By Kirthi Jayakumar
Image: Yazidi refugees receiving support from the International Rescue Committee. Wikimedia Commons
Looking at Transitional Justice through a Gender and Sexual Orientation Lens
Transitional justice mechanisms have tended to ignore the true meaning of gender by “constructing and reinforcing key gendered binaries” (O’Rourke 2013). Ní Aoláin (2009) argued in favour of the phrase “gendered harms” to refer to lived experiences of political violence of a gender-specific nature and seeks to distinguish it from legal categories of crimes, offences, and human rights violation. In more recent years, as Sivakumaran (2007) highlighted, there has been a focus on the sexual victimization of men in conflict settings as well. However, non-binary gender identities and non-heterosexual individuals have been excluded from this focus.
Even as gendered analyses and the recognition of the challenges women face in conflict have been incorporated into the extant criminal justice regime, such as the acknowledgment of sexual violence as a grave breach of the Geneva Conventions (Askin 1997), sexual slavery as a crime in the Kunarac case (ICTY), the recognition of rape as a significant part of the Rwandan genocide and therefore a war crime in the Akayesu case (ICTR), and the incorporation of gender-based violence within the scope of war crimes under the ICC’s Rome Statute –implementation has relegated women to mere victims of violence, ignored the need to work on structures, and equated “gender” with “women.” The conflation of “gender” and “women” as it equates gender to sex, though they are entirely different (Björkdahl and Selimovic 2016; Charlesworth 1999) and ignores the truth that one can be targeted through generic violence for their sexual orientation (Moore and Barner 2017).
Extant transitional justice mechanisms implement and may have pushed for legal protections for women on the basis of gender, but not for women/girls who are targeted because of their sexual orientation” (Moore and Barner 2017: 34). References to sexual orientation are not included in legal texts addressing human rights and humanitarian law (Haley-Nelson 2005). Even as pathbreaking decisions by the ICTR and ICTY opened up avenues to include rape and sexual assault within the scope of war crimes and crimes against humanity, these forums also recognized sexual violence against men as torture (Moore and Barner 2017), thus creating a reality where violence against women is seen as “sexual” and where violence against men and people of other gender identities is seen in non-sexual terms (Petchesky 2005). Sexual violence against men, queer, and transgender people takes place more regularly than is reported (Menon 2013), and the ISIS narrative is testament to this. However, none of the existing judicial regimes vested with the duty to prosecute crimes in a post-conflict reality have acknowledged these victims.
In the context of the Islamic State, any approach to transitional justice must decidedly incorporate a gender component for two reasons. First, aside from the sexual assault of Yazidi women under the caliphate, only a gender lens can enable the inclusion of LGBTQIA+ persons who have been persecuted by the ISIS, targeted specifically on account of their sexual orientation and/or gender identity. Second, a gender lens can help build or develop institutions that should prevent the recurrence of past violations (UN Secretary General 2011).
Askin, K. (1997) War Crimes Against Women: Prosecution in International War Crimes Tribunals, London: Martinus Nijhoff.
Björkdahl, A. and Selimovic, M. (2016) ‘Gender and transitional justice’. in An Introduction to Transitional Justice. ed. by Simic, O. London: Routledge.
Haley-Nelson, C. (2005) Sexualized violence against lesbians. A Journal of Social Justice 17, 163–180.
Moore, M.W. and Barner, J.R. (2017) Sexual minorities in conflict zones: A review of the literature. Aggression and Violent Behavior, 35, 33-37.
O’Rourke, C. (2013) ‘International law and domestic gender justice: why case studies matter,’ in Feminist Perspectives on Transitional Justice, ed. by Fineman, M. and Zinstag, E. London: Intersentia.
Ní Aoláin, F. (2009) Exploring a feminist theory of harm in the context of conflicted and post-conflict societies. Queen’s Law Journal 35, 219.
Petchesky, R. (2005) Rights of the body and perversions of war: Sexual rights and wrongs ten years past Beijing. International Social Science Journal, 57 (184), 301-318.
Sivakumaran, S. (2007) Sexual violence against men in armed conflict, European Journal of International Law 18(2), 253–76.
United Nations Secretary-General (2011) The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, New York: United Nations.