By Larissa Peltola, a Staff Writer at RightsViews and a graduate student in the Human Rights MA program.
Sexual terrorism committed by militant groups like ISIS/ISIL, Boko Haram, and Al Shabaab has gone largely unacknowledged in domestic and international courts, despite its rampant use. Sexual violence is a widespread, endemic issue in all conflicts around the world, affecting individuals, communities, and societies as a whole.
The United Nations has identified that the extensive use of sexual violence perpetrated by terrorist groups globally has been used as an incentive for recruitment, a tool for financing, destroying, subjugating and controlling communities and societies, extracting information from detainees, forcing displacement, and as a means of controlling or suppressing women’s reproductive abilities. While the high numbers of sexual abuse have led to international calls to action by civil society, activists, the United Nations Security Council, and state governments, these crimes have still not been prosecuted before any national or international court.
What Can (and Should) Justice Look like?
Since sexual terrorism encompasses numerous crimes ranging from rape to human trafficking, to forced marriage, there has been a debate within the activist community about what justice for survivors looks like. For survivors who have endured violence at the hands of ISIS, Al Shabaab, and Boko Haram militants, justice consists of long-term medical and psychosocial services. “Their understandings of justice,” according to Azadeh Mohaveni of the International Crisis Group, “were quite different from those we think about in the West. They were not punitive or carceral. They didn’t associate justice with formal persecution or punishment.” Prosecution, or any legal actions against members of these groups, was not only unrealistic but was never even a consideration for these survivors. “No one really mentioned prosecution. It seemed to fall out of the realm of what any of these women imagined was possible.”
Simply put, this idea of justice was, and is, shaped by the material realities of their worlds. Of the services that survivors identified as the most necessary included shelter, medical and psychological services, and the protection of legal status. In Iraq and Syria, women that chose to join ISIS, or were forcibly recruited, were stripped of their nationalities and rendered stateless, therefore unable to receive proper state support after leaving or escaping the group. According to Mohaveni, survivors must be “de-exceptionalized” and “destigmatized” and not only given legal status in the countries they have fled to, but also be provided with essential and often life-saving support services.
The difficulty with this form of justice is that countries rife with terrorism, and their neighboring states, often lack the infrastructure to address survivors’ needs and to provide lasting support for them. Psychosocial and medical services are virtually non-existent. Food insecurity is also a growing concern, and education and reintegration programs are either non-existent or severely underfunded.
The Obstacles to Achieving “Justice”
In instances where survivors have identified justice within the legal framework, there are significant obstacles to prosecution. Domestic and international laws are full of shortcomings that make prosecution of sexual terrorism extremely difficult and often impossible. Anne Marie de Brouwer, co-founder of Team Impact, examined the domestic penal codes as they relate to sexual violence perpetrated by Boko Haram and Al Shabaab in Nigeria and Somalia. Her conclusion was that no domestic laws are fully equipped to address the harms stemming from sexual terrorism, primarily due to either lack of laws concerning sexual violence or outdated and vague provisions on what constitutes rape. “To date,” de Brouwer explains, “there are no convictions for sexual terrorism…so in the absence of a law, criminalizing the crime of sexual terrorism explicitly or even implicitly, access to justice by victims is severely curtailed.”
Obstacles within legal fields are not the only ones that exist for survivors of sexual violence. Women are often re-victimized after experiencing trauma. In refugee and IDP camps, where survivors often end up, or upon return to their villages, they are shunned and seen as having consented to fraternize with the enemy, willingly engaging in sexual activity with armed actors. Often times, sexual violence does not end upon their return home. Women and girls are often revictimized and raped in the camps where they sought safety and shelter and are left with virtually zero legal recourse and little access to necessary psychosocial services. According to Rhoda Tyoden Moore, President of International Women Lawyers in Nigeria, survivors have no confidence in their government to do anything for them: “even if they report [sexual violence], nothing can be done.” Access to justice is critically important in IDP and refugee camps and when women return home to their communities.
Courts and States: Obligations and Failures
Promoting laws on sexual terrorism and prosecuting perpetrators can raise awareness about how terrorist groups operate and how they can be held accountable. Since there have been no cases related to sexual violence tried in domestic or international courts thus far, initial cases will inform others, setting precedent and demanding justice for survivors. Experts believe that it is extremely difficult to amend international terrorism litigation as it stands now. The most effective way to do so is by setting precedent in domestic courts that will eventually translate to international action.
According to de Brouwer, courts should implement survivor-centered “evidentiary and procedural rules” that should guide any and all legal proceedings. “Effective prohibitions against sexual terrorism” de Brouwer articulates, “are insufficient without amendments to procedural and evidentiary rules that do not really support or protect victims.” There is an urgent need for protective measures to prevent re-victimization while in the courtroom. These include ensuring the safety of survivors who choose to testify, psychological services for before and after the trial, protections against victim intimidation in court settings, and if possible, financial assistance for the victim.
States, likewise, have failed in their obligations to survivors of sexual terrorism. In a majority of countries where terrorists are based, women are considered and treated as second class citizens and are not afforded the same projections as men. Moore articulates that states play a large role in whether survivors report their assaults. “What we need,” the Nigerian based attorney explains, “is for governments to take proactive measures to improve [response] to these incidences. And to do that, we need gender-based violence structures on the ground.” This means that governments should establish laws to easily prosecute gender-based violence, put in place safeguards for victims of sexual violence, and make the legal field accessible to survivors so that they may be encouraged to seek redress. “These perpetrators must be punished so that these women will now build up confidence in the system,” Moore emphasized.
Crimes of sexual terrorism should not solely be dealt within the legal arena. States have an obligation to advocate for and protect victims of sexual violence. The role of the state government is complex and multifaceted, according to Chioma Onuegbu, Deputy Director of the Department of Public Prosecution for the Attorney General in Nigeria. To effectively protect survivors and prosecute perpetrators, it is imperative that states establish gender-sensitive training, collect and share evidence with relevant departments, engage expert prosecutors trained in gender-based violence collection, and create a specialized unit to deal with gender-related crimes.
Addressing sexual terrorism will continue to require a holistic approach by state and non-state actors and within domestic and international courts. Special measures must be taken in order to protect survivors of sexual terrorism and end the culture of silence around the topic.
This is the third installment of the Digital Dialogue Series which brings together authors and scholars, practitioners, and experts to reflect on the progress and challenges of addressing conflict-related sexual violence. This series is hosted by the United Nations Team of Experts of Rule of Law and Sexual Violence in Conflict and in partnership with Institute for Public Health, Washington University in St. Louis; Harvard Humanitarian Initiative, Harvard University; the School of Transnational Governance, European University Institute; and the Institute for the Study of Human Rights, Columbia University.
The following is a list of all participants in this discussion:
Fionnuala Ni Aolain: Special Rapporteur on the promotion and protection of human rights and fundamental freedoms in the context of terrorism
Anne Marie de Brouwer: Cofounder of Team Impact
Azadeh Mohaveni: Director of the Gender and Conflict Project, International Crisis Group
Chioma Onuegbu: Deputy Director of Department of Public Prosecution and Head of Complex Cases for the Office of the Attorney General (Nigeria)
Rhoda Tyoden Moore: President of FIDA: International Women Lawyers in Nigeria