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Accountability for conflict-related sexual violence as a central pillar for prevention - Arria Formula meeting of the UN Security Council

GJC President Akila Radhakrishnan briefed the UN Security Council on accountability for conflict-related sexual violence.


Transcript: Remarks for U.N. Security Council Arria Formula Meeting on "Accountability for Conflict-Related Sexual Violence as a Central Pillar for Prevention," Akila Radhakrishnan, President, Global Justice Center

Madam Chair, Excellencies, ladies and gentlemen, thank you for the opportunity to participate in this important meeting. As Minister Barley mentioned, I am the President of the Global Justice Center, an international human rights organization dedicated to advancing gender equality through the rule of law. We combine legal analysis with strategic advocacy to ensure equal protection of the law for women and girls.

I’m happy to see that today’s Arria is co-sponsored by so many Council members. Ensuring true accountability will require more than just eloquent rhetoric; it will require Council members to take concrete action and display considerable political will.

Sexual and gender-based violence is, at its core, an expression of discrimination, patriarchy and inequality.

As a tactic, its efficacy relies on the enforcement of rigidly defined gender roles. In turn, the impact of sexual violence often further entrenches gender inequalities within a culture. This is true regardless of whether perpetrators are authoritarian regimes, armed militias, terrorist groups or criminal gangs.

As the annexes of the SG’s Annual Reports on conflict-related sexual violence have repeatedly demonstrated—it’s not only non-state actors who commit sexual violence. Truly ending impunity requires that all actors involved in the commission of atrocities, including state actors, are held to account. And it’s every state’s responsibility to do so. It’s essential that as the Council contemplates actions to support accountability, it does not support or set up processes and mechanisms that focus on certain actors to the exclusion of others.

Moreover, while individual criminal accountability is an important part of this picture, it cannot be the sole focus. Rather, accountability needs to be holistic and survivor-centered, and should seek to address and transform the root causes of violence. Therefore, punitive measures against individuals cannot alone address it; to comprehensively address SGBV takes much more: reparations and redress, including guarantees of non-repetition, and access to comprehensive medical and psychosocial care for survivors, including safe abortion.

When it comes to individual criminal accountability for SGBV, a transformative justice lens requires that measures are not only taken to redress injustices in the aftermath of conflict, but also to enable legal systems to ensure accountability in the long-term. In this context, domestic legal systems are often ill-prepared to take on international crimes, a situation that is almost always exacerbated when it comes to sexual and gender-based violence.

Take Myanmar for example, where my organization has worked since 2005. Currently, Myanmar has no provisions domesticating international crimes, despite clear obligations to do so under the Geneva and Genocide Conventions. The rape law in Myanmar dates from 1861, and contains many problematic provisions, including an outdated and inadequate definition of the crime itself. This is compounded by a woefully inadequate legal system, which lacks protections for survivors. Further, the Constitution provides blanket amnesties to state actors and shields them from prosecution in civilian courts. This system has allowed Myanmar’s military to operate, now for decades, with total impunity for its crimes, including sexual violence.

Building legal systems that address sexual violence and serve immediate accountability concerns can also help prevent further acts of SGBV. Consequently, this should be a priority for the Council, and could be a point of focus for the IEG. This should also include further support for the important work of the SRSG on SVIC’s Team of Experts in this area.

In addition, the current situations in Syria and Myanmar are compelling reminders of why international venues for justice must also exist. While the GA and HRC, respectively, have set up mechanisms to investigate and document crimes and build cases, both mechanisms require venues to take the cases forward.

In the context of Syria, some states have notably stepped up to take cases forward under universal jurisdiction, including today’s lead organizer Germany, as well as other countries, such as France, the Netherlands and Sweden.

In the case of Myanmar, outside the important, but limited jurisdictional examination by the ICC, there are no apparent venues to take cases forward and, as I discussed earlier, the domestic system is at present wholly unable to ensure justice, despite the assurances of the Myanmar government. This Council’s leadership in establishing and supporting international and hybrid tribunals to prosecute mass atrocities has been essential, and must continue.

Women’s participation is also essential to ensuring accountability for SGBV. There is a clear correlation between the presence of women in accountability proceedings and the inclusion of a gender perspective. For example, every case that provided significant redress for sexual violence at the ICTY from 1994 – 2004 had a female judge. However, it cannot solely be the role of women to introduce matters of gender into investigations, prosecutions, and jurisprudence.

Accordingly, there are two issues to be addressed here.

First, more must be done to ensure the equal participation of women at all levels of accountability proceedings. For example, in November 2018, Member States were asked to provide nominees to the General Assembly for judges at the UN International Residual Mechanism for Criminal Tribunals. 11 states provided nominees, all were men. And despite significant criticism and calls for the process to be re-opened with the purpose of encouraging female nominees, the process proceeded unimpeded and 2 male judges were elected to join the 17 out of 22 already sitting at the Tribunal. I would urge all Member States, whether they sit on the Council or not, to ensure that the imperatives of women’s participation in the women, peace and security agenda are met.

Second, while the practice of having a gender-advisor on teams is a good one, it is insufficient. Just as it cannot solely rest on the shoulders of women to raise gender issues, it cannot be the responsibility of a single gender advisor to ensure that gender is a core concern. Rather, gender expertise should be a required competency for positions at all levels.

Finally, the fight against impunity also requires that states and institutions, including the United Nations, be held to account when they fail in their obligations to prevent and punish atrocities. This isn’t limited solely to those who had a hand in the commission. Rather, it applies equally to those who stood by and allowed it to happen. This is why the Geneva Conventions not only requires “respect” for the Conventions, but also imposes an obligation on all parties to “ensure respect.” It is why the Genocide Convention obliges all contracting Parties to act to prevent, suppress and punish genocide wherever it happens.

When States and the UN, including the Council, fail to act, it sends a dangerous message that genocide, war crimes and crimes against humanity can be committed with impunity.

I will return to Myanmar here as an example. Ethnic women’s groups in Myanmar have been raising the issue of the systematic use of sexual violence by Myanmar’s military for nearly as long as the women, peace and security agenda has existed. UN experts, including the SRSG, have similarly long raised concerns over SGBV. So the horrifying reports of sexual violence that have emerged in the past two years against the Rohingya in Rakhine State, as well as women in Northern Shan State and Kachin state shouldn’t be surprising. Rather, they are continuations of the military’s decades-long practice of utilizing sexual violence to subjugate and terrorize ethnic groups with impunity.

Yet, this Council has not taken any concrete measures to address atrocities, including sexual violence in Myanmar, nor have there been any repercussions for the government’s failures to punish or cooperate. Such continued failures allow the Myanmar government to continue to enjoy the privileges of participation in the international community and economy, while pursuing a horrifying campaign of persecution, and genocide against ethnic groups. It’s what allows Myanmar’s government to categorically say with respect to sexual violence against Rohingya women, as they did this week in a report to the CEDAW Committee, that “there is no evidence to support these wild claims.”

I will conclude with an essential, but perhaps overlooked, recommendation that the Fact-Finding Mission on Myanmar made to the UN. The FFM recommended, “as a matter of urgency,” that “there must be a comprehensive, independent inquiry into the United Nations’ involvement in Myanmar since 2011, with a view to establishing whether everything possible to prevent or mitigate the unfolding crises was done; identifying lessons learned and good practice; making recommendations as appropriate, including on accountability; and enabling more effective work in the future.”

While directed towards Myanmar, I think this recommendation is one that applies to a number of country situations under Council consideration and should be taken to heart. If eloquent rhetoric is to truly translate to action, measures to ensure accountability must also require a look inwards to learn from previous failures, to know how the UN and the Security Council can do better in the future.

Thank you again for the opportunity to participate. I look forward to the rest of the discussion.

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