Violence Against Women in Conflict and the Effect of International Law

Mercedeh Momeni, an international law attorney and women’s rights advocate, shared her thoughts on combating violence against women and the effect of international law at a recent luncheon attended by roughly 50 people. Attendees included women and men from Darfur and Southern Sudan. I had the pleasure of sharing my table with women from the State Department, the Peace Corps, a Senator’s office, and the Johns Hopkins School of Advanced International Studies. The luncheon was sponsored by the United Nations Association in Washington, D.C. and the Africa Interest Group of the Young Professionals for International Cooperation. Ms. Momeni previously served as Associate Legal Officer at the ad hoc UN International Criminal Tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY). She also investigated the genocide in Darfur as a member of the Atrocities Documentation Team of the U.S. Department of State.

Mercedeh Momeni
February 11, 2009, Marrakesh Palace Restaurant, Washington, D.C.

Did You Know?

1 in 3 women
will be the victims of gender-based violence

70% of women
in some countries will be the victims of gender-based violence

Ms. Momeni began her presentation by using statistics to frame the magnitude and seriousness of violence against women worldwide. On average, one in three women will be the victim of sexual violence. In some countries, sexual violence can impact nearly 3 out of 4 women. The 1-in-3 statistic is commonly attributed to a 2003 report, titled “Not a Minute More: Ending Violence Against Women,” published by the United Nations Development Fund for Women (UNIFEM). The report’s introduction stated: “One in three women throughout the world will suffer this violence in her lifetime; she will be beaten, raped, assaulted, trafficked, harassed or forced to submit to harmful practices such as female genital mutilation (FGM).”

She then briefly reviewed the historical practice by international courts and tribunals. After World War II, the trials of Nuremberg and Tokyo gave little regard to gender-based crimes, even though there was substantial evidence to support convictions for rapes and forced abortions. As a historical note, but not part of her talk, one of the few cases dealing with violence against women as part of the criminal charges was Hirota. In that case, Baron Koki Hirota, the former Foreign Minister of Japan during WWII, was convicted by the International Military Tribunal for the Far East (IMTFE) for crimes committed during the rape and mass killings of Nanking, China in 1937-1938 and was sentenced to death. Prosecutors demonstrated, in part, that Hirota “deliberately and recklessly disregarded his duty” to take adequate steps to prevent the atrocities of “mass murder, rape, pillage, brigandage, torture and other barbaric cruelties upon the helpless civilian population.”

Violence Against Women: Past 15 Years Under International Law

In the 1990s, she says, the ICTY and ICTR initially gave little treatment to gender-based crimes. It was during witness testimony in the case of Akayesu before the ICTR that prosecutors and observers to the court learned of the accused’s alleged participation in allowing rape to occur. Pressure from human rights organizations and other civil society organizations contributed to an amendment of charges against Jean-Paul Akayesu to include rape. Due to time constraints, Ms. Momeni did not describe the details of the case. Briefly, Akayesu was the former mayor (bourgmestre) of Taba in Rwanda. Prosecutors demonstrated that at least 2,000 Tutsis were killed in his commune and that the civilian refugees who sought protection at the government offices were victimized with his knowledge and, sometimes, in his physical presence. Pertinent here, female civilians were subjected to sexual violence and explicit threats of bodily harm and death. Prosecutors demonstrated that this sexual violence was systematic and directed at destroying an ethnic group, as such. In legal terms, prosecutors showed that Akayesu committed a prohibited genocidal act (actus reus) with a specific genocidal intent (mens rea) to destroy, in whole or in part, the Tutsis, thereby making him criminally liable for the crime of genocide. The case of Akayesu represents a landmark decision in international criminal law as the first conviction of rape as a crime of genocide. In the case, the ICTR also defined the term “rape,” which was undefined in the tribunal’s authorizing mandate.

I recommend that you see the following two cases:

Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, 500-01 (ICTR Sept. 2, 1998) (convicting the defendant for “genocide” for the first time in history, including rape as an act of genocide, defining rape as “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive), aff’d, (June 21, 2001).
Prosecutor v. Krstic, IT-98-33, Judgment, 509-14, (ICTY Aug. 2, 2001) (discussing “rape camps” and genocide).

She used the historical perspective to illustrate a normative shift from considering gender-based violence as a nonjusticiable public health or cultural concern to treating violence against women as a legal issue. Specifically, violence against women is now regarded as a human rights violation under international law. This shift of imposing criminal culpability, particularly over the past 15 years, can be tracked to increased political will and legal mechanisms to prosecute crimes of sexual violence that occur during armed conflict.

Some of the legal mechanisms during the past two decades that reflect the changing societal and legal attitudes with respect to gender-based violence include: (a) the UN General Assembly Declaration on the Elimination of Violence Against Women of 1993; (b) the Convention on the Elimination of Violence Against Women (CEDAW) of 1993; (c) the Beijing Declaration and Platform for Action of 1995, and (d) the Rome Statute of the International Criminal Court, which contains explicit language criminalizing rape under the crime of genocide and crimes against humanity.

To strengthen and expand upon past successes and the legal right of women to be free from sexual violence, she recommends a “Carrots and Sticks” regime. The two-prong approach would, on the one hand, enshrine women’s rights within domestic institutions, policies, and societal norms, and, on the second hand, transform the formal legal rights of women to substantive legal rights through prosecutions of perpetrators of gender-based violence.

Incentive-Based “Carrots”: Prevent, Protect, and Respond

Incentive-based programs, she said, should be used to strengthen domestic institutional mechanisms to prevent violence against women, protect victims, and respond to acts of violence. These incentives would be provided through grants to countries as an incentive for those countries to implement programs designed to decrease violence against women. Where the recipient country fails to make good on the promises of implementing the programs, the grants and other financial incentives would be withdrawn.

One example is the proposed International Violence Against Women Act (I-VAWA) to be reintroduced before the 111th U.S. Congress. This proposed legislation would amend the Foreign Assistance Act of 1961 to authorize the State Department to support programs abroad that incorporate measures to prevent and respond to violence against women. It also would authorize training programs of U.S. military and peacekeeping forces on the prevention of sexual violence. The proposed legislation was introduced in the Senate in 2007 by Senator Joe Biden and the House of Representatives (HR 5927) in 2008.

Criminal “Sticks”: Crime and Punishment

Acts of gender-based violence need to be investigated. If sufficient evidence is found, the perpetrators need to be prosecuted in accordance with domestic and international law. As a prosecutor, she would like to see every perpetrator of such crimes be prosecuted and brought to justice. Retributive justice through criminal prosecution, she believes, is an effective deterrent and provides victims with a sense of justice.

The Role of the International Criminal Court (ICC)

At the international level, she believes that future prosecutions at the International Criminal Court and any hybrid courts or tribunals should strive to prosecute acts of sexual violence, where applicable. A key topic of the day was the situation of Darfur and the potential rumored indictment of the current head-of-state Sudanese President Omar al-Bashir. One of the questions is whether the ICC should issue an arrest warrant for President al-Bashir if the consequences of such action might cause increased suffering for female civilians in Darfur. For example, an arrest warrant could derail the hope for successful peace talks and could threaten humanitarian aid targeted for Darfur. If the consequences of the arrest warrant are unknown or equally likely to cause further harm while bringing some victims a sense of justice for past atrocities, should action be taken now? Does justice need to wait for peace or should justice proceed at the risk of peace? in hope of peace?

Attendees from Darfur and Southern Sudan agreed that President al-Bashir needs to be brought to justice through criminal prosecution. One gentleman from Southern Sudan expressed frustration with the slow wheels of justice and international action.

Additional commentary: Not brought up at the luncheon but worth watching is whether Prosecutor Luis Moreno-Ocampo will bring charges for rape and systematic sexual violence with respect to the situation in Darfur. The ICC is expected to issue 4 arrest warrants for Darfur later this month. See also my earlier blogs on UN Security Council’s referral of the Darfur case to the ICC in 2005, the ICC Prosecutor’s evidence submitted to the Trial Chambers, and a few frequently asked questions about the Darfur referral.

About Mercedeh Momeni

Mercedeh Momeni has significant experience working on international legal issues related to war crimes, crimes against humanity, and women’s rights. She has worked at the U.N. International Criminal Tribunals for Rwanda and the former Yugoslavia. She investigated the genocide in Darfur as a member of the Atrocities Documentation Team of the U.S. Department of State and has conducted workshops in Nigeria and Uganda on advocacy and the rule of law for women activists and lawyers. She has also worked for Amnesty International USA and clerked at the U.S. Department of Justice, Office of International Affairs. She sits on the boards of women’s and human rights groups in the U.S. and abroad. She currently practices law in Washington, D.C.

About the United Nations Association

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Resources

International Law on Women’s Rights

United Nations General Assembly Declaration on the Elimination of Violence Against Women (A/RES/48/104). (The Declaration is not legally binding.)
Convention on the Elimination of Violence Against Women (1993) (legally binding to parties that ratify the treaty. The United States signed the treaty on July 17, 1980 but has not ratified the treaty. See my earlier blog on pending treaties before the Senate under the incoming Obama administration.)
The Beijing Declaration and Platform for Action of 1995

International Courts, Tribunals, and Commissions

United Nations Agencies and Programs

Organizations Working to Advance Women’s Rights

Country-Specific

Articles and Reports

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