by Antonia Mulvey
Security forces are one of the greatest sources of protection for civilians in conflict zones, but also one of the greatest sources of abuse and insecurity. Women and girls in conflict zones are often subjected to serious sexual violence with near or total impunity. It is common for internally displaced persons, refugees and asylum seekers (‘protected persons’) to exchange sexual favours for food, water or medicine with security forces in conflict zones. This has been variously described in literature, media and reports as ‘transactional sex’ and ‘survival sex’ and is recognised by the United Nations (UN) and African Union (AU) as sexual exploitation and abuse (SEA). It is commonly dealt with as a conduct/disciplinary or an administrative issue. This paper argues that, in many circumstances, these acts should be more accurately described as rape due to the victims’ age, the coercive environment or abuse of power by the perpetrator. In certain circumstances, these acts could also constitute a war crime and/or a crime against humanity. To date, very few arguments have been made that SEA could constitute international crimes.
Can SEA constitute rape?
Rape is defined under the Rome Statute as penetration of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or body part. The act must take place in circumstances where the penetration is committed by force, or by threat of force, by coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power or by taking advantage of a coercive environment or against a person incapable of giving genuine consent. The consent of the victim is the key issue. In the context of SEA by security forces, it is relevant to consider whether there is coercion or abuse of power and also, if the perpetrator is taking advantage of a coercive environment. Jurisprudence from international tribunals indicates that where the victim consents to intercourse because of their vulnerability, this may amount to an abuse of power. Further, in the ICTY case of Delalic, it was accepted that sexual acts committed by state agents, including members of the security forces, are inherently coercive. This argument can also apply to non-state agents fulfilling a state function, such as peacekeepers. While the concept of ‘coercive environment’ has not been developed by international jurisprudence, the ICTR case of Akayesu indicated that ‘coercion may be inherent in certain circumstances, such as armed conflict or the military presence of [a hostile group].’ However, nothing in international jurisprudence suggests that perpetrators need be from a hostile group to the victim. In the case of SEA, the majority of victims are protected persons fleeing conflict, who look to security forces – particularly peacekeeping forces – to protect them. When peacekeeping forces exchange sex for food, water or medicine, they take advantage of the coercive environment and abuse their power. Furthermore, it should be noted that minors cannot provide genuine consent due to their age. Therefore, this paper argues that SEA of adults or minors who are protected persons by security forces can constitute rape.
Can sexual exploitation and abuse constitute rape as a war crime?
Under the Rome Statute, rape and sexual violence are identified as conduct that may amount to a war crime in an international armed conflict (Article 8(2)(b)(xxii)) and non-international armed conflict (Article 8(3)(e)(vi)). Three criteria must be met to show that SEA can constitute rape as a war crime. Firstly, we must show that SEA may amount to rape – this has already been demonstrated above. Secondly, the conduct must have a nexus with the armed conflict. It need not occur physically proximate to open hostilities, nor does it need to be directly caused by the conflict itself. Prima facie, this test appears to be satisfied for most cases of SEA. The large number of protected persons residing in camps or settlements, alongside heavy military or peacekeeper presence are directly linked to the existence of armed conflict. Thirdly, the perpetrator must be aware of the factual circumstances that established the existence of an armed conflict. Again, it is highly unlikely that security forces deployed to protect civilians would not know that their deployment was related to an existing armed conflict. Therefore, it is reasonable to argue that SEA can constitute a war crime in specific circumstances.
Can sexual exploitation and abuse constitute rape as a crime against humanity?
SEA may also constitute rape as a crime against humanity in certain circumstances, where five elements are met. Firstly, there must be an ‘attack against a civilian population.’ The attack need not be a military attack but one of the acts outlined in Article 7 of the Rome Statute. For these purposes, the ‘attack’ is the rape, but may also include ‘other sexual violence’ under Article 7(1)(g). Secondly, the Rome Statute introduces another requirement that the attack be carried out ‘pursuant to or in furtherance of a State or organisational policy to commit such attack’ (Art 7(2)(a)). This criterion could be viewed as problematic as no relevant organisations explicitly encourage SEA. However, there is debate as to whether this additional requirement is specific only to the Rome Statute or a generalised rule of customary international law. The requirement is not included in the statutes of the ICTR, ICTY or the Special Court of Sierra Leone. The Appeals Chamber in Kunarac found that the requirement that an attack must be pursuant to a policy or state action is not necessary in proving a crime against humanity. The ICTR has followed the ICTY’s jurisprudence on this point.
Alternatively, though recognizably more difficult, it could be argued that the ‘policy’ criterion can be fulfilled, if we consider that policy can be demonstrated through repeated actions in the same sequence or a realised pattern of repeated conduct. The AU or UN, who contribute peacekeeping troops, are sufficiently organisational for the purpose of this element. In many of the countries where forces have been deployed (including CAR, DRC, Somalia and Haiti), a repeated pattern of conduct has been reported. Specifically, there are multiple allegations of SEA. Members of security forces acquire identification in order to enter IDP camps. So-called ‘fixers’ are used in order to facilitate sex/relationships between members of security forces and civilians. There appears to be knowledge amongst the operational hierarchy that the practice exists – it is consistently treated as a misconduct/ disciplinary issue, rather than as a crime. These criteria may therefore be fulfilled by omission – in other words, because the AU or the UN have failed to adequately address ongoing SEA, they are encouraging the attack. Thirdly, the attack must be systematic or widespread. ‘Widespread’ has been defined as indicating significant scale and a multiplicity of victims. In recent reporting, the UN Secretary-General has acknowledged the scale of the issue, the multiplicity of victims (hundreds) and that the issue is likely to be underreported, through fear of retaliation, stigma or mistrust of available justice systems. Fourthly, the conduct must part of or linked to the attack. The act of rape itself is inherently part of the attack. Where senior/commanding officers shield perpetrators, for example, by removing them from the jurisdiction, their actions essentially facilitate the attack. Finally, the perpetrator must have known that the conduct was part of or intended the conduct to be part of the attack. Given the scale of the issue it is unlikely that a perpetrator would be unaware of the broader context of their actions – particularly if identification had been acquired to gain access to a camp, or where a ‘fixer’ was used.
This paper shows that SEA can constitute rape and in some circumstances an international crime(s). Governments, international organisations and donors are obliged to ensure their actions, and those of their security forces, are consistent with international law and do not contribute towards human rights violations. It is clear that the current approach to SEA needs to drastically change to ensure that serious crimes are not treated as minor offences and that victims receive the justice that they deserve.
Antonia Mulvey is the Founder and Executive Director of Legal Action Worldwide. She has 20 years of experience in international, human rights, refugee and criminal law, is a sexual violence expert for UN Women and the Justice Rapid Response Unit, and is a rule of law expert for UNDP and the UK Stabilisation Unit. In 2016 she was appointed by OHCHR to research sexual violence in Myanmar and prepare the first Human Rights Council report on this. She tweets at @AntoniaMulvey
In this series:
- Introduction by Courtney Freer
- A Survey of Knowledge of and Attitudes toward Article 153 among Kuwaiti Citizens by Justin Gengler
- Is Female Suffrage in the Gulf important? by Hatoon Al-Fassi
- Saudi Women: Navigating War and Market by Madawi Al-Rasheed
- Disciplinary Violence in Kuwait by Alanoud Alsharekh
- The Influence of Islamist Rhetoric on Women’s Rights by Courtney Freer
- Gender Equality in Iraq and Iraqi Kurdistan by Zeynep Kaya
- Sexual Violence against Women during Displacement by Zeina Awad
- Women’s Access to Justice for GBV in Universal and Regional Human Rights Law by Lisa Gormley