Rape as a Weapon of War

Contradictions and Empty Guestures – USAID’s New Policy on Gender Equality

According to the United States Agency of International Development’s new Gender Equality and Female Empowerment Policy, “Gender equality and female empowerment are …fundamental for the realization of human rights.” This policy directing USAID aims to: Reduce gender disparities in access to resources and opportunities, reduce gender-based violence and mitigate its harmful effects on individuals and communities and increase capabilities of women and girls to realize their rights, determine their life outcomes. Certainly these are lofty and noble goals. Yet, is USAID making an empty gesture?

The tactical and deliberate use of rape as a weapon of war has been reported in at least 36 recent conflicts. Often, rape is used as an effective tool to terrorize and destroy communities, leaving women and girls with significant and sometimes deadly, physical, psychological and social consequences. Following the horrific wake of the Rwandan Genocide, the International Criminal Tribunal for Rwanda (ICTR) found that rape can be a war crime, crime against humanity and constitutive act of genocide.

Yet, for the victims of these heinous crimes, the chance of having a full and healthy life is often denied. Even if women impregnated by rape survive the high risks of maternal mortality, they often suffer further ostracisation from their community. Facing these harmful outcomes, women are denied the option of abortions – perpetuating their suffering and trauma.

USAID, while paying much lip-service to its gender-egalitarian vision, hardly mentions sexual violence against women in its policy. As one of its policy goals, USAID aims to reduce gender-based violence and mitigate its harmful effects. In light of the suffering of impregnated women through rape, isn’t the most effective means in mitigating the harmful effects to provide safe abortions?

However, currently under the Helms Amendment and other related abortion restrictions on foreign assistance, prohibits the use of U.S. foreign assistance funding to motivate or provide abortions. This prohibits all non-governmental organizations (NGOs), governments and humanitarian aid providers from using U.S. funds to “motivate” or provide abortions. The restrictions, placed in allforeign assistance contracts, contain no exceptions for rape or to save the life of a woman and affects the provision of services, as well as censors all abortion speech. Thus far from alleviating and mitigating the harmful effects of sexual violence, the prohibition actually perpetuates further suffering for the victims.

Additionally, the current restrictions violates the rights afforded to the “wounded and sick” persons, who are entitled to non-discriminatory and comprehensive medical care as envisioned under common Article 3 of the Geneva Conventions and the legally-binding principles of customary international law. The prohibition has the effect of systematically denying girls and women in armed conflicts the right to complete and comprehensive medical care. How can women realize the fundamental human rights when current USAID restrictions deny them?

Although the USAID’s new policy highlights the importance of gender equality, it fails to meaningfully alleviate the harmful consequences of sexual violence. Behind the talk of gender equality and women empowerment lays a deep contradiction. While promising women relief and the realization of their human rights, USAID restrictions do the opposite. If women are to truly enjoy the ideals set out in USAID’s new policy paper, the Helms Amendment needs to be revoked.

GJC in Geneva: Challenging US Policy that Denies Abortions to Victims Raped in Conflict

We are pleased to share with you a crucial step in our work to repeal the illegal U.S. policy that prevents women and girls raped and impregnated in conflict from accessing abortions.

Previously, we wrote about the international legal arguments that we were developing to challenge the abortion restrictions that the United States places on all of its humanitarian aid going to organizations and governments working in conflict countries.

After six months of research and advocacy, Janet, Akila, and Gina from the Global Justice Center are in Geneva raising these legal arguments at the UN Human Rights Council’s Review of the United States. They are meeting with member states of the Human Rights Council to urge them to question the US about these restrictions that effectively deny necessary care to the thousands of girls and women raped and impregnated during war.

Today, we are excited to report that Norway has taken the lead by submitting the following question:

“The Global Justice Center (GJC) filed a shadow report for the universal periodic review of the US expressing concern with regard to US blanket abortion restriction on humanitarian aid and abortion speech restrictions on US rule of law and democracy programs. Does the US have any plans to remove its blanket abortion restrictions on humanitarian aid covering the medical care given women and girls who are raped and impregnated in situations of armed conflict? Does the US government apply abortion speech restrictions on its rule of law and democracy programs?”

These questions form the very basis of the Human Rights Council’s recommendations. The UN Human Rights Council (UNHRC) is the UN body tasked with monitoring the human rights records of the 192 members of the United Nations. Every four years, member states are required to have a Universal Periodic Review (UPR) in front of the Human Rights Council, during which each country receives recommendations on how to comply with their human rights obligations.

The US State Department has said they intend to comply with the UNHRC’s recommendations, so Norway’s questions sets the stage for changing U.S. policy in order to better protect and advance the rights of women and girls raped and impregnated in conflict.

Women who have been raped and impregnated in armed conflict in countries such as the Congo and Sudan have the legal right to non-discriminatory medical care under the Geneva Conventions. This includes the right to abortions wherever victims of rape request them.

As a party to the Geneva Conventions, the United States must change its policy of attaching conditions to its humanitarian aid which prohibit recipients from speaking about abortion.

Click here to read the Global Justice Center’s Call to Action that we are distributing right now to Human Rights Council member states in Geneva.

GJC Staff Members Attend Rally to Take Rape Seriously

On Tuesday, November 9, 2010 several GJC staff members attended The Rally to Take Rape Seriously hosted by NOW-NYC in conjunction with other anti-violence advocacy groups working to protect women and girls.  Tony Simmons, a NYC juvenile justice counselor, pleaded guilty to raping one teenage girl and sexually assaulting two others while they were in his custody.  The Manhattan Supreme Court Justice in the case has proposed a sentence of probation, meaning a self-admitted rapist, who violated underage girls whom he was employed to keep safe, will not be serving any jail time.


This unfortunate incident is one more clear illustration of the vast amount of work necessary on many different fronts before women and girls can readily access safety and justice.  The Global Justice Center occupies a distinct position in the movement to end violence against women by employing international humanitarian and human rights law for the purpose of protecting victims of violence and discrimination.  While GJC projects focus on the legal rights of women abroad, in countries like Iraq, Burma, and Sierra Leone, we are reminded that women still lack access to rights here in the United States as well. 

The rally highlighted this serious deficiency in the US justice system as women speakers pointed out the implications of Tony Simmons’ unjust proposed sentence: that girls with a criminal record are less deserving of justice than others; that the calculated taking of advantage of such girls should be rewarded with extremely lenient sentences; and that these victims are being failed twofold—first by Tony Simmons, and second by the system which has been created to protect them.

Re-victimization of the most vulnerable groups of girls and women comes in many forms.  The DRC has been named one of the worst places on earth to be a woman due to high numbers of rape and torture the female population endures.  (Note that there are also high numbers of men being raped in the Congo.)  US restrictions on foreign aid that prohibit providing or even discussing abortions, an essential medical service, are a policy that further punishes victims of rape and impregnation in conflict zones, forcing women and girls to carry unwanted or unhealthy pregnancies to term.

Rally participants are doing crucial work to draw attention to institutionalized, entrenched discrimination which acts as “salt in the wounds” of people who have already suffered unimaginably.  The global anti-violence and women’s equality movements rely on activism in every form, combating these issues from numerous angles and different perspectives.  The rally serves as a reminder that these injustices are not unique to war-torn countries and are a testament to the importance of human rights organizations in creating awareness and advocating for change.

To sign the petition urging Justice Cassandra Mullins to give Tony Simmons a just sentence this upcoming Monday, November 15, follow this link:

http://www.ipetitions.com/petition/now-nyc_justiceforassaultvictims/

For more information on this story:

http://www.nydailynews.com/ny_local/2010/10/03/2010-10-03_raped_by_judge_and_justice_system.html

http://jezebel.com/5657224/counselor-rapes-3-girls-merely-sentenced-to-probation

Helms Amendment at Work in the Congo

The late August four-day onslaught of mass sexual violence in Walikale, in Eastern Congo, is just the most recent example of a societal epidemic that has come to define the region with devastating consequences. Although early figures suggested that approximately 150 women were raped during this outbreak (most of whom were gang raped by between two to six people), these numbers have continued to escalate.  As of now, a staggering 303 cases of women, children, and men have been reported; it is likely that many more victims have remained silent. Further, in recent testimony to the Security Council, the Special Representative of the Secretary General to the DRC, Robert Meece, said that “[t]he best data available, for example, suggests that over 15,000 rapes were committed last year in eastern DRC.”

These events continue to illustrate the severity of the conflict, as well as the urgency with which we need to address the US restrictions that impede complete humanitarian assistance for female victims in conflict.  Rather than doing everything in its power to help these victims, US anti-abortion conditions on foreign aid deny access to abortion services to women and girls raped in conflict.  Many human rights reports have found that pregnancy exacerbates the consequences of rape in conflict settings for the victims.

The only medical response in the situation in Walikale was provided by the International Medical Corps (IMC), whose work in eastern DRC is funded by USAID.  Because of the aid restrictions outlined in the Helms Amendment, IMC cannot provide abortion services to any women who present at their treatment center.  This is particularly disturbing in light of information from IMC stating that only two of the victims from Walikale received treatment within 72 hours, the timeframe during which emergency contraception is effective.   The MONUSCO report documenting the incident further states that only 100 of these victims received treatment within 3 weeks.  It is clear that while IMC occupies the medical assistance field there, any woman impregnated as a result of these rapes will not have access to abortion – a violation of international humanitarian law guarantees of non-discriminatory medical care and prohibitions on torture and cruel, inhumane and degrading treatment.

GJC President Janet Benshoof Speaks at MP-Hosted Event

From October 27, 2010

At Portcullis House, London, UK

On October 27, GJC President Janet Benshoof appeared at a Parliamentary event hosted by the Conservative Women’s Organization where she discussed how states have an obligation to ensure that women and girls raped and impregnated in conflict have access to an abortion. Click on the link to read CWO’s piece below:

http://www.conservativewomen.org.uk/article.asp?art_id=134

How to Talk About the Speech Censorship at the Heart of U.S. Foreign Policy: The Helms Gag Question & Answer

Law Fellow Akila Radhakrishnan

The Global Justice Center, on April 19, 2010, in a submission to the UN Human Rights Council in Geneva, challenged the U.S. policy requiring censorship of abortion related speech as a condition placed on all U.S. foreign aid. This foreign policy extends to censoring the speech of some 150 foreign governments receiving some form of U.S. foreign assistance. This “Q and A” provides an overview of how this all encompassing censorship, which we term the “Helms Gag,” came to dominate U.S. foreign policy and the injurious effects of what is an egregious violation of international human rights law and a gross violation of international humanitarian law.

1. What is the source of the U.S. policy censoring abortion related speech as central to our foreign aid program?

There is no one single source or law behind the Helms Gag. The Helms Amendment to the Foreign Assistance Act (FAA) in 1973 was the first time the U.S. placed abortion related restrictions on U.S. foreign aid. However, these restrictions have metamorphosized over the last 37 years far beyond the scope of the original Helms Amendment.

2. What is the legal authority for the U.S. to be able to require censorship of abortion speech on all foreign aid?

There is none. There is no domestic legal authority that can ever justify the U.S. violating international humanitarian law, as the U.S. Supreme Court underscored in the Hamdan case. The Helms Gag, as applied to U.S. humanitarian aid funding, constitutes a serious breach of what are called jus cogens principles, or, peremptory norms. No domestic law, even if one existed, could ever be a defense to the U.S. breaching fundamental obligations. However, no single domestic law exists.

The expansion of the Helms Gag has been through a series of Congressional restrictions on annual foreign appropriations, by means of USAID administrative orders and policies, and, by the Helms Gag language being incorporated into new development initiatives such as the Millennium Development Corporation. The Helms Gag

3. What is the legal authority for the U.S. to be able to require censorship of abortion speech on all foreign aid?

There is none. There is no domestic legal authority that can ever justify the U.S. violating international humanitarian law, as the U.S. Supreme Court underscored in the Hamdan case. The Helms Gag, as applied to U.S. humanitarian aid funding, constitutes a serious breach of what are called jus cogens principles, or, peremptory norms. No domestic law, even if one existed, could ever be a defense to the U.S. breaching fundamental obligations. However, no single domestic law exists.

The expansion of the Helms Gag has been through a series of Congressional restrictions on annual foreign appropriations, by means of USAID administrative orders and policies, and, by the Helms Gag language being incorporated into new development initiatives such as the Millennium Development Corporation. The Helms Gag now covers all foreign appropriations; censoring over $49 billion in U.S. foreign aid in 2010.

4. What abortion related speech does the Helms Gag cover?

Almost all speech about abortion. The Helms Amendment prohibits “motivating” or “coercing” abortions in all circumstances, which has been interpreted broadly by U.S.AID to include “information, education, training, or communication programs…” about abortion. The Siljander Amendment, expanding the gag, prohibits any speech that could be construed to “lobby for or against abortion law reform,” including by foreign governments reforming their own laws. Recently, for example, some members of the U.S. Congress, sought to enforce Siljander Amendment ban on lobbying by protesting the abortions discussions which took place in Kenya around the drafting of the new Kenya constitution.

They stated in a letter to USAID that “any expression of support for or opposition to the proposed new constitution (including by drafting, offering technical advice, or providing foreign assistance of any kind that is designed to influence public approval in the upcoming plebiscite) unavoidably involves lobbying for or against abortion.”

5. Didn’t President Obama remove all the abortion related restrictions when he lifted the Global Gag Rule?

No. The “Global Gag Rule” or Mexico City Policy expanded the Helms Gag to prohibit foreign NGOs receiving U.S. funding from engaging in any abortion related activities using even their own private funds. Since the Global Gag Rule was issued by executive order, President Obama was able to unilaterally lift it in January 2009; many people mistakenly believe that revoking the Global Gag Rule meant an end to abortion speech censorship placed on foreign aid. That is not true. In fact, the executive order revoking the Global Gag Rule explicitly states that the Helms restrictions remain in place.

6. Is the Helms Gag on abortion speech the only censorship imposed on all U.S. foreign aid?

Yes. The Helms Gag language is mandatory for all foreign assistance contracts; including both bilateral aid to foreign governments and, aid earmarked for particular programs, such as the U.N. Voluntary Fund for Victims of Torture. The only other censorship condition on foreign aid that we have been able to find, is one requiring U.S. and foreign NGOs certify that they have an anti‐prostitution policy as a condition to receiving U.S. HIV/AIDS funds. However, unlike the Helms Gag, this anti‐prostitution policy condition exempts the U.N. and foreign governments. This anti‐prostitution policy condition has been challenged and a federal court in New York has granted a preliminary injunction on free speech grounds. Alliance for Open Society Int’l v. USAID, Preliminary Injunction Order, 05 Civ. 8209 (2006).

7. What U.S. and foreign entities does the Helms Gag censor?

All U.S. and foreign organizations and governments that receive U.S. foreign aid funds directly, or, as sub grantees or contractors, are covered by the Helms Gag. Further, since all U.S. foreign aid is accompanied by the Helms Gag, the U.S. acts as a viral censoring agent when U.S. funds are commingled with funds from other donors. Entities gagged include:

  1. Over 150 foreign governments who receive foreign aid funds from the U.S. government. For example, the grant contract between the U.S. and the government of Afghanistan providing $4.2 million for democracy building requires Afghanistan to agree to the gag (see UPR appendix).
  2. All democracy and rule of law funding by the U.S. including programs under the National Endowment for Democracy (NED) and various U.S. contracts and subcontracts with major U.S. organizations including the American Bar Association, universities, law schools.

8. What Helms Gag related international law violations are the GJC seeking to have the Human Rights Council address?

The Global Justice Center’s submission to the Human Rights Council focuses on the illegality of the Helms Gag on two areas of foreign aid funding:

  1. Censorship of U.S and foreign entities providing overseas law and democracy programs, which violates the rights to free expression under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
  2. The provision of discriminatory medical services to women and girls raped in situations of armed conflict, which violates its obligation to “ensure respect” for international humanitarian law under the Geneva Conventions and customary international law, including torture.

The submission does not address the problematic restrictions on funding abortion services or U.S. funded population and family planning projects.

9. Can the U.S. impose censorship of abortion speech on American citizens and universities as a condition of their receiving U.S. grants or contracts under the U.S. programs designed to promote the rule of law and democracy overseas?

Not legally. All U.S. contracts under State and USAID “rule of law” and democracy programming, some 2.2 billion dollars a year, contain the Helms Gag. All U.S. and foreign NGOs (and foreign governments) are prohibited from freely discussing abortion when conducting trainings on international human rights laws, including CEDAW, which requires governments to reform their criminal abortion laws. U.S. law schools, funded with U.S. foreign aid to teach overseas, for example, could not legally discuss the GJC submission to the Human Rights Council.

10. Is there a duty under international law to provide women and girls impregnated as a result of rape in conflict situations the option of abortion?

Yes. International humanitarian law (IHL) mandates certain protections for civilians in armed conflict, including medical treatment and protection from torture. The Human Rights Committee and the Committee on Torture have recognized that forcing a woman to carry to term a pregnancy that is the result of sexual assault (by denying the option of abortion) constitutes at a minimum cruel, inhuman and degrading treatment. Further, in situations of armed conflict, this denial can raise to the level of torture. Because of the Helms Gag, U.S. funded humanitarian aid organizations and their local partners do not, with certain courageous exceptions, provide abortion to impregnated women and girl rape victims in conflict. This denial increases their risk of death in childbirth, or from an illegal abortion, many times over.

11. Does the U.S. Have obligations under IHL when it is not a party to the conflict?

Yes. All states, regardless of whether they are party to an armed conflict, have obligations to “ensure respect” for IHL, including taking all possible steps to stop war crimes, ensure accountability, and render aid to civilian victims. Therefore, where the U.S. provides humanitarian aid in situations of armed conflict, such aid must be provided in compliance with IHL.

12. Can President Obama lift the Helms Gag like he did the Global Gag Rule?

In part. President Obama not only has the authority but the duty to issue an immediate executive order stopping the Helms Gag from continuing to breach the right to nondiscriminatory medical services to women and girls raped in the context of an armed conflict. Further, the statutory language of the Helms Gag can and should be interpreted very narrowly and President Obama should instruct all agents and departments under his authority to ensure that foreign aid contracts are amended accordingly. In the long term, to repeal the Helms Amendment and other legislation which includes the Helms Gag language, such as the Millennium Development Corporation, requires an act of Congress.

13. Is the U.S. Congress doing anything about the Helms Gag?

Not directly. Two bills currently pending in Congress address U.S. funding restrictions on abortion in foreign aid, but neither calls for a direct repeal of the Helms Amendment nor would prohibit the speech censorship provisions addressed in the GJC’s UPR. H.R. 4879, the Global Democracy Promotion Act, if passed, would legislatively block the ability of the President to reinstate the Global Gag Rule via an executive order, but it firmly leaves Helms in place. The second bill, H.R. 5121, the Global Sexual and Reproductive Health Act of 2010, would cut down some of the Helms Amendment restrictions by creating access to safe abortion where legal, but it does not address any of the speech restrictions that form the Helms Gag.