CONFLICT-RELATED SEXUAL VIOLENCE
In 2007, the Nairobi Declaration was adopted by women’s rights advocates and survivors of sexual violence in situations of conflict, as they sought to guarantee women’s and girls’ rights to remedies and reparations after being subjected to sexual violence during a conflict. It provides that “women and girls have a right to a remedy and reparation under international law […] [by receiving] compensation, integration and other key measures and initiatives under transitional justice that, if crafted with gender-aware forethought and care, could have reparative effects namely reinsertion, satisfaction, and guarantee of non-recurrence”.
Over a decade later, in their January 2022 report, the UN Security Council Secretary General defined conflict-related sexual violence (CRSV) as “rape, sexual slavery, forced prostitution, forced pregnancy, forced abortion, enforced sterilisation, forced marriage, and any other form of sexual violence of comparable gravity perpetrated against women, men, girls or boys that is directly or indirectly linked to a conflict [,] […] and trafficking in persons for the purpose of sexual violence and/or exploitation, when committed in situations of conflict”.
The United Nations Security Council has recognised that women’s bodies have been instrumentalised in war for centuries across the globe, with the war in Ukraine providing some of the most recent examples of this. This instrumentalisation carries many consequences, including long-term trauma and physical injuries. The scale of the problem means a consensus regarding reparations for CRSV must be sought to end impunity and provide survivors with a way of moving forward with dignity; indeed, several conflicts in the Democratic Republic of the Congo (DRC), Iraq, and Colombia have led individuals and institutions to hasten reaching such a consensus.
The Ituri conflict, which took place between 1998 and 2003 and involved Congolese, Ugandan, and Rwandan forces, involved grave violations of international human rights law and humanitarian law. Global recognition of the magnitude of CRSV in the Democratic Republic of the Congo has risen since the 2018 Nobel Peace Prize was awarded to Dr. Denis Mukwege, a Congolese gynaecological surgeon who performs reconstructive surgeries for female victims of CRSV. Indeed, many women often needed reconstructive surgery because of the violence inflicted upon them during periods of conflict in the Congo, whilst thousands of babies have been born of rape. Moreover, mothers and children have faced further hardship, as they have suffered institutional and cultural rejection along with health issues, as some are now HIV positive.
Moreover, Nadia Murad, the co-winner of the Nobel Peace Prize with Dr. Denis Mukwege, is one of the survivors of Isis’ genocide of the Yazidis in Iraq, which has led thousands of women belonging to the religious minority to be forced into sexual slavery and raped since 2014. In 2022, she drafted the Murad Code, which outlines better practices regarding reparations for CRSV survivors.
In Colombia, during the government’s war against the Revolutionary Armed Forces of Colombia, female journalists faced sexual violence as they documented human rights violations committed by paramilitaries and gangs. Jineth Bedoya Lima, a journalist known for her activism and exposure of grave human rights violations, was raped by multiple men in 2000. In 2021, the Inter-American Court of Human Rights issued a ruling on the case, adopting a victim-centred approach for reparations, providing that “the analysis should include the victim’s right to a remedy but also a gender-centred perspective, in both its provisions and enforcement”.
INTERNATIONAL APPROACH TO REPARATIONS
The restitutio in integrum principle, which has governed reparations under international law since the creation of international jurisdictions, was defined in the Bassiouni report as: “reinstating the victim in the original situation existing before violations of international humanitarian law and human rights law took place”. This principle was then adapted into article 34 of the International Law Commission’s Articles on International Responsibility, which outlined that reparations shall “take the form of restitution, compensation and satisfaction, […] and non-repetition guarantees.”
Since the beginning of the 2000s, international law scholars have pushed towards a victim-centred approach to reparations, as seen through the adoption of resolution 60/147 by the United Nations General Assembly. This aims to ensure appropriate remedies for gross violations of human rights and international humanitarian law are established: “reparation should be proportional to the gravity of the violations and the harm suffered”. Therefore, reparations should not only depend on the wrong committed – they should also depend on the harm suffered.
The UN Security Council (UNSC) in 2000 recognised the impact of war on women and girls and the need to “implement fully international humanitarian and human rights law that protects the rights of women and girls during and after conflicts”. However, this resolution did not provide guidance on how to establish reparations for victims. Regarding sexual violence, it has been argued that transformative reparations would be most efficient, since they focus on guarantees of non-repetition. In 2019, the UNSC urged states to strengthen access to reparations for victims as appropriate and provide them with access to national relief and reparations programmes.
Regarding jurisdiction for reparations, states should be responsible for prosecution and reparations in matters related to gender-based violence. However, national courts are not ready to handle the specificity of CRSV, since often the biggest difficulty lies in the fact that it involves national and extra-national subjects, such as rebellious groups or an occupant state’s army.
Therefore, UN Committees are competent to receive complaints that fall within the scope of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC) from victims and survivors of alleged violations, which can result in recommendations being made to states to provide reparations. However, these recommendations are not legally binding, as these committees are not jurisdictional institutions.
Historically, the International Criminal Court (ICC) has ruled on such matters, since they involve humanitarian law. The Court’s statute provides victims with the right to seek reparations before it, on the basis of a condemnation. Indeed, in the Akayesu Case, the International Criminal Tribunal for Rwanda decided that “rape and other forms of sexual violence can constitute a war crime, a crime against humanity, or a constitutive act with respect to genocide”.
For the first time in February 2022, the International Court of Justice (ICJ) issued a ruling on reparations in the case of Uganda v. Congo in relation to the Ituri conflict, for which it had previously issued a judgement on merits in 2005, acknowledging its competence to rule on reparations regarding international conflicts.
THE CASE OF REPARATIONS FOR CRSV IN THE DRC
Regarding the DRC, three major rulings have been issued by international courts on reparations for CRSV namely, Lubanga in 2012, Ntaganda in 2021, and DRC v. Uganda in 2022.
In 2012, during the Lubanga trial, the ICC allocated reparations to survivors based on their having been enlisted as child soldiers. The ICC acknowledged the gender discrimination that had occurred, but did not view sexual violence as an aggravating circumstance of the crimes against humanitarian law that had been perpetrated by the defendant. Due to intentional neglect of the investigation of sexual crimes by the prosecutor, only girls who had been subject to sexual violence, following their being enlisted as child soldiers, were recognised as victims in the condemnation. This conclusion faced criticism both from the court and civil society, as it failed to include victims of sexual violence who had not been enlisted as child soldiers and failed to recognise the systemic use of sexual violence by Lubanga’s troops.
Female child victims of child enlistment and sexual violence were granted reparations, as article 75(2) of the Rome Statute provides when linked to a conviction. Following this, the Trial chamber confirmed that reparations should be granted to direct and indirect victims and the Court should implement symbolic, transformative, and gender sensitive measures to “meet the obstacles faced by women and girls when seeking to access justice in this context”. The Appeal Chamber was sized by the Defence and ruled that “reparations ordered by the Court shall be granted to victims without adverse distinction on the basis of gender, sexual orientation and other prohibited grounds” but that the chamber could not award reparations for the harm suffered as a result of sexual violence in this case since the prosecution did not decide to press charges against Lubanga on this account.
Disappointment followed because female child victims of sexual slavery were viewed as enlisted child soldiers when the sole purpose of their enlistment was their sexual exploitation by Lubanga’s armed forces. To this day, victims of sexual violence have been allowed, as indirect victims, a part of the trust fund’s plan for symbolic reparation, as approved by the Trial Chamber in 2016.
Years later, in the 2021 Ntaganda ruling on reparations, the prosecutor’s office thoroughly investigated the sexual crimes attributed to the defendant, and the Court shifted its approach, distinguishing rape victims from victims of sexual slavery, establishing collective reparations with individualised components to address the harm caused by rape and sexual slavery, and recognised children born of rape and sexual slavery as direct victims. This move was seen as a sign that victim-centred approaches would be adopted by international courts: there were great hopes that the ICJ would follow this trend when ruling for the first time on reparations.
In the DRC v. Uganda case in 2022, attempts to seek an agreement regarding reparations failed and on 9 February 2022, the ICJ issued a ruling which provided reparations for rape and sexual violence as part of the global sum for “all damage to persons”. Dissenting opinions were formed by permanent and ad hoc Court members, who lamented that the ruling did not ensure that all victims would be identified and that remedies would be found.
THE SHIFT TOWARDS A VICTIM-CENTRED APPROACH?
As demonstrated by the adoption of the publication of the Murad Code and UN Security Council Resolution 24/67, there has been a shift towards a victim-centred approach when it comes to reparations for CRSV. The resolution strengthens justice and accountability, backing a survivor-centred approach in the prevention of and response to CRSV. However, consensus still needs to be reached with regard to the practice adopted by international courts.
Moreover, parties still disagree on whether to apply transformative reparations, meaning to transform gender (and other) relations and social structures founded on inequality, and to unsettle “patriarchal and sexual hierarchies and customs”, thereby reducing the likelihood of repetition and the extent to which states are responsible for implementing them.
Henceforth, we might have to wait before the ICJ rules on reparation in the same way as international human rights courts do, but we can see a clear step forwards has been made towards victim-centered approaches in the provision of reparations for victims of conflict-related sexual violence.
Francesse Philippe is an International and European Fundamental Rights Law Master's degree student from the University of Paris Saclay (France). She has a keen interest in international justice, international responsibility, and diplomacy , and hopes to contribute on minority groups human right's developments