Stronger legal frameworks needed to address sexual violence in conflict

Sexual violence by Myanmar’s armed forces against Rohingya women and girls – described by the United Nations in December 2017 as ‘widespread and systematic’ – and recent cases of male rape in Libya and Syria have led to renewed calls for stronger legal frameworks to tackle state-endorsed sex abuses in conflict zones.

Various initiatives led by the UN and human rights agencies have sought to address the longstanding issue of rape as a weapon of war with mixed success.

However, with the UN recently reporting that large-scale sexual violence is being ‘commanded, orchestrated, and perpetrated’ by Myanmar’s military against Rohingya Muslims, the issue has been pushed back into the spotlight.

More than half the 480,000 refugees forced to flee Rakhine state in Myanmar to neighbouring Bangladesh are women and girls. According to the UN Populations Fund, since the first mass influx of refugees in August 2017, 1,644 victims have been treated for sexual violence, although it believes this ‘is only the tip of the iceberg’.

‘‘Rape as a weapon of war can only be stopped if the prohibition against abuse is duly enforced and perpetrators punished at all levels of the chain of command

Federica D’Alessandra, Co-Chair, IBA War Crimes Committee

There is mounting evidence of offences by uniformed military personnel, including rape, gang-rape, forced public nudity and humiliation, and sexual slavery in military captivity.

In December, the UN Special Representative on Sexual Violence in Conflict, Pramila Patten, spoke of the ‘grave violations of international humanitarian and human rights law’ committed against Rohingya females. ‘The widespread threat and use of sexual violence has served as a driver for forced displacement on a massive scale, and as a calculated tool of terror,’ she said.

Phumzile Mlambo-Ngcuka, Executive Director of UN Women, dedicated to gender equality and empowerment, says ‘new types of violence and torture, worse than anything we’ve ever seen before’ have been used against Rohingya women.

State officials in Myanmar have mostly dismissed allegations of sex abuse by soldiers as militant propaganda.

The Special Rapporteur on the situation of human rights in Myanmar, Yanghee Lee, who was barred from visiting the country by the government in late 2017, has emphasised the urgent need for a strong national law on violence against women to address weaknesses in the existing legislative framework in Myanmar.

A draft law has been in development since 2013 and has now been submitted to the country’s parliament. It stipulates the need to protect women from all forms of violence, including domestic abuse, marital rape, sexual violence and harassment. However, as Lee has highlighted, key provisions have been removed from the draft legislation, including those relating to the definition of rape and plans for a special court for gender-based violence.

The lack of action by the government in Myanmar has prompted calls for a stronger international response. The UN Special Representative says an impartial, independent mechanism to support investigation would be an important step. ‘Those who are found to be implicated in abuses should be removed from positions of command responsibility and prosecuted,’ she says.

Following a visit to Myanmar in mid-December to meet with the government, Patten announced the intention to adopt a joint communiqué on the prevention of and response to conflict-related sexual violence, in accordance with Security Council resolution 2106. ‘This will provide a framework for future cooperation and provision of technical advice and assistance, particularly to judicial and security sector actors,’ she said.

Patten has also called for $10m of urgent funding to deliver specialist services for survivors of gender-based violence in Myanmar.

However, Federica D’Alessandra, Co-Chair of the IBA War Crimes Committee and Carr Center for Human Rights Policy Fellow at Harvard Kennedy School, says more should be done: 'The Myanmar government is under an obligation to investigate and prosecute these crimes. Since it appears the government is unwilling or unable to do so, the international community should create criminal jurisdiction for an international body.’

According to D’Alessandra, the UN Security Council should refer the situation in Myanmar to the International Criminal Court or, at a minimum, set up an independent investigative mechanism empowered ‘not only to legally characterise the crimes, but also to collect linkage evidence to identify potentially culpable suspects’.

‘Rape as a weapon of war can only be stopped if the prohibition against abuse, which is already properly sanctioned under international humanitarian law, is duly enforced and perpetrators punished at all levels of the chain of command,’ she says.

Other recent reports from Libya and Syria document the widespread use of sexual violence against men and boys, often in incarceration, interrogation and detention contexts.

An investigation by a Tunis-based group, reported by several international newspapers including The Guardian in November, gave accounts of widespread and systematic male rape by rival factions as a method of exerting political pressure.

Meanwhile, a report by the UN High Commissioner for Refugees on sexual violence against men and boys held in detention in Syria has recommended a broad range of targeted interventions. According to the report, We keep it in our heart, issued in October 2017, one focus group estimated that 30 to 40 per cent of all adult men in their community had experienced sexual violence while in detention in Syria.

Nene Amegatcher is Chair of the IBA African Regional Forum: ‘In many countries… rape is gender-specific,’ he says. ‘There should be specialised units within the police and healthcare systems to address sexual violence against both genders.’

‘Resources should be available to help both sexes to report such acts perpetrated against them. Cases reported to legal institutions should be taken as urgent and says institutions should be ready to provide services or attend cases.’

In the context of Libya, D’Alessandra says a mechanism similar to Resolution 71/248, which established an international, impartial and independent mechanism to assist with accountability for the perpetrators of mass atrocity crimes in the Syrian civil war since March 2011, should be created.

The intention of this mechanism would be to both bolster Libya’s commitment to its own domestic accountability efforts, and collect and preserve evidence of international crimes.

‘The behaviour and attitudes of the political leadership are crucial for the creation of an environment of compliance. When the political leadership derails from basic principles of legality, such as the non-derogable inviolability of civilians, it is the duty of the legal community to put them on notice,’ D’Alessandra says.