Accountability and Impunity: Developments and Challenges in Realizing Justice for Women Victims of Violence

The following article was published in the March 2020 issue of the International Review of Contemporary Law, the journal of the IADL.

by Rashida Manjoo

Introduction

I served as the UN Special Rapporteur on violence against women, its causes and consequences from 2009 to 2015. Holding this position over six years has been a privilege, as it has allowed for a global overview of the issue of violence against women, whether in times of peace, conflict, post-conflict, displacement or transitions. Over the existence of the mandate, all mandate-holders have in different reports and statements, raised our concerns about the lack of acknowledgement, accountability and transformative redress for harms experienced by women and girls. Four years since the end of my term, focusing on the gains as well as the challenges that we face in respect to accountability for crimes experienced by women, whether they occur in the public or private spheres, is an imperative that cannot be ignored. Lack of accountability for gender-based violence “compounds the effects of such violence as a mechanism of control. When the State fails to hold the perpetrators accountable, impunity not only intensifies the subordination and powerlessness of the targets of violence, but also sends a message to society that male violence against women is acceptable and inevitable. As a result, patterns of violent behaviour are normalized.”

As I highlighted in my 2013 report to the Human Rights Council, “Despite numerous developments, violence against women remains endemic, and the lack of accountability for violations experienced by women is the rule rather than the exception in many countries.” In 2020, this remains an accurate assertion. Some common issues linked to the culture of impunity include the lack of acceptance of violence against women as a human rights issue; inadequate State responses; insufficient effort made to tackle the problem in a systematic, comprehensive and sustained manner; minimum time and resources allocated to this issue; inadequate attention devoted to the investigation of patterns, causes and consequences of violence; and low levels of prosecutions and convictions, among others. This article will focus on sexual violence in conflict and post-conflict situations.

Positive Developments

Historically, international law has rendered invisible the issue of sexual violence against women, including through linking sexual violence to notions of morality, honour and inhumane acts – rather than as specific gendered crimes against women. However, the International Criminal Court in its definitions of genocide, war crimes and crimes against humanity, does include a gendered approach to sexual violence crimes. They include rape, sexual slavery, forced prostitution, forced pregnancy, enforced sterilisation, and any other form of sexual violence of comparable gravity including indecent assault, strip searches and inappropriate medical examination. The Protocol on Women in Africa (Maputo Protocol) is the only treaty that defines violence against women as “all acts perpetrated against women…in private or public life in peace time and during situations of armed conflicts or of war.” Article 11 (3) places obligations on States “to protect…against all forms of violence, rape and other forms of sexual exploitation, and to ensure that such acts are considered war crimes, genocide and/or crimes against humanity.” Thus, recent definitions of rape in international and regional law instruments have aimed to remove the “family honour/inhumane treatment” underpinnings in relation to sexual violence against women, and have started to identify rape as a crime. This development has led to changes in some national contexts.

The 1993 UN Declaration on the Elimination of Violence against Women recognises women in conflict situations as a vulnerable group and thus its definition of violence against women would include cases arising in conflict situations. The 1995 Beijing Platform of Action includes women in conflict as one of its twelve areas of concern and highlights the types of sexual violence that violate women’s rights in times of armed conflict. Other international standards addressing gender-based violence in conflict and post-conflict settings draw on provisions from various human rights documents that protect women’s equality and non-discrimination rights. Although violence against women, in its broadest sense, is not specifically addressed in the Convention on the Elimination of all forms of Discrimination against Women (CEDAW), some provisions are used to address sexual violence, including articles 2, 5 and 6. In addition, CEDAW’s General Recommendation 28 articulates important guidelines for States parties in post-conflict settings including calling on States to collect information on the impact of conflict on women, and to ensure that adequate responses are implemented. Also, States parties are obligated to evaluate the de jure and de facto situation of armed conflicts and its impact on women and to take steps to eliminate discrimination. In 2013, CEDAW adopted GR 30, which highlights concerns about the gendered impacts of conflicts and women’s exclusion from conflict prevention efforts, post-conflict transition and reconstruction processes. Standard-setting has prioritised attention toward sexual violence in armed conflict, but despite this, the reality is that such violations continue with impunity.

The United Nations Security Council is charged with the maintenance of international peace and security. Its powers include the establishment of peacekeeping operations, international sanctions, and the authorization of military action through the adoption of resolutions. The Security Council has adopted nine resolutions under the theme of women, peace and security – with a focus on women’s human rights and gender equality in conflict situations. The first resolution adopted in 2000, resolution 1325, was the first time that the Council addressed the differential and unique impact of armed conflict on women. It is a milestone for addressing violence against women in armed conflict, as it applies both human rights and humanitarian laws to address the issue. Resolution 1325 recognises the need to protect women and girls during and after armed conflict and calls on States parties to take special measures to protect women and girls from gender-based violence, particularly rape and other forms of sexual abuse. It also stresses the importance of women in peace-building processes and their equal participation and full involvement in peace and security efforts.

Since the adoption of resolution 1325, the Security Council has adopted further resolutions linked to conflict situations, under the theme of women, peace and security – with a focus on women’s human rights and gender equality. They include resolutions 1820, 1888, 1889, 1960, 2106, 2122, 2242 and 2467. These eight resolutions facilitate implementation, enforcement and oversight mechanisms for the realization of the women, peace and security agenda. The resolutions specifically recognise that sexual violence is a threat to security (national, regional and international), and that it is viewed as a tactic of war and as an impediment to the process and restoration of international peace and security. The resolutions identify factors that contribute to sexual violence, including inadequate measures to prevent sexual violence and protect civilians; lack of addressing of impunity for sexual violence; and inadequate addressing of continuing gender-based discrimination. The resolutions also focus on the need to establish a comprehensive framework towards implementation and enforcement of the women, peace and security agenda.

These resolutions have led to numerous developments including the following: the UN Secretary General is mandated to table reports on an annual basis to the Security Council; the appointment of a Special Representative of the Secretary General (SRSG) on Sexual Violence in Conflict; the establishment of the UN Action against Sexual Violence in Conflict as the inter-agency coordination forum (which is chaired by the SRSG); the appointment of a Team of Experts on Rule of Law and Sexual Violence in Conflict (to support efforts at the national level); the appointment of Women Protection Advisers; the provision of research and technical assistance by UN entities; the development of indicators; the adoption of a tool on Monitoring, Analysis and Reporting on conflict-related sexual violence; the referral of situations and named individuals to the Sanctions Committee of the Security Council; and the creation of an Informal Experts Group on Women, Peace and Security. Unfortunately, since 2000, the annual reports tabled by the Secretary-General generally indicate that there continues to be gaps in the linkage between women, peace and security in conflict and post-conflict settings. Also, the fifteen-year Impact Study on Resolution 1325 reflects an increase in the number of allegations of sexual exploitation and abuse (including by armed groups, peacekeepers and state agents).

The most recent resolution adopted by the Security Council in April 2019 is Resolution 2467. The original draft of the resolution stressed the importance of accountability and a survivor- centered approach to address the root causes and detrimental effects of sexual violence in conflict. The accountability recommendation highlighted the need to adopt a new mechanism in the form of a “Formal Working Group of the Security Council on Women, Peace and Security.” But after objections by some member states, including Russia and China, it was removed from the final text of the resolution. Another contentious issue in the draft resolution was the inclusion of language regarding “sexual and reproductive health and rights.” The USA strongly opposed the inclusion of this language, and threatened to veto the resolution if it was included. Thus, this language was omitted from the final resolution. On a positive level, the resolution does include some new language recommending a victim-centered approach, the need for non-discrimination and specificity in prevention and responses, and the necessity to respect the rights and needs of survivors.

Continuing Gaps and Challenges

A holistic approach to remedies requires States to recognize the existence of structural and institutional inequalities linked to violence and discrimination. Whether this is based on race, ethnicity, national origin, ability, socio-economic class, sexual orientation, gender identity, religion, culture, tradition or other realities – inequalities and discrimination often intensify acts of violence. Efforts to end all forms of violence must consider not only how individual lives are affected by the immediate impact of abuse, but also how structures of discrimination and inequality perpetuate and exacerbate a victim’s experience. Interpersonal, institutional, communal and structural forms of violence perpetuate gender inequalities, but also racial hierarchies, religious orthodoxies, ethnic group exclusionary practices, and resource allocation that benefit some groups of women at the expense of others. Interventions that seek to only address the individual harm, and which do not factor in women’s realities, are not challenging the fundamental and root causes of this human rights violation. Adopting a holistic model with regards to gender-based violence requires an understanding of the ways in which inter- and intra-gender differences exist. In meeting their international legal obligations, States must bear in mind that discrimination affects women in different ways depending on how they are positioned within the social, economic and cultural hierarchies that prohibit or further compromise certain women’s ability to enjoy universal human rights.

Studies reveal a correlation between prevalence rates and effective and responsive accountability measures. The exercise of due diligence requires that States have a responsibility to: (a) conduct effective investigations of the crime, and prosecute and sanction acts of violence perpetrated by State or private actors; (b) guarantee de jure and de facto access to adequate and effective judicial remedies; (c) include in the obligation of access to justice, a requirement to treat women victims and their relatives with respect and dignity throughout the legal process; (d) ensure comprehensive and transformative reparations for women victims of violence and their relatives; (e) identify certain groups of women as being at particular risk for acts of violence due to having been subjected to discrimination based on more than one factor, including women belonging to ethnic, racial and minority groups; and (f) modify the social and cultural patterns of conduct of men and women and eliminate prejudices, myths and stereotypes regarding the status of women.

The right to an effective remedy is a fundamental human right under numerous international treaties. States have an obligation to guarantee de jure and de facto access to adequate and effective remedies for women subjected to violence. Generally, the right to a remedy should include: access to justice, reparation for harm suffered, restitution, compensation, satisfaction, rehabilitation, and guarantees of non-repetition. Timely arrests, effective prosecutions and appropriate punishment are positive measures that enhance women’s access to justice. Failure to investigate, prosecute and punish acts of violence against women violates the obligation of States to act with due diligence to protect, prevent, prosecute and provide effective redress, including through ensuring the effective implementation of relevant laws.

Transformative remedies, as articulated by women victims, must include among others:

  • Understanding the root causes of violence against women, and acknowledging that it functions on a continuum, both temporally and spatially;
  • Defining harm in a gendered way;
  • Ending impunity and ensuring accountability;
  • Providing for broad-based reparations, including compensation;
  • Working on women’s human rights reforms, including protecting and promoting equality, dignity and non-discrimination rights;
  • Providing comprehensive health services;
  • Addressing shelter and longer-term housing needs;
  • Providing for educational opportunities, including for children;
  • Addressing economic realities of women; and
  • Promoting the political participation of women, including in post-conflict governance.

Conclusion

Violence against women impedes women’s realization of a broad range of human rights that are essential to the exercise of full participatory citizenship. Although progress has been achieved in advancing women’s and girl’s human rights as well as gender equality at the national, regional and international level, there are gaps and challenges that have not been adequately addressed. Continuing and new sets of challenges that hamper efforts to promote the human rights of women and girls can be linked largely to the lack of a holistic approach that addresses individual, institutional, communal and structural factors that are a cause and a consequence of violence against women and girls.

Achieving the goal of a life free of all forms of violence against women and girls, through both a temporal and spatial lens, requires addressing the pervasive culture of impunity.. The international community explicitly acknowledged violence against women as a human rights issue when it adopted the Vienna Declaration and Program of Action at the World Conference on Human Rights in 1993. However, States are not being held accountable for failing in their responsibility to effectively promote the rights of women and girls, including through the provision of transformative redress measures for human rights violations. The lack of accountability has resulted in a culture of impunity for crimes committed against women, and this in turn has led to the normalisation of violence against women in many societies. The rise in the rates of gender-related killings of women, which is the ultimate act of violence against women on a continuum of violence, is a reflection that responding effectively to all manifestations of violence is not a priority for many States.

Gender-based violence impedes peace and sustainable development by obstructing women’s participation and undermining many of the goals of development. Some human rights policies have recognized that “violence against women is an obstacle to the achievement of the objectives of equality, development and peace . . . [where] in all societies, to a greater or lesser degree, women and girls are subjected to physical, sexual and psychological abuse that cuts across lines of income, class and culture.” Other human rights instruments guarantee the right to development, “by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, and in which all human rights and fundamental freedoms can be fully realized.”

Despite numerous developments, it is unfortunately clear that there is a long way to go to fully and substantively address violence against women, to achieve gender equality and non- discrimination goals, and to attain the substance of the Sustainable Development Goals. It is crucial that we continue our quest for a better world, one where justice and accountability are the norm.

Rashida Manjoo is a Professor in the Department of Public Law, University of Cape Town, South Africa, where she convenes the Human Rights Program. Prof Manjoo has over four decades of experience in social justice and human rights work both in South Africa and abroad. Until July 2015, she held the position of United Nations Special Rapporteur on Violence against Women, its Causes and Consequences, a post she was appointed to in 2009 by the United Nations Human Rights Council. Prof Manjoo is the former Parliamentary Commissioner of the Commission on Gender Equality, an institution created by the Constitution of South Africa, with a mandate to oversee the promotion and protection of gender equality and women’s rights.

1 U.N. Secretary-General Report 2006 at 76.
2 UN Special Rapporteur on Violence against Women, Report to the Human Rights Council (2013) at 69.
3 Beijing Platform for Women, 1995, ¶ 112; See also International Conference on Population and Development, Programme of Action, ¶ 4.9; ICPD +5, Key Action, ¶ 48.
4 UN General Assembly, Declaration on the Right to Development, art. 1, U.N. Doc. A/RES/41/128 (December 4, 1986).