Article by Susan Hutchinson.
Justice has been a prevalent aspect of every WPS resolution passed by the United Nations Security Council. The resolutions are grounded in the architecture of women’s rights and international justice. The relevance of a gender perspective is articulated with regards to a range of security related justice tasks. Most significantly, the resolutions have continued to build on accountability mechanisms for conflict related sexual violence. But, perhaps because it doesn’t naturally fit in any of the ‘pillars’ that were developed to support implementation; issues of justice are often lost along the path to implementation.
Since resolution 1325, all the WPS resolutions have recalled or reaffirmed the rights of individuals and obligations of states under international humanitarian law and international human rights law. Six out of eight resolutions have recalled the Beijing Platform for Action, which remains the most comprehensive document on women’s rights; and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Many also recall the Optional Protocol to CEDAW, which allows individual’s recourse to the UN if a state fails to uphold the provisions of the Convention.
A range of security related justice tasks are discussed in the suite of WPS resolutions. In resolution 1888, the Security Council focus on access to justice, the rule of law, legal and judicial reforms, investigations and prosecutions. Resolution 2106 draws attention to transitional justice mechanisms. Resolution 2122 outlines measures to enhance women’s participation in post-conflict peacebuilding, electoral processes, legal & constitutional reform, and security sector reform.
But over half of the WPS resolutions are primarily concerned with sexual and gender based violence in armed conflict. Operative paragraph one of resolution 1820 “stresses that sexual violence, when used or commissioned as a tactic of war in order to deliberately target civilians or as a part of a widespread or systematic attack against civilian populations, can significantly exacerbate situations of armed conflict and may impede the restoration of international peace and security…effective steps to prevent and respond to such acts of sexual violence can significantly contribute to the maintenance of international peace and security.”
Sexual violence is rife in situations of armed conflict. When sexual violence is committed as part of an armed conflict, it is a war crime. When that violence is committed in a widespread and systemic way, against the civilian population, it is a crime against humanity. When it used to destroy, in whole or in part, an ethnic, racial or religious group it is genocide. The WPS resolutions reiterate that sexual violence is not a natural consequence of war. Nor is it a “lesser crime”. In resolution 1960, the Security Council acknowledged the woeful lack of prosecutions for these crimes in national, international or hybrid courts.
The resolutions have become increasingly proactive in their calls to end impunity. It was in resolution 1889 that the Security Council most succinctly stated that it’s “the responsibility of all States to put an end to impunity and to prosecute those responsible for all forms of violence committed against women and girls in armed conflicts, including rape and other sexual violence.” That responsibility comes not just from the Security Council Resolutions, but from the principle of complementarity of the Rome Statute of the International Criminal Court which requires all States Parties that have the capacity investigate and prosecute the crimes contained therein.
Significant evidence has been compiled on the use of sexual violence as a war crime, crime against humanity and genocide by Da’esh in Iraq and Syria. But, international security assistance has appeared to be been blind to the WPS aspects of the conflict. When the battle to retake Mosul began last year, thousands of enslaved Yazidi women were held captive in the city, but no planning or operational considerations provided for their rescue and thousands still remain captive there today.
At last year’s open debate on WPS, Iraq called for international assistance for the investigation and prosecution of those crimes within their territory. Last week, the human rights lawyer who represents victims of the Yazidi genocide addressed a meeting at the UN. She demanded to know, “why has nothing been done?” She said, “there has been no vote, no resolution, no investigation… Instead, mass graves in Iraq still lie unprotected and un-exhumed. Witnesses are fleeing. And there is still not one ISIS militant who has faced trial for international crimes anywhere in the world.”
Over 100 Australians are estimated to be fighting with Da’esh and other extremist groups in Iraq and Syria. Under Australian legislation, sexual violence as a war crime, crime against humanity and genocide is outlawed under the Criminal Code Act (1995), from the War Crimes Act (1945), Geneva Conventions Act (1957) and International Criminal Court Act (2002). Australia’s legislation against sex trafficking, may also apply. All these laws apply to Australians overseas. Despite that, the Attorney-General’s Department remains stubbornly unengaged in the implementation of the
The ABC’s 7.30 Report has gathered first hand testimony from Yazidi survivors who were purchased and abused by Australian foreign fighters. ‘Layla,’ who gave her testimony with a protected identity, hoped that someday, the Australian government would punish the terrorists who so brutally violated her. She said ‘if those terrorists are ever caught, they must make sure that they will never escape. I want them to punish those terrorists.’ But rather than investigate and charge the individual responsible for these crimes, the Department of Immigration and Border Protection merely revoked the citizenship of one of the individuals concerned.
For Australia to truly support an end to impunity for sexual violence in armed conflict, the government needs to investigate and prosecute our own nationals. These investigations need to occur alongside those for terrorist offences; and need to not be subordinate to those, immigration or other offences. The relevant ministers need to provide tasking and resources to the investigative authorities and provide any necessary policy support from the public service.
If you would like to join the campaign for justice, visit prosecute; don’t perpetrate to find out more and take action.
Susan Hutchinson is the architect of the prosecute; don’t perpetrate campaign and is undertaking a PhD at the Australian National University. She is also a member of the Australian Civil Society Coalition on Women, Peace and Security.