Prosecuting Sexual Violence
By Kirthi Jayakumar
In the near decade of the civil war in Syria, brutal sexual violence continues to be perpetrated. Especially rampant in government detention facilities, these crimes continue unabated. While the Security Council has refused to address the crimes in Syria through the International Criminal Court, the General Assembly has set up the Independent International Commission of Inquiry on Syria to build investigative files for future prosecutions. Against this substantial inaction by the international infrastructure, state prosecution of war crimes has emerged to attempt to plug the gaps. Even as national jurisdictions remain seized of the matter, the focus on sexual and gender-based violence remains ignored or side-lined at best.
The basis of prosecution
A crime in international law can be prosecuted before an international or hybrid tribunal, or a national court of law. In the latter case, jurisdiction is usually founded on the nationality principle, the passive personality principle, the protective principle, or on the basis of universal jurisdiction. The nationality principle allows a state to exercise criminal jurisdiction over its nationals. The passive personality principle allows a state to prosecute non-citizens for crimes that affect its own citizens. The protective principle allows a state to try a non-citizen for an act committed abroad that produces effects on its interests. Universal jurisdiction allows all states to exercise jurisdiction in because of the nature of the crime – such as a war crime, crimes against humanity, crimes against peace, torture, genocide, slavery, and piracy – regardless of where the crime was committed, who committed it, and against whom.
In recent times, Germany and the Netherlands have exercised universal jurisdiction to address war crimes in Syria. While in the Netherlands prosecuted Abu Khuder for murder and membership in a terrorist group in September 2019, German efforts go back nearly a decade. In 2011, Germany began a background inquiry to gather information on and establish war crimes cases in Syria. Four Syrians were prosecuted in 2016 and 2018, and more recently, two more were prosecuted for torture, crimes against humanity, and war crimes. In 2019, nine survivors of torture submitted a criminal complaint against Syrian officials in Sweden.
Prosecuting sexual violence: Slipping through the cracks?
Even as efforts have been made to assemble cases and evidence, in the construction of the definition and scope of crimes against humanity, Germany has not included sexual, sexualized, and gender-based violence. According to the European Centre for Constitutional and Human Rights, there is overwhelming evidence of the prevalence of sexual violence “as part of the systematic widespread attacks on the civilian population.” The prevalence of brutal sexual violence targeting the civilian population has been affirmed by the UN Human Rights Council and Human Rights Watch. Sexual violence has been used to dominate over the population and to instil fear and humiliation, and has targeted women (cis, trans), men (cis, trans), and non-binary individuals.
The ECCHR, which is engaged in seeking redress for these atrocities, is also calling for attention to the rampant sexual violence in Syria as a crime against humanity. Handling the cases of seven survivors (four women and three men), the ECCHR has also identified nine perpetrators based on the testimony of the survivors. Within this criminal complaint, the ECCHR have also sought for the German Federal Prosecutor to issue an arrest warrant against the former head of the Syrian Air Force Intelligence Service, Jamil Hassan, in order for the charge to be amended to include sexual violence within the scope of crimes against humanity. They have also sought an investigation into crimes of a sexual nature to be opened against the other eight perpetrators.
The need to prosecute sexual violence as sexual violence
For a long time, the presumption that sexual violence was a mere by-product of war kept both policy and legal attention away from addressing its large scale prevalence. Armed conflicts across time have served as enabling environments for the perpetration of a variety of different forms of sexual violence – and the disparaging impacts have neither been accounted for in post-conflict transition processes nor sufficiently so in transitional justice measures.
Broadly, even as forms of sexual violence constitute specific forms of crimes against humanity, war crimes, ethnic cleansing, and genocide, it is necessary to identify the individual count of the crime for what it is. A calculated and brutal war tactic, sexual violence is a highly specific measure that has devastating personal consequences inasmuch as it has socio-political consequences. While on the one hand, one may argue that sexual violence has the capacity to culminate in genocide and to erase or destroy specific populations, the individual impacts also need to be accounted for. Survivors face several years of stigma and trauma, and integration into society is rendered immensely challenging not only because of the immediate impact on their physical and mental health, but also because of stigma and social ostracism.
This is a very important move for any state prosecuting these crimes: establishing sexual violence as a separate charge and as a separate crime with implications and impacts on par with war crimes, ethnic cleansing, genocide, torture, and crimes against humanity would pave the way for a more robust pursuit of justice.