Global Justice Center Blog

How can international humanitarian law bind non-state actors?

Interstate armed conflicts are rare nowadays but intrastate armed conflicts have been on the rise in recent years. Intrastate conflicts often involve non-state actors and pose an important question for the international community – how can non-government parties be bound under the international humanitarian law (“IHL”).  

International Humanitarian Law applies to all the signatory States of the Geneva Conventions of 1949 and their Additional Protocols of 1977 but it also binds non-state actors: private citizens, armed groups, national liberation movements, and international organizations.  It has been established that since IHL provides rights and special protections to private citizens in conflict, it also confers obligations, as demonstrated by the Nuremberg trials, international tribunals, or recent ICC decision to sentence Congolese warlord Thomas Lubanga to 14 years for using child soldiers and forcing them to commit atrocities. Several instruments also create IHL obligations on part of non-government armed or rebel groups – Common Article 3 of the Geneva Conventions, the Second Additional Protocol of 1977, and Article 8 paragraph 2 of the Statue of the International Criminal Court (“ICC”), whereas the First Additional Protocol applies to national liberation movements. And while there is no specific legal provision that binds international organizations under international humanitarian law, the ICC specifically stated that “an international organization is a subject of international law and, as such, is bound by all the obligations deriving from the general rules of international law.”

It is important to remember though that IHL does not apply to any instances of violence but only those non-international armed conflicts that satisfy organization requirements and reach certain level of intensity, and possibly duration. Mere riots, isolated acts of violence, protests, and single acts of terrorism do not constitute an armed conflict under international humanitarian law. Despite difficulties in proper identification of armed conflicts under IHL, currently there is no single legal body that provides armed conflict designation; rather the UN Security Council and the General Assembly call for application of IHL in certain conflict situations, implying existence of an armed conflict under IHL. Perhaps, the international community could benefit from a clearer statutory definition of an armed conflict or expanding IHL applicability to any instances of violence motivated by a specific goal.

“The Invisible War” Between Women and the US Government

“The Invisible War”, a film delving into the injustices faced by women in the military specifically related to sexual assault, has taken the country by storm both politically and socially. The film, which premiered at this year’s Sundance Film Festival, thoughtfully connects U.S. government compiled statistics and the real stories of women and men who were the victims of sexual assault while serving in the military. The film aims to address many issues which include: corruption within the military justice system, impunity for high-ranking military officials, outdated legislation for prosecuting rape in the military “court martial” system, failure of “rape prevention” campaigns implemented in the military, and many others. The film is well put together and evokes quite a few negative emotions towards our government for allowing such an obvious problem to go unsolved, but likely more disturbing, practically unaddressed.

During the film you meet many women and a man who have been affected by this “invisible war,” but there is one specifically who stands out who was assaulted by her superior and later found out she was pregnant and had contracted an STD from her attacker. This brief interview clip is the only time the audience hears from this woman, but the impact is still strong. Her story evokes the questions, what happens to the women who survive their attacks but are burdened with the result of becoming pregnant? What does the US government do for these women, if anything at all?

Unfortunately, the answers to these questions are just as grim as one would expect, if not worse. The Department of Defense began its strict abortion policies in 1979 into the 1980s with the adoption of a “life-of –the-mother-only” limit for using government budget to fund abortions. This barred any government funding to be used for abortions unless there was immediate danger to the mother’s life.  This legislation backed by government was adopted as a provision after Roe v. Wade, in order to prevent taxpayers’ money from being used to fund abortions. This provision was enacted in the form of the Hyde Amendment, which circumvents the use of certain federal funds to pay for abortions therefore forbidding military health insurance to cover the costs of abortions unless threatening to the life of the mother. This amendment often allows women who are raped and impregnated in the military to be forced to make a difficult decision between carrying the child to term, which can cause negative effects on their present and future military career, or pay for the abortion themselves. As unethical of a decision this seems to be, that is not the only problem since the complexity of access to abortion when looking at military health centers and accessing abortion in a time of a war, while overseas, or when forbidden by domestic law only further magnifies the issue.

This “choice” given to female soldiers who are suffering from unwanted pregnancies between paying for the abortion themselves and carrying the child to term is not only a question of funding. Funding is only one issue among many. Women are given the right in the military to pay for their own abortions to be done in military health centers if the abortion is sought after the woman was raped or a victim of incest. Assuming the woman has the funds to pay for her own abortion (if not, this creates an entirely different issue) the above clause may not seem unreasonable. That assumption is wrong. The problem is rape within the military, as demonstrated by “Invisible War,” has very low rates of conviction and even of being reported. For the women who are either ignored, charged with crimes themselves when reporting rape, or are scared to report their rape, where do they go if they need an abortion? There is no proof; therefore there are no safe facilities for access. What if these women are deployed in a country, such as Afghanistan, where access to abortion is illegal in domestic law? What if they are overseas in a country where medical care and facilities are not easily accessible or are simply not able to safely and sanitarily perform such a procedure? Essentially the United States military says, “Too bad.”

However, Congress is no longer ignoring the issue and is bringing it to the public’s attention through media attention and other means. Democratic New Hampshire Senator Jeanne Shaheen is not allowing this issue to be pushed under the rug like so many others which go unanswered in the US military, but is taking actions through an amendment which would give military women the right to be covered under their military insurance for abortions. The amendment brings military standards for abortions to the same level as the federal government officials’ standards.  It would allow military women to finally enjoy the same rights as the people and government they are fighting to protect. The amendment has already gained support from Democrats and Republicans alike in the Senate, becoming approved and attached to the 2013 National Defense Authorization Act written and submitted by the Senate Armed Services Committee. Although there is known support for the amendment among Senators, an official Senate vote needs to be considered for the amendment to be included in the final cut of the Act. It is believed that Senate approval will be relatively manageable; however passing the Act with the amendment through the Republican controlled House of Representatives presents a different set of problems. The House has not included the amendment in their version of the Act, and it seems unlikely that they will unless there are some serious compromises being made. The Department of Defense has already expressed their support through the sending of a letter detailing as such, but Congress will need a lot more than letters to pass this Act.

This dilemma within our military only further proves there is something in our American way of thinking, our politics, and our governmental policies, which needs a serious paradigm shift in the way we view abortion. GJC’s “August 12th Campaign” reinforces just that. The US government, which prohibits US humanitarian aid funds to be used for abortions, rather allow women and children to suffer through pregnancies often induced through rape, torture, and incest which can result in death, injury, depression, etc. than to reevaluate this traditional American “war on abortion” we seem to be engaged in. This point of view is only holding America back from progressing towards becoming a true leader in human rights, both domestically and internationally. We have arrived at the time in America when religion needs to become disengaged from our policies and instead the equality of our servicewomen, our dedication to international human rights treaties and law, and the well being of Americans in general needs to take precedence over doing things just for the sake of saying, “This was how it was done in the past.”

Post by: Jocelyn Garibay

The ICC Delivers its First Sentence: Sexual Violence Noticeably Missing from Congolese Warlord’s Conviction and Sentencing

On July 10, just 10 days after its 10th anniversary, the ICC delivered its first sentence.  The ICC sentenced Thomas Lubanga, a Congolese militia leader, to 14 years in prison for the recruitment and use of child soldiers as a part of his rebel army, the Union of Congolese Patriots, from 2002-2003.  Throughout that time, Lubanga and his army abducted, trained and used children to terrorize and kill villagers in the Ituri region of the DRC.  While the justices clearly agreed that Lubanga deserved to be sentenced, one of the three judges, Elizabeth Odio Benito of Costa Rica, wrote a dissenting opinion saying that the sentence had been too lenient.  Judge Benito suggested that the sentence should have been longer so as to properly reflect the extent of damage done to the child soldiers and their families.

One example of the type of damage that Judge Benito may have been referring to is sexual violence.  Among the crimes included in Lubanga’s trial, sexual violence was noticeably missing from the list. This was seemingly a product of the prosecutor’s shortcomings.  Presiding judge Adrian Fulford criticized the prosecution saying that “Not only did the former prosecutor fail to apply to include sexual violence or sexual slavery at any stage during these proceedings, including in the original charges, but he actively opposed taking this step during the trial when he submitted that it would cause unfairness to the accused if he was convicted on this basis.”  The ICC’s rules of procedure allow for additional crimes to be introduced and considered during the sentencing stage.  However, despite this capability, the judges determined that there was insufficient evidence presented to link sexual violence to the proven child soldier recruitment, and sexual violence therefore played no part in Lubanga’s sentence.

This glaring oversight, regardless of whether it be largely at the hands of the prosecution or the judges, is yet another example of the failure to recognize the plight of the female child soldier.  Female child soldiers are subjected to the same horrific conditions and treatment as all other child soldiers but suffer even further through sexual violence and diminished ability to escape.  Grace Akallo, a former child soldier in the Lord’s Resistance Army in Uganda described how she and other girls as young as 7 were given as wives, where they would then be regularly subjected to sexual abuse.  They were sent to fight at the front lines while pregnant, with children on their backs, and some were even left with no choice other than to give birth on the front lines.  There is undoubtedly a shared stigma among all child soldiers, but the female experience is significantly different from that of the male and failure to take additional measures to recognize this distinction is a failure to protect women’s rights.

Brigid Inder, executive director of the Women’s Initiative for Gender Justice pointed out the contradictory nature of the scenario because “the Rome Statute contains the most advanced articulation in international criminal law of acts of sexual violence committed, particularly in armed conflict situations, and yet the first case for the ICC didn’t include any charges for gender-based crimes.”  Judge Sang-Hyun Song, President of the ICC said that “the ICC promotes a model of gender-sensitive justice… the needs of women and children receive special attention in the ICC,” and that “international justice promises to serve as a warning to those who intend to exploit and abuse the most vulnerable members of our society that they will be tried, prosecuted and punished.”  While these remarks are hopeful and comforting, the recent performance by the prosecution and the sentence that followed demonstrated a weak showing that would hardly serve as an effective warning to other exploiters of vulnerable groups.  Lubanga’s sentence and the absence of sexual violence from the charges against him highlight the unfortunate ease with which women’s rights can be overlooked and this is unacceptable.  A lesson must be learned from the failure to distinguish and defend the specific rights of the female child soldier.  It is critical that in future ICC trials and sentencing, all parties involved take it upon themselves to ensure that women’s rights in any and all circumstances are protected and promoted, as a necessary prerequisite pursuant to the “gender-sensitive justice” that Judge Sang-Hyung Song spoke of.

30th Anniversary of the CEDAW Committee

On July 9, the 52nd session of the Committee on the Elimination of Discrimination Against Women began at UN headquarters in New York. This year marks the 30th anniversary of the Committee, which was established in 1982 as a means of ensuring compliance with the articles of the Convention on the Elimination of Discrimination Against Women (CEDAW). CEDAW was adopted by the UN General Assembly in 1979 and remains one of the most important documents outlining the rights of women around the world.

In her remarks at the opening ceremony of the session, Michelle Bachelet—head of UN Women and former president of Chile—addressed a number of obstacles in the global struggle for gender equality. Among many concerns, she emphasized the importance of gender quotas in national governments and legislatures. The impact on young girls of seeing women in positions of power, she said, was the first step in ensuring greater women’s participation in government and politics for future generations. To illustrate this point, Ms. Bachelet told a story shared with her by the first female president of Finland, Tarja Halonen, who served in the position for 12 year from 2000 to 2012.

President Halonen was speaking to a room of Finnish kindergarten students, all of whom had been born after Ms. Halonen’s election to office. The president began asking the children what they wanted to be when they grew up. She asked a little boy in the group if maybe he would like to be the president of Finland when he got older. The little boy looked confused and replied, “No, because boys can’t be president in Finland.”

Post By: Adrian Lewis

The critical connection between maternal mortality and unsafe abortions

With the 2015 target of the Millennium Development Goals approaching, the United Nations recently issued a report detailing the progress made on each goal.  While some goals have made major gains and will reach their targets by 2015, “Goal 5: Improve maternal health”, is not seeing the gains other goals have made.  The stated target of Goal 5 was to “reduce by three quarters, between 1990 and 2015, the maternal mortality ratio”.  Sub-Saharan Africa and South Asia account for most of the maternal mortality cases.

The report notes that maternal mortality rates could decrease by ensuring that women receive ante-natal care, give birth in the presence of skilled health professionals, and have unobstructed access to family planning and contraceptives.  Though the report mentions access to family planning and contraceptives, it makes no explicit mention of access to safe abortions.  The connection between maternal mortality rates and lack of access to safe abortions is critical, and cannot be ignored.  The CEDAW Committee has repeatedly made the connection between maternal mortality and unsafe abortions, noting the “high rates of maternal mortality due to high numbers of abortions among adolescents, and unsafe, clandestine, and illegal abortions”.

July’s summit on family planning in London raised $2.6 billion dollars to improve access to family planning and contraceptives for an additional 120 million women by 2020.  One article suggests that “[w]hat vaccinations are to infant mortality, contraception is to maternal mortality.”  The organizers of the family planning summit claim that the money raised will result in 200,000 fewer women dying in pregnancy.  While it is important for women to be able to obtain contraceptives wherever they are in the world, it is equally as important that women have access to safe abortions if contraceptives fail, or if a rape victim seeks an abortion to help end the psychological trauma still lingering from her assault.   If women are forced to resort to unsafe abortions because they are illegal, unaffordable, or unobtainable, the maternal mortality rate will stay steady.