Session 6-7 Gender related and sexual violence (2016)Apunte Inglés
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SESSION 6: GENDER RELATED AND SEXUAL VIOLENCE DURING ARMED CONFLICTS
VAW and armed conflict
Women and girls suffer armed conflict impact disproportionately:
particularly vulnerable to gender-based and sexual violence
women and children constitute the majority of the world’s refugees and IDP
availability of weapons
Historical practice over the centuries: “rights” of conquerors.
Masculinity and military institutions. Ex. sexual harassment cases in US military institutions International humanitarian law - The Hague Conventions (1907) protection of “family honour and rights” - The Geneva Conventions (1949) protection of women 4th Geneva Convention: Art. 27 treats violence against women as a crime of honour rather than as a crime of violence:“[w]omen shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution or any form of indecent assault”.
SESSION 7 International Criminal Court – De Hagge Competence in three areas: - Was crimes: committed as part of an armed conflict.
- Crimes against humanity: committed as a part of a widespread or systematic attack directed against any civilian population (could be without war).
- Genocide: any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group: o Killing members of the group o Causing serious bodily or mental harm to members of the group o Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.
o Imposing measures intended to prevent births within the group.
o Forcibly transferring children of the group to another group.
Gender based violence as international crimes Rape.
Sexual slavery and enforced prostitution.
Forced pregnancy and enforced sterilization.
Other forms of sexual violence.
Other forms of gender-based violence: child-recruitment by armed forces or groups, derogatory homosexual rhetoric, newborn babies taken from women prisoners or “undesirable” parents (stolen babies), shaven-women (republican women).
Gender-based persecution (eg: homosexuals under Nazi regime).
Rape. Not just a by-product of war, but also a deliberate military strategy for psychological harm and fear in community and a strategy of ethnic cleansing.
ICTY / ICTR Jurisprudence “Like torture, rape is a violation of personal dignity, and rape in fact constitutes torture when inflicted by or at the instigation of or with the consent or acquiescence of a public official or others person acting in an official capacity”.
“Measures intended to prevent births within the group may be physical, but can also be mental. For instance, rape can be a measure intended to prevent births when the person raped refuses subsequently to procreate, in the same way that members of a group can be led through threats or trauma, not to procreate”.
“The measures intended to prevent births within the group, should be construed as sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages. In patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother's group”.
Sexual Slavery 1. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.
2. The perpetrator caused such person or persons to engage in one or more acts of a sexual nature.
Forced Prostitution 1. The perpetrator caused one or more persons to engage in one or more acts of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent.
2. The perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connection with the acts of a sexual nature.
ICC: Sexual and gender-based crimes prosecution - Rules of evidence: o Evidence of other sexual conduct. Evidence of the prior or subsequent sexual conduct of a victim or witness will not be admitted.
o Consent: Consent cannot be inferred by reason of any words or conduct of a victim where force, threat of force, coercion or taking an advantage of a coercive environment undermined the victim’s ability to give voluntary and genuine consent.
o - Consent cannot be inferred by reason of the silence of, or lack of resistance.
Procedures Witness Participation and Protection Survivors have the right to participate in the justice process, directly or through legal representatives, by presenting their views and concerns at all stages which affect their personal interests.
The Court must protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses, taking into account all relevant factors, including age, gender, and the nature of the crime.
The Victim Witness Unit (VWU) will provide protective measures, security arrangements, counseling and other appropriate assistance for witnesses and victims - Structure: o Women as judges and staff. There must be a “fair representation of male and female judges” and staff of the ICC.
o Legal Expertise on Violence Against Women. In the selection of judges, prosecutors and others staff, the need for legal expertise on violence against women or children must be taken into account.
o Legal Advisors on Sexual and Gender violence. The Prosecutor is required to appoint advisers with legal expertise on specific issues, including sexual and gender violence.
For ensuring court procedures are gender sensitive and women are not re-victimized during court proceedings. They integrate gender perspective in its work.
ICC in practice. Initially -> absence of charges for gender based crimes, overlooking the gender specific dimensions of cases. Later -> the court has charged sexual violence and gender based crimes in most of the situations under its investigation; but the charges are not being effectively prosecuted; more than 50% of the sexual violence charges originally brought by the court are dismissed before trial.
Sex-work / prostitution and trafficking Trafficking in human beings “The recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.” “Exploitation shall include, at a minimum, the exploitation of the prostitution of othersor other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”. (Council of Europe Convention on Action against Trafficking in Human Beings, 2005) Why is this gender issue? Because of victims and sexual exploitation.
Responses of CJS: Low reporting rates; high attrition rates; blaming the victim; implementation of protective measures.
Second thoughts - Lack of evidence - Dramatization of evil - Moral Crusade against Prostitution - Blurring the lines: what is prostitution and what is trafficking? - Mobility of sex workers in European cities - Root causes and role of the law in preventing migration Trafficking is always a crime. In the case of Prostitution we have different legal models. The only group who thinks that are the same are the “abolitionists feminists”, who consider that prostitution is never consented.
Human Rights approach - Free to move - Free to choose service - Ability to use condoms - Access to medical care - Protection from abuse Prostitution & Stigma People buying sex from others are criminals for Abolitionist neo-prohibitionist model (Sweden). Women as victims -> prostitution = trafficking) VAW. Women are given exit strategies, but foreign women in prostitution are expelled. Clients are seen as animals: fines or imprisonment for buyers.
“SlutWalk aims to challenge the word ‘slut’ and other degrading words around sexuality and sexual assault in their current mainstream use. We see language as an integral part of victimblaming and slut-and sex-shaming and something that needs to be discussed”.
Heightened vulnerability Female sex workers are at a far higher risk of violence than any other group of women. Active sex workers are almost 18 times more likely to be murdered than women of similar age and race (UK).
Reasons for female sex workers’ vulnerability: - perpetrators believe that their attacks will be underreported to police by prostitutes.
- “I picked prostitutes because I thought I could kill as many of them as I wanted without getting caught” (serial murder, UK).
Critiques to de Swedish model: increase of stigmatization of women in prostitution. Only reduces street prostitution, increasing the clandestine prostitution and consequently, the risk of exploitation.
United Kingdom: prostitution is not illegal, but most of prostitution-related activities are – offering sexual services in public spaces is illegal; asking for sexual services is illegal; brothels are illegal; pimping is illegal. Critiques: increases vulnerability of women in prostitution (less likely to report crimes). Also leads to more hidden and clandestine prostitution, and there is a decrease in specific services offered to women in prostitution.
France: is not illegal, but most of prostitution-related activities are – offering sexual services in public spaces is illegal; buying sexual services from minors or vulnerable persons is illegal; pimping is illegal; prostitutes pay taxes but are not covered by the social security system; immigrants in prostitution may be expelled from the country. Critiques: increase precariousness of sex-workers in society; increases stigmatization of sex-workers. Prostitution is seen as a problem of security and criminality instead of a problem that should be treated from a social perspective.
Current legal models on prostitution in Europe Abolitionist neo-prohibitionist model. In theory intended to protect women, but in practice are prohibiting prostitution. Ex: Italy, France, UK, Sweden.
o Austria. Is no longer considered as “immoral” contract. Pimping is illegal.
Health controls and diverse models of registry. Sex workers pay social security and taxes. Some Länders allow street prostitution. Critiques: regulation focuses on public order and leads to “hide” prostitution from public sight.
o Holland. Brothels and prostitution are legal. Sex work is considered a form of legal work. Medical controls offered but not compulsory. Registry before tax and commerce authorities. Critiques: Is considered a form of legal work, but it does not allow legal residence status for immigrants (clandestine sex work).
o Germany. Workers have more autonomy and cannot be forced to perform sexual services. Different Länders have diverse regulations: time or zone limits, and also diverse systems for tax payment. Critiques: most sex workers have no contract. Law on prostitution benefits brothel’s owners.
Spain: Pimps are criminalized in the Criminal Code.
General terms: diverse models have in common: interest in eradication of prostitution from certain areas (street) – hygienist interests and gentrification processes. Vulnerability of sex workers is higher indoors.
There is also a need to recognize that not all sex workers see themselves as victims, oppressed, or exploited. Instead, many can and are taking control of their own lives, finding solutions to their problems, acting in their individual and collective interests and contributing to the fight against HIV/AIDS. (WHO, 2005) “Laws that criminalize sex work and the sex industry should be reviewed, taking into account the adverse impact of these laws on public health and the human rights of sex workers. To enable sex workers to fully enjoy legal rights to health and safety at work requires decriminalization. Decriminalization of sex work requires the repeal of: a) laws explicitly criminalizing sex work or clients of sex workers; b) laws that criminalize activities associated with sex work, including removal of offences relating to: soliciting; living on the earnings of sex work; procuring; pimping; the management and operation of brothels; and promoting or advertising services; c) laws that require mandatory HIV or STI testing or treatment of sex workers; d) laws that authorize the compulsory detention of sex workers for the purpose of reeducation, rehabilitation or correction.” Initiatives to decriminalize sex-work International Council Meeting (ICM), Amnesty International, 2015: “Sex workers are one of the most marginalized groups in the world who in most instances face constant risk of discrimination, violence and abuse. Our global movement paved the way for adopting a policy for the protection of the human rights of sex workers which will help shape Amnesty International’s future work on this important issue” ...