Tema 6 (2016)Apunte Inglés
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GENDER RELATED AND SEXUAL VIOLENCE DURING
VAW AND ARMED CONFLICT
Women and girls suffer armed conflict impact disproportionately
- particularly vulnerable to gender-based and sexual violence
- health consequences
- 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
Second World War “comfort women” (sex slaves for Japanese soldiers)
- Statutes of Nuremberg and Far East tribunals fail to include rape
International Criminal Tribunal for the Former Yugoslavia (ICTY) and Rwanda (ICTR)
- listed rape among the crimes against humanity
4TH GENEVA CONVENTION
Art. 27 treats violence against women as a crime of honour rather than as a crime of violence:
“women shall be especially protected against any attack on their honour, in particular against rape, enforced
prostitution or any form of indecent assault”.
CRIMES UNDER ICC (International Criminal Court) The ICC is devoted to the investigation of the offender and it has competence in: War crimes committed as part of an armed conflict (international or non-international) Crimes against humanity committed as part of a widespread or systematic attack directed against any civilian population Genocide any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group: - Killing members of the group; - Causing serious bodily or mental harm to members of the group; - Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; - Imposing measures intended to prevent births within the group; - 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 (ex: Peru; other contexts: Czech Republic) - Other forms of sexual violence - Other forms of gender-based violence o Child-recruitment by armed forces or groups o Derogatory homosexual rhetoric During war there’s a traditional rethoric of masculinity and in this context the deviance version of masculinity (i.e not being strong) is criticized.
o Newborn babies taken from women prisoners or “undesirable” parents (Spain, Argentina) o - Shaven-women (“las rapadas”) It was a type of violence used openly during the war to show to the whole community that women have done something wrong by shaving them –they took away their beauty–.
Gender RAPE Spain: Queipo’s speeches: advocate the rape of working-class women by Rebel soldiers ‘so that they might make the acquaintance of real men’ Bosnia War: between 20,000 –50,000 women raped Not just a by-product of war but also a deliberate military strategy. The strategy was to make people: - Have psychological harm - Have fear in community Strategy of ethnic cleansing the systematic forced removal of ethnic or religious groups from a given territory by a more powerful ethnic group, with the intent of making it ethnically homogeneous, sometimes through rape ICTY / ICTR Jurisprudence ICTR Akayesu judgment, 1998 “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 - Evidence of other sexual conduct evidence of the prior or subsequent sexual conduct of a victim or witness will not be admitted Consent o 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 any words or conduct of a victim where the victim is incapable of giving genuine consent; o Consent cannot be inferred by reason of the silence of, or lack of resistance by, a victim to the alleged sexual violence; o Credibility, character or predisposition to sexual availability of a victim or witness cannot be inferred by reason of the sexual nature of the prior or subsequent conduct of a victim or witness 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 Rape consequences - Dissociation or “frozen fright” during the assault - Psychological Disorganization –Disorientation – Dissociation –Psychogenic Amnesia - Nightmares –Flashbacks –Sleep and Appetite Disturbances –Difficulty Concentrating - Constant reliving of the assault - Re-appropriation of the situation / re-gain control over their lives - Shock –Disbelief –Helplessness –Powerlessness – Loss of Control - Guilt –Shame –Self-Blame –Loss of Self-Esteem - Suppressed or intensified emotional experience - Extreme Fear –Hypervigilance–Exaggerated Startle Response - Extreme calm and denial - Irritability and outbursts of anger - Depression -Suicidal Thoughts and Actions - Physical Symptoms –Pain -Fatigue –Muscle Tension –Gynaecological Problems - Shame -Internalized Sense of Damage - Changes in Social and Sexual Functioning - Self-destructive behaviour - Denying or minimizing the impact of the sexual assault - Rationalizing why it happened - PTSD Structure Women as judges and staff - There must be a "fair representation of female and male judges” and staff of the ICC Legal Expertise on Violence Against Women - In the selection of judges, prosecutors and other staff, the need for legal expertise on violence against women or children must be taken into account.
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 Integrate gender perspective (understanding differences in status, power, roles, and needs between males and females, and the impact of gender on people’s opportunities and interactions)in its work.
ICC IN PRACTICE… Initially there was an 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 ...