C Explanatory
memorandum, by Ms Smet, rapporteur
1 Introduction
1. “Sexual violence against women is a crime against
humanity”. Thus wrote the Secretary General of the United Nations,
Ban Ki-moon, on 6 March 2009 in the International
Herald Tribune. Indeed, since the adoption of the Treaty
on the Statute of the International Criminal Court in Rome on 17
July 1998, and the passing of United Nations Security Council Resolution
1820 on 19 June 2008, there is no longer any doubt as to whether or
not sexual violence against women in times of armed conflict constitutes
a war crime and a crime against humanity.
2. This is a great step forward. One of the first reports prepared
by this committee was on “rape in armed conflicts”. Based on a report
Note by Ms Stanoiu from
Romania, the Parliamentary Assembly adopted
Resolution 1212 (2000) on the subject. However, at the time, the Assembly had
to limit itself to reiterating “its desire to see rape treated as
a crime against humanity”.
Note Unfortunately, as great as the legal advances
have been, the setbacks on the ground have been terrible.
3. Of course, rape and sexual violence in wars and armed conflict
are not a new invention: rape – and forced pregnancy – has been
used as a weapon of war for centuries, if not millennia. The mass
rape of German women at the end of the Second World War is slowly
becoming less of a taboo subject; the mass rape of women during
the Balkan and Caucasus wars in the 1990s is still very much clouded
in secrecy and shame. Unfortunately, the violence continues as I
write this report – for example, in Darfur (Sudan), and in Kivu
(in the east of the Democratic Republic of Congo).
4. The upwards of 25 000 acts of sexual violence against women
perpetrated every year in North Kivu alone are what have propelled
me to write this report and bring this matter before the Assembly
again. I thus drafted a motion for a recommendation on “Cases of
sexual violence against women in the east of the Democratic Republic
of Congo” last year. After some discussion, the committee agreed
to broaden the scope of the report to all cases of sexual violence
in times of armed conflict, and the Assembly seized the committee for
report. I was appointed rapporteur on 5 December 2008, and hope
to be able to present the report to the Assembly at the meeting
of the Assembly’s Standing Committee in Slovenia at the end of May
2009.
2 The cases
of sexual violence against women in the east of the Democratic Republic
of Congo
5. The cases of sexual violence against women in the
east of the Democratic Republic of Congo (DRC) make for a good case
study of sexual violence in times of armed conflict, even though
they might, at first, seem “out of area”. However, the Assembly
has often affirmed (and reaffirmed) that human rights are universal,
and should not stop at the borders of the member states of the Council
of Europe.
Note I believe that
the Council of Europe should condemn the violence in East Congo,
and create awareness on the theme of sexual violence against women
in armed conflict. Together with some colleagues, parliamentarians
from the Flemish Parliament and the Belgian Senate, I have established
a relief fund “SOS stop sexual terror in East Congo”, which aims
to support projects that provide aid to the victims of sexual terror.
6. During recent years, women and girls have been raped in East
Congo on a scale never seen before. Accurate figures are, however,
very difficult to find because of the nature of the problem. The
United Nations Mission in the Democratic Republic of Congo (MONUC)
estimates that there are as many as 25 000 cases of sexual violence
every year in North Kivu alone. According to John Holmes, Under-Secretary-General
for Humanitarian Affairs and United Nations Emergency Relief Co-ordinator,
there were 27 000 cases in South Kivu in 2006. A 2008 report, based
on interviews held from September to December 2007, said that of
those canvassed in the east, 23% had witnessed sexual violence and
16% had been sexually violated – 12% multiple times.
Note Despite
the Goma peace agreements that were concluded in January 2008, the
violence continues.
7. Moreover, the cruelty with which the sexual violence is committed
defies all description. Usually the rapes are preceded or followed
by the deliberate infliction of injuries (for example, breasts cut
off), and of torture, including torture of a sexual nature (for
example, rape with a bayonet, a gun). Many of the girls (it appears
that half the victims are under 18
Note) and women develop fistulas as a
result of the violence against them – a rupture of the walls of
the vagina, bladder and rectum that renders victims incontinent
and prone to infection and disease, which can only be described
as a traumatic injury.
8. But what is even more traumatic is that, in East Congo, victims
of sexual violence are stigmatised, and thus generally ostracised
from their families and villages, “all in the name of a false sense
of shame”, as the UN Secretary General put it so aptly.
Note The victims of rape thus have
to cope with physical, mental and financial problems (and possibly
infection with the HIV/Aids virus), as well as with being left alone
to face the consequences of the crime committed against them. The
consequences of this sexual terror are huge: whole communities become
disrupted, and women – as a group – are no longer respected.
9. Some of the women who have been raped are left pregnant. They
not only suffer from being raped but they will also have to bear
the child of the perpetrator of the rape. Some say that those children
are time bombs in the sense that their position in households and
the community is very difficult because – like their mothers – they
are often not at all welcome in the household and in the community.
10. The perpetrators are not only armed groups and militias, but
also the government army and police. The fact that the sexual violence
also infects civilians, and that more and more civilians become
perpetrators of rape, is particularly alarming.
11. The United Nations peacekeepers in Congo – of which there
are over 18 000 – seem powerless to stop the violence. Addressing
a Wilton Park high-level conference on the role of peacekeepers
in countering violence against women in May 2008, Major General
Patrick Cammaert, Former Division Commander of the United Nations
Organizations Mission in the Democratic Republic of Congo, remarked,
“It is more dangerous to be a woman than to be a soldier right now
in Eastern DRC.”
12. What is even worse, there is complete impunity for such crimes:
the perpetrators are hardly ever prosecuted. The judicial system
of the country is in ruins – East Congo has become a lawless zone.
There is thus practically no access to justice for the victims.
Without the ability to bring the perpetrators to justice, sexual violence
will continue.
13. Many non-governmental organisations (NGOs) in the DRC are
doing an excellent job in assisting the victims of sexual violence
on the medical, psychological and juridical levels. They are also
helping those women to become economically independent.
14. International organisations (beside the UN) are also active
in the area. The European Union has had a mission in place since
2005 to provide advice and assistance for security sector reform
in the Democratic Republic of Congo (EUSEC RD Congo). This mission
provides advice and assistance for the reform of the Congolese armed
forces
, inter alia, in order
to ensure the security of the Congolese people.
Note With a view to strengthening judicial
assistance in order to prevent impunity in cases of sexual violence,
work on the REJUSCO (“Restoration of Justice in the East of the
Democratic Republic of Congo”) programme was in full swing and the
programme was due to come on stream in November 2008. The European
Union and the British, Dutch and Belgian co-operation agencies have
joined forces to support this programme to restore justice.
3 Sexual violence
against women in armed conflict as a war crime and a crime against
humanity
The Statute of the International
Criminal Court
15. The inclusion of rape and sexual slavery as a war
crime and a crime against humanity by the Rome Treaty on the Statute
of the International Criminal Court in 1998 marked a great step
forward in the way sexual violence against women is treated. UN-backed
special courts for Rwanda and the former Yugoslavia were the first
to take testimony and bring charges based on the use of rape as
a method of war. A similar body for Sierra Leone won the first conviction
for sex slavery.
16. Three men from the Democratic Republic of Congo are currently
awaiting trial before the International Criminal Court at The Hague,
including on charges of sexual slavery and rape under Article 8(2)(b)(xxii)
of the Statute (war crimes), and Article 7(1)(g) (crimes against
humanity). Unfortunately, the former Serb Bosnian leader Radovan
Karadžić is not being specifically prosecuted for rape and sexual
torture, though the indictment recognises the rapes which took place
when villages were seized as part of the genocide ordered and perpetrated
by him.
United Nations Security Council
Resolution 1325 (2000)
17. On 31 October 2000, the United Nations Security Council
unanimously adopted Resolution 1325 on women, peace and security
which calls for the full protection of women in war and conflicts
and their participation in peace processes. It was the first time
that the Security Council adopted a resolution on issues concerning
women’s roles and experiences in armed conflicts. The resolution
aims at strengthening the role of women in conflict situations and
in the prevention, management and resolution of conflicts (a report
is currently being prepared by my colleague Krista Kiuru from Finland
on this aspect of the resolution).
Note What is important for my report
is that the resolution calls for special measures 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. It further emphasises the responsibility of the
member states to put an end to impunity and to prosecute those responsible
for genocide, crimes against humanity and war crimes, including
those related to sexual and other violence against women and girls,
and to exclude these crimes from amnesty provisions in peace deals.
Member states should also consider the special needs of women and
girls in repatriation, resettlement, rehabilitation, reintegration
and post-conflict reconstruction.
18. Following up on the implementation of the resolution, in presidential
statements in 2004 and 2005, the Security Council called on member
states to continue to implement Resolution 1325 (2000), including
through the development of national action plans or other national
level strategies. The creation of an action plan provides an opportunity
to initiate strategic actions, identify priorities and resources,
and determine the responsibilities and timeframes. The whole process
of developing a plan is also a process of awareness-raising and
capacity-building in order to overcome gaps and challenges to the
full implementation of the resolution. Unfortunately, only 14 countries
currently have national action plans in place (of which the majority
are Council of Europe member states: Austria, Belgium, Denmark,
Finland, Iceland, Netherlands, Norway, Spain, Sweden, Switzerland
and the United Kingdom).
Note
19. The question of how to ensure that this landmark resolution
is properly implemented thus remains open. The NGO Human Rights
Watch has proposed the establishment of a permanent subsidiary body
or other mechanism linked directly to the Security Council, with
a mandate to report on and monitor instances of sexual violence
in conflict. In 2005, the Security Council set up such a mechanism
to monitor and report on, in particular, the recruitment and use
of child soldiers. Human Rights Watch remarked that, while this
mechanism has not escaped criticism, it has certainly increased
Security Council attention to the issue of child soldiers.
Note There are also whole networks of
NGOs (for example, “Peace Women: Women’s International League for Peace
and Freedom”) and also a government group (“Friends of 1325” – which
again includes many Council of Europe member states), actively militating
for a more successful and wider implementation of the resolution.
United Nations Security Council
Resolution 1820 (2008)
20. Perhaps equally important was the unanimous adoption
last June of Security Council Resolution 1820 on women, peace and
security. The Security Council demanded the “immediate and complete
cessation by all parties to armed conflict of all acts of sexual
violence against civilians”, expressing its deep concern that, despite
repeated condemnation, violence and sexual abuse of women and children
trapped in war zones was not only continuing, but, in some cases,
had become so widespread and systematic as to “reach appalling levels
of brutality”. Furthermore, the Security Council noted, “that rape
and other forms of sexual violence can constitute a war crime, a
crime against humanity, or a constitutive act with respect to genocide”.
21. Most importantly, the resolution also affirmed the Council’s
intention, when establishing and renewing state-specific sanction
regimes, to consider imposing “targeted and graduated” measures
against warring factions who committed rape and other forms of violence
against women and girls. It can be hoped that this willingness to
sanction will, at least in part, push back the scale of sexual violence
against women. The UN Secretary-General is to submit by 30 June
2009 a report on implementation of the resolution that would include, among
other things, information on conflict situations in which sexual
violence was widely or systematically employed against civilians,
as well as proposals aimed at minimising the susceptibility of women
and girls to such violence. Mr Ban Ki-moon has also been requested
to develop effective guidelines and strategies to enhance the ability
of relevant United Nations peacekeeping operations to protect civilians,
including women and girls, from all forms of sexual violence.
22. Unfortunately, Resolution 1820 only applies to civilian victims
of sexual violence. Thus, girls who have been forced to fight in
armies or militias are not covered by the resolution, even though
they should not be seen as soldiers – and many of these girls do
suffer from systematic sexual violence, including sexual slavery.
4 Sexual violence
during the Balkan wars: a European case study in impunity
23. In the Balkan wars in the 1990s, mass rape was used
as a weapon of war for the first time since the Second World War
on European soil. At first, the rapes were given little attention,
as other atrocities (killings and massacres) hogged the headlines.
It was only vigorous campaigning by women’s organisations which revealed
the extent of the abuses in the early 1990s. To this day, the exact
figures are disputed, but it is estimated that upward of 20 000
Bosniak, Croat and Serb women were raped, often gang raped, and sometimes
sexually enslaved and forcibly impregnated in so-called “rape camps”,
by armies and paramilitary groups.
24. The horrendous sexual crimes committed against these women
– and their sheer magnitude – were one of the motors which led to
the recognition of rape as a war crime and a crime against humanity
by the International Criminal Tribunal for the former Yugoslavia
and later the Rome Statute of the International Criminal Court.
However, until now, virtual impunity reigns. While some prosecutions
for rape and sexual enslavement did take place, in particular before
the former court, only a handful of convictions were obtained. Since
there have been almost no prosecutions for rapes and other crimes
of sexual violence before the domestic courts, for example in Bosnia
and Herzegovina, thousands of victims have been denied access to justice,
reparation and redress.
Note As the NGO Amnesty International
pointed out already in 2004: “The men who raped them enjoy continuing
impunity, while the lives of the victims remain socially and economically blighted.
Apart from services provided by women’s organisations, appropriate
medical and psychosocial support remains generally unavailable.”
Note While
it appears that Bosnia and Herzegovina gave women victims a status
of civil victims of war and helped them on their path to full recovery
into the community at least as of 2006, giving them a chance for
professional improvement, monthly allowances, as well as medical
and psychosocial assistance,
Note the legacy of the sexual crimes
committed upon these women does not seem to have been adequately
dealt with on a judicial level.
25. In 2008, one of the laureates of the “Right Livelihood Awards”
(often referred to as the alternative Nobel Prize) was Monica Hauser,
the founder of
the NGO
Medica Mondiale, “...for her tireless commitment
to working with women who have experienced the most horrific sexual
violence in some of the most dangerous countries in the world, and
campaigning for them to receive social recognition and compensation.”
Note At the end of 1992, Ms Hauser was
shocked by the media reports about the tragedy of the Bosnian women,
and the instrumentalisation of the survivors in the media, which
often reduced the women to mere “rape victims”. She assembled a
highly motivated team of 20 Bosnian experts, collected the funding
needed, brought the complete material for the clinics to Central
Bosnia through the frontlines and built up
Medica Zenica, a women’s therapy centre,
in the middle of war-torn Bosnia.
Note The
NGO she created has since also helped women in Kosovo, the Democratic
Republic of Congo, Liberia and Afghanistan. Without organisations
like these, there would have been little help for the victims of
sexual violence in the wars. Personally, I find it depressing that
governmental and international organisations have not been able
to follow their example.
5 The role of the
Council of Europe
26. The Council of Europe is not a peacekeeping organisation;
and its European Court of Human Rights is not a court of criminal
justice. The mass rapes which took place in the Balkans wars are
not justiciable in Strasbourg, as the crimes took place before the
countries in question became members of the Council of Europe and
ratified the European Convention on Human Rights. The only recent
armed conflict involving Council of Europe member states was the
one between Georgia and Russia in summer 2008, regarding which there
were no reports of systematic sexual violence against women. So
why should the Council of Europe get involved, and in what way?
27. The Council of Europe has a duty to ensure that human rights
are guaranteed on the territory of Council of Europe member states.
The mass rapes during the Balkan wars in the 1990s made very clear
that, unfortunately, sexual violence, rape and forced pregnancy
are weapons of war which are not limited to Africa, or to the generation
of our mothers and grandmothers during and after the Second World
War. Even if these crimes are not justiciable before the European
Court of Human Rights now, that does not exclude the possibility that
such crimes may again be committed on European soil in the future.
The Council of Europe must not only be ready to face such a threat,
but should also look into the possibility of providing some sort
of assistance – in particular to member states – in dealing with
the legacy of past sexual violence in armed conflict.
28. The Council of Europe can ask its member states to comply
with UN Security Council Resolutions 1325 (2000) and 1820 (2008),
and heed the appeal of the Security Council of 2004 to draw up a
national action plan pursuant to the former.
29. Furthermore, Council of Europe member states could lobby at
the level of the United Nations to extend Resolution 1820 to girls
and women who are forced into the army and who do not fall under
the scope of the current resolution.
30. The Council of Europe also has a moral obligation to help
spread the human rights and rule of law values it is founded upon
beyond its geographical borders. In view of the current wave of
sexual violence engulfing the African Great Lakes region, as well
as parts of Sudan, the Council of Europe must ensure it has a policy
in place which defends women’s right to a life without violence.
It could thus, for example, promote the recognition of sexual violence
in armed conflict as a gender-based form of persecution entitling
to asylum in member states.
31. The Council of Europe could also encourage its member states
to ensure that each country has appropriate laws on its statute
books and is able to effectively prosecute such crimes should they
occur within its jurisdiction. Furthermore, countries should be
willing to consider sanctioning countries which are unwilling to
protect women from sexual violence in armed conflict or unwilling
to prosecute the perpetrators. When national troops or international
peacekeeping troops are sent into conflict situations, they should
have a clear mandate to protect the civilian population, in particular
women and girls from sexual violence. The same logic should also
be applied with regard to European Union missions. Finally, countries
could also consider sending in civilian missions to support and
to monitor the rule of law.
6 Conclusions
and recommendations
32. What makes sexual violence against women as a weapon
of war so effective? Historians, politicians and psychologists have
put forward a host of different theories, but many link the effectiveness
of sexual violence against women in armed conflict to the patriarchal
societies in which these crimes are committed. The (male) enemy
is considered “dishonoured”, because he has been unable to protect
his wife or his daughter, for example. Women become chattel, the
booty of the common soldier. As in times of peace, rape is a power game,
but with the added piquancy of hurting and/or destroying the enemy.
“Dishonoured” women and girls are often ostracised by their own
communities, and are made to bear part of the blame, thus further
weakening the enemy. In effect, raped women who are ostracised from
their communities lose not only social ties, but also shelter and
work – and this, in turn, can badly affect the economic situation
of the community in question.
Note In addition,
in a patrilineal society, where the child’s ethnicity depends on
that of the father (rather than the mother), raping and forcibly
impregnating women of another ethnicity makes sense as a method
of ethnic cleansing – shifting population “balances”. If, in addition,
impunity reigns, it is hard to see how sexual violence against women
in armed conflict can be stopped.
33. This is why stopping sexual violence against women in armed
conflict is intimately linked with empowering women and changing
patriarchal societal models, as well as with ensuring justice is
done each and every time a woman is raped in an armed conflict,
be it close, on European soil, or far away on another continent.
The key to eradicating sexual violence in armed conflict is gender
equality.
34. I thus suggest that the Assembly make a recommendation to
the Committee of Ministers to consider providing some sort of assistance
to member states in dealing with the legacy of past sexual violence
in armed conflict, for example by assisting the member states in
question in the drafting and the implementation of appropriate legislation
to grant women victims of sexual violence in armed conflict a status
of civil victims of war and to help them on their path to full recovery
by guaranteeing access to justice, granting pecuniary reparation,
as well as medical and psychosocial assistance.
35. Furthermore, the Assembly should, in my view, make the following
recommendations to member states to:
i comply
with UN Security Council Resolutions 1325 (2000) and 1820 (2008),
and to draw up a national action plan pursuant to the former, if
they have not already done so;
ii lobby at the level of the United Nations to extend Resolution
1820 (2008) to girls and women who are forced into the army and
who do not fall under the scope of the current resolution;
iii recognise sexual violence in armed conflict as a gender-based
form of persecution entitling to asylum in member states;
iv ensure that the appropriate laws are on the statute books,
and that an effective prosecution of crimes of sexual violence in
armed conflict is possible should they occur within their jurisdiction;
v consider sanctioning countries which are unwilling to
protect women from sexual violence in armed conflict or unwilling
to prosecute the perpetrators;
vi when national troops or international peacekeeping missions
are sent into conflict situations, ensure they have a clear mandate
to protect the civilian population, in particular women and girls
from sexual violence, that they are properly trained in gender equality,
and that women make up a substantial proportion of these missions;
vii consider sending in civilian missions to support and to
monitor the rule of law to complement the protection provided by
peacekeepers; such missions should ideally be composed of an equal
number of women and men, and their members should be properly trained
in gender equality.
Reporting
committee: Committee on Equal Opportunities for Women
and Men
Reference to committee: Doc. 11633 revised and Reference 3499 of 28 November 2008
Draft resolution and draft recommendation unanimously
adopted by the committee on 14 May 2009
Members of the committee: Ms
Pernille Frahm(Chairperson),
Mr José Mendes Bota (1st
Vice-Chairperson), Ms Ingrīda Circene (2nd Vice-Chairperson), Ms
Anna Čurdová (3rd Vice-Chairperson), Ms Sonja Ablinger, Mr Francis
Agius, Mr Florin Serghei Anghel (alternate: Ms Maria Stavrositu), Mr John Austin, Mr Lokman Ayva, Ms Marieluise Beck, Ms Anna
Benaki, Mr Laurent Béteille, Ms Deborah Bergamini, Ms Oksana Bilozir, Ms Rosa Delia
Blanco Terán, Ms Olena Bondarenko, Mr Predrag Bošcović, Ms Anna
Maria Carloni, Mr James Clappison, Ms Diana Çuli, Ms Lydie Err,
Ms Catherine Fautrier, Ms Mirjana Ferić-Vac,
Ms Sonia Fertuzinhos, Ms Doris Frommelt,
Ms Alena Gajdůšková, Mr Giuseppe
Galati, Ms Claude Greff, Mr Attila Gruber, Ms Carina Hägg, Ms Fatme Ilyaz, Ms Francine
John-Calame, Ms Nataša Jovanoviċ, Ms Birgen Keleş,
Ms Krista Kiuru, Ms Elvira
Kovács, Ms Angela Leahu, Mr Terry Leyden, Ms Mirjana Malić, Ms Assunta
Meloni, Ms Nursuna Memecan,
Ms Dangutė Mikutiėnė, Mr Burkhardt Müller-Sönksen, Ms Hermine Naghdalyan,
Mr Mark Oaten, Mr Kent Olsson, Mr Jaroslav Paška, Ms Antigoni
Papadopoulos, Ms Maria del Carmen Quintanilla Barba, Mr Frédéric
Reiss, Ms Mailis Reps, Ms
Maria Pilar Riba Font, Ms Andreja Rihter, Ms Jadwiga Rotnicka, Mr
Nicolae Robu, Ms Marlene
Rupprecht, Ms Klára Sándor,
Ms Miet Smet, Ms Albertina
Soliani, Ms Darinka Stantcheva, Ms Tineke Strik, Mr Michał Stuligrosz, Ms Doris Stump, Mr Han Ten Broeke, Mr Mihai
Tudose, Mr Volodymyr Vecherko, Ms Tatiana Volozhinskaya, Mr Marek
Wikiński, Mr Paul Wille,
Ms Betty Williams, Mr Gert Winkelmeier,
Ms Karin S. Woldseth, Ms Gisela Wurm,
Mr Andrej Zernovski, Mr Vladimir Zhidkikh, Ms Rodoula Zissi
NB: The names of the members who took part in the meeting
are printed in bold
Secretariat of the committee: Ms
Kleinsorge, Ms Affholder, Ms Devaux
