Addressing Sexual Violence in Armed Conflict through the Rule of Law
By Kirthi Jayakumar
Law is a tool of social engineering, a particularly significant one when a country works towards transitioning out of conflict.The use of initiatives and schemes involving the Rule of Law has been a significant contributor in several instances. The initiation of a mechanism involving the Rule of Law has the potential of altering the course of a social and political set up, veering it towards peace. Such a transition cannot be single-handedly put in place by the Rule of Law alone, there needs to be a comprehensive mechanism to assess the problem. Nevertheless, the Rule of Law is a rather important part of such schemes.
The Rule of Law, can imply two things – one, that the law is supreme, and that people before it are equal in all respects, and two, that the law is the authority, the sanction, and the foundation for the subsistence of a society. For this paper, the Rule of Law signifies the latter. That the former is a concept of Utopian cadence is an argument of a different kind and therefore unfit for the purpose of this article. I aim to project that the suggestion of instituting a strong legal system with an equally strong implementation of the same is among the many things that needs to be addressed in handling a country that has been a thriving hotbed of crime, sexual violence and impunity. There is no guarantee that a legal provision or a legal system would put an end to impunity. Plenty of evidence exists to prove that even strong laws have not been able to bring malpractice down to its knees. However, what can, and does happen, is the creation of a sense of deterrence, a notion that such conduct will not be tolerated, and that such conduct would attract penal consequences, if such a law exists. Therefore, the rule of law stands for every element that constitutes the legal regulation of a society – legal dictum, legislation, and most importantly, the translation from paper to action and the culmination in the achievement of every goal it is set out to work on.A caveat, though, is that this Rule of Law, must comprise a substantive framework replete with content befitting the goals. Mere formal rule of law could wind up being arbitrary, unjust and unreasonable.No matter which implication one takes, the rule of law principle stands for five goals – that there should be a government bound by law, that there should be equality before law, that law and order should prevail, that there should be efficient justice administration and respect for human rights.
With that in mind, it is important to understand some basic principles when it comes to working on the Law. Primarily, in conflict situations, the efficacy of the law can be undermined and limited, so it is in the aftermath of a conflict, in the process of preventing a future conflict that attention needs to be shifted to ensuring a strong legal system’s existence. Secondly, the law alone is not enough. A confluence of analysis of the varied factors culminating in the crime of sexual violence, a strong mechanism of reintegration of victims in society and an equally strong justice mechanism that would target and address the perpetrators is necessary. Third, it is vital to concentrate on the victim – the law must necessarily be victim-centric, and be a fulcrum in the justice process, to ensure that the specific needs of the women are addressed. Another point that should be considered is that the Law should not be stultified – at any given time, a state waking out of a state of war is evolving, and sometimes, by leaps and bounds. The burgeoning development and transformation into a state of peace requires a state to traverse many phases, each of which should be addressed by the Law itself. Lastly, given the fact that a certain “culture” or social mindset, paved the way for the occurrence of such crimes, it is vital that attention be focussed through the Law upon this “culture”, and that such culture be offered room for change and evolution wherever necessary.
The needs of a state in the aftermath of conflict are generally the reestablishment of a government, rebuilding the community, rehabilitation of the population, a comprehensive program to address poverty, corruption and unemployment, rebuilding destroyed infrastructure and a judicial mechanism that would offer “transitional justice” for victims of crimes committed during conflict. The call for a Rule of Law program and a comprehensive mechanism that would address the justice system is not unfounded, despite the fact that the some of these regions have a history of failed peace agreements. Most of the past series of legal instruments have addressed sexual violence, and clearly, the offence still continues, unabated. Several organizations work to strengthen the rule of law in most conflict-ridden regions, including the United Nations,smaller scale ventures like the American Bar Association’s (ABA) initiative on the Rule of Law; and plenty more, in the form of grass-root organizations and NGOs, which endeavour to establish a Rule of Law program.
How will the Rule of Law help stop Gender-Violence in Conflict-Ridden zones?
The question of how useful a Rule of Law program will be when it comes to Sexual Violence in conflict-ridden regions is one of a fairly speculative nature. Although one cannot really determine or quantify the prospective outcome from the implementation of these programs, there is no doubt that the thriving culture of sexual violence emanates from the fact that there has been a conspicuous absence of a legal system. Constitutionally, the spectrum of activity of the UN hinges more on preserving peace rather than enforcing law.Evaluating the situation in a conflict-ridden region in the light of the five-pronged approach of the Rule of Law – namely, that there should be a government bound by law, that there should be equality before law, that law and order should prevail, that there should be efficient justice administration and respect for human rights, there is every reason to believe that everything that these regions need, is found in the Rule of Law principle.
A government bound by law is the supreme authority in a country. A sovereign country has the authority to determine its own internal and external affairs, and this authority can be exercised through the vehicle of a state’s government. A government bound by law would be a watchdog of its people, and the guard of their rights – in that there will be no arbitrariness, unfairness or the proliferation of a class enjoying immunity from the rubric of the law.Perpetrators of sexual violence form the very class that abide by lawlessness and a religion of unethical practices. The focal point for such breeding impunity is the presence of multiple authority figures – there are militias, army units, warlords and rebel groups and sometimes, even people in charge of peacekeeping. The absence of a singular legislation to bridle these divergent groups and the lack of a mechanism to bring them to book for any criminal conduct is a major factor in the continued existence of sexual violence. The existence of stringent law would function as a deterrent in that it could make perpetrators think twice before taking to committing sexual violence. A strong legal system and machinery to complement it would also enable and encourage women to give them confidence to speak out against sexual violence. Although these are the positive ramifications to the passage and implementation of legislation, the best of legislative ventures will not be sufficient to tackle a problem that is couched in gender inequity, complicated by additional factors such as class, religion and tribal considerations. But it could, doubtless, be a starting point.
Next, a state of equality needs to be guaranteed. The social climate that provides a springboard for sexual violence is coloured with gender inequality. Equality before the law would prove useful in addressing the social stereotypes. The Rule of Law has a particularly significant role to play in situations of marginalized groups within societies and covers equality of law and discriminatory consequences therefrom. In all regions of conflict, there is a common thread – the criminalization of sexual violence is conspicuous by its absence. When a societal set up is so steadfast in creating a “spot” for its women, and forcibly boxing them in, there is absolutely no room for them to seek redress in court, no matter what their situations may be. A strong Rule of Law program should attempt to re-engineer post-conflict and in-conflict society, and diversify into reordering social hierarchy and gender equations. Useful regard maybe had to the Convention on the Elimination of Discrimination against Women, especially seeing the significant impact the provisions have had in their implemented form, in other countries.
Thirdly, it is absolutely significant that law and order should prevail, even in a state of conflict. The chaos that characteristically marks conflict-ridden zones on the political, economic and social front is an immediate consequence of the breakdown of law and order. Right from personal security to national security, there is an obvious deprivation of any semblance of protection whatsoever. The lack of a singular unifying authority and a means to impose sanctions on those indulging in offences has driven the final nail in the coffin of any semblance of normal functioning, and thus, the resultant breakdown When there is neither law, nor order, there is no hope for sanction to follow impunity, nor hope for deterrence to prevent impunity. A Rule of Law program should look to reinstating the government, and rebuilding machinery befitting the needs of the country.
Deliverance of justice comes next. After the harsh encumbrance of conflict, deliverance of justice is essentially transitional. It could, and ideally should, comprise a comprehensive mechanism that involves judicial and non-judicial actions that would work to address human rights violations, sexual violence being the prime consideration. Authorities in most conflict-ridden regions rarely focus on sexual violence. Procedures of every kind are fraught with inconsistencies and whatever proactive provisions of law do exist, remain tied to paper. Law dictates that cases of sexual violence should be expedited in terms of hearings and deliverance of judgments, but reality is far from it. In all of the aforementioned regions, the judge-to-population ratio is frugal. The judiciary has more cases on its dockets than it can handle, a factor that has catalysed the progressive degeneration of faith in the judiciary.Revamping the judiciary is the biggest factor in a Rule of Law program, for without a judicial establishment to enforce and progressively assert the Rule of Law, the program would barely see the light of day.
Lastly, comes the fostering of respect for Human Rights. Besides their bodies becoming battlegrounds, women in conflict-ridden zones are second-rate citizens in their own country. There is no dearth of human rights’ instruments that the aforementioned countries have signed – the CEDAW, the International Covenant on Civil and Political Rights, 1966 and the 1984 Torture Convention, to name a few. Rape has been recognized as constituting torture.Rape, as a weapon of war, is a flagrant violation of the rules of International Humanitarian Law.Large scale violation of human rights can be prevented and taken to task only if the government is both proactive in handling the issues, and a non-perpetrator, themselves. Sexual violence in conflict-ridden zones should not be seen as being just a part of the conflict, but should be seen as the conflict itself – a clear depiction of the state of women in the country, and their status in society. It is vital for a Rule of Law program to buttress the notion of equality and non-discrimination with a comprehensive policy that would not only respect human rights, but safeguard people against violation its multiple repetition.
Such a thing as sexual violence has nothing black-and-white about it. A nuanced issue, it is coloured in multiple shades of gray. There is no one right way of going about tackling or handling sexual violence – and a trial and error is perhaps the best way to ensure that it is handled the right way. But the Rule of Law programs, no matter what other means of functioning may be adopted in handing sexual violence, cannot be compromised upon. What conflict-ridden regions have gone through, and still do go through, are humanitarian crises. The perverse violence manifested itself doubly when the military came on the scene to fight the rebels. But they were no protection. The hand that rocked the cradle pinched the child. The troops raped the women, too. And this trend isn’t over. Nothing in the statistics is an exaggeration. The condition of these women is truly as it is explained. These women have had their lives spliced in half, their dreams shattered into a trillion pieces. The spine of the Congolese society has been cracked. The fabric of society has been shred into shards. The world has all the resources it needs to deal with the situation in conflict-ridden regions. Diplomacy, Finance, Economic Sanctions- you name it, we have it. By standing by and watching the country struggle, we have but been the worst criminals in this journey with our crime of complicity, through our terribly loud silence.
Balakrishnan Rajagopal, Invoking the Rule of Law in Post-Conflict Rebuilding: A Critical Examination, 49 WM. & MARY L. REV. 1347, 1347 n.1 (2007)
Rachel Kleinfield, Competing Definitions of the Rule of Law, in PROMOTING THE RULE OF LAW ABROAD: IN SEARCH OF KNOWLEDGE 36-44 (Thomas Carothers ed., 2006).
Margaret Jane Radin, Reconsidering the Rule of Law, 69 B.U. L. REV. 781 (1989).
DRC – MONUC, http://www.un.org/Depts/dpko/missions/monuc/facts.html; Afghanistan – UNAMA, http://unama.unmissions.org/; UNSMIL – Libya, http://unsmil.unmissions.org/
AMERICAN BAR ASSOCIATION (ABA), RULE OF LAW INITIATIVE http://www.abanet.org/rol/africa/democratic_republic_congo.html; see also Jeffery Gettel-man, Rape Victims Words Help Jolt Congo Into Change, N.Y. TIMES (Oct. 17, 2008), http://www.nytimes.com/2008/10/18/world/africa/18congo.html?_r=1.
Avocats Sans Frontieres, Belgium; Defense Institute of International Legal Studies; DPK Consulting and the RCN Justice et Democratie; See INTERNATIONAL BAR ASSOCIATION, REBUILDING COURTS AND TRUST: AN ASSESSMENT OF THE NEEDS OF THE JUSTICE SYSTEM IN THE DEMOCRATIC REPUBLIC OF THE CONGO 41, available at http://www.ibanet.org/Article/Detail.aspx?ArticleUid=6C2BE523-F512-48C1-B09C-FC9A8B1D0AAB
Martin Dixon, International Law, 5thEdition, Oxford University Press, p.7
Rachel Kleinfield, Competing Definitions of the Rule of Law, in PROMOTING THE RULE OF LAW ABROAD: IN SEARCH OF KNOWLEDGE 36-44 (Thomas Carothers ed., 2006)
Rachel Kleinfield, Competing Definitions of the Rule of Law, in PROMOTING THE RULE OF LAW ABROAD: IN SEARCH OF KNOWLEDGE 36-44 (Thomas Carothers ed., 2006)
Special Rapporteur on Violence Against Women, Its Causes and Consequences, Mission to the Democratic Republic of the Congo, Addendum ¶ 2, 8, U.N. DOC. A/HRC/7/6/Add.4 (Feb. 28, 2008)
PATRICK VINCK ET AL., LIVING WITH FEAR: A POPULATION-BASED SURVEY ON ATTITUDES ABOUT PEACE, JUSTICE AND SOCIAL RECONSTRUCTION IN EASTERN DEMOCRATIC REPUBLIC OF CONGO 34 (2008); Jeffery Gettelman, Rape Epidemic Raises Trauma of Congo War, N.Y. TIMES (Oct. 7, 2007), http://www.nytimes.com/2007/10/07/world/africa/07congo.html.
Prosecutor v. Anto Furundzija, I.C.T.Y., Judgment, IT-95-17/1-T, Dec. 10, 1998, ¶ 171.
Theodor Meron, Rape as a Crime under International Humanitarian Law, 87 AM. J. INT’L L. 424 (1993)