This paper[ref]This paper was first presented as the Third Hilding Eek Memorial Lecture at the University of Stockholm on 18 September 2017. [/ref] reflects upon the interplay between international human rights law and criminal law – both national and international – through the international legal regimes that have evolved for combating gender-based violence against women, in peacetime and in conflict, and human trafficking, especially of women and girls. The different trajectories of these two legal regimes are newly associated through the UN Security Council’s recognition that sexual violence against women as a tactic of war and human trafficking in conflict constitute threats to international peace and security and accordingly come within the Council’s responsibility for the maintenance of international peace and security.
The interplay between different international legal regimes has generated considerable debate since the International Court of Justice identified the concept of a ‘self-contained’ regime.[ref]Case Concerning United States Diplomatic and Consular Staff in Tehran, (Merits) 1980 ICJ Reports 3, para 86.[/ref] One aspect was the concern in the late 1990s and the early years of this century about what was called the fragmentation of international law, an apprehension that the proliferation of specialised regimes would undermine the coherence of the discipline.[ref]The topic was considered by the International Law Commission; see Study Group of the International Law Commission, Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, A/CN.4/L.702, 18 July 2006.[/ref] Prominent among such specialised regimes were precisely human rights law and international criminal law. But there was much less concern expressed about the fluidity of, the institutional and substantive overlap between, and the dissolution of conceptual boundaries separating, such legal regimes. Further, their very nature entails a blurring of the boundaries between national and international law. Accordingly, the paper considers the convergence of legal regimes and the ensuing erosion of clear delineation between them. Another – and related – aspect is to ask what is meant by a human rights treaty, or more broadly what makes a human rights agenda? These last questions were originally sparked by my involvement as scientific advisor to the Council of Europe drafting committee for what might well be called Europe’s most recent human rights treaty: the Convention on Preventing and Combating Violence against Women and Domestic Violence.[ref]Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention), ETS No. 210, 11 May 2011.[/ref] But the Convention was from the outset conceived of as simultaneously a criminal law treaty and a human rights treaty, and many state delegates to the negotiations were from either the Department of Justice or the Department of Gender Equality/Human Rights. Throughout the negotiations, it became apparent that they did not always speak the same language, or share assumptions about the very nature of the proposed treaty, demonstrating a disciplinary divide that is replicated at the international institutional level.
The further spark to my thinking about these issues is my current position as Director of a Centre for Women Peace and Security (WPS). WPS is a Security Council agenda that is generally dated from the Council’s adoption of Resolution 1325 in 2000. In the words of that Resolution, it is an agenda committed to recognising ‘the important role of women in the prevention and resolution of conflicts and in peace-building’,[ref]Security Council Resolution 1325 (2000), S/RES/1325, preamble. [/ref] to bringing a gender perspective to peacekeeping operations and to ‘an understanding [that] the impact of armed conflict on women and girls, effective institutional arrangements to guarantee their protection and full participation in the peace process can significantly contribute to the maintenance and promotion of international peace and security.’[ref]Ibid. [/ref] Its civil society proponents – mainly women activists – sought inclusion of the experiences of women in war in the security space and celebrated the adoption of Resolution 1325 as setting a new standard for the Security Council, UN member states and the UN system as a whole. However, as Dianne Otto has commented, it was perhaps not then appreciated that there might be a price to pay,[ref]Dianne Otto, “Women, Peace and Security: A Critical Analysis of the Security Council’s Vision”, LSE Women, Peace and Security Working Paper Series 1 (2016), http://www.lse.ac.uk/women-peace-security/assets/documents/2016/wps1Otto.pdf[/ref] that although Resolution 1325 was in the words of a 2015 Global Study on its implementation, ‘conceived of and lobbied for as a human rights resolution that would promote the rights of women in conflict situations’[ref]Radhika Coomaraswamy et al., Preventing Conflict, Transforming Justice, Securing the Peace A Global Study on the Implementation of United Nations Security Council Resolution 1325 (New York: UN Women, 2015), 15. [/ref] its location in the Security Council also made it a security issue. The tension between these two positions is something I will return to.
I begin with a brief survey of the interplay between human rights law and criminal law – with also an appearance by international humanitarian law (IHL) – in the evolution of international legal regulation of human trafficking, especially of women and girls, and of violence against women and girls. These, for a long time, followed separate tracks, although they are linked, not least by the factors that contribute to both: poverty, sex and gender-based discrimination, inequalities, unequal access to economic and social rights including education, employment and health care. Fleeing from gender-based violence makes women vulnerable to trafficking, while trafficking in women is one manifestation of gender-based violence.[ref]Declaration on the Elimination of Violence against Women, United Nations General Assembly, Resolution 48/104, 20 December 1993, article 2 (b). [/ref] Both are incidents of patriarchy and of historically unequal power relations between men and women, and are ‘crucial social mechanisms by which women are forced into a subordinate position compared with men’.[ref]Declaration on the Elimination of Violence against Women, United Nations General Assembly, Resolution 48/104, 20 December 1993, preamble.[/ref]
Human Trafficking and Violence against Women and Girls: Criminal Law or Human Rights?
Human trafficking has a deep and complex legal history. It came earlier onto the international agenda than violence against women, indeed well before even the creation of the League of Nations, through a number of treaties campaigned for by a mix of early women’s movements and moral activists concerned to uphold the ‘virtue of white women’.[ref]Anne Gallagher, The International Law of Human Trafficking (New York: Cambridge University Press, 2010), 55. [/ref] These early treaties were not in contemporary terms either human rights or criminal law treaties. They focused on exploitative prostitution and exclusively on cross-border prostitution. In the words of one commentator on the four anti-trafficking treaties in the pre-UN era: ‘the export of immorality across borders had to be stopped.’[ref]Ibid., at 57. [/ref] The major themes of these early treaties have been summarised (and simplified) as protection of victims and their welfare through education and training, exchange of information and criminalisation of procurement of women for prostitution abroad, while, as Anne Gallagher describes it, carefully preserving state authority to regulate prostitution internally. There was a precursor to the human rights reporting process in that the 1921 International Convention for the Suppression of the Traffic in Women and Children provided for annual reporting and for an Advisory Committee of the League on the Traffic of Women and Children.
These various treaties were consolidated in 1949 into the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others.[ref]Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, United Nations General Assembly, Resolution 317 (IV), 2 December 1949.[/ref] The Convention has a criminal law focus, requiring punishment of those involved in procurement, exploitation of prostitution, running or managing a brothel, providing for extradition for such offences, and checking ‘the traffic in persons of either sex for the purpose of prostitution.’ There is a welfare angle in response to the fact that prostitution and trafficking for that purpose ‘endanger the welfare of the individual, the family and the community’[ref]Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, United Nations General Assembly, Resolution 317 (IV), 2 December 1949, preamble. [/ref] and some human rights language in that prostitution – whether within a state’s borders or involving cross-border activity – and trafficking for the purpose of prostitution are called ‘incompatible with the dignity and worth of the human person’.[ref]Ibid. [/ref] The former – prostitution – is subject to international regulation although it falls squarely within the internal affairs of the state. But the human rights commitment is limited. In the words of the Special Rapporteur on violence against women, its causes and consequences, the 1949 Convention has ‘proved ineffective in protecting the rights of trafficked women and combating trafficking. [It] does not take a human rights approach. It does not regard women as independent actors endowed with rights and reason; rather, the Convention views them as vulnerable beings in need of protection from the “evils of prostitution”.’[ref]Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, on trafficking in women, women’s migration and violence against women, submitted in accordance with Commission on Human Rights resolution 1997/44, E/CN.4/2000/68, 29 February 2000, para 22. [/ref]
Human trafficking is implicitly prohibited by the Universal Declaration of Human Rights and the human rights Covenants through such articles as those on the prohibition of slavery and servitude, free and full consent to marriage and the right to free choice of employment.[ref]See Report of the Special Rapporteur on trafficking in persons, especially women and children, A/HRC/32/41, 3 May 2016 for the international legal framework against trafficking in human beings. [/ref] Human trafficking enters directly and explicitly (but without definition) into a human rights treaty through the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 30 years after the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others. CEDAW, article 6 states that: ‘States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women’. Importantly this encompasses ‘all forms of trafficking’ not just that for the purposes of prostitution, although exploitation of prostitution remains. But this is strange language for a human rights treaty; it is not an equality provision like every other substantive article of CEDAW, nor is it an assertion of women’s rights, nor a straight-forward requirement of criminal law. Interestingly the CEDAW Committee has not adopted a General Recommendation on the subject, nor considered an individual communication on trafficking through to the merits.[ref]
Although no state has made a reservation to article 6, some aspects are controversial and the Committee has provided inconsistent interpretations through its concluding observations to states parties’ reports; Janie Chuang, ‘Article 6’, in The UN Convention on the Elimination of All Forms of Discrimination against Women A Commentary, ed. Marsha Freeman, Christine Chinkin and Beate Rudolf (Oxford: Oxford University Press, 2012) 169, 173.[/ref] In human rights terms, CEDAW is followed by article 35 of the Convention on the Rights of the Child, which provides that states must ‘take all appropriate … measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form’.
In the 1990s, the trafficking narrative begins to merge with that of the international legal story relating to combating violence against women and girls. Like trafficking, violence against women was not at first seen as self-evidently a human rights issue. As is well known, CEDAW has no provision directly relating to violence against women: its equality framework necessitating a male comparator excluded from its ambit violence that occurs to women because they are women. It entered the international arena as a social matter of crime prevention and criminal justice, as for instance in the General Assembly’s first resolution on domestic violence in 1985. That resolution recognised that ‘abuse and battery in the family are critical problems that have serious physical and psychological effects on individual family members’ and that they need to be examined through the lenses of ‘crime prevention and criminal justice in the context of socio-economic circumstances.’[ref]UN General Assembly, Resolution 40/31, Implementation of the World Programme of Action concerning Disabled Persons and United Nations Decade of Disabled Persons, A/RES/40/31, 29 November 1985. [/ref] The UN Committee on Crime Prevention and Control had also identified violence against family members as an important issue for it to address. Violence against women was primarily perceived of as the deviant behaviour of an individual rather than as a public matter sustained and acquiesced in by the organisational structures of society. Other lenses through which violence against women was viewed were those of health, social welfare or harmful traditional practices such as female genital mutilation, thus de-linking it from the structural inequalities inherent in existing gender relations. A collective shift in mind-set was needed to bring violence against women within the framework of international human rights law incurring state obligations and state responsibility for failure to respect, protect and fulfil those obligations. The key moment for that shift was the 1992 adoption by the CEDAW Committee of its ground breaking General Recommendation No. 19 that asserted violence against women to be an act of discrimination within the terms of article 1 of the Convention and hence a violation of the Convention. However General Recommendation No. 19 added little to article 6 of CEDAW apart from noting that poverty and unemployment increase opportunities for trafficking in women, and that there are diverse and new forms of sexual exploitation in addition to what it termed ‘established forms of trafficking’, such as sex tourism, domestic labour and organised marriages of women from developing countries to foreign nationals.
The World Conference on Human Rights took place in Vienna the following year – 1993. It has been widely claimed that women were the biggest winners at Vienna. Through the efforts of women activists, supported by academic commentary, and with the support of like-minded states, the Conference upheld gender-based violence as ‘incompatible with the dignity and worth of the human person’ and stressed ‘the importance of working towards [its] elimination … in public and private life’ as well as the elimination of ‘exploitation and trafficking in women’.’[ref]Vienna Declaration and Programme of Action, 25 June 1993, II, para 38. [/ref] Another linkage was now coming to the fore, that with armed conflict. These normative developments were taking place against the backdrop of the media coverage of the widespread sexual violence that was committed in the wars associated with the break-up of the former Yugoslavia, in particular Bosnia. In General Recommendation No. 19 the CEDAW Committee had referenced the impact of armed conflict on prostitution, trafficking in women and sexual assault of women and the need for ‘specific protective and punitive measures.’ Vienna is stronger with its assertion that ‘[v]iolations of the human rights of women in situations of armed conflict are violations of the fundamental principles of international human rights and humanitarian law. All violations of this kind, including in particular murder, systematic rape, sexual slavery and forced pregnancy, require a particularly effective response.’[ref]Ibid. [/ref] Thus at Vienna exploitation and trafficking of women were delinked from prostitution, which had no mention except in the context of child prostitution, and were brought squarely into the framework of human rights.
The acceptance of violence against women in armed conflict as a violation of human rights as well as of IHL disrupts the traditional divide between the two legal regimes. It supports the notion of a continuum of violence against women linking that which occurs in ordinary everyday life – peacetime – and that taking place in armed conflict, thereby reinforcing states’ obligations with respect to elimination of violence against women in public and private. Wartime violence however is elevated; article 5 of the Statute for the International Criminal Tribunal for the former Yugoslavia, adopted by the UN Security Council the same year, included for the first time rape as a crime against humanity within the jurisdiction of an international criminal court. The concept of a crime against humanity was not decoupled from conflict until the Rome Statute of the International Criminal Court, another 5 years later.
Having come together at Vienna and again in 1995 at the Fourth World Conference on Women in Beijing, when trafficking in women and girls was recognised as a form of sex and gender-based violence against women,[ref]Beijing Declaration and Platform for Action, September 1995, paras 99 and 113. [/ref] the trafficking story and the violence against women story to some extent again separate. Regulation of trafficking was furthered by the UN Crime Commission, rather than by the Human Rights Commission, with the drafting of the 2000 Palermo Protocol to the Convention on Transnational Organised Crime to ‘prevent and combat trafficking in persons, paying particular attention to women and children’.[ref]Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, United Nations General Assembly, Resolution 55/25, 15 November 2000.[/ref] There is some acknowledgment of human rights as the one of the purposes of the Protocol is ‘to protect and assist the victims of such trafficking, with full respect for their human rights’. Nevertheless the crime control emphasis (furthered by the first international definition of the trafficking) caused concerns that this would diminish the attention and commitment due to the human rights of victims. In a deliberate attempt to avoid this and to keep human rights in the foreground of the picture, the UN Office of the High Commissioner for Human Rights (OHCHR) produced its Recommended Principles and Guidelines on Human Rights and Human Trafficking that were presented to the Economic and Social Council of the UN (ECOSOC) as an addendum to a report from the High Commissioner. The Guidelines put the human rights of trafficked persons ‘at the centre of all efforts to prevent and combat trafficking and to protect, assist and provide redress to victims’ but this still falls short of an outright assertion that trafficking per se constitutes a violation of women’s human rights, a stance that is found in the 2005 Council of Europe Convention on Trafficking: ‘trafficking in human beings constitutes a violation of human rights’,[ref]Council of Europe Convention on Action against Trafficking in Human Beings, Warsaw, 16 May 2005, preamble. [/ref]] and is echoed by the Special Rapporteur on trafficking in persons, especially women and children: ‘Trafficking in persons, especially women and children, is a gross human rights violation.’[ref]Report of the Special Rapporteur on trafficking in persons, especially women and children, Maria Grazia Giammarinaro, A/HRC/29/38, 31 May 2015, para 7. [/ref] Such an understanding incurs the state obligation ‘to investigate allegations of trafficking and prosecute traffickers’ under general human rights law; within Europe this has been affirmed by the European Court of Human Rights since the ground-breaking case of Rantsev v Russia and Cyprus in 2010.[ref]Application no. 25965/04, 7 January 2010.[/ref] Human rights institutions have thus been unwilling to leave regulation of trafficking solely in the domain of criminal law – the mandate of the Special Rapporteur on trafficking as a special procedure of the UN Human Rights Council is a further indication of this, as is the inclusion of the issue within the mandate of the Special Rapporteur on violence against women. However state action in implementation of the Palermo Protocol has veered away from human rights. In the words of Ratna Kapur, it has ‘triggered a vast network of laws designed to regulate cross-border movement through law and order regimes and criminal justice’ reflecting ‘an increasing obsession with national security, law and order, and border protection in the context of globalisation and free market ideology’ that lead to scepticism as to whether it has resolved trafficking or served women’s human rights.[ref]Ratna Kapur, “Gender, Sovereignty and the Rise of a Sexual Security Regime in International Law and Postcolonial India”, Melbourne Journal of International Law 14 (2) (2013), 317, 334.[/ref] One might add that this has also entailed a large expenditure, which is way above that expended on responding to other forms of violence against women.
Istanbul Convention: Criminal Law and Human Rights
Turning back to combating violence against women, normative development has progressed at the UN level, notably through the jurisprudence of the CEDAW Committee under the CEDAW Optional Protocol, and the recent update of its 1992 General Recommendation No. 19, General Recommendation No. 35 adopted on 26 July 2017, and through the work of the Special Rapporteur on violence against women, a mandate approved in 1993 following the Vienna World Conference on Human Rights. At the regional level, the 2011 Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention) is widely regarded as ‘state of the art’. It draws upon the language and practice of these international bodies as well as the emergent jurisprudence on violence against women of the European Court of Human Rights.[ref]See Council of Europe, Fact Sheet, Violence against Women, June 2017, http://www.echr.coe.int/Documents/FS_Violence_Woman_ENG.pdf[/ref] However, unlike the Palermo Protocol, the Istanbul Convention was drafted deliberately as a human rights treaty as well as a criminal law treaty. This designation required consideration of what should be in a human rights treaty, as opposed to concentrating solely on the human rights of survivors. In its human rights capacity, it asserts that ‘“violence against women” is understood as a violation of human rights and a form of discrimination against women’ (Istanbul Convention, article 3 (a)). It emphasises substantive equality between women and men as an immediate state obligation and condemns all forms of discrimination against women, thereby setting out the legal link between gender equality and preventing violence against women and girls. Further, in article 4 it provides that it must be applied to all victims without discrimination on a wide range of grounds, including disability, health and – for the first time in an international treaty – on the basis of sexual orientation and gender identity. It spells out that no culture, custom, religion or tradition can be considered as a justification for acts of violence within the Convention. Most importantly the Convention spells out the essential state responsibility for human rights: states’ negative obligation to refrain from any act of violence by its agents and the positive obligation to exercise due diligence to prevent and protect against violence against women committed by non-state actors, to prosecute and punish perpetrators and to provide reparations for victims (Istanbul Convention, article 5). It also recognises women’s agency and the importance of measures for the empowerment of women. In drafting it was agreed that there should be an independent expert mechanism for monitoring progress in implementation and to develop jurisprudence around its provisions, apparently now a hallmark of a human rights treaty. The model for an expert body to monitor compliance with the Istanbul Convention – GREVIO[ref]Istanbul Convention, article 66.1: ‘The Group of Experts on Action against Violence against Women and Domestic Violence (hereinafter referred to as “GREVIO”) shall monitor the implementation of this Convention by the Parties.’[/ref] – was that set up under the Council of Europe trafficking treaty – GRETA.[ref]Council of Europe Convention on Action against Trafficking in Human Beings, article 38.1: ‘The Group of experts on action against trafficking in human beings (hereinafter referred to as “GRETA”), shall monitor the implementation of this Convention by the Parties.’ [/ref] The Palermo Protocol in contrast provides for no such independent mechanism; its parent body, the Convention on Transnational Organised Crime provides only for a Conference of States Parties, a more traditional international law (as opposed to human rights) monitoring device.
But Istanbul is also a criminal law treaty. Unless it falls within the categories of war crimes, crimes against humanity or genocide, gender-based violence against women is not per se an international crime. Thus the Convention had to identify specific actions within the rubric of violence against women and provide for their criminalisation and prosecution at the domestic level,[ref]The adoption of the Council of Europe Convention on Action against Trafficking in Human Beings in 2005 meant that trafficking was not included among the listed crimes of violence against women in the Istanbul Convention.[/ref] requiring a specificity of language with respect to the substance of criminal law and procedure that is in stark contrast to the more open ended language of human rights treaties. The latter are worded at a high level of abstraction with imprecise and indeterminate language. They do not prescribe states’ behaviour in any consistent form, but rather provide for differing levels of commitment depending upon the context. There are gaps that must be fleshed out. The language allows states a considerable discretion, or margin of appreciation in how they fulfil their obligations. They must retain their relevance in changing political, social and economic circumstances, even as they become ever more dated. In sum a human rights treaty must be a ‘dynamic instrument that accommodates the development of international law.’[ref]Committee on the Elimination of Discrimination against Women, General Recommendation No. 28, on the core obligations of States parties under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, CEDAW/C/GC/28, 16 December 2010, para 1. [/ref] Criminal law, in contrast, requires the certainty that allows people to know what behaviour is proscribed and precision for application by law enforcement bodies and prosecution of alleged offenders. Treaty obligations for domestic criminal law enforcement means that crimes must be listed, defined and their elements spelled out. During the negotiations for the Istanbul Convention arguments were made that some proposed crimes of violence against women were better understood as instances of social misbehaviour that should not be subject to criminal sanction, for instance stalking and harassment, or proposed definitions were rejected on the grounds that they were too indeterminate to be brought before a criminal court. And while human rights assumes universal application criminal law provisions had to be adaptable to both civil law and common law systems of criminal law and procedure. Criminal prosecution requires a court with prescriptive and enforcement jurisdiction that must be in accordance with international law principles of jurisdiction. Crimes of violence against women within the terms of the Istanbul Convention are made subject to territorial jurisdiction and to jurisdiction based on the nationality or habitual residence of the alleged offender in a state party; unlike the Council of Europe Convention on Action against Trafficking in Human Beings there is no provision for jurisdiction where the offence is committed against a national, so–called passive personality. There is provision for jurisdiction to be established over an alleged offender who is present in the country where that person is not extradited to another party ‘solely on the basis of her or his nationality.’ (Istanbul Convention, article 44). However there are no detailed provisions with respect to extradition as in the UN Convention against Transnational Organised Crime.
The Istanbul Convention does not purport to address violence against women in armed conflict, and is regarded as complementary to the principles of IHL and international criminal law.[ref]Council of Europe, Convention on Preventing and Combating Violence against Women and Domestic Violence, Explanatory Report 51.[/ref] Nevertheless, since the forms of violence it covers do not cease during armed conflict or occupation, it is spelled out that the Convention is applicable in situations of armed conflict as well as in times of peace (article 2.3). The international human rights institutions, however, including the UN Human Rights Council and the treaty bodies, have brought IHL directly within their scope, for instance in mandating fact-finding missions. As an example, I was a member of a fact-finding mission on the Gaza conflict of 2008-9 that was mandated ‘to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations’.[ref]United Nations Human Rights Council, Resolution S-9/1, A/HRC/S-9/L.1, 12 January 2009. [/ref] While perhaps substituting for the continued non-use of the International Fact-Finding Commission provided for under Protocol I to the Geneva Conventions, it might be questioned where the UN Human Rights Council acquires the competence to bring IHL into its terms of reference. By doing so, it risks blurring the conceptual and practical distinctions between the two legal regimes, not to mention the potential for human rights lawyers to get IHL wrong. Any conclusions about the commission of war crimes or crimes against humanity also necessarily raise issues of international criminal law. This conjunction of legal regimes is implicitly welcomed by the International Law Commission (ILC) Special Rapporteur on crimes against humanity. In his third report, Sean Murphy observes that:
‘Human rights treaty bodies will often identify situations of crimes against humanity and provide recommendations for response, when the crimes against humanity intersect with the subject matter of the treaty. For example, when receiving reports from States parties, the Human Rights Committee addresses violations of the International Covenant for Civil and Political Rights such as violations of the right to life or the right not to be subjected to torture, which include circumstances where those violations rise to the level of crimes against humanity. Thus, while the mandates of the Human Rights Committee and other subsidiary bodies do not specifically include monitoring crimes against humanity, these bodies can identify and recommend appropriate State responses to crimes against humanity.’[ref]Sean D. Murphy, Third report on crimes against humanity, United Nations International Law Commission, A/CN.4/704, 23 January 2017, para 220. [/ref]
Of course, crimes against humanity have now been decoupled from armed conflict and are not technically part of IHL, but in many instances the ‘circumstances where those violations rise to the level of crimes against humanity’ will be association with conflict, and the ILC Special Rapporteur certainly accepts the preliminary work of the human rights bodies in identifying the commission of international crimes.
Violence against Women, Trafficking and WPS
In 2000 – the same year as the adoption of the Palermo Protocol – a new actor entered the scene with respect to violence against women in armed conflict: the UN Security Council, through its introduction of the Women, Peace and Security (WPS) agenda. The first operative paragraph, and thus emphasis, of its Resolution 1325 is on women’s participation in all stages of conflict prevention, management and resolution, on gender mainstreaming and ‘to protect women and girls from gender-based violence, particularly rape and other forms of sexual abuse, and all other forms of violence in situations of armed conflict’. This is a wide formulation of violence against women and girls. Resolution 1325 also reminds states of their existing obligations under IHL, CEDAW, the Children’s Convention, and to bear in mind the Rome Statute. But eight years later, the next Resolution, 1820, is more restrictive. Its preamble refers to the resolve ‘to eliminate all forms of violence against women and girls’, but the operative part of the resolution refers only to sexual, not ‘all forms’ or even ‘gender-based’, violence so that ‘sexual violence, when used or commissioned as a tactic of war in order to deliberately target civilians or as a part of a widespread or systematic attack against civilian populations, can significantly exacerbate situations of armed conflict and may impede the restoration of international peace and security’. It goes on to affirm that ‘effective steps to prevent and respond to such acts of sexual violence [i.e. those committed as a tactic of war] can significantly contribute to the maintenance of international peace and security’. While important in its rejection of sexual violence in conflict as an inevitable by-product of war and as recognition of what it often is – a cheap and effective tactic of war that can constitute a war crime, crime against humanity and even genocide – this formula is limiting. The repeated focus only on sexual violence against women downplays other abuses, including sexual violence against men and boys, and other forms of gender-based violence against women and girls. It also discounts the incidence of wartime sexual violence that is not a tactic of war such as opportunistic violence or that committed by civilians, thereby minimising the likelihood of their being addressed in post-conflict reconstruction. It also portrays gender-based and sexual violence in conflict as exceptional rather than as rooted in gender inequality and as occurring in a continuum from that committed outside conflict in so-called ‘peacetime’.[ref]Cynthia Cockburn, “The Continuum of Violence: A Gender Perspective on War and Peace”, in Sites of Violence: Gender and Conflict Zones, ed. Wenona Giles and Jennifer Hyndman (University of California Press, 2004). [/ref] It assumes that conflict is different in kind from other situations of violence such as ‘ethnic and communal violence, states of emergency and suppression of mass uprisings, war against terrorism and organized crime’, yet we know that all these situations result in serious violations of women’s rights.[ref]Committee on the Elimination of Discrimination against Women, General Recommendation No. 30, on women in conflict prevention, conflict and post-conflict situations, CEDAW/C/GC/30, 1 November 2013. [/ref] Such violence casts women solely in terms of their sexual identities and sustains the essentialist image of women as victims, upholding the binary of women in need of protection from the ‘evil’ of sexual violence and men (especially international and militarised men) as their designated protectors, thereby sustaining rather than challenging gender stereotypes.[ref]On gender stereotypes see Rebecca Cook and Simone Cusack, Gender Stereotyping: Transnational Legal Perspectives (University of Pennsylvania Press, 2010).[/ref] The Security Council has not engaged in any gender analysis, has avoided any theoretical thinking about the concept of gender and has steadfastly equated ‘gender’ with ‘women’.[ref]Laura McLeod, ‘The Women, Peace and Security resolutions: UNSCR 1325 to 2122’, in Handbook on Gender in World Politics, ed. Jill Steans and Daniela Tepe-Belfrage (Edward Elgar, 2016): 271, 275-6. [/ref]
By bringing it into the Security Council’s security agenda, violence against women is securitised, which runs counter to the trajectory of recognising it as a violation of women’s human rights and undermines the transformative potential of women’s agency and leadership. Subsequent WPS resolutions give variable weight to the so-called pillars of participation, emphasising women’s active engagement and agency, and of protection against sexual violence. Even the former – women’s participation – tends to reinforce a gender stereotype of women as peacemakers and lacks institutional steps for implementation. In contrast, a slew of institutional steps have been introduced for protection against sexual violence including the introduction by Resolution 1888 (2009) of a Special Representative of the Secretary-General (SRSG) on sexual violence in armed conflict who reports annually to the Security Council, thus keeping the issue alive on its agenda. The need for criminal prosecution of alleged perpetrators and an end to impunity is constantly reiterated but the human rights approach is reduced so that in Resolution 1820, for instance, reference to CEDAW and the Children’s Convention is made only in the preamble, not in the operative part of the Resolution.
Conversely, the CEDAW Committee has taken up directly the human rights of women in conflict and post-conflict in its General Recommendation No. 30. Adopted in 2013 on the same day as another WPS resolution, Resolution 2122, General Recommendation No. 30 offers a more complex picture of the diverse effects of conflict on women’s lives than does the Security Council. It is long and detailed but some aspects are the following. It addresses in sophisticated terms a wider range of issues, for instance, access to justice, nationality and statelessness, marriage and family relations, economic hardship, and education. It draws no hard distinction between conflict and post-conflict, observing that this transition is often not linear and can involve lengthy cycles of cessation of conflict and then slippage back into conflict, a transition that can exacerbate violence against women. It notes research that shows that ‘while the forms and sites of violence change, … all forms of gender-based violence, in particular sexual violence escalate in the post-conflict setting’. General Recommendation No. 30 addresses the root causes of armed conflict, which are largely ignored in the WPS resolutions. It repeats that violence against women is a form of discrimination and explains that conflict exacerbates existing inequalities. Power imbalances and harmful gender norms are recognised as factors creating disproportionate risk. As a form of discrimination under the Convention, violence against women and girls leads to multiple other human rights violations, including those relating to inadequate delivery of economic and social rights: healthcare, education and social services. Even when affirming the importance of women’s human rights, the Security Council makes no reference to women’s economic and social rights, categorising medical, legal, psychosocial and livelihood matters in the language of ‘services’, rather than in that of rights. For the CEDAW Committee, transitional mechanisms must redress underlying sex- and gender-based discrimination and reparation measures must seek to rectify structural inequalities. By contrast, where the WPS resolutions reference reparations it is as reparation for violations of individual rights, an approach that undermines the transformative function of reparations.
2015 sees the latest twist in the narratives of violence against women and trafficking in women and girls. In WPS Resolution 2242, the Security Council expressed a new and deep concern that acts of sexual violence were part of the strategic objectives and ideology of certain terrorist groups, which were used to increase their power, revenue and recruitment base and to shred the social fabric of targeted communities: sexual violence in conflict as a tactic of terror. Violent extremism and terrorism undoubtedly have a gendered impact on the human rights of women and girls, including on their health, education and participation in public life. In light of these realities the Security Council made a number of calls: for the greater integration of the WPS agenda with those for counter-terrorism and preventing and countering violent extremism (P/CVE); to integrate gender as a cross-cutting issue within the work of the Counter-Terrorism Committee and the Counter-Terrorism Committee Executive Directorate; for those bodies to consult with women and women’s organisations to inform their work; for gender-sensitive research and data collection on the drivers of radicalisation for women, and the impacts of counter-terrorism strategies on women’s human rights; and to ensure the participation and leadership of women and women’s organisations in developing strategies to counter terrorism and violent extremism.
These objectives have been furthered through the United Nations Global Counter-Terrorism Strategy, Plan of Action to Prevent Violent Extremism,[ref]UN Doc. A/70/674, 24 December 2015.[/ref] which also aligns to the Sustainable Development Goals (SDGs), in particular SDG 5 regarding gender equality and women’s empowerment. On the one hand, giving WPS a greater profile through highlighting its relevance to the most important agendas of the day is valuable; on the other hand, there is the risk of instrumentalising the WPS agenda to strengthen P/CVE efforts, or of co-opting women, without increasing their agency. Although the Plan of Action recognises that efforts to counter terrorism and violent extremism must not impact adversely on women’s rights this negative obligation does not equate with the recommendation of the CEDAW Committee that the state party ensure that ‘counter-terrorism measures employed by the military and law enforcement authorities, including deradicalization programmes … comply with the provisions of the Convention’.[ref]Committee on the Elimination of Discrimination against Women, Concluding Observations, Nigeria, CEDAW/C/NGA/CO/7-8, 24 July 2017, para 16 (b). [/ref] The concern remains and is not alleviated by the inadequate attention to women’s human rights, especially economic and social rights, throughout the WPS resolutions. It seems that WPS has been drawn upon as a solution to terrorism, but without any assurances that it will not be discounted when other imperatives so demand. It also risks diversion of resources from implementation of WPS, except when in the service of countering terrorism and violent extremism. As was pointed out at a symposium on WPS and P/CVE at LSE, P/CVE programmes often involve military actions and are implemented in conjunction with the armed forces, while the WPS agenda is the outcome of a movement for peace through demilitarisation.[ref]“Preventing/Countering Violent Extremism and WPS: Concepts, Practices and Moving Forward Key Issues Report”, LSE Centre for Women, Peace and Security, Key Issues Report, August 2017, http://www.lse.ac.uk/women-peace-security/assets/documents/2017/LSE-WPS-PCVE-Key-Issues-Report.pdf[/ref] The Security Council’s stance is thus at odds with the recommendation of the 2015 Global Study that ‘Any attempt to securitise issues and to use women as instruments in military strategy must be consistently discouraged.’[ref]United Nations, Preventing Conflict, Transforming Justice, Securing the Peace A Global Study on the Implementation of United Nations Security Council Resolution 1325 (2015), 15.[/ref]
Resolution 2242 emphasises the importance of women’s empowerment. Measures to this end are to be welcomed and are in furtherance of CEDAW’s goal for the ‘full development and advancement of women for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men’ (CEDAW, article 3). However it is not unusual for claims of women’s empowerment to be made for other purposes, for instance by states seeking to demonstrate their stability and commitment to human rights, or for imposing upon women responsibilities for furthering other agendas such as CVE thereby securitising further women’s human rights.[ref]Katherine Brown, “The Securitisation of Human Rights”, in Handbook on Gender in World Politics, ed. Jill Steans and Daniela Tepe-Belfrage (Edward Elgar, 2016), 255, 257.[/ref] The Security Council has not clarified its understanding of women’s ‘empowerment’, although it seems to be understood as the opposite of a social rejection of women’s human rights, and can be achieved through courses on women’s leadership.[ref]Ibid., at 258. [/ref] In other UN contexts, it is often equated with economic empowerment. But empowerment is a much more complex process. Naila Kabeer, for instance has described empowerment as gaining the ability to make strategic life choices where this was previously denied.[ref]Naila Kabeer, “Resources, Agency, Achievements: Reflections on the Measurement of Women’s Empowerment”, Development and Change, 30 (1999), 435.[/ref] She explains that changes in the ability to exercise choice involve three inter-connected elements: acquiring and accessing resources (material and social); individual and collective agency (through a process of reflection and action); and achievements (the outcomes of choices), all of which interact with structural inequalities and underlying distribution of power. None of these are present in the WPS agenda.
But it is not just WPS that has been brought into the Security Council’s counter-terrorism and CVE agenda. The same is now true of trafficking in persons. The 2016 report of the Special Rapporteur on trafficking explored trafficking as a feature of armed conflict and post-conflict situations.[ref]Report of the Special Rapporteur on Trafficking in Persons, especially women and children, Trafficking in persons in conflict and post-conflict situations: protecting victims of trafficking and people at risk of trafficking, especially women and children, A/71/303, 5 August 2016. [/ref] She noted especially its gendered dimensions, including that men and boys are trafficked to supplement fighting forces and the increased risk for women and girls being abducted and forced into sexual slavery and/or forced prostitution. She also discussed other factors that enhance women’s vulnerability to being trafficked, including illusions of security through arranged marriages or false promises of domestic work abroad. The Special Rapporteur emphasised her belief that the human rights of victims of trafficking should be placed at the centre of protection measures taken to address trafficking.
On 20 December 2016, in Resolution 2331 on the maintenance of peace and security, the Security Council addressed trafficking in persons for the first time. The Resolution makes a number of steps: it recognises that trafficking in persons in armed conflict and post-conflict situations can also be associated with sexual violence in conflict; that ‘acts of sexual and gender-based violence, including when associated to trafficking in persons, are known to be part of the strategic objectives and ideology of certain terrorist groups’, deliberately undertaken as a tactic of terror and to support the financing and recruiting of such groups; and thus that addressing trafficking is part of countering violent extremism and the terrorism often associated with violent extremism. The Security Council condemns all instances of trafficking in conflict areas and calls upon member states to take a range of measures, primarily with respect to criminalising and prosecuting trafficking in the context of armed conflict, and to investigate, disrupt and dismantle networks involved in trafficking in persons in the context of armed conflict. While the scope of the resolution is on all armed conflict, the emphasis is on trafficking associated with terrorism and violent extremism, for instance through its explicit denunciation of Islamic State of Iraq and the Levant (ISIL or DAESH), the Al-Nusrah Front for the People of the Levant (ANF) and ‘associated individuals, groups, undertakings and entities’. The Security Council expresses its ‘deep concern’ that ‘trafficking in persons, in particular women and girls, remains a critical component of the financial flows to certain terrorist groups; and that, when leading to certain forms of exploitation, is being used by these groups as a driver for recruitment’. The Special Representative of the Secretary-General on sexual violence in armed conflict has noted that, while the Security Council has expanded its sanctions framework for the suppression of terrorist financing explicitly to include ISIL and has condemned the abduction of women and children for sexual exploitation, for trafficking and to force the payment of ransoms, when it comes to seeking ways to curb financial flows to violent extremists efforts are focused almost exclusively on such considerations as the sale of oil and antiquities.[ref]Report of the Secretary-General on conflict-related sexual violence, UN Doc. S/2016/361, 20 April 2016, para 20.[/ref]
As with WPS, human rights are not to the fore in Resolution 2331. The Security Council calls upon states to implement various measures, including ratifying the Palermo Protocol, but no such demand is made with respect to the human rights treaties, nor are the OHCHR Guidelines and Principles referenced as a basis for the treatment of victims of trafficking. Indeed, while the Security Council recognises the importance of comprehensively addressing victims’ needs, ‘including the provision of or access to medical, psychosocial assistance and legal aid, as well as ensur[ing] that victims are treated as victims of crime’ and are not stigmatised or penalised, this is to be in line with domestic legislation, not international standards. Despite being a form of violence in conflict and a human rights abuse, trafficking has not figured in the eight WPS resolutions and despite recognising that trafficking in persons in conflict and post-conflict can be associated with sexual violence in conflict, the Security Council did not link its trafficking resolution to the WPS agenda. There is just one preambular reference in Resolution 2331 to the concern expressed in the WPS Resolution 2242 ‘that acts of sexual and gender-based violence are known to be part of the strategic objectives and ideology of certain terrorist groups.’ Nevertheless, whether or not intended by the Security Council, it seems that by recognising the incidence of trafficking in armed conflict and its association with sexual and gender-based violence (being both of itself a form of such violence and enhancing vulnerability to other forms of such violence), Resolution 2331 implicitly brings trafficking directly into the broader agenda of WPS: it has been addressed by the SRSG on sexual violence in armed conflict and was the subject of the Security Council’s open debate on conflict-related sexual violence in 2016, both processes that have evolved from the WPS resolutions, notably Resolution 1888 in 2009.
At the international institutional level there remains a lack of joined up thinking and action, while the substantive law is overlapping. Although UN institutions outside the Security Council barely engage with WPS as such – CEDAW through General Recommendation No. 30 is the exception – the human rights bodies incorporate IHL and international criminal law, the legal foundations of WPS. The Global Study urged further convergence of these different legal regimes through the use of human rights mechanisms for monitoring and implementing WPS obligations. This would extend the reach of WPS: as a human rights issue, WPS is relevant to all UN member states while as a security issue it is strictly only applicable to those situations on the Security Council’s agenda, as has been argued by some states when the Special Representative of the Secretary-General on sexual violence in armed conflict has reported some situations not on the Security Council agenda. But if this is to be done, more thinking about the different legal regimes is needed; they seem currently to be referenced almost indiscriminately, without conceptual clarification of their different purposes, standards and remedies.
More substantively, the legal regimes for combating violence against women and human trafficking have both been limited by the Security Council – a male dominated and highly masculinised exclusionary space. The focus on ‘sexual violence, when used or commissioned as a tactic of war’ limits our understanding of conflict-related or affected sexual or gender-based violence and excludes other harms experienced by women in conflict because they are women, whether committed by armed groups, state forces or civilians. Human trafficking was limited in its origins by its association with prostitution, has been politicised by conflation with people smuggling, immigration and security, and is now both further politicised and limited by its association with conflict and extremism. This privileges certain trafficked victims, for instance classifying victims of trafficking and of sexual violence committed by terrorist groups as victims of terrorism, so rendering them eligible for the official support and redress given to such victims. This recognition is not recommended to extend to victims made vulnerable to being trafficked through fleeing from violent extremism, or to those who have no secure migration routes because of strict border controls and security policies.
Nor are ordinary every day victims of gender-based and sexual violence recognised as worthy of privileged treatment. As the CEDAW Committee has recently expressed in its General Recommendation No 35: ‘gender-based violence against women, whether committed by States, intergovernmental organisations or non-state actors … remains pervasive in all countries of the world, with high levels of impunity. It manifests in a continuum of multiple, interrelated and recurring forms, in a range of settings, from private to public, including technology-mediated settings and in the contemporary globalized world it transcends national boundaries.’ But it still does not constitute a recognised crime against humanity; although formally delinked from conflict, the reality remains that only incidents that occur within some such wider context of violence are likely to be recognised as such. Nor is everyday violence against women a recognised form of terror. Resources made available for fighting violence in the form of extremism does not extend to these victims of violence who face the consequences of financial austerity and often inadequate access to justice. The effect is to reinforce violence in conflict, especially when perpetrated by terrorist or extremist groups, as different, necessitating the heavy weight security apparatus to address it. By presenting manifestations of violence in armed conflict narrowly as security issues, the Security Council restricts any broader understanding relating to human rights, in particular economic and social rights, although these are deeply implicated in both gender-based violence against women and trafficking. Nor in the context of WPS has the Security Council given commensurate attention to structural issues such as state terror, inequalities, militarisation, economic neo-liberalism or arms trading,[ref]Inclusion of the needs of women in disarmament, demobilisation and reintegration programmes has been included in WPS resolutions since Security Council Resolution 1325; Security Council Resolution 2106, 24 June 2013 and Security Council Resolution 2122, 18 October 2013 make preambular note of the provisions of the Arms Trade Treaty relating to gender-based violence.[/ref] which are understood by civil society as obstacles to effectively combating violence against women and human trafficking.
Building upon the earlier campaign for recognition of gender-based violence against women as a violation of human rights, it was clear to the civil society advocates in 2000 and to the authors of the Global Study in 2015 that WPS is such an agenda. Similarly, human rights institutions have lobbied for an understanding of human trafficking within a human rights framework that goes beyond taking into account the human rights of victims in criminal processes with respect to perpetrators and even beyond ensuring assistance to trafficked persons. By integrating these into the Security Council’s primary responsibility for the maintenance of international peace and security – thereby securitising human rights – the weakening of the human rights lens was probably inevitable, with the further risks of subjugation and co-option by the programmes for P/CVE. But the ultimate goal of combating violence against women and human trafficking in conflict – the vision of a sustainable, gendered peace – must not be forgotten, nor that the feminist transformative agenda is core to its achievement.
This is paper 12/2018 in the LSE Women, Peace and Security Working Paper Series.
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The views, thoughts and opinions expressed in this blog post are those of the author(s) only, and do not reflect LSE’s or those of the LSE Centre for Women, Peace and Security.