Prosecution as Prevention?
A study of the ‘End Impunity’ narrative in the UN’s fight against conflict- related sexual violence in the Democratic Republic of the Congo
Sofia Kahma
Uppsala University, Department of Government Bachelor’s Thesis, Spring 2021 Supervisor: Johanna Söderström Word Count: 12 862 Pages: 41
1 Abstract
This thesis explores the underlying assumptions guiding the United Nations’ activities in the Democratic Republic of the Congo with regard to conflict-related sexual violence (CRSV). The purpose is to reveal how the organization’s ‘End Impunity’ narrative represents the problem of CRSV and to analyze the ideational premises that legitimize the solution of increased accountability and prosecution. This thesis conducts a qualitative discourse analysis inspired by the ‘What’s the Problem Represented to be’ approach to analyze the implicit content of the narrative’s key policy texts. The results show that the narrative problematizes the inability of the Congolese judiciary to prosecute perpetrators, the disregard of legislation prohibiting sexual violence and the lack of justice provided to survivors of these crimes. These problematizations are reliant on assumptions of the rationality of perpetrators of sexual violence, as well as the universality of the Western human rights norm and ‘modern’ institutions. The findings suggest that the UN represents the problem of CRSV to be a problem of law and weak legal institutions in the DRC. Whilst this could be contingent on the ‘collapsed nature’ of the Congolese state, this thesis argues that as the DRC is a central case in the UN’s efforts to fight CRSV, the results of the analysis can be applied to the wider population of countries affected by conflict and sexual violence.
Key words: Conflict-related sexual violence • United Nations • End Impunity • Democratic Republic of the Congo • Problem representation
2 List of Abbreviations
CRSV = Conflict-related sexual violence
DRC = Democratic Republic of the Congo
MONUSCO = Mission de l’Organisation des Nations Unies pour la Stabilisation en République Démocratique du Congo (United Nations Organization Stabilization Mission in the DR Congo)
OSRSG-SVC = Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict
SG = Secretary-General
ROL = Rule of Law
UN = United Nations
UNSC = United Nations Security Council
WPR = What’s the Problem Represented to be
3 Table of Contents
List of Abbreviations ...... 3
1. Introduction ...... 5 1.1. Research Aim and Question ...... 6
2. Previous Research and Contextualization ...... 8 2.1. Sexual Violence in the DRC ...... 8 2.2. End Impunity! ...... 9 2.3. Impunity and Rule of Law ...... 10 2.4. MONUSCO – Mission de l’Organisation des Nations Unies pour la Stabilisation en République Démocratique du Congo ...... 10
3. Theoretical Framework ...... 12 3.1. Poststructuralism ...... 12 3.2. What’s the Problem Represented to Be? ...... 12 3.2.1. Problem Representation ...... 13
4. Methodology and Material ...... 14 4.1. Design – why the DRC? ...... 14 4.2. Method ...... 15 4.3. Material ...... 16 4.4. Critical Reflection: Validity, Reliability and Reflexivity ...... 18
5. Results and Analysis ...... 20 5.1. Problem Representation ...... 20 5.1.1. Problem of Enforcement ...... 20 5.1.2. Problem with Compliance ...... 21 5.1.3. Problem of Reparations ...... 23 5.2. Underlying Assumptions ...... 24 5.2.1. Capacity-Building and Formal Institutions ...... 24 5.2.2. Rational Actors and Strategic Targets? ...... 25 5.2.3. Universality of Human Rights ...... 26 5.2.4. Survivors’ Justice? ...... 27 5.3. Silences ...... 28 5.4. Discussion ...... 30
6. Conclusion ...... 32
7. References ...... 35
8. Appendix 1 ...... 39
9. Appendix 2 ...... 40
4 1. Introduction
In recent years, the international community has increasingly recognized conflict-related sexual violence as a tactic of war “that is preventable and punishable” (Guterres, 2020: 2). 2019 saw the first conviction of crimes of rape and sexual slavery as the former member of the Congolese and Rwandan armed forces, Bosco Ntaganda, was sentenced to 30 years imprisonment for 18 counts of war crimes and crimes against humanity (ICC, 2021). The United Nations welcomed the sentencing and called it a “powerful message that perpetrators of atrocity crimes […] will be held accountable sooner or later” (OSRSG-SVC, 2019a: n.p.).
The conviction of Ntaganda is considered a victory in the fight against CRSV and an important step towards bringing justice to its survivors. Prosecuting perpetrators of sexual violence has become a cornerstone of the UN’s effort to prevent and eliminate CRSV (Houge & Lohne, 2017) and the organization has mobilized a global operation to improve the rule of law in conflict-affected areas to this end (UN Peacekeeping, n.d.). This campaign is often summarized under the mantra of ‘ending impunity’, and whilst it is not an official strategic objective of the UN, scholars argue that it is the main avenue through which the organization fights CRSV (Houge & Lohne, 2017; Reilly, 2018). This mantra is here described as and understood to be a narrative as this is the word used to describe it in previous research, yet it should be noted that the UN has not formerly defined it as such. The ‘End Impunity’ narrative presents criminal accountability as the solution to CRSV and the prosecution of its perpetrators as the preferred method of preventing its continued practice (Houge & Lohne, 2017). Given the international influence of the UN with respect to questions of peace and security, the narrative used by the organization can be considered the cardinal framework of CRSV prevention worldwide (ibid). As stated by the former UN Special Representative on Sexual Violence in Conflict, Zainab Bangura; “there is no way to end sexual violence unless you end impunity” (UN News, 2013: n.p.).
A country that has attracted massive attention in the fight against CRSV is the Democratic Republic of the Congo. The country was famously dubbed ‘the rape capital of the world’ due to its high levels of conflict-related sexual violence (Baaz & Stern, 2013) and the United Nations has extended the mandate of the country’s Peacekeeping Field Mission (MONUSCO) to include activities to prevent sexual violence, a mandate only provided to three other1
1 Central African Republic (MINUSCA), Mali (MINUSMA) and South Sudan (UNMISS), (UN Peacekeeping, n.d.)
5 peacekeeping troops in the world (UN Peacekeeping, n.d.). As part of the mission, a ‘Team of Experts on Rule of Law and Sexual Violence in Conflict’ (hereafter Team of Experts) has been deployed to support the reformation of the Congolese legal system to increase accountability for sexual violence crimes (OSRSG-SVC, n.d.) and UN agencies have assisted the strengthening of rule of law in the country for almost 20 years (Sahin, 2021). During this time, the scholarly community has discussed the intentions behind these (often Western) interventions into the legal institutions of developing countries, and Norwegian researchers Houge and Lohne (2017) have contributed to this debate by highlighting how the focus on accountability risks reducing CRSV to merely a problem of law. This would, according to the authors, distract resources and attention away from the efforts to decrease the structural, economic and gendered inequalities that constitute part of the root causes of sexual violence in war and thus undermine the ability to eliminate and prevent it (Davies & True, 2015; Houge & Lohne, 2017). Scholars have further questioned the ability of peacekeeping troops to reduce levels of sexual violence (Johansson & Hultman, 2019) by emphasizing the incompatibility between the inherent militaristic nature of peace operations and the sensitivity required for eliminating the socially controversial topic that is sexual violence (Reilly, 2018).
Despite a growing consensus that the UN’s efforts to protect civilians from violence in the DRC have failed (van Lear, 2018; EPON, 2019), analyses of the UN’s CRSV and ‘End Impunity’ discourse are scarce (Kleppe, 2013). Research shows that the ‘End Impunity’ narrative is now dominating the field of sexual violence prevention (Reilly, 2018), yet few have studied why the promotion of rule of law, stricter legislation and increased accountability has come to be the main solution to this problem. This thesis therefore aspires to contribute to this field of research by conducting a discourse analysis of how the UN represents and gives meaning to the problem of CRSV through its ‘End Impunity’ narrative, and how this affects the organization’s preventative activities in the DRC.
1.1. Research Aim and Question
The aim of this study is to explore the assumptions that legitimize ending impunity as the main solution to fight CRSV by conducting a discourse analysis on texts relating to the ‘End Impunity’ narrative. Building on reflections of how the narrative has transformed CRSV into a problem of law (Houge & Lohne, 2017), this thesis will situate the discussion in the DRC and examine how the narrative is deployed in practice and the assumptions that drive the UN’s work in the country. The objective is to make the politics behind the narrative visible by examining
6 how the problem of CRSV is represented, that is, studying the discursive practices that caused the problem to be interpreted as such (Bacchi & Goodwin, 2016). Using the ‘What’s the Problem Represented to Be’ (WPR) approach, this thesis will be looking at the ideational underpinnings of how the problem of CRSV is represented in the ‘End Impunity’ narrative to reveal why legal intervention is perceived as the best way to prevent and eliminate sexual violence in conflict (Bacchi & Eveline, 2010).
The objective is however not to deny or depreciate the important work of UN personnel in preventing CRSV and aiding its survivors, nor is it to question the intentions of the increased attention provided to the topic of sexual violence in conflict. This thesis acknowledges survivors’ need of restorative justice and the value of condemning and stating active intolerance of these practices. However, part of the objective is to highlight how the policies guiding these interventions may produce and reinforce impressions of what the ‘problem’ is and the implications this has on how the problem is dealt with.
The aim is thus to use the DRC in a case study to explore the underlying premises that legitimize the ‘End Impunity’ narrative. The DRC has been chosen as it is a central case in the UN’s global fight against CRSV. In 2009, the DRC was declared a pilot for the UN’s efforts to challenge CRSV (Sahin, 2021: 57) and the country has frequently been cited as a ‘best example’ of the problems of sexual violence and impunity during events and debates regarding its prevention (ibid). This strong focus of international agencies on the situation in the DRC, as well as the influence the situation has had on the general discourse of sexual violence, makes it a noteworthy case to study the UN’s problematization of CRSV. The research question guiding the analysis is therefor:
How is the problem of sexual violence represented in the UN’s ‘End Impunity’ narrative in the DRC?
In order to answer this question, policy texts related to the ‘End Impunity’ narrative have been examined using the analytical questions of the WPR approach. The results of the analysis indicate that the UN represents the problem of CRSV in the DRC to be the inability of the national law enforcement in preventing and prosecuting its perpetrators, which allows impunity to prevail. This problematization relies on the assumption of the universality of human rights, the rationality of the perpetrators employing CRSV in warfare and the survivor’s desire for reparations and retributive justice. These assumptions thus locate the solution of CRSV in the ‘Western-inspired’ field of rule of law and liberal legalism, despite the fact that previous research has pointed out the local distrust in the state and its formal institutions.
7 2. Previous Research and Contextualization
The following section will provide an overview of the situation in the DRC in regard to conflict- related sexual violence as well as the status of the country’s legal institutions. This background is deemed necessary to explore in order to understand the context of the DRC as well as the analysis of the UN’s involvement there.
2.1. Sexual Violence in the DRC
Sexual violence has been described as the ‘defining feature’ of the Congolese war, which is often portrayed as exceptionally brutal and bloody (Baaz & Stern, 2013). It was the high levels of sexual violence that granted the country its informal title of ‘rape capital of the world’ and while there is a continuous problem of systematic underreporting of sexual crimes, the UN force in the DRC documented 1,409 cases of CRSV during 2019, which is three times more than the average for countries with active documentation2 (Guterres, 2020).
Recent reports indicate that sexual violence is on the rise, particularly in the unstable regions in the east (Guterres, 2020; Thulin et al, 2020). Yet even though the DRC is the current hotspot for the ‘rape as a weapon of war’ narrative (Baaz & Stern, 2013), sexual violence is not only present in the conflict-affect areas of the east but a widespread phenomenon in the entire country. According to a national study, 32 % of all women in the DRC are estimated to have experienced sexual violence in their intimate relationship (Rustad et al, 2016), which means that every third Congolese woman is expected to have been sexually violated by their husband or partner. It is however important to remember that while the vast majority of survivors of sexual violence in the DRC are female and wartime rape is continuously framed as an issue of women’s rights (Reilly, 2018), men and other persons are also frequently sexually violated in the DRC (Baaz & Stern, 2013; Guterres, 2020; Thulin et al, 2020).
The question of why the DRC of all conflict-affected countries have such high levels of CRSV is a complicated one, and research has provided many different explanations. One central aspect highlighted by Rustad et al (2016) is that sexual violence is a byproduct of the Congolese civil war. The rape and sexual abuse of civilians is perceived as a means of achieving control of mineral rich areas in a war where armed groups fight to gain access to resources rather than power or territory. Others have highlighted the country’s unequal power relationship as a driver of sexual violence (Baaz & Stern, 2009; Sahin, 2021) or that the weakness of the ‘collapsed’
2 Central African Republic, Democratic Republic of the Congo, Mali and South Sudan (Guterres, 2020)
8 Congolese state makes it near impossible to monitor and enforce regulations against such offenses (Autesserre, 2012; Sahin, 2021).
2.2. End Impunity!
Since the late 1990’s, the human rights and feminist movement has advocated for the inclusion of CRSV into the statutes of the International Criminal Court (Engle, 2015; Houge & Lohne, 2017). Influenced by the incidents in Yugoslavia and Rwanda, the movement claimed that as states continue to fail their duty to guarantee civilian and criminal justice, international agents must step in and prosecute perpetrators of such crimes (Engle, 2015). Their advocacy work resulted in the creation of the Women, Peace and Security Agenda, resolution 1325 and the legal basis to ensure the protection of women in conflict (Sahin, 2021). Since then, the UN has established a specific Office to handle the issue of sexual violence in conflict and condemns these crimes as grave violations of international humanitarian law and human rights (OSRSG- SVC, n.d.; Sahin, 2021)
According to the Cambridge Dictionary, ‘impunity’ is defined as “freedom from punishment or from the unpleasant results of something that has been done” (n.d.: n.p.), which suggests that ending impunity refers to ensuring that perpetrators are punished. The key distinguishing feature of the UN’s ‘End Impunity’ narrative is the assertion that criminal prosecution is the ultimate response to conflict-related sexual violence and that increasing accountability for these crimes will prevent or eradicate its practice (Houge & Lohne, 2017; Reilly, 2018). The ‘solution’ to the issue of CRSV is thus to stop perpetrators from remaining at large in society and to promote a legal framework that facilitates their arrest. The aim of this thesis is to uncover the underlying premises that legitimize this narrative by asking why increasing accountability and prosecution is understood to be the main solution to the problem of CRSV.
Apart from the Office on issue of sexual violence and the four peacekeeping missions with CRSV mandates, the ‘End Impunity’ narrative is practiced by two main UN agencies. Firstly, and as previously mentioned, the UN has mobilized Teams of Experts to strengthen the capacity of national institutions and support investigations and prosecutions of alleged perpetrators (OSRSG-SVC, n.d.). The second unit is ‘UN Action’, a collective of 15 UN entities from multiple sectors that work to end sexual violence and respond to the needs of its survivors (ibid).
9 2.3. Impunity and Rule of Law
International agencies have been involved in reforming the Congolese legal system for almost 20 years and parts of the country’s 2006 constitution was written by UN staff (Sahin, 2021). The dominant discourse on the stabilization of the DRC emphasizes the need to bring justice and rule of law to the conflict-ridden provinces in the east (ibid). Put another way, “[…] the imagined lawless Congo ‘needs’ the ROL [Rule of Law]” (Dunn, 2021: 204), and this legal reformation is seen as a pivotal part of its path towards peace.
Whilst the description of the country as ‘lawless’ has been criticized for being an essentialist façade to justify Western interventions (Koddenbrock, 2012), a report from the World Justice Project (WJP, 2020) placed the DRC third to last in its annual ranking of global levels of rule of law. According to the WJP index, the country has the lowest ROL score and the highest levels of corruption in all of sub-Saharan Africa (ibid). In the eastern regions, where most of the international interventions to enhance the rule of law have taken place, only one in five inhabitants trust that the courts will provide just sentences and access to formal justice is highly contingent on financial resources and power (Jacobs, 2018: 281).
The DRC has further been described as a country of ‘legal pluralism’, which means that the state lacks legal sovereignty and that non-state actors are assuming its role as the main dispute resolver (Jacobs, 2018; Dunn, 2021). In the eastern part of the country, the formal justice system is both weak and distrusted (Jacobs, 2018) and traditional mechanisms of legal resolution continue to exist and persist outside of the state-controlled legal framework (Dunn, 2021: 203).
2.4. MONUSCO – Mission de l’Organisation des Nations Unies pour la Stabilisation en République Démocratique du Congo
The DRC is often referred to as the “epitome of a collapsed state” (UCDP, 2019: n.p.) and has been plagued by constant violence for over 40 years. Apart from internal rebel fighting in the eastern provinces, the country has been the arena of two regional wars with forces from Angola, Namibia, Tanzania, Uganda and Zimbabwe supporting different sides of the conflict (MONUSCO, n.d.-a). The first UN Peacekeeping troop, MONUC, was established in 1999 as part of the ceasefire agreement of the first Congolese war, and ten years later, the Security Council invoked Chapter VII of the UN Charter to create what we today refer to as MONUSCO. This authorizes the troop to use all necessary means to carry out its mandate to protect civilians and support the government in stabilizing and building peace in the country (MONUSCO, n.d.- b).
10 Despite being one of the largest and most expensive peacekeeping missions in history, with a budget over $1 billion annually, the credibility and local support of MONUSCO has remained low for decades (Ilunga, 2019). The reputation of the UN troops has been tarred by the over 700 complaints of sexual abuse against UN peacekeepers (Larson & Dodds, 2017) and civilians in the east have repeatedly protested against the troop’s inability to protect them from rebel attacks (Al Jazeera, 2019). The former president Kabila frequently called for the withdrawal of UN forces from the country and accused the organization of attempting to ‘co-manage’ the DRC and impede its national sovereignty (Mumbere, 2018). Following the country’s first peaceful transfer of power after the election of President Tshisekedi in 2019, the UN called for a strategic review of MONUSCO’s mandate (Ilunga, 2019) which culminated in the decision to initiate a gradual withdrawal beginning in June 2021 (UN, 2020).
11 3. Theoretical Framework
This section will describe the theoretical framework used to examine the underlying assumptions and problem representations of the ‘End Impunity’ narrative. As the method selected for this thesis is guided by a particular poststructural epistemology, the poststructuralist theory will be discussed in detail before describing the WPR approach.
3.1. Poststructuralism
Poststructuralism is a philosophical line of thought based on epistemic relativism. This means that a poststructuralist considers language and knowledge to be socially constructed and its core objective is to oppose all absolute certainties or ‘truths’ and reveal their constructed nature (Williams, 2014: 3).
A key aspect is the idea that power and language are inextricably related. According to poststructuralists, power is achieved through the manipulation of discourse and the use of language (McMorrow, 2017: 58). Power thus resides with those who control discourses and are able to govern the process by which certain ideas are transformed and accepted as unquestionable truths. Poststructuralists therefore argue that the production of knowledge is a political practice that requires critical scrutiny (Bacchi & Goodwin, 2016).
Foucault, a seminal author in the poststructuralist field, formulated these insights into the idea of ‘regime of truth’. A regime of truth refers to how a dominant discourse comes to be accepted as truth or fact (McMorrow, 2017: 58) and Foucault argued that the nature of this regime is conditioned by the knowledge of those in power. A poststructural analysis should then aim to reveal the constructed nature of this regime and examine how power has come to shape our perceptions of the world (ibid; Williams, 2014).
3.2. What’s the Problem Represented to Be?
The methodological framework guiding this thesis is the ‘What’s the Problem Represented to Be’ (WPR) approach formulated by Bacchi, but as this method has its foundation in a specific version of poststructuralism (Bacchi & Goodwin, 2016) it is deemed appropriate to introduce the theoretical basis prior to a complete description of its methodological practices.
The WPR approach is a method used to critically examine the ideational premises of policy proposals, but it is applicable to any text with prescriptive ambitions (Bacchi & Goodwin, 2016: 18). The approach argues that policies are both creative and productive in that they “give shape
12 and meaning to the ‘problem’ they purport to address” (Bacchi & Eveline, 2010: 9). Inspired by ideas about the power and knowledge nexus, Bacchi argues that problems do not exist independently in the world but that our understanding of what the ‘problem’ is depends on how they are represented in the policies that aim to solve them. Policies thus represent topics in particular ways which cause them to be interpreted as ‘problems’ that need solving. Governments are therefore no longer to be viewed as ‘problem-solvers’ but problem-creators, and the goal of the WPR approach is to reveal how a ‘problem’ came to be understood as such (Bacchi & Goodwin, 2016).
3.2.1. Problem Representation
The logic of the WPR approach is founded on ‘problematizations’. Building on the idea that problems are constructed, Bacchi argues that policy producers have to target something as a problem that needs fixing in order to legitimize interventions to solve it (Bacchi & Goodwin, 2016). A problematization is thus the discursive process of transforming a topic into a problem that requires a solution. How a matter is problematized, that is, the discursive practices used to describe the problem as a problem, is referred to as a problem representation (Bacchi & Goodwin, 2016: 2) and the objective is thus to investigate how a matter became represented as a problem by looking at the ideational underpinnings of the problem representation.
The concept of problem representations is also reliant on the idea that the solutions we provide to a problem are indications of what we think needs to change, and thus also an indication of what we perceive to be problematic (Bacchi & Eveline, 2010). In line with Bacchi, this thesis will “start from stated ‘solutions’ to inquire into their implicit problematizations” (Bacchi & Goodwin, 2016: 21), and use these stated solutions as indicators of what the policy problematizes or wants to change.
13 4. Methodology and Material
To analyze the ‘End Impunity’ narrative, this thesis will conduct a case study analysis of the UN’s engagement in the DRC. The following section will provide the reasoning behind the study’s geographical and temporal delimitation as well as a presentation of the methodology and material.
4.1. Design – why the DRC?
The war in the DRC has practically become synonymous with the issue of conflict-related sexual violence, and the pervasive levels of sexual violence has made the DRC the main site of international assistance to combat CRSV (Baaz & Stern, 2013). The situation in the country is of high priority of the UN (Sahin, 2021) and as previously stated, the peacekeeping troop in the country is one of only four3 in the world with a specific CRSV mandate (UN Peacekeeping, n.d.). The exceptionality of MONUSCO’s mandate points to the centrality of the DRC in the UN’s fight against sexual violence in conflict, and this thesis argues that this renders it a suitable candidate for examining the UN’s ‘End Impunity’ narrative.
The DRC can further be understood as a paradigmatic case of the UN’s fight against impunity. A paradigmatic case is one that “highlights more general characteristics of the societies in general” (Flyvberg, 2006: 232) or a form of ‘standard’ case in that it represents a larger population by ‘setting the standard’ of said population. The DRC has, apart from attaining the informal title of ‘rape capital of the world’, been selected by the UN as a pilot country for the organization’s fight against CRSV (Sahin, 2021). This suggests that the UN considers the DRC to be an important starting point in its attempts to eliminate CRSV and that the organization’s action in the country may represent its general view of how CRSV ought to be prevented. Given this central position provided to the country, the DRC can be considered a ‘standard country’ of the UN’s fight against impunity for sexual violence and will be used as a reference point for the organization’s general ambitions in this field.
The time chosen for this study is 2017-2020. In 2017, the UN appointed Pramila Patten as the third Special Representative of the Secretary-General on Sexual Violence in Conflict (UNSG, 2017) and this text argues that this appointment solidified the UN’s position on the legal prevention of CRSV. Ms. Patten has a background as Barrister at Law and the Secretary-
3 Central African Republic (MINUSCA), Mali (MINUSMA), South Sudan (UNMISS), and Democratic Republic of the Congo (MONUSCO)
14 General stated that she would “bring solid and diversified judiciary expertise in sexual and gender-based violence” (ibid: n.p.). While the ambition to increase convictions for crimes of sexual violence in conflict has been present within the UN from the late 2000’s, the appointment of Patten can be considered to cement the organization’s position on the legal solutions to CRSV. Upon taking office, Patten placed the fight against impunity as the first out of three strategic priorities of her mandate in stating that “the fight against conflict-related sexual violence has become the fight against impunity” (OSRSG-SVC, n.d.: n.p.). This thesis argues that this renewed and outspoken impetus on legal assistance as a form of CRSV prevention makes the Patten mandate (2017-2020) a viable starting point to analyze the problem representations of the UN’s ‘End Impunity’ narrative.
4.2. Method
The method used in this thesis is qualitative discourse analysis inspired by Bacchi’s WPR approach. The choice of discourse analysis is based on its purpose of analyzing the implicit contents and unspoken meanings of texts (Bergström & Ekström, 2018), which makes it an appropriate method to uncover the underlying premises of UN policy texts on CRSV prevention in the DRC.
The WPR approach starts with the idea that “what we propose to do about something indicates what we think needs to change and hence what we think the ‘problem’ is” (Bacchi & Goodwin, 2016: 16). WPR is thus an analytical tool constructed to make the politics behind the policy visible by ‘working backwards’ from the proposed solution in order to identify and investigate how the problem came to be represented as such (Bacchi & Goodwin, 2016: 2). This is accomplished by applying a set of analytical questions to the texts and use these to expose the underlying presumptions of the proposed solution (ibid). This thesis has selected three of these questions and has further constructed a set of sub-questions to help guide and provide a sound foundation for the analysis. These sub-questions are based on the analytical questions provided by Bacchi but altered to fit the purpose of this thesis, and these can be viewed in detail in the chart below.
In order to identify the problem representations, the material has been read through several times. The initial reading was conducted in order to detect specific sections that purport to the ‘End Impunity’ narrative. This was expected to include sections regarding ‘rule of law’ or ‘accountability’, ‘civilian protection’, ‘sexual- and gender-based violence’/ ‘CRSV’ and
15 ‘human rights’. These have then been carefully investigated and examined by applying the analytical questions systematically to each section.
Analytical question4 Sub-questions Purpose/explanation
1: How is conflict-related What is problematized? The goal of question 1 is to identify the sexual violence represented problem representations by “working
to be? backwards” from the stated solution and find what is presented as in need of change.
2: What deep-seated What assumptions are in Question 2 will be used to investigate assumptions underlie this place for this representation the underlying ‘meanings’ required for representation? to be legitimate? the proposed solution to make sense; the ‘taken-for-granted’ knowledge What binaries does it depend used to problematize CRSV as a on? problem of impunity.
3: What is left Who or what is not Question 3 is meant to identify areas, unproblematic in this mentioned? phenomenon or issues that are not problem representation? / mentioned in this specific Where are the silences? representation of the problem of CRSV. This section will depend
largely on the researcher’s own knowledge of CRSV, and it is therefore essential to apply reflexivity to these conclusions.
4.3. Material
The material selection has been guided by two principles. Firstly, and based on the WPR approach, the selected material is prescriptive (Bacchi & Goodwin, 2016:18). This thesis interprets this concept to include all texts (oral or written) that prescribe certain actions, perspectives or solutions to a problem, or are “written for the purpose of offering rules, opinions, and advice” (Foucault quoted in Bacchi & Goodwin, 2016: 18).
The second principle regards the study’s thematic and geographic delimitation, namely the UN’s ‘End Impunity’ narrative and the DRC. Given that the aim of this thesis is to investigate
4 The three analytical questions and purpose/explanation descriptions are based on Bacchi & Goodwin, 2016: 20- 23
16 how the UN represents the problem of CRSV in their ‘End Impunity’ narrative, the material selected for analysis will be produced or published by the UN. Furthermore, the material selected will be situated within the ‘End Impunity’ narrative which implies that this thesis does not purport to analyze or discuss the UN’s general CRSV prevention but only in regard to the narrative of ending impunity. This means that whilst the material might describe multiple solutions to ending CRSV, this thesis will only focus on the sections discussing the legal preventative ambitions of the UN.
Based on these principles, two categories have been constructed. The first category consists of official written documents from the UN, such as recommendations from the Secretary-General and Security Council resolutions. These texts are prescriptive in the sense that they represent the “formal expressions of the opinion of will of the United Nations organs” (UNSC, n.d.: n.p.) and function as guides for MONUSCO’s engagement in the DRC (MONUSCO, n.d.-c). Between 2017-2020, five such texts were published and adopted, and these can be viewed in more detail in Appendix 1 and their references are available in Appendix 2.
The second category includes oral and personal statements from UN officials regarding the sexual violence situation in the DRC. The two main material producers are Ms. Pramila Patten, the ‘Special Representative on Sexual Violence in Conflict’, and Ms. Leila Zerrougui, the ‘Head of MONUSCO’ from 2017-2021. Given that these two actors are spokespersons of the UN, one can expect their statements to be trimmed and prepared to reflect the ideas of the entire organization and not that of the individual speaker, which in this context is preferable as the objective is to study the narrative presented by the UN. However, the inclusion of ‘personal’ statements is based on the expectation that these will be somewhat less bureaucratic than the official UN documents, which could facilitate the identification of implicit problem representations.
Another important aspect guiding the material selection is that they should all specifically apply to the DRC or describe situations or events taking place in the country. This principle has been formulated in order to isolate documents where the UN’s representation of the specific situation in the DRC is portrayed. This entails that the plethora of UN resources regarding the global CRSV situation or general preventative activities of the organization is not applicable for this study and will not be used in the analysis.
17 4.4. Critical Reflection: Validity, Reliability and Reflexivity
A qualitative study based on the analysis of texts, as the WPR approach, is valid if the choice of material and method is appropriate given the study’s research question (Bergström & Boréus, 2018). The validity is thus determined by whether the material and method can be used to properly measure what the study is intended to measure (ibid). Regarding the choice of material, as the policy texts are original sources from UN agencies working with CRSV and the legal process in the DRC, the selected material should provide accurate information about the ‘End Impunity’ narrative in the country and should thus demonstrate how CRSV is problematized there. However, the sections under analysis have been selected on the assumption that they ought to contain information about the narrative based on the prior knowledge and initial reading of the researcher and not because the UN has declared these sections as important for the narrative. This entails that the excluded parts of the texts could in fact contain valuable information and that not all aspects of the narrative are properly analyzed, which could affect this study’s validity negatively. This thesis is aware of this potential flaw in the selection of material but maintains that the unofficial nature of the ‘End Impunity’ narrative makes is near impossible to assure the inclusion of all elements of the narrative. As there does not exist a summary of all the texts pertaining to this narrative, the selected material is deemed to be as well-suited as currently attainable.
Regarding validity and method, a study can be considered valid if the analytical questions can be used to accurately answer the research question (Bergström & Boréus, 2018). As the analytical questions used in this thesis are specifically constructed to investigate the underlying assumptions of policy texts (Bacchi & Goodwin, 2016), this aspect of the study’s validity is deemed to be good. However, as these questions are somewhat ambiguous in that they ask the researcher to identify the implicit content of texts and draw conclusions based on what they assume or have reason to believe the policies to be implying, the method’s reliability can be questioned for the vagueness of its analytical tools (Bergström & Ekström, 2018). To compensate this, the sub-questions presented in the chart in section 4.2 have been created to define and clarify the purpose of each question and thus reduce the room for error.
A third aspect of validity that particularly applies to discourse analyses guided by constructivist theories is the validity of the researchers themselves. Based on the notion of the constructed nature of knowledge and critique of so called ‘objective truths’ (Williams, 2014), the researcher is said to be complicit in constructing the knowledge or ‘truths’ presented in the study
18 (Bergström & Boréus, 2018: 40). To account for this potential flaw, the thesis will apply a reflexive approach to self-scrutinize the results of the analysis.
Informed by these issues with validity and reliability, this thesis will incorporate Bacchi’s method of ‘reflexivity’ in order to subjugate the researcher’s own recommendations and proposals to critical scrutiny (Bacchi & Goodwin, 2016). Reflexivity refers to the “ability and willingness to examine one’s own presuppositions” (Bacchi & Eveline, 2010: 239) and the ambition is to make the analysis and deductions as transparent as possible in order to display the path taken to reach the presented results and conclusions. In attempting to increase the visibility of the research process and particularly the analytical aspect of the following section, quotations and passages that are deemed critical or problematic will be discussed and provided in detail in order to demonstrate how the analysis is performed.
19 5. Results and Analysis
The analysis will be presented according to the analytical framework provided in section 4.2. First, an overview of the identified problem representations will be presented thematically. This will be followed by an analysis of selected underlying assumptions that are considered central to the narrative and problematizations under analysis, and finally a discussion about the unmentioned aspects of CRSV.
5.1. Problem Representation
Whilst previous research (Houge & Lohne, 2017; Reilly, 2018) has already established how the ‘End Impunity’ narrative posits the solution to CRSV to be to increase accountability and prosecution, this first section will dive deeper into the problem representation in the DRC. This thesis argues that the ‘End Impunity’ narrative represents the problem of CRSV to be the failure of the Congolese judiciary to enforce laws that prohibit its practice and provide reparations to its survivors, contributing to a general disregard of human rights among actors in the DRC. Based on these results, this thesis has created three sub-categories of the problematization of CRSV; problem of enforcement, problem with compliance and problem of reparations and these will be discussed separately in the sections that follow.
5.1.1. Problem of Enforcement
Representing the problem of CRSV to be a problem of enforcement implies that the Congolese justice system is not implementing or using laws against sexual violence to prosecute its perpetrators, leading to a culture of impunity where perpetrators go unpunished. To reduce levels of sexual violence in the country, the Security Council “urges the government of the DRC to continue to strengthen its efforts to combat impunity for sexual violence in conflict” (UNSC Res 2348: §11; 2409: §15; 2502: §9; 2556: §9), thus representing the problem to be the current lack of accountability for these crimes. Increasing accountability is also represented to have preventative qualities as Special Representative Patten declares that “accountability has been a cornerstone of my advocacy and action to prevent and address the scourge of conflict- related sexual violence” (OSRSG-SVC, 2019b: n.p. emphasis added), indicating that holding perpetrators responsible will hinder them and others from committing such crimes.
The narrative places the burden of this issue on the Congolese state and judiciary by urging “the Government of the DRC to hold accountable those responsible for violations of international
20 humanitarian laws” (UNSC Res, 2502: §6). This suggest that the current impunity is caused by the government’s failure of holding perpetrators to account before a court of law. This representation is echoed by the Team of Experts in prioritizing the “strengthening of national capacity to respond to conflict-related sexual violence” (TOE, 2017: 22, emphasis added), and the Secretary-General in stating the need to strengthen the Congolese legal and security institution’s “independence and capacity to process serious crimes” (S/2020/554: §75). Proposing actions to strengthen the independence of the country’s legal institutions can be interpreted to imply that the Congolese judiciary currently is partisan or under the influence of interests other than the rule of law.
However, this perceived incapacity can also be interpreted to imply a lack of knowledge on issues of human rights as all of the Security Council resolutions encourage MONUSCO to provide “training in human rights, international humanitarian law […] and protection from sexual and gender-based violence to Congolese security institutions” (UNSC Res 2556: 3). Based on these insights, this thesis holds that the ‘End Impunity’ narrative presents the problem of CRSV to be the deficient enforcement of anti-CRSV legislation in the DRC and the lack of independence of the Congolese judiciary.
5.1.2. Problem with Compliance
The second problematization of CRSV is the problem with compliance, which in this thesis refers to the perceived disregard of legislation prohibiting sexual violence in the DRC. The narrative presents several groups that contribute to the problem with compliance, including both state and non-state actors.
Firstly, the state’s legal and security institutions are presented to be complicit in this problem as the Joint Communiqué on preventing and addressing CRSV includes “zero tolerance policies for sexual violence and codes of conduct for national armed forces and security forces” (OSRSG-SVC, 2018: n.p.). This problematizes the military and police personnel’s lack of compliance with international human rights, and this representation can be furthered identified in MONUSCO’s mandate where the Security Council “calls upon the Government of the DRC […] to support the promotion of DRC security personnel with reputable human rights records” (UNSC Res 2348: §40, emphasis original). This statement suggests that one problem of CRSV is the improper conduct of the national security forces and that solving this problem requires the introduction and enforcement of regulations that induce compliance with human rights. Additionally, the narrative problematizes this behavior in stating that “progress in the fight
21 against impunity is critical for the security forces to no longer be perceived as a threat to civilians” (UNSC Res 2502: §29iif), suggesting that the current impunity of the national police and army has caused civilians to distrust these institutions.
The narrative further problematizes the lack of compliance among MONUSCO’s troops. In the mission’s mandates from 2017 and 2018, the Security Council condemns the behavior of the peacekeeping staff by requesting “the Secretary-General to take the necessary measures to ensure full compliance of MONUSCO with the United Nations zero-tolerance policy on sexual exploitation and abuse” (UNSC Res 2348: §38; 2409: §40, emphasis added). The Security Council further calls “for those responsible for such criminal offences or misconduct to be held to account” (UNSC 2409: 5) and request the introduction of “predeployment awareness training […] to ensure full accountability” (UNSC Res 2348: §38). This suggests that part of the problem lies in the failure to ensure compliance with human rights within the ranks of the peacekeeping force in the DRC. An interesting aspect is the difference in wording between the acts committed by the national security forces and those of MONUSCO. Whilst the solution remains to prosecute the perpetrators, labeling the sexual violence performed by UN staff as ‘sexual exploitation and abuse’ distances it from the violence being condemned as a violation of human rights, thus differentiating the violence depending on the identity of the perpetrator.
The third group related to the problem with compliance are non-state armed actors. Whilst MONUSCO’s mandates primarily focus on preventing sexual violence committed by their own and Congolese national security forces, the Security Council does expresses the “imperative need to hold accountable all perpetrators of violations of international humanitarian law” (UNSC Res 2409: §40; 2502: §34; 2556: §34, emphasis added). Yet the strongest indication of the inclusion of non-state actors can be found in Patten’s statements regarding the convictions of Ntaganda and Sheka, who both are former leaders of militias and guerrillas in eastern DRC. When Sheka was sentenced to life imprisonment after having been placed on the UN’s sanctions list and convicted by a military court, Patten stated that “the verdict sends a strong signal that impunity for sexual violence in Congo will not be tolerated” (OSRSG-SVC, 2020a: n.p.), suggesting that impunity and lack of compliance applies to non-state actors such as Sheka. The conviction of Ntaganda was furthermore claimed to send “a strong warning to other commanders who commit sexual violence […] or fail to prevent and punish such abuses by their subordinates” (OSRSG-SVC, 2019a: n.p.), suggesting that a non-state actor such as Ntaganda should be punished in a similar way to the commanders of national and international forces. This thesis argues that since the solutions provided by the ‘End Impunity’ narrative
22 (criminal prosecution and sanctions) also apply to members of non-state armed groups, the UN represents these actors to be complicit in the problem of CRSV.
5.1.3. Problem of Reparations
The final problem representation discussed in this thesis is the problem of reparations, which problematizes the lack of justice provided to CRSV survivors. The focus on reparations and provision of justice is here interpreted as a way to acknowledge and alleviate the suffering of survivors. This is visible in Patten’s request for the court to consider and deliver “reparations for those subjected to these heinous crimes, who have a right to meaningful redress” (OSRSG- SVC, 2019b: n.p.). Patten further argues that “the potentially life-changing judgements of reparations […] must be paid for justice to be fully delivered” (OSRSG-SVC, 2017: n.p.), suggesting that justice is achieved through the provision of reparations. The assertion that reparations are ‘potentially life-changing’ is however difficult to interpret. It could imply that the lives of survivors will be forever tarnished by their experiences unless they are granted reparations, suggesting that the provision of justice will improve or remove the plight of their trauma. But it could also imply that the lives of survivors are currently harmed by the lack of reparations and that this is required for them to fully rehabilitate. It is thus a question of whether the reparations are the means by which the lives of survivors will change, presumably for the better, or whether the reparations in and of themselves will improve their lives.
This problematization is also related to the problem of accountability as the Secretary-General states that “the payment of reparations to victims of sexual violence are critical to ensure accountability” (S/2020/554: §75). Patten adds to this in stating that the conviction of Ntaganda was “an important step towards accountability for victims whose lives have been shattered by acts of conflict-related sexual violence” (OSRSG-SVC, 2019b: n.p.). The problem of reparations thus perceives accountability as provided for the survivors of CRSV, suggesting that the reparations are proposed as a form of redress for their suffering and an acknowledgement of the wrongdoing of the perpetrators.
This thesis argues that this problematization is connected to the problem of enforcement in that the narrative attempts to direct protection away from perpetrators and towards its survivors by limiting the ability to escape punishment for CRSV. Patten expresses “support and solidarity with the victims” (OSRSG-SVC, 2019a: n.p.) in applauding “the victims and witnesses who bravely testifie[s]” (OSRSG-SVC, 2019b: n.p.) against their assailers. It can be argued that by openly declaring solidarity with the survivors, the narrative problematizes the fact that the
23 system is not providing them enough support and protection and that the weakness of the Congolese judiciary safeguards the perpetrators from prosecution and thus inadvertently protects them instead of the survivors. Accountability, which in the problem of enforcement was interpreted to refer to holding perpetrators answerable to their crimes, is in this problem representation directed towards the survivors as “criminal accountability is foremost a tool to provide justice and redress to victims” (OSRSG-SVC, 2019a: n.p.), suggesting that the lack of accountability is causing their lack of justice and continued harm. One can thus argue that the narrative problematizes the lack of reparations for survivors as an extension and result of the problem with enforcement, since the failure of the justice system to hold perpetrators to account grants them the right to walk free while depriving survivors their justice.
5.2. Underlying Assumptions
The problem representations of the ‘End Impunity’ narrative rest on a number of assumptions and this section will discuss a selection of these that are deemed important given the purpose of this thesis.
5.2.1. Capacity-Building and Formal Institutions
A general theme in the ‘End Impunity’ narrative is the assertion that increasing prosecutions for CRSV, either through national or international courts, will prevent these crimes from being committed. As implied by the name ‘End Impunity’ and as previously asserted by Houge and Lohne (2017), the narrative presents the justice system as the main avenue for change in regard to CRSV, which is evident in the problematization of the lack of enforcement of laws prohibiting sexual violence in the DRC. But this problematization also assumes that it is through state and formal legal institutions that the problem of CRSV should be resolved as all of MONUSCO’s mandates highlights the importance of supporting the Government and its justice and security institutions. It can thus be argued that the narrative assumes that the problem of CRSV will persist unless the Congolese state’s justice system is improved and strengthened, exemplified by MONUSCO mandate to support the establishment of “independent, accountable and functioning justice and security institutions” (UNSC Res 2556: §29iif) as a solution to the problem of impunity and CRSV.
The assumption that increasing the capacity of the Congolese judiciary will prevent and reduce CRSV can also be regarded to give authority to Western ideals of independent and sovereign legal institutions over the traditional and customary mechanisms described in section 2.3. The
24 form of capacity-building promoted by the UN in providing “good offices and strategic and technical advice to the Government of the DRC” (UNSC Res 2556: §29iif) can be connected to the Western state-building of weak states presented by Chandler (2006). A key technique of this form of state-building is the promotion of rule of law, where “external regulation is legitimized independently of the political process of the domestic state but […] presented in […] depoliticized terms of technical and administrative expertise” (Chandler, 2006: 166). These interventions thus support the capacity of weak states in order to “off-load responsibility onto the non-Western state” (ibid: 31) by assisting them to rebuild their institutions so that the Western states no longer are required to help. Building on these insights, the technical advice provided by the Team of Experts, MONUSCO and the UN can be interpreted to contribute to the strengthening of state institutions “at the same time as these states increasingly lose their policy-making authority” (ibid: 31) by being stuck in internationalized institutions and Western constitutions that do not align with the opinions and culture of its people.
This assumption about the superiority of Western legal institutions to resolve CRSV further depends on a binary between ‘modern’ and ‘traditional’ systems. As described in section 2.3., the Congolese state lack legal sovereignty and the conflict-affected east is ruled by customary and traditional law rather than state constitution. By only providing support to the Government to create “independent, accountable and functioning” (UNSC Res 2556: §29iif) justice institutions, the narrative ignores the non-state methods of dispute resolution. This has been argued to be symptomatic of “how Western policy actors have imagined a backward and lawless eastern Congo” (Dunn, 2021: 204) that is unable to improve its situation without the help of international actors (Autesserre, 2012). Stating that it is the responsibility of the Congolese state to ensure accountability for crimes of CRSV, the narrative can be accused of “ignoring local knowledge and […] power” (Lake, 2014: 524) by failing to account for the existing non-state legal institutions and their potential ability to respond and prevent CRSV.
5.2.2. Rational Actors and Strategic Targets?
The assertion that increasing accountability will prevent perpetrators from committing CRSV crimes is central to the ‘End Impunity’ narrative, and implicit in this assertion is the assumption that these crimes are committed by rational actors. Discussing the introduction of sanctions to deter and prevent CRSV in the DRC, Patten claimed it will send “a clear message that there will be costs and consequences for committing, commanding or condoning sexual violence” (OSRSG-SVC, 2018: n.p., emphasis original) and this statement has two important aspects in
25 relation to the rationality of actors. Firstly, proposing to increase the costs of committing CRSV as a deterrent can only be considered a legitimate solution if we believe that perpetrators choose to carry out this deed if they perceive its gains to outweigh its potential costs. Secondly, claiming that CRSV can be ‘commanded’ suggests that the act is strategic or used tactically to gain access to a desired resource. This reflects the discourse on CRSV being a ‘weapon of war’ to achieve military or political goals (Baaz & Stern, 2013). This assumption about the strategic use of CRSV for military purposes is further illustrated in Zerrougui’s support of the court’s prioritization of “high-ranking military officers as a way of setting an example and ensuring that those who committed violations would be held accountable” (Zerrougui, 2018: n.p.) as it suggests that commanders are responsible for the use of this tactic and that their arrest will deter other commanders from doing the same.
This assumption is also visible in the problem with compliance as the solution to this problem is to threaten potential perpetrators with legal prosecution, expecting them to refrain from these activities due to the heightened costs of performing them. This relates to the theory of liberal legalism that envisages the legal person to be rational, self-interested and autonomous in that they use their rationality to fulfill their needs and desires (Hunter, 2016: xxvi). This position has been criticized for being context, gender, and power blind since it fails to account for the effect society and communities have on the interests, actions and opinions of individuals.
5.2.3. Universality of Human Rights
Similar to the assumption of the superiority to Western legal institutions is the presumption about the universality of human rights. This assumption is so central to the problematizations that it can almost be called a verifiable truth. The ‘End Impunity’ narrative is centered around the notion that CRSV constitutes a violation of international human rights and that the solution to CRSV is found in the arena of legal interventions. This is evidenced by Patten’s statement that survivors of CRSV are “victims of grave violations and abuses of human rights” (OSRSG- SVC, 2019a: n.p.) and the condemnation of the “violations and abuses of human rights […] in particular those involving […] widespread sexual and gender-based violence” (UNSC Res 2348: 3; 2409: 2).
The universality of human rights refers to the idea that the UN’s Universal Declaration of Human Rights is and should be applicable and legitimate in all countries and all people of the world, regardless of political, cultural or religious context. When the Security Council calls on the Congolese Government to “ensure the protection of civilians from abuses and violations of
26 human rights […] including all forms of sexual and gender-based violence” (UNSC Res 2556: §29ic) it is taken for granted that human rights are legitimate in the DRC. The human rights agenda is often presented as ‘above politics’ in the sense that it is, or at least should be, a universally accepted truth (Mutua, 2008). Whilst the DRC has ratified the UN Declaration, “distinction must be made between the ratification of human rights by states and the internalization of the norms […] by the cultures on which those states stand” (Mutua, 2008: 22). According to Mutua and other critics of the universality of human rights, the norm originates from a particular Western political culture that may not correspond to the political or cultural traditions of the countries in which they are imposed. This is not to suggest that non- Western peoples are inherently ‘non-humanitarian’ in the sense that their ideals are diametrically opposed to the values of human rights, nor that all non-Western states can be homogenized as ‘non-Western’ cultures, but it does highlight the political construction of the values that are taken for granted by the UN in creating and advocating the ‘End Impunity’ narrative.
5.2.4. Survivors’ Justice?
Problematizing the lack of reparations also assumes that the provision of these reparations will bring justice to survivors of CRSV and that this is the kind of atonement they desire. In asserting that “accountability is foremost a tool to provide justice and redress to victims” (OSRSG-SVC, 2019a: n.p.), the UN assumes that survivors of CRSV will feel accounted for by seeing their perpetrator convicted and by receiving some sort of compensation. While the Security Council does encourage the “government to take all measures to support the psychological and medical support of survivors of sexual violence in conflict” (UNSC Res 2502: §9), it is evident that the ‘End Impunity’ narrative considers legal prosecution to be the main avenue for providing them justice. To exemplify this, Patten states that “the potentially life-changing judgements of reparations […] must be paid for justice to be fully delivered and the sentences of the perpetrators must be carried out” (OSRSG-SVC, 2017: n.p.).
The assumption about the ability of convictions to provide redress and justice is further reliant on at least two assumptions; that the rule of law is sufficiently strong for the sentence to be carried out as dictated by the court and that the survivor/complainant considers the authority of the legal institution to be legitimate. As the narrative does problematize the inability of the Congolese judiciary in enforcing anti-CRSV legislations, the ‘taken-for-granted’ knowledge of this problem representation is the assumption that survivors of CRSV perceive retributive
27 justice to be the proper way to handle the ‘crime’ they have been subjected to. The narrative thus assumes to know what the individual survivor of CRSV perceives justice to be and that it can be achieved through rule of law.
5.3. Silences
This thesis argues that there are two important aspects of CRSV in the DRC that has been left unproblematized in the ‘End Impunity’ policy texts. This section will discuss these in more detail, but it should be noted that there most likely exist other unproblematized aspects of the narrative and that the points discussed below are dependent on the prior knowledge of the author.
The presented solution to the problem of CRSV is to hold perpetrators (or those who command or fail to prevent others) accountable (OSRSG-SVC, 2019a: n.p.) by strengthening the national capacity to convict these offenders (TOE, 2017: 23). As discussed in section 5.2.1., the locus of this solution is the Congolese judiciary and state as the Security Council (UNSC Res 2348; 2409; 2502; 2556) and Special Representative Patten (OSRSG-SVC, 2017; 2018; 2020a; 2020b) frequently request the Government of the DRC to increase their efforts to prevent and respond to CRSV. Whilst the narrative presents part of the problem to be the weak enforcement of anti-CRSV legislations in the Congolese judiciary, it fails to mention the lack of state legitimacy and the popular distrust of its formal institutions. Even though studies do indicate that people in the DRC consider penal cases to be best dealt with by state authorities, the legitimacy of formal legal institutions remains low (Jacobs, 2018) and “people often experience the state as an oppressive, exploitative and threatening machine” (Autesserre, 2012: 219). It may, however, be argued that strengthening the capacity of the judiciary to provide just sentences could increase its legitimacy and popular support and counteract the current low levels of trust towards the Congolese state. But as the current government gained power through unfree and unfair elections (Freedom House, 2021) and is largely perceived as a “predatory state” (Jacobs, 2018: 285) by its people, it is difficult to imagine how strengthening its capacity without attending to its democratic weakness will increase its popular support. It can thus be argued that reinforcing a nondemocratic and weak state will risk reducing its local legitimacy instead of increasing it. What the UN leaves unmentioned is therefore how the large investments into institutions lacking local legitimacy will enact change in a people that does not consider their state officials and institutions to work in their favor.
28 The second unmentioned aspect of CRSV is the potential consequences of criminalizing the use of ‘rape as a weapon of war’. The narrative does not explicitly refer to sexual violence as a tactic of war, however, the assumed rationality of its perpetrators suggests that the UN perceive CRSV to be at least partly used strategically for military purposes. Now if this is true, the condemnation of its practice and imposition of penalties for committing it will not remove the underlying causes for its use nor resolve the issues that cause high-ranking military officials to command its practice. If CRSV is strategically commanded as a tactic of war, sexual violence can be considered a means to an end rather than an end in itself, and it can thus be argued that criminalizing this one instrument of warfare will not automatically lead to reduced human suffering. Assuming that commanders are rational and that they do actually prevent their subordinates from employing this strategic tactic due to the increased cost of being caught using them, what is to say that they will refrain from using violence all together? As the Geneva Convention has prohibited the killing of civilians since the 1950’s (OHCHR, n.d.), the in total 11 394 deaths (UCDP, 2019) of the last 3 years points to the inability of international law in preventing violence in war. This thesis thus argues that the ‘End Impunity’ narrative is silent about how the increased cost of committing CRSV will end it when previous and similar attempts to criminalize violence against civilians have inevitably failed.
Related to this issue is the sexual violence that is not conflict related. This thesis builds on the assumption that the ‘End Impunity’ narrative concerns the sexual violence that is related to conflict, which is also evident in the research material. The fact that Patten, as one of the head spokespersons of the narrative, is the Special Representative on Sexual Violence in Conflict and that the Team of Experts are experts on rule of law and sexual violence in conflict points to the centrality of the ‘conflict’ element in the UN’s efforts to combat sexual violence. While the narrative does claim the “imperative need to hold accountable all perpetrators of violations of international humanitarian law” (UNSC Res 2409: §40; 2502: §34; 2556: §34, emphasis added), the only actors specified as potential perpetrators are the national army and police (UNSC Res 2348: §11), MONUSCO (UNSC Res 2409: 4) and non-state armed groups and militias (OSRSG-SVC, 2019a; 2019b; 2020a). This single focus on actors in the security sector suggests that the problem of CRSV is represented to be a problem of security and that the sexual violence can be traced to the civil conflict, which disconnects it from “normal” sexual violence. This indicates that the narrative does not problematize the issue of sexual violence when not committed by actors involved in conflict, which can either suggest that this form of violence is of a nature that requires more attention than that committed by civilians or that the narrative
29 willingly excludes the violence perpetrated in provinces where the fighting has ceased. As previously mentioned, every third Congolese woman is expected to have been sexually violated by their husband or partner (Rustad et al, 2016), and due to the continued stigma of male victimization, we currently lack reliable data to conclude the extent of non-conflict related sexual violence among men and other persons. These perpetrators are not considered when the narrative proposes to prioritize “high-ranking military officers as a way of setting an example” (Zerrougui, 2018: n.p.) or by imposing sanctions for those armed groups and individuals that command sexual violence to be used in war (OSRSG-SVC, 2018).
5.4. Discussion
The results of this analysis concur with previous research in that the UN situates the problem and solution of CRSV in the field of law. It can also be interpreted to be a problem of security, as the alleged perpetrators are restricted to members of military and security institutions. This conclusion may seem self-evident given the name conflict-related sexual violence, yet it could also originate from the nature and character of the narrative’s policy producers. The largest material provider under analysis is the Security Council, the UN agency with the “primary responsibility to maintain international peace and security” (Houge & Lohne, 2017: 754). Given the militaristic nature of this actor, their focus on security may come as no surprise and might even be what one expects. Nonetheless, as this security focus is not limited to the texts produced by the Security Council but detected in all of the policies under analysis, this thesis argues that the inherent security bias of the Council does not undermine the conclusions of this analysis. For example, Special Representative Patten, whose Office is the main advocate of the ‘End Impunity’ narrative, delivers the same message of CRSV being an issue of security and she, along with the Office, is not part of the militaristic Security Council. Whilst it is not unreasonable to assume that the Council can have influenced the configuration of the narrative, the fact that non-military actors central to the ‘End Impunity’ narrative convey an equally security-centered account of CRSV suggests that this is a central part of the narrative.
These conclusions are the result of a WPR analysis performed by a student at Uppsala University in the 21st century. In the name of Bacchi’s ‘self-reflexivity’ method, to what degree can we expect the results to be influenced by the researcher’s own background and ‘taken-for- granted’ assumptions? As discussed in section 4.4., constructivism argues that a study’s validity depends, in part, on the prior knowledge and background of the researcher. In the context of this study, it is reasonable to believe that previous research on CRSV may have influenced the
30 analysis of the ‘End Impunity’ narrative. The aim of this study has been to contribute to the work of Houge and Lohne (2017), Sahin (2021) and Reilly (2018) who all, to varying degrees, conclude that the “construction of criminal law as a panacea for conflict-related sexual violence overestimates criminal law’s ability to transform individuals and societies” (Houge & Lohne, 2017: 783, emphasis added). This perspective on the ability to tackle CRSV through legal interventions can have had an effect on the readings and conclusions drawn here, however, this thesis holds that the insights from previous research are necessary in order to uncover the ideational structures of the ‘End Impunity’ narrative. As the objective has been to understand how and why this policy has gained legitimacy as the main solution to CRSV despite scholars pointing out its inherent problems, the results of previous research are considered essential to maintain a critical perspective on the ‘taken-for-granted’ knowledge portrayed in the ‘End Impunity’.
This thesis can further be criticized for its reliance on the ideas of Chandler (2006) and Mutua (2008) regarding the political nature of the state-building and human rights norm, and that their theories may have affected the interpretation of the underlying assumptions of the ‘End Impunity’ narrative. One could instead have argued that the international assistance and promotion of human rights is simply an act of helping a country in need and not a “blunt instrument in the hands of imperial states” (Mutua, 2008: 23). However, as this thesis is guided by poststructuralist ideas about the meaningfulness of critically reviewing ‘regimes of truth’ and dominant discourses, such as human rights and the necessity of an authoritative and sovereign state, the critical reflection inspired by Chandler and Mutua is deemed necessary in order to uphold the ideals of the WPR approach. This thesis encourages future applications of poststructuralist critique onto the ‘taken-for-granted’ knowledge of Mutua, Chandler and this thesis to problematize our tendencies and presumptions, but strongly maintains that their ideas have contributed positively to the unfolding of accepted truths inherent to the ‘End Impunity’ narrative.
31 6. Conclusion
The purpose of this thesis has been to critically analyze the United Nations’ ‘End Impunity’ narrative and identify how it represents the problem of conflict-related sexual violence in the DRC, a country infamous for its epidemic levels of sexual violence in both war and peace. Using the poststructuralist ‘What’s the Problem Represented to be’ approach, the aim has been to reveal the underlying assumptions that has made ‘ending impunity’ the main solution for preventing and eradicating sexual violence in war. To achieve this end, the contents of the narrative’s key policy texts have been analyzed, resulting in the identification of three problematizations that together inform the solution of increased accountability and prosecution.
The results suggest that the narrative represents the problem of CRSV to be the weakness of Congolese law enforcement, the disrespect of legislation prohibiting the use of sexual violence in war and the lack of reparations and justice to its survivors, all of which combine to legitimize the solution of ‘ending impunity’. The results of this thesis thus concur with that of previous research in how the narrative locates the solution in the field of law. Furthermore, these problematizations are based on assumptions about the superiority of Western state institutions and rule of law in tackling CRSV; the rationality of perpetrators and their strategic use of sexual violence in war; the universal acceptance and applicability of human rights and that survivors of sexual violence crimes want or need reparations through the courts. If one believes these assumptions to be true, the idea that ending impunity for CRSV will prevent its continued practice is both legitimate and logical. As these values are ‘taken-for-granted’ and constitute part of the regime of truth (McMorrow, 2017), these proposed actions are reasonable solutions to the problem of CRSV. Yet the ambition of this thesis has been to reveal the constructed and political nature of these assumptions and how they inform the perception of CRSV prevention as a legal matter. So, the reason why legal interventions are promoted as solutions to CRSV is here argued to be based on the belief that perpetrators are rational and that the state has to be sovereign and authoritative to prevent these crimes. The threat of penalties is then assumed to dissuade the rational perpetrator from strategically violating Congolese civilians or persuade commanders to forbid their subordinates from doing so. But, if the narrative had been guided by other ‘truths’, the solution to conflict-related sexual violence in the DRC would not have been to invest in the legal institutions of a collapsed and illegitimate state.
One the main limitation of this study is the current inability of ensuring the inclusion of all policy texts pertaining to the ‘End Impunity’ narrative. Due to the lack of a coherent policy
32 corpus containing all aspects of the UN’s legal interventions to end CRSV, this analysis may provide an inconclusive account of the narrative. This flaw could be remedied by conducting a larger and more comprehensive analysis of the UN’s position on the legal aspects of sexual violence prevention by, for example, including a wider range of actors and agencies as material providers. It could also be argued that by not limiting the study to the ‘End Impunity’ narrative, we could get a more complete view of how the problem of CRSV is represented by the UN, and that this could potentially circumvent the issue with material by simply examining all texts produced by the UN regarding the prevention of sexual violence in war. These alternatives are unfortunately beyond the scope of this thesis, but further research into the UN’s general strategies of CRSV prevention should be conducted in order to conclusively establish the assumptions guiding the organization’s work.
Despite these limitations, this thesis offers a deeper understanding of the ideations that grant the ‘End Impunity’ narrative its status as the preferred solution to end sexual violence in conflict. By identifying the UN’s reliance on political concepts such as human rights, rule of law and ‘modern’ institutions, this thesis demonstrates how the ideational scaffolding of the dominant discourse on conflict-related sexual violence is influenced by the norms of the West. This implies that despite its attempt to “accelerate national ownership” (UNSC Res 2556: §29iif) of the reconstruction of Congolese legal institutions, the policies guiding this work continues to be based on Western ideas of what the outcome of this reconstruction should be. Whilst further research is needed into the general view of the United Nations, the insights from such a central case as the ‘pilot country’ DRC can be considered indicative of the organization’s dominant themes of CRSV prevention. The results of this thesis thus indicate that the UN’s ‘End Impunity’ narrative is part in reproducing ideas about the superiority of Western standards by justifying the imposition of Western values into non-Western state institutions in the name of ending sexual violence in war. The implication of this is thus the recognition of the political and conceptual bias of the ‘End Impunity’ narrative and the lack of contextualization inherent in its policy recommendations. If what the UN really wants is to increase national sovereignty and capacity to deal with the issue of CRSV, this process should start by allowing the nation to speak for itself and allow it to create the capacity and sovereignty it has reason to value.
This thesis hopes to ignite further debate and discussion about how to manage and perceive the problem of CRSV in the DRC and around the world. Whilst the UN’s renewed attention to survivors of sexual violence crimes can be seen as an attempt to ‘bring the people back in’, this thesis concludes that the ‘End Impunity’ narrative fails to include the voices, wishes and desires
33 of the people of the DRC, and that if we want to achieve this, we need to find ways of tackling the problem of CRSV that do not center on the reconstruction of an illegitimate state in the image of ‘our’ own. The policies claiming that the introduction of human rights, state sovereignty and independent courts will save the DRC from its lawless condition thus continues to rely on the idea that ‘our’ way of life can and will transform their countries and protect or rescue their people from their bad men.
34 7. References
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Appendix 1 Category 1 Actor Name and (year) Ref. UN Security Council 2348 (2017) 2409 (2018) 2502 (2019) 2556 (2020) UN Secretary-General S/2020/554 (2020) UN Team of Experts on the Annual Report 2017 (2017) Rule of Law and Sexual Violence in Conflict Category 2 Pramila Patten Statement 2017-12-15 Speech 2018-05-01 Press Statement 2019-07-11 2019a Press Statement 2019-11-08 2019b Statement 2020-07-21 2020b Press Statement 2020-11-24 2020a Leila Zerrougui Strengthening the Rule of Law and Protection of Civilians in the Democratic Republic of the Congo (2018) 39 9. Appendix 2 OSRSG-SVC, 2017, Joint Statement by the Special Representatives of the Secretary-General on Sexual Violence in Conflict and for Children and Armed Conflict Commending Landmark Conviction for Crimes against Humanity by the Democratic Republic of the Congo in the Kavumu Child Rape Cases, 15 December, United Nations, [online] available at: https://www.un.org/sexualviolenceinconflict/statement/joint-statement-by- the-special-representatives-of-the-secretary-general-on-sexual-violence-in-conflict-and- for-children-and-armed-conflict-commending-landmark-conviction-for-crimes-against- humani/ [Accessed 2021-04-16] OSRSG-SVC, 2018, SRSG-SVC Pramila Patten Remarks at the Panel Discussion “The Use of Targeted UN Sanctions to Address Conflict-Related Sexual Violence”, 01 May 2018, Permanent Mission of France to the UN, New York, 2 May, United Nations, [online], available at: https://www.un.org/sexualviolenceinconflict/statement/srsg-svc-pramila- patten-remarks-at-the-panel-discussion-the-use-of-targeted-un-sanctions-to-address- conflict-related-sexual-violence-01-may-2018-permanent-mission-of-france-to-the/ [Accessed 2021-04-15] OSRSG-SVC, 2019a, UN Officials Welcome Conviction of Bosco Ntaganda by the International Criminal Court (ICC) for War Crimes and Crimes Against Humanity including Murder, Rape and Child Abduction, 11 July, United Nations [online], available at 40 S/2020/554, 2020, United Nations Organization Mission in the Democratic Republic of the Congo: Report of the Secretary-General, 18 June, [online] available at: https://undocs.org/en/S/2020/554 [Accessed 2021-04-18] TOE, 2017, Annual Report 2017, United Nations, [online] available at: https://www.un.org/sexualviolenceinconflict/wp-content/uploads/report/team-of- experts-annual-report-2017/TOE-ANNUAL-REPORT-2017.pdf [Accessed 2021-04-10] UNSC Resolution 2348, 2017, S/RES/2348, 31 March, [online] available at: https://undocs.org/S/RES/2348(2017) [Accessed 2021-04-01] UNSC Resolution 2409, 2018, S/RES/2409, 27 March, [online] available at: https://undocs.org/en/S/RES/2409(2018) [Accessed 2021-04-01] UNSC Resolution 2502, 2019, S/RES/2502, 19 December, [online] available at: https://undocs.org/en/S/RES/2502(2019) [Accessed 2021-04-01] UNSC Resolution 2556, 2020, S/RES/2556, 20 December, [online] available at: https://undocs.org/en/S/RES/2556(2020) [Accessed 2021-04-01] Zerrougui, L., 2018, Strengthening the Rule of Law and Protection of Civilians in the Democratic Republic of the Congo, United Nations, 1 April [online] available at: https://www.un.org/en/chronicle/article/strengthening-rule-law-and-protection-civilians- democratic-republic-congo [Accessed 2021-03-31] 41