- - 11 The following year, at the instigationthe at of year, following The assertionThis responsibilitystate of Such violence when committed by public by Such violence when committed obliga- breach the state’s authorities may tions under general human international also be re state may and the rights law, acts of gender-basedsponsible for private actviolence if it fails to with due diligence and punish such investigate prevent, to acts, remedies. provide and to Conference on activists, the World women Human Rights in Vienna declared that ‘vi- in olations of the human rights of women armedof situations conflict violations are principlesfundamental the of - interna of tional human rights and humanitarian requiring … a particularly effective law, This formulation challenged response.’ the traditional binary hu- of international (IHL) as the legal regime manitarian law addressapplicable to violations commit - and non-internation ted in international armedal conflict, hu- international and what might applicable to man rights law, gender-based and be called ‘everyday’ sexual committed outside con- violence, flict – in so-called peacetime. - - British Academy Review December 2019 December Review Academy British - of combating con he imperative flict-affected sexual violence and ensuring accountability has come of international the forefront to perhaps in recent years, relations State obligations for preventing and obligations for preventing State T Christine Chinkin reflectsChristine Chinkin on counter attempts to international the perpetration violence of sexual in armed conflict Ending impunity impunity Ending and prioritising survivors most prominently through the award of most the award through prominently Mu- Peacethe 2018 Nobel Prize Nadia to leadersrad and Dr Denis two Mukwege, tirelessly coura- and worked have who the fo was The topic this end. geously to in Academy British the at dinner a of cus - hosted the Amersi Founda by 2019, June the guest Murad was of Nadia tion, where This article discusseshonour. both- inter national legal effortsto combat and pre this atrocious crime and somevent of the specific issues raised at the dinner. combating gender-based violence have been a significant aspect of international when at least since 1992, human rights law Committee on Elim- Nations the United of Discrimination ination of All Forms Committee) explained be it to ‘a (CEDAW form of discrimination seriously that in- rights enjoy and ability to hibits women’s freedoms on a basis of equality with men’. on Peace and Security. and Security. on Peace Fellow at the LSE Centre for Women Women for Centre at the LSE Fellow auspices of an AHRC-funded research research auspices of an AHRC-funded Peace and Security. She was elected a elected She was and Security. Peace Fellow of the British Academy in 2009. in 2009. of the British Academy Fellow This article has been written under the This article has been written project on a Feminist International Law Law International on a Feminist project Christine Chinkin is Professorial Research Research Christine Chinkin is Professorial

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for human rights violations coincided a grave breach of international humani- sweeping through swathes of Syria and with evolving international criminal law, tarian law and a crime against humanity, Northern Iraq. Over time, more became which posits individual criminal liability when the other criteria for such crimes known about the atrocities ISIS forces for offenders. Following the trials held af- are satisfied. Gender-based and sexual vi- committed, especially against members ter the Second World War, at Nuremburg, olence can also be a tool of genocide when of the Yazidi community. Sexual and gen- Tokyo and in many local jurisdictions committed with the intent to destroy in der-based violence was manifest both across Europe and Asia, international whole or in part a group characterised through new and horrifying means, as criminal law largely lapsed, until the es- on national, racial, ethnic or religious well as in ways well-trodden through the tablishment by the UN Security Council grounds. Thus, by the end of the 20th annals of war. Women and girls, men and of the International Criminal Tribunals century, the longstanding silence about boys were murdered, kidnapped, abduct- for the former Yugoslavia and Rwanda crimes of sexual violence committed dis- ed and raped; some were drafted into in 1993 and 1994 respectively. These ad proportionately (but by no means exclu- the ISIS fighting forces, where they were hoc criminal tribunals were followed by sively) against women and girls had been compelled to commit violent acts, there- various models of hybrid criminal courts, broken, with international legal provision by blurring the line between victim and with a mix of international and local per- for both state responsibility and individu- perpetrator. When they were able to leave, sonnel – for instance in Sierra Leone, al criminal liability. The silence had never either through escape or rescue, such Timor Leste and Cambodia – and by the of course been total; both law and practice children were brutalised, striking out permanent International Criminal Court, had in fact long provided for accountabil- violently at family members and brain- established by the 1998 Rome Statute and ity, but this had been rarely achieved. washed into the ISIS mode of life. Others functioning since 2002. However, legal provision has not en- – especially women who were targeted Through legal provision and evolving sured an end to such offences. In 2014 the because of their gender and their minor- jurisprudence, conflict-related sexual vio- world was shocked at the violent emer- ity status – were enslaved, held and trad- lence has been designated as a war crime, gence of ISIS (or Daesh) and its vicious ed as slaves, forced into ‘marriage’ and

Nadia Murad, winner of the 2018 Nobel Peace Prize, speaks at the British Academy in June 2019.

12 British Academy Review December 2019

child-bearing. All who lived were forced to comply with the ISIS determination of Islam. Sexual and gender-based vio- lence were used as instruments of war, of spreading terror, as an integral part of the destruction of Yazidi territories, families, social and physical infrastructure and way of life, indeed of genocide. After the military defeat of ISIS, the Women must be able to crucial questions were how the Yazidi people – now traumatised, dispersed in refugee camps or living in exile through- participate fully in all post- out Europe and elsewhere across the world – could return to their devastated conflict decision-making to homelands, regain their faith and way of life; and how accountability for the make their needs known. crimes committed against them could be ensured and adequate reparation deliv- ered. In the search for ways to respond to this daunting challenge, both strengths and weaknesses could be identified. The greatest strength came from with- in the Yazidi community itself, exempli- fied in the inspirational person of Nobel Peace Prize laureate, Nadia Murad. Nadia told the world, including through the UN for post-conflict reconstruction and com- nising that ‘one size does not fit all’, and Security Council, what had been done to munity recovery: health services, live- that women must be able to participate herself and to her people, and that she lihood support and education. The first fully in all post-conflict decision-making was not prepared for it to be forgotten. must encompass both emergency treat- to make their needs known, including Weaknesses came from the interna- ment and long-term psycho-social restor- those relating to apposite reparation. tional legal structures and institutions. ative healthcare for addressing trauma as Healthcare, education and livelihood Despite the development of law as brief- well as physical injury. Secure livelihoods support are not, however, matters just ly outlined above, the international legal are needed to re-establish self-sufficiency for humanitarian agencies. They are also system still lacked the mechanisms to en- and autonomy. And education is needed core economic and social rights that are sure accountability. Nor were states pre- to look to the future and prevent a new set out in international treaties, includ- pared to take all the necessary measures generation from being permanently dis- ing the 1966 UN Covenant on Econom- for ensuring justice – in the fullest sense advantaged by the destruction of their ic, Social and Cultural Rights (ICESCR), of the word – or to accept their share of re- childhood and to open opportunities. and the 1979 Convention on Elimination sponsibility for the catastrophe that had Women especially speak of these as the of All Forms of Discrimination against befallen the Yazidis. central substantive elements of any peace Women. States parties are obliged to take At the dinner, guests heard from Nadia package. This was also institutionally appropriate measures to ensure access to Murad about her priorities in the after- recognised as long ago as 1919, when the and delivery of these rights on a non-dis- math of the genocide and her initiatives International Labour Organisation’s Con- criminatory basis, to women as well as to for moving forward. She stated that her stitution (incorporated into the Versailles men. Nor do inadequate resources justify first concern was repairing the physical Treaty) spelled out that social justice was failing to ensure such rights; under article infrastructure of her peoples’ country, essential for the achievement of universal 2 of the ICESCR state parties undertake to and thus preventing the accomplishment and permanent – what we would probably take such steps individually ‘and through of ISIS’s objectives. To this end, money now call sustainable – peace. international assistance and cooperation’. from the Nobel Prize had been allocated They are also included within the re- Nadia Murad also emphasised the re- to build a hospital in Sinjar for all com- lief and recovery pillar of the UN Security lated needs for security and legal account- munities – Yazidi, Muslim, Christian and Council’s agenda for women peace and ability. The situation of the Yazidi has others. Another objective was to build a security, which it has progressed through starkly exposed the continuing deficien- university where there had been none nine further resolutions since its adop- cies and gaps in the international crimi- before; while men had been able to leave tion of its ground-breaking resolution nal legal system. The ICC can only assert Sinjar to pursue higher education in Bagh- 1325 in 2000. Resolution 2467, adopted jurisdiction where either the territorial dad, this had not been so easy for women. in April 2019, explicitly encourages a state (the place where the crimes were Other projects had focused on restoring ‘survivor-centred approach’ which must committed) or the state of nationality of farming land, or other local enterprises. ‘respect and prioritise the needs of sur- the offender are a party to the Rome Stat- What is remarkable about this listing vivors’ without any discrimination. This ute, or where the Security Council has re- of priorities is that it echoes what women, also entails ensuring that responses are ferred the situation to the prosecutor. Nei- when asked, have always said are required gender-sensitive and appropriate, recog- ther Syria nor Iraq have become parties to

13 © The British Academy - - - This article is part of a project This article is part of a project funding from that has received Council Research the European Union’s under the European (ERC) and research 2020 Horizon (Grant programme innovation 786494). No. agreement And finally, there is the importance there of And finally, Fourth, there is the importance there Fourth, of ap propriate redress for victims,propriate separate Vari- the prosecution from of offenders. ous schemes being explored currently are for generating for funds, but the basis such funds alsoallocation needs of any further consideration. Article of the 75 make an the ICC to allowing Statute Rome re offender for againstorder a convicted but the lack innovative, was relief parative that Court by date to conviction of any for crimes of sexual has meant violence, been secured for have that no reparations testifiedNor it. victimsbefore who have beshould reparations dependent upon co-operation or enforcement with law security agencies. Assets frozen around provisions under anti-terrorist the world initi- could be used rehabilitative fund to Securityatives. Council resolution 2467 on its a remedy the right to face reinforces - interna for an law under international act,tional wrongful including a violation of human rights, but without acceptance of this obligation and implementation will remain is the risk that survivors there without redress. inclusion in all levels effective women’s of decision and policy-making, including with respect societal to reconstruction urged This was in Secuand reparation. - rity Council resolution but remains 1325, still upheld. too rarely ance with international standards are are standards international ance with important, but unless courts appropriate with jurisdiction estab found – or are are lishedsome on model- an ad hoc of inter court trials – criminal hybrid national or there event, any In notwill place. take be to vast trials of the ever unlikely are number perpetrators. of some What see as another option – summary of execution alleged offenders – undermines the rule the human rights canon central to of law themselves committed to that states have uphold.

- - Yasmin has explained Yasmin 1 Third, there is a need there seek to Third, both in- Listening to Nadia Murad was both Murad was Nadia Listening to Second,survivor-centreda taking ap proach requiresproach holistic thinking and recognising of economic that delivery and social access rights integral to are to for healing as and human as well justice, security. re criminal liability and state dividual complementary They are sponsibility. methods for seeking accountability and ending impunity and neither excludes Modes and ev- of investigation the other. idence collection- in accord and collation that, through the New South Wales Vic- South the New Wales that, through sur- tims Compensation Scheme, Yazidi Sharrouf’s want vivors assets be to sold for compensation provide and in this to leadership show to by for Australia way statementspublic the it to weight giving has made about ensuring accountability. sobering A number and inspirational. of points became especially to apparent First,me. is the need for the international and respond listen community to the to priorities of those who had experienced sexual and other forms of violence first them about learnhand, and to from tra- ditional forms of healing and cleansing practised within their communities, as as seekingwell other redress. forms of tional law firm Hogan Lovells told about firm Hogan Lovells tional law commenced litigation in Australia civil which compensationthrough is being sought crimes for the international com- nation- an Australian mitted overseas by fought with who had al, Khaled Sharrouf, ISIS. In an article - be sought at the national level. the national be at sought mean that accountability under accountability mean that The inadequacies of the existing existing of the inadequacies The international criminal law should criminal law international international criminal institutions criminal institutions international , 56, (June 2019), 34. 34. (June 2019), Society Journal, 56, Law Justice’, ‘Strategic Melissa Coade, The inadequaciesThe - the existing of inter 14 1 the Rome Statute, and the potentialuse Statute, of the Rome the Security has prevented Coun- the veto been some acting. have cil from There at both and the international innovations level, the international At national levels. the UN General Assembly acted the where Security Council could not. In resolution it decided establish (2016), 71/248 to an ImpartialInternational, and Independ - ent Mechanism assist (IIIM) ‘to in- in the vestigation prosecution and of persons responsible for the most serious crimes in the committed law under international 2011’. since March Syrian Arab Republic consol- This body ‘collect, is mandated to preserveidate, and analyse evidence of of both violations’ IHL and human rights expediteand facilitate fair to order ‘in law, independentand proceedings’criminal if and when they might occur. national criminal institutions mean that crim- accountability under international should be sought at the national inal law Securitylevel. Council resolution 2467 emphasises access justice to as an impor- peaceparttant of the women security and agenda. It calls upon states ‘strengthen to and legislation and enhance investigation of conflict-affectedprosecution’ sexual and urgesviolence, them especially to access justice to for victims‘strengthen of sexual violence in conflict and post-con- to reforms well as As flict situations.’ and procedures, this re criminal law quires strategic courts to be to receptive one such given The dinner was lawyering. - the interna from Waljee Yasmin example. Understanding the big challenges big the Understanding