminal Court's support for the Colombian model of justice: on 28 October 2021, the ICC decided to close the preliminary examination of Colombia [7], which had been opened 17 years ago. According to the principle of complementarity that governs the ICC, if the State itself is capable of judging the crimes, the Court does not have to intervene. In this case, by halting the proceedings against Colombia, the ICC considers that the Colombian State, through its transitional justice system, is fulfilling its international obligations to investigate, try and punish the crimes under investigation, and is therefore endorsing this model.
©Justice Info
ARGENTINA
In 2010, a former Air Force non-commissioned officer was convicted of rape for the first time by the Mar del Plata Oral Criminal Court in the Molina case, giving visibility to the crimes of sexual violence committed during the dictatorship. Previously treated as acts of torture, this consideration of sexual violence made it possible to highlight its systemic nature, and for the courts to consider that "the sexual crimes committed in the context of State terrorism constitute autonomous crimes which, as such, must be investigated and judged, and that they are crimes against humanity"[8].
Since 2012, the Office of the Prosecutor for Crimes against Humanity has been prosecuting sexual crimes committed during the dictatorship. A landmark conviction was handed down on 13 August 2021 against two former soldiers for "aggravated rape" [9] of three women in a Buenos Aires torture centre (ESMA) during the Argentine dictatorship. This trial focused specifically on sexual assaults and rapes, classified as crimes against humanity [10], and these acts were tried separately from the other crimes of torture and kidnapping.
Additionally, up to March 2020, "31 rulings have punished 103 of those responsible for sexual crimes committed during the dictatorship"[11].
LIBYA
In addition to strictly judicial procedures, other measures can contribute to victims' sense of justice. For example, in 2014, the Libyan government demonstrated its willingness to take rape into account by adopting [12] a decree recognising the mass rapes in Libya, and creating the status of victim of war for victims of rape during the 2011 revolution. It sets up a system of reparation, involving financial, medical and social assistance to encourage reintegration. While this measure is good practice and goes some way towards bringing justice to these victims, in reality the decree has not been applied and sexual violence continues to this day. It continues to be used as a tool for revenge between tribes, but also as a means for Libyan militias to conquer territory and power. Faced with this status quo, in May 2023 the Prosecutor of the International Criminal Court announced new prosecutions and increased work with the Libyan Ministry of Justice, civil society and victims' associations.
UKRAINE
On 24 February 2022, the Russian Federation attacked Ukrainian territory. Since then, the conflict has been raging and a number of war crimes and crimes against humanity have already been documented. In May 2023, the Ukrainian prosecutor's office opened 175 cases relating to sexual violence committed on Ukrainian territory since the start of the conflict. This undoubtedly underestimates the reality, as many of the victims have not been identified and, above all, many of them do not wish to do so for the moment due to a lack of security. The Ukrainian national courts are competent to judge these crimes of sexual violence, including in abstentia, i.e. without the accused present in the courtroom.
REFERENCES
[2] IFEX, Tzabiras, M. Pour les survivants de la violence sexuelle en Colombie : pas de silence ni d’impunité, 4 juin 2019.
[3] Apolitical, L’accord de paix de la Colombie est le premier au monde à avoir le genre au cœur, 12 janvier 2018.
[6] Justice Info, LES VIOLENCES SEXUELLES, NOUVEAU PUNCHING-BALL DE LA TRANSITION COLOMBIENNE (2ÈME PARTIE), 2 septembre 2019
[8] MINISTERIO PUBLICO, La violencia sexual en la jurisprudencia nacional. Causa Nº 960/11 caratulada "Aliendro, Juana Agustina y otros s/ desaparición forzada de personas, violación de domicilio, privación ilegítima de la libertad, tormentos, etc. Imputados: Musa Azar y otros”, del registro del Tribunal
Oral en lo Criminal Federal de Santiago del Estero, 5 de marzo de 2013, pp. 12 et suiv.
[11] Le Blog du Droit international, Symposium – Violence sexuelle : Réflexions sur certaines difficultés rencontrées dans la poursuite nationale des violences sexuelles constitutives de crimes internationaux, 21 avril
[12] Le Monde, La Libye reconnaît comme « victimes de guerre » les femmes violée, 20 février 2014