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