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The Hague Jolie Declaration: ending impunity for sexual crimes in conflict?

Anna Bragga interviews international criminal and human rights lawyer Hugo Charlton on the evolving efforts to recognise rape and sexual violence as weapons of war, and the means for accountability.

Rape and other acts of serious sexual violence in armed conflict are to be recognised as grave breaches of the Geneva Convention as well as war crimes, according to an announcement by British Foreign Secretary, William Hague and UN Special Envoy Angelina Jolie, at a G8 meeting on April 11th 2013.

The new Declaration on Preventing Sexual Violence in Conflict agreed by ministers, elevates the most under reported and least prosecuted aspect of war to a new status, on a par with wilful killing and torture, and provides a framework for investigating and prosecuting offenders. The move is welcome news to campaigners working to end sexual violence, and it sounds good on paper, but how easy will it be to enforce?

Since 1949, signatories to the Geneva Convention have been provided with recourse to prosecute offenders of such crimes under Grave Breaches of the Third and Fourth Conventions where acts of torture and 'wilfully causing great suffering or serious injury to body or health' are listed as war crimes. But a combination of apathy, differences of opinion, and an absence of jurisdictional framework have allowed a culture of impunity to flourish in war zones. The Hague Jolie Declaration could change that according to international criminal and human rights barrister, Hugo Charlton, who says:

If the G8 are correct in asserting that sexual violence during conflict is a grave breach of the Geneva Convention, such conduct will have to be prosecuted by all signatories to the Convention. If there’s a grave breach, all signatories are obliged to search for the people who have committed these crimes or ordered them to be committed, and they must be brought to trial. The significance of acting under the Geneva Conventions is that it does not require approval by the UN Security Council nor does it require the involvement of the International Criminal Court. Britain and others can act alone.

There has been a steady build up of political will of late to recognise sex crimes as a weapon of war, marked by the United Nation's Resolution 1820 (2008) which demands the “immediate and complete cessation by all parties to armed conflict of all acts of sexual violence against civilians with immediate effect”, and that all parties to armed conflict “immediately take appropriate measures to protect civilians, including women and girls, from all forms of sexual violence...”. Little has been done to enforce the sentiments expressed in the resolution, until now.

The UK is poised with teams of lawyers, investigators, psychosocial workers and other experts for deployment in support of existing national and international efforts. It's a well thought out strategy, but questions arise over how the initiative will work in practice when war rape and enforced prostitution are still largely regarded as low-status gender-specific abuse committed by men against women, of a personal rather than a political nature; one of the spoils of war rather than a tactic, a systematic form of ethnic cleansing.

The £23 million fund being allocated to support international projects addressing sexual violence against women and girls in conflict may only be a fraction of the billions spent on foreign aid (the UK's official development assistance budget is expected to top £11.3bn this year), but it's a step in the right direction towards tackling a problem long ignored.

The news comes amid aid agency reports of an epidemic of sexual violence sweeping through war torn Syria, where some 90,000 women and children have fled rape and sexual torture with many heading for camps close to the borders of neighbouring Jordan, Lebanon, Iraq and Turkey.

Three International Rescue Committee (IRC) assessments in Lebanon and Jordan identify sexual violence as a primary reason for Syrian families fleeing their country. The IRC’s recent report, Syria: A Regional Crisis, cites many women and girls disclosing accounts of being attacked in public or in their homes, mainly by armed men. It's not uncommon for rapes to be committed by multiple perpetrators, often in full view of family members. The agency also heard of women and young girls being kidnapped, raped, tortured and killed.

The collection of witness and victim statements is key to the success of the initiative, but this is likely to prove challenging in patriarchal cultures where rape is stigmatised and shame falls on the victim. Syrian women are faced with the threat of retribution not only by assailants but also family members. Safeguarding a woman's honour is viewed as the highest priority. In one extreme case a young woman was shot dead by her father when an armed group approached to prevent the "disgrace" of her being raped, writes Julie Bindell, in Standpoint, April 2013. 

Charlton, who in 2000 drew attention to the problem of sex trafficking in the Balkan Wars before it was widely acknowledged, adds:

You hold the commanders responsible because they are the ones who control the troops or militias. They are the ones who seem to be allowing it. The victim would need to identify the unit or group which has participated in the rape by describing the insignia or other identifying features, and that would be related to intelligence reports over who was operating in the area at the time. Then the identity of the commander, and possibly the perpetrators, could be ascertained. Evidence could be given anonymously. When it comes to a court hearing, anonymity could be preserved and the evidence read. So the Declaration is not just a theoretical deterrent; it could result in convictions.

For rape victims of governmental forces the path to justice is strewn with further obstacles. They would have to wait until the war was over and a new regime installed before pursuing prosecutions, says Charlton. “The Geneva Convention could not be used against the regular Syrian Army as the 1977 Protocol II, which deals with civil war, excludes government troops, but would enable prosecutions against jihadist groups, irregular militias and the Free Syrian Army.”

Safe havens like the Zaatari refugee camp in Northern Jordan have become magnets for sexual predators, pimps and traffickers, who prowl the latrines at night while law enforcement agencies turn a blind eye or are too powerless to act. NGOs operating in the camps report inadequate health, counselling and legal services for victims of sex crimes. So, what then, are the chances of a conviction in these cases? 

Charlton points out:

If a Syrian refugee were to report rape by domestic forces, such as local militia, the principles of the Declaration would apply. An aid worker from any country – including Britain – should then report the crime to their government authority and an investigation and search for the culprits commence. Offences taking place on the camps wouldn't fall under the the Declaration, because the sites are not in areas of conflict.  Responsibility for investigation and prosecution would then fall with the host country.

For generations of women and children traumatised by war rape and other sexual violations, the Hague Jolie Declaration is too little, too late. The identity of perpetrators makes little difference to victims, for whom the distinction between internal and international conflict is purely academic. For those lucky enough to come into contact with a member of an NGO with links to investigators and lawyers, the lure of justice glimmers in the distance, with little chance of it becoming a reality. Leaders of nations need to work together to dismantle the cultural taboos and societal norms that protect sexual predators, and demonstrate through rigorous investigations and prosecutions that there will be no hiding place for men who use rape as weapon of war.


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