Transitional Justice—An Overlooked Tool for Addressing Sexual Exploitation and Abuse
This post first appeared on The Global Observatory.
By Jessica Anania
A young woman at Zam Zam Camp for internally displaced in North Darfur, Sudan, participates in an event organized by the African Union-UN Hybrid Operation in Darfur (UNAMID)’s human rights section as part of the Sixteen Days of Activism against Gender Violence, November, 2012. (UN Photo/Albert Gonzalez Farran)
Addressing sexual and gender-based violence is a core aim of the Women, Peace and Security (WPS) agenda. While conflict-related sexual violence (CRSV) has drawn widespread attention and calls to action—including Resolution 1325 calling on all parties to armed conflict to protect women and girls from gender-based violence—other forms of sexual and gender-based violence committed against civilians in conflict settings, including sexual exploitation and abuse (SEA), are often treated with less urgency. Despite occurring in the same contexts, SEA and CRSV have largely remained theoretically and practically separated. This obscures the overlap between SEA and CRSV and denies survivors of SEA pathways to justice, including through post-conflict transitional justice mechanisms.
CRSV encompasses all forms of sexual violence—including rape, sexual slavery, and human trafficking for the purpose of sexual violence, as well as forced prostitution, pregnancy, abortion, sterilization, or marriage—that is directly or indirectly linked to a conflict. Sexual violence is considered conflict-related where the perpetrator is affiliated with a state or non-state armed group; where there is a culture of impunity as a result of state collapse; where it constitutes a violation of the provisions of a ceasefire agreement; and in contexts of forced displacement. Much of the awareness-raising around CRSV has focused on its use as a weapon of war, whereby rape is perpetrated systematically by parties to a conflict to “punish, terrorize, and destroy populations” due to their political, ethnic, religious or gender identity, or sexual orientation or to fulfill other strategic functions, such as population displacement. Research, however, increasingly identifies reasons for CRSV occurring in addition to and beyond this use as a weapon, expanding recognition of why CRSV happens.
According to the United Nations (UN), sexual exploitation is the abuse of a position of vulnerability, power, or trust for sexual purposes, while sexual abuse refers to any actual or threatened sexual intrusion committed by force or under unequal or coercive conditions. SEA can therefore apply to a wide range of acts, including rape, forced prostitution, and transactional sex, as well as any sexual relations with a child. As with CRSV, there is no one cause for SEA. Rather, a constellation of vulnerabilities underpin these violations, including but not limited to gender and socioeconomic inequalities between intervenors and local populations.
Unlike CRSV, SEA is typically used by the UN to describe interactions between those who are based in a country as part of an international intervention—such as peacekeepers and aid workers—and the local populations they work alongside. SEA has been documented in armed conflict settings, as well as during other humanitarian crises like natural disasters or epidemics.
There is significant overlap in the forms of violence which comprise SEA and CRSV. While complexities around differentiating between sexual violence and gender-based violence persist, specific violations are often recognized as existing on a “continuum of violence,” in which distinct manifestations of sexual and gender-based violence are considered to be related and underpinned by shared structural and ideological factors, regardless of when, to what scale, or in what form they occur.
The Continued Separation of SEA and CRSV
Recognition of SEA and CRSV developed along similar timelines. SEA first gained widespread attention during the UN peacekeeping mission to Cambodia in 1993. CRSV, long considered an inevitability of war, garnered global outrage and response in the early 1990s, in part prompted by the 1994 International Criminal Tribunals for Rwanda and the Former Yugoslavia. Since then, atrocities of CRSV have been spotlighted in conflict settings such as Nigeria, Iraq, Colombia, the Central African Republic, the Democratic Republic of the Congo (DRC), and, most recently, Tigray. SEA by international intervenors has been documented in some of the same conflict settings.
Yet, despite having similar timelines of recognition, taking many of the same forms, and impacting overlapping populations in the same contexts, SEA and CRSV continue to be considered as separate phenomena and are responded to differently. This separation likely persists for several reasons.
The first reason is the fact that the identity of the perpetrator is an important site of distinction between the two forms of violence. Many violations—like rape or forced prostitution—could fall within the definitions of either SEA or CRSV. Often, the only difference is that international intervenors who commit SEA are viewed as external actors, rather than parties to the conflict, a stipulation of some definitions of CRSV. This distinction, however, overlooks the murkiness of group categorization amid conflict. The very presence of intervenors situates them within the context of armed conflict; they are influenced by many of the same structural and power dynamics which underlie CRSV perpetrated by local combatants—for instance, command-level tolerance of sexual violence committed by troops.
Second, SEA and CRSV are often considered different in terms of criminality. While SEA is largely criminal, some violations—like transactional sex—may be legal depending on sex work and age of consent laws in the host country. These violations therefore may only transgress organizational policy, rather than national or international law. This had led to SEA being framed as an issue of individual misbehavior and organizational discipline, even when violations—such as rape or transactional sex with a minor—are criminal. In comparison, CRSV is considered a war crime.
While processes exist to address SEA, they are often inefficient and perpetuate larger structural inequalities. Intervenor-contributing organizations and countries face numerous barriers to accountability for SEA, including lack of funds, national military cultures which reinforce SEA, and logistical obstacles. In the case of UN peacekeepers, most peacekeeping forces are provided by Global South countries, which face pressure to address SEA with limited capacity amid greater scrutiny and bias. Tasking these countries with accountability for and prevention of SEA burdens them with a task the largest and most well-funded militaries have been unable to complete. Transitional justice offers a framework to address both forms of abuse more comprehensively, and in a way that engages with the context-specific needs of victim-survivors.
Including SEA Within Transitional Justice
Transitional justice describes the range of measures—such as trials, truth commissions, reparations, or vetting—implemented to provide accountability and redress for past human rights abuses, to facilitate the “transformation” of the political systems, conflicts, and other conditions that contributed to the abuses, and to prevent their future reoccurrence.
Transitional justice mechanisms offer a space for SEA and CRSV to be considered and addressed conjointly, as they are frequently implemented following armed conflict, a context in which both categories of violence can occur. The importance of acknowledging the link between SEA and CRSV within justice efforts was noted in the 2016 independent review on SEA by international peacekeeping forces in the Central African Republic, which recommended that SEA by peacekeepers be considered a form of CRSV.
Already, CRSV is increasingly being included in transitional justice processes, allowing for a nationally-owned and “people-centered” approach to accountability, redress, and mitigation efforts. This is significant as some responses to CRSV, notably in the context of the DRC, have been criticized by some as overly securitized and lacking in knowledge of local institutions and practices. Calls for a similar “victim-centered” approach to SEA have been made.
There is precedent for including SEA within transitional justice mechanisms. Existing responses to SEA—such as investigative commissions and financial payments—mirror transitional justice mechanisms like truth commissions and reparations. Past truth commissions in both Sierra Leone and Liberia have included findings on SEA committed by humanitarian and aid workers within their final reports, alongside detailed documentation of CRSV. Including SEA within transitional justice trials may be too difficult as an intervenor’s home country typically has jurisdiction; however, non-judicial transitional justice mechanisms still provide logistical and preventative benefits.
Firstly, incorporating SEA into transitional justice mechanisms—particularly truth-telling initiatives—would ease barriers to reporting and investigation. Reporting SEA violations through existing channels can be difficult and convoluted, and victim-survivors may face logistic, linguistic, or geographic barriers. However, transitional justice mechanisms, as national projects, dedicate resources to gathering testimony, collecting data, and sharing information throughout the country, including in geographically or linguistically marginalized populations. Incorporating SEA could therefore widen access to reporting and documentation for victim-survivors.
Secondly, incorporating SEA into transitional justice may allow for a baseline level of standardized investigation following armed conflict. Intervenors’ contributing organization or country are usually tasked with documenting SEA under the current framework. Pressure to keep recorded levels of SEA low or victim-survivors’ lack of trust in these organizations may hinder reporting. As a result, SEA investigations have emerged predominantly in response to media coverage and public outcry. Including SEA within transitional justice could ensure some degree of post-conflict investigation into SEA.
In addition, while data is limited, anecdotal evidence indicates that a number of people experience both SEA and CRSV during armed conflict. Requiring them to navigate two separate, simultaneous pathways for reporting and redress increases the burden of and obstacles to reporting. Including SEA within transitional justice could allow survivors to share testimony or file an allegation through just one reporting mechanism.
Preventing Sexual Violence by Addressing its Root Causes
SEA and CRSV share many of the same structural causes and interact with one another to compound vulnerabilities; higher rates of SEA are reported in conflicts with higher rates of CRSV. SEA can also embed gendered socioeconomic power structures within societies. Such legacies remain even after a conflict ends, and can fuel post-transition sexual violence.
Previous efforts to address SEA have focused more on issues of accountability and immunity rather than on determining why SEA occurs. Transitional justice increasingly seeks to be “transformative,” identifying and addressing the underlying causes of violence to prevent future abuse. Addressing SEA through transitional justice mechanisms could illuminate the ways in which inequalities perpetuate these abuses—for instance, the gendered economic inequalities which facilitate transactional sex. The aims of transitional justice, including that of prevention, also align with the goals of external organizations like UN Women, as well as frameworks like the Women, Peace, and Security agenda. Given the interlinkages between SEA and CRSV, excluding SEA from transitional justice mechanisms will undermine the goal of preventing future violence.
While transitional justice is not immune from critique of how it addresses sexual and gender-based violence, these mechanisms do provide space in which to tackle SEA and CRSV as related forms of sexual and gender-based violence, and, crucially, to prioritize the needs of the victim-survivors. Addressing both SEA and CRSV through transitional justice mechanisms could provide further opportunities to understand the root causes of all forms of sexual and gender-based violence, which is critical for prevention.
This article is part of a series reflecting on the current state of the Women, Peace, and Security agenda.
Jessica Anania is a PhD candidate at the University of Oxford researching transitional justice and gender-based violence.