KOPŽI kartu su Socialinės apsaugos ir darbo ministerija įgyvendina Tiesioginio finansavimo dvišalio bendradarbiavimo fondo projektą „Kompleksinė pagalba seksualinės prievartos aukoms iš Ukrainos” Nr. LT-01-1S-CPVA-TF-016
Projekto vykdymo laikotarpis 2023.07.17 – 2025.04.30
Projekte veikia karštoji linija +370 662 42920
2023.09.12 apskrito stalo diskusija su Закарпатська громадська жіноча організація, “Веста” ГО “Волинські перспективи” Diskusiją organizavo EUAM Ukraine (Europos Sąjungos patariamoji misija civilinio saugumo sektoriaus reformos srityje Ukrainoje)
Some facts about rape as a war crime
INFORMATION CAMPAIGN FOR UKRAINIAN SURVIVORS OF GENDER VIOLENCE
Rape during an armed conflict is a war crime.
If the victim stays silent, the perpetrator avoids responsibility.
How to overcome the reluctance to report?
There were different heiplines for different purposes, but no specialized centre for survivors of gender-based violence.
It is a joint project of KOPZI, JurFem, Ukrainian and Lithuanian government officials, the European institute on Gender Equality, Vilnius University Law faculty, communicators and international lawyers based on the volunteering of all people involved.
Besides practical, medical, and psychological help we put an emphasis on the legal aspect.
Because lawyers perform a very important role while working with victims and witnesses and they can improve the statistics of accountability.
I would like to discuss several principles that should guide the documentation and investigation of sexual violence crimes (based on the International Protocol on the Documentation and investigation of Sexual Violence in Conflict by Sara Ferro Ribeiro and Danaé van der Straten Ponthoz on behalf of the UK Foreign & Commonwealth Office).
COOPERATION AND MULTI-SECTORAL APPROACH
involving the coordinated provision of health services, protection, psychosocial support, and access
to justice for survivors.
Working in coordination with these services is key to increasing the likelihood that victims report
crimes of sexual violence.
WHAT IS SEXUAL VIOLENCE?
Sexual violence can take many different forms, and is not limited to rape. it includes any act of a sexual nature committed with use of force or under coercive circumstances, or any act that specifically targets a person’s sexual function or organs.
- rape, including vaginal and anal penetration by a body part or an object, or oral penetration by a
sexual organ, by both the perpetrator or the victim
- threats and attempts of any form of rape or threats and attempts of other sexual assaults
- female genital mutilation including mutilation of the vagina, labia, clitoris, mutilation of breast and
nipples, male genital mutilation or amputation, or other types of violence directed at sexual organs
- sexual slavery, including conjugal slavery or concubinage
- sexual torture, including electrocuting genitals or pinching nipples, or being forced to watch a partner
or child be sexually abused
- forced prostitution
- forced pregnancy
- forced sterilization and forced abortion
- forced nudity.
UNDERREPORTING
Some survivors do not come forward because of societally imposed stigma, shame and humiliation, and because of debilitating trauma.
Often their inability to access justice is due to the lack of a safe and supportive environment in which to do so, and/or because of the risks that victims and witnesses take in coming forward.
SEXUAL VIOLENCE AS A CRIME UNDER INTERNATIOANL LAW
Sexual violence is prohibited under various international human rights law (IHRL) instruments, including through the right to security, the prohibition of discrimination and the prohibition of torture and cruel, inhuman or degrading treatment or punishment, and under international criminal law (ICL).
It is through the jurisprudence of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda (the ad hoc tribunals or ICTY and ICTR) that rape, in particular, was first prosecuted as a war crime, crime against humanity and act of genocide.
For instance, in the Akayesu case, the ICTR not only held that rape was a constitutive act of the crime of genocide but it also recognised that rape could amount to torture.
ACCOUNTABILITY MECHANISMS
Victims of CARSV may be able to seek justice and reparation at the domestic, regional or international level.
(1) judicial, that is, leading to a legally binding decision by a competent court
a. a criminal complaint
b. a civil case
c. a constitutional case against the state to trigger a finding of a violation of their fundamental rights and/or to
force the authorities to undertake a thorough investigation of the facts, as well as other measures aimed at the protection of their rights
(2) quasi judicial (eg. leading to recommendations made to a state by UN Treaty Bodies and other regional human rights monitoring mechanisms, or recognition of victim status)
(3) non-judicial (e.g. commissions of inquiry, truth and reconcillation commissions, Special Procedures of the UN Human Rights Council such as special rapporteurs and working groups).
UNIVERSAL JURISDICTION
The principle of universal jurisdiction allows the national authorities of any state to investigate and prosecute individuals suspected of certain crimes under international law such as war crimes, crimes against humanity, genocide and torture, regardless of where these crimes took place and regardless of the nationality or residency of the victims or suspects.
INTERNATIONAL AND HYBRID COURTS AND TRIBUNALS
The principle of complementarity to national criminal jurisdictions governs the exercise of the ICC’s
jurisdiction 18 and the Rome Statute of the ICC expressly recognizes that states have the first responsibility and right to investigate and prosecute crimes under international law.
International ad hoc tribunals (such as the ICTY and ICTR (MICT)20) or hybrid courts (such as the Special Court for Sierra Leone (SCSL), the Special Panels for Serious Crimes (SPSC) in East-Timor and the Extraordinary African Chambers in the Senegalese Courts (EAC), which tried Hissène Habré, the former President of Chad) were established to deal with specific situations.
The EU backed Kosovo Special Court (KSC) set up to try alleged crimes by farmer Kosovo Liberation Army fighters between 1998-2000,
The International Criminal Tribunal for Ruanda was the first international tribunal to recognize that rape and sexual violence can constitute genocide, in its landmark decision in Prosecutor v. Akayesu of 2 September 1998 (Case No ICT R 96-4-T).
TO IMPROVE VICTIMS/WITNESSES PARTICIPATION IN THE JUSTICE PROCESS
1. Consent
The emphasis has shifted away from having to prove an absence of consent towards instead proving the presence of coercive circumstances
Genuine consent under circumstances of mass violence, duress, detention, threats and coercion is viewed as being essentially impossible.
There is no need to elicit further specific evidence from the victim to prove an absence of consent, such as questions about whether the victim physically resisted the perpetrator.
Practitioners-particularly prosecutors and victim counsel-must be ready with evidence and arguments concerning the existence of coercive circumstances in response to possible defence requests for the introduction of consent evidence
2. Corroboration
No corroboration is required in cases of sexual violence.
A victim’s own testimony can be sufficient evidence of the commission of a crime of sexual violence, in the absence of any other corroboration from witnesses, documents, medical reports, photos, or any other potentially corroborative evidence.
3. Prior and Subsequent Sexual Conduct
Questions about prior or subsequent sexual conduct are irrelevant as each sexual act must be agreed to Independently, and such questions do not provide any information regarding consent at the time the alleged crime was committed.
They are based on patriarchal gender stereotypes that women and girls who consent to sex in a variety of contexts are more likely to have agreed to sex with the alleged perpetrator in the instant case.
4. Other Protective Measures
Victims (or their families and close associates) should never be exposed to risk of retaliation or re-
traumatisation as a consequence of their cooperation as a witness.
- Physical/out-of-court witness protection
- Procedural/in-court witness protection
- Witness support, for instance through specific victim/witness unit, prior, during and after trial
DOCUMENT HARM
Forms of harm to document should include:
(1) physical harm, eg. immediate and long-term injuries and diseases, including reproductive health
problems
(ii) mental harm, e.g. trauma, depression and mental illnesses
(iii) social harm, e.g. stigma, ostracism, damaged reputation, divorce/loss of marriage opportunities and other sources of moral damage
(iv) economic harm, eg. loss of income and earning potential; lost opportunities including employment, education and social benefits; medical expenses incurred and cost of future rehabilitative care, including psychological services; cost of legal process (legal/expert assistance fees); cost of raising a child born of rape and of raising children by single parent victim after losing marriage or re-marriage opportunities, and ostracism from the family unit; displacement
Do no further harm) pave the way towards safely and ethically giving survivors the opportunity to speak out, while Identifying potential support mechanisms for them. It should, first and foremost, mean respecting and supporting survivor autonomy..
- work according to a victim-centred approach
- do not exhibit judgemental behaviour
- never blame a victim – treat all victims with dignity and respect
- prioritise the safety of the victim over the evidence.
REPARATIONS
1. Restitution >> This means restoring the victim, whenever possible, to their original situation prior to the violation.
2. Compensation >> This means providing for monetary compensation of economically assessable damage, where appropriate
3. Rehabilitation >> This means providing victims with all essential services they need to assist them to carry out their life in a dignified way.
4. Satisfaction can take many forms and should include, where possible or appropriate: >> Effective
measures to end the violations; >> Bringing to justice and appropriate sanctions against perpetrators;
5. Guarantees of non-repetition, including giving effect to the requirement of ‘transformative reparation’, 18 by addressing the structural causes of the violation.
dr. Inga Martinkutė, Vilnius University
