Sexual Assault and Gender-Based Violence in the military: Applying C190
By Soumya S
The International Labour Organisation’s Convention 190 (C190) recognises the right of all persons to a workplace that is free from violence and harassment, including gender-based violence and harassment.[i] The Convention came into force on June 25, 2021, and every country that ratifies it will be required to prepare and implement laws that prevent and address violence in the world of work.
The Convention specifically recognises, for the first time in international law, the right of everyone to a world of work free from violence and harassment[ii] and outlines a common framework to prevent, remedy, and eliminate the same. C190 provides the first international definition of violence and harassment in the world of work. Though broad, it specifically mentions gender-based violence and harassment. C190 aims to protect all employees (regardless of gender), workers irrespective of contract status, people in training (including interns and apprentices), volunteers, job applicants, workers who have been terminated, and those who exercise the responsibilities of an employer. It is applicable in the formal and informal, and public and private sectors, and both urban and rural areas.
Some may argue that C190 might not apply to the armed forces. Although effectively a “workplace” within the context of C190’s definition, the question remains as to whether C190 applies, or should apply, to the armed forces.
Most militaries the world over have inbuilt procedures where survivors have to report incidents to the chain of command and seek legal and medical remedies than through civil court systems. Yet, these processes have worked against those who require support. Survivors who report their experiences are at times silenced, humiliated, victim-blamed, and in several cases, dismissed from service.[iii] The increased rates of incidents of sexual violence and harassment in the military have been explained by a variety of factors that separate the military environment from that of a civilian one. These include the military lifestyle, the demographics that consist of a majority of young, single males and the prevalence of hypermasculinity, hostility toward women, and an environment that tends to condone sexual aggression.[iv]
The organisational structure within the military, the top-down hierarchy, gendered military occupations, and policies that make reporting instances difficult constitute key factors that enable sexual harassment. There is a tendency to focus on individual behaviour rather than the environment that sustains harassment. This can lead to victim-blaming, accusations of false claims, and an overall ripple effect that paints sexual harassment complaints as frivolous.[v] The mental and physical toll that survivors experience is heightened by the environment, where women and non-binary people are especially made to feel that they do not belong. Survivors are forced to live and work with their assailants on an almost daily basis and are forced to relive their experiences. [vi] Studies in the United States have found that sexual assault has forced women service members to separate from the military, forfeiting their careers, retirement benefits, and leadership opportunities.[vii]
A cursory search on the internet will reveal that media reporting and recorded data on sexual assault and violence within the military are rare. This masks the true extent of the problem and its prevalence. The uniform set of standards and practical recommendations that C190 prescribes must be taken into consideration while re-imaging how gender-based sexual harassment is dealt with within the military. While military autonomy is pushed as an argument for the lack of an independent and transparent grievance redressal mechanism for the survivors, it is important to recognise how the military court process has led to re-traumatisation and re-victimisation of survivors. As a first step, victims can be provided with a special prosecutor who is independent of the chain of command, eliminating all possible conflicts of interest.[viii] Tolerance for sexual harassment has been connected with a greater risk of sexual assault and is a reason military officers at all levels must be accountable for establishing environments free of any kind of harassment.[ix]
The military consists of persons from all intersections of gender, race, sexuality, caste and class backgrounds. It is also a workplace like any other. Reading Recommendation 206 (that guides the implementation of C190) with C190 reveals how the convention stresses having courts with expertise in case of gender-based violence and harassment[x] . Gender-based violence in the military should also be brought within the scope of C190 because there are no other laws addressing such violence for those facing such harassment in the military.
The Convention on Elimination of all Discrimination Against Women (CEDAW), for instance, while setting concrete steps to fight discrimination of women in armed forces and provide them equal opportunities[xi] does not expressly mention or address sexual assault. The CEDAW Committee adopted Recommendation 19 in 1992, a landmark moment that unequivocally recognised gender-based violence as “a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men”. Violence and harassment must be understood in a continuum and the CEDAW contributes to this understanding. But the limitations are clear, gender-based violence within armies require a specific approach and infrastructure. With the C190 taking explicit cognisance of gender-based violence at work, it takes the upper hand in creating safer working conditions.
The WPS agenda stresses the role of women in peacekeeping and peace-building processes, security matters in both external and internal conflicts. It has been integral in the formation of all women police forces in India to assist UN Peacekeeping operations[xii] and the agenda can help bring more women into important decision-making arenas within militaries. This will aid in reducing the effects of war and militarisation on women but it is questionable how it can help militaries look inward and evaluate working conditions.
While CEDAW and the WPS agenda have helped broaden the participation of women in militaries and peacebuilding operations the C190 becomes more relevant to the problem of GBVH. The direct language used in the convention is essential for pinpointing the challenges women and minorities face in the workplace. The highlight of C190 is indeed its broad scope and its recognition that there can be no fixed workplaces. It protects the entire ‘world of work’. The ratification and implementation of C190 and Recommendation 206 can help governments to create comprehensive and inclusive amendments to national legislation. It can help mandate data collection to understand the incidence of GBV at work and use it to inform legislation.[xiii] In India, women will now enter the military in increasing numbers due to favourable Supreme Court interventions.[xiv] In this scenario, it becomes essential to begin the process of creating an impartial and transparent redressal mechanism for addressing gender-based violence in armies.
Article 8 of C190 also tasks governments in “identifying…the sectors or occupations and work arrangements in which workers and other persons concerned are more exposed to violence and harassment.” Furthermore, C190 also explicitly recognises the critical need to address unequal power relations in organisations; a phenomenon that is present within the military. Thus, implementing C190 is vital for promoting gender-equal, sensitive approaches to allegations of GBVH and for protecting the interests of survivors. It is an urgent requirement that cannot be postponed even longer. This change can only happen if governments and armed forces come together and rework the system. Governments must ratify C190 and implement it in all workplaces across the country to provide safe working conditions to all people regardless of their age, gender, sexual orientation and religion.
[i] International Labor Organization, ‘Eliminating Violence and Harassment in the World of Work’ https://www.ilo.org/global/topics/violence-harassment/lang--en/index.htm. [ii] Article 4, International Labor Organization C190 - Violence and Harassment Convention, 2019 (No. 190) [iii]Lakshmi Chaudhry, ‘Code of injustice: Silencing sexual assaults in the military’ (Firstpost, 15 March 2013) https://www.firstpost.com/india/code-of-injustice-silencing-sexual-assaults-in-the-military-660748.html [iv]S Valerie A. Stander, Cynthia J. Thomsen, ‘Sexual Harassment and Assault in the U.S. Military: A Review of Policy and Research Trends’, Military Medicine (2016) https://academic.oup.com/milmed/article/181/suppl_1/20/4209390?login=true [v] Jana L. Pershing, ‘Why Women Don't Report Sexual Harassment: A Case Study of an Elite Military Institution’, Gender Issues (2003). [vi] Melinda Wenner Moyer, ‘A Poison in the System’: The Epidemic of Military Sexual Assault (The New York Times Magazine, 3 August 2021) https://www.nytimes.com/2021/08/03/magazine/military-sexual-assault.html?smid=url-share [vii] Melissa E. Dichter, Gala True and Glenna Tinney, ‘A call to end gender-based violence in the military’ (Military Time, 11 February 2021) https://www.militarytimes.com/opinion/commentary/2021/02/11/call-to-end-gender-based-violence-in-the-military/ [viii] The Independent Review Commission (IRC) on Sexual Assault in the Military (USA), ‘Hard Truths and the Duty to Change: Recommendations from the Independent Review Commission on Sexual Assault in the Military’ (2021) https://media.defense.gov/2021/Jul/02/2002755437/-1/-1/0/IRC-FULL-REPORT-FINAL-1923-7-1-21.PDF [ix] Andrew R. Morral, Terry L. Schell, ‘Military Must Better Understand Sexual Assaults to Combat Them’ (The RAND Blog, 22 June 2021) https://www.rand.org/blog/2021/06/military-must-better-understand-sexual-assaults-to.html [x] Recommendation 16 (a), Violence and Harassment Recommendation, 2019 (No. 206) https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:R206 [xi] General Recommendation 30 on women in conflict prevention, conflict and post-conflict situation, CEDAW https://www.ohchr.org/documents/hrbodies/cedaw/gcomments/cedaw.c.cg.30.pdf [xii] Akansksha Khullar, ‘India Should Apply the Women, Peace, and Security Agenda Internally’ (South Asian Voices, 12 May 2021) https://southasianvoices.org/india-should-apply-the-women-peace-security-agenda-internally/ [xiii] https://www.solidaritycenter.org/wp-content/uploads/2021/02/Gender.Publications.Made-for-this-Moment.12.20.pdf [xiv] Hari Kumar, Emily Scmall, ‘India Opens Its Highest Military Ranks to Women After Lengthy Fight’ (The NY times, 22 September 2021) https://www.nytimes.com/2021/09/22/world/asia/india-military-women.html