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“Towards ending impunity for GBV crimes: Experiences from the Human Rights Special Procedure”

Statement delivered at the International Conference on Gender Based Persecution, 7 October 2021, Northumbria University

Professor Badar
Fellow panelists
Dear participants

Thank you very much to Professor Badar and Northumbria University for their kind invitation to this timely and interesting conference.

We are all too painfully aware of the proliferation of gender-based violence in times of conflict around the globe, particularly sexual violence against women and girls. Rape and other forms of violence are often used as a tool of war, with the causes and consequences of such gender-based violence still unaddressed. These victims go through indescribable trauma.

Many suffer serious health problems, have their education interrupted, develop debilitating conditions, and are subject to stigma. Many women survivors must cope with unwanted pregnancies. Each one of them displays extraordinary courage and determination to get back on their feet. Yet, in many places of the world, survivors do not receive reparation, nor justice.

And even though UN Security Council Resolution 1325 has called for the greater participation of women in preventing conflict and building peace, women and girls are unable to participate in these processes fully and equally due to persistent patterns of discrimination and violence against them.

In my work on violence against women and girls, I am guided by the relevant international human rights instruments and standards, most notably the Declaration on the Elimination of Violence Against Women as well as the Convention on the Elimination of Violence Against Women (CEDAW).

Here, I am proud to say my mandate, through my predecessor, was involved in drafting General Recommendation no. 35 of 2017 of the CEDAW Committee on gender-based violence against women, thereby updating general recommendation no. 19.  No. 19 had become a source of and inspiration for various international and regional documents, including the Declaration on the Elimination of Violence against Women. 

No. 19 contended that the definition of discrimination against women under the terms of the Convention includes gender-based violence, that is violence against women because she is a woman or that affects women disproportionately.
Bot General Recommendation No, 19 and General Recommendation No. 35, that superseded and updated it are important in that they filled out an important gap and set out the standards for States’ obligations regarding the prevention and elimination of violence against women and the support for victims.

Through General Recommendation 35, the CEDAW Committee recommends to States parties take the measures on a range of issues for the prevention and response of gender-based violence against women. In the area of prosecution and punishment, it recommends that States parties ensure effective access for victims to courts and tribunals and that gender-based violence against women is not mandatorily referred to alternative dispute resolution procedures, including mediation and conciliation.

Most notably, it calls on States to establish a system to regularly collect, analyse and publish statistical data on the number of complaints about all forms of gender-based violence against women, including technology-mediated violence, and on the number and type of protection orders issued.

Moreover, you also probably know that Member States of the UN are required under international human rights law to make available adequate, effective, prompt, and appropriate remedies, including reparation, to victims of human rights violations. The latter include compensation, medical care and guarantees of non-repetition. Reparation programs provide concrete support to victims and help restore public trust in the State.

In this respect, my mandate has called for reparations to be transformative. It has encouraged the implementation of a gender sensitive approach, which does not entrench pre-existing patterns of gender-based discrimination and which ensures meaningful participation and consultation of victims in the design, implementation, monitoring and evaluation of reparations. 

So how does my mandate then engage on the broader issue of gender-based violence against women and girls, including the issue of prosecution – you may ask? What does my mandate do and how does it engage on criminal justice issues pertaining to GBV? 

Through several ways:

One way is through regularly following the proceedings, and decisions of national and regional courts as well as legislative proposals and amendments that may affect the treatment of women and girls as well as the delivery of justice to women and girls, for violence committed against them.

Furthermore, Human Rights Council resolution 32/9 has enabled my mandate to participate in the work of the Commission on Crime Prevention and Criminal Justice (CCPCJ). As such, the mandate has been participating since 2017 in the deliberations, very much focused on the prevention of gender-related killings of women and the issue of violence against women and the criminal justice system. In fact, my predecessor has regularly expressed her hope that the CCPCJ would establish a separate agenda item on the prevention of violence against women and criminal justice section, and I will be reiterating that call.

This would be in line with the Doha Declaration, article 5(f), which called for the mainstreaming of a gender perspective into countries’ criminal justice systems by developing and implementing national strategies and plans to promote the full protection of women and girls from all acts of violence, including gender related killing of women and girls.  This would also be in accordance with the obligations of State parties.

In the past, my mandate has urged every government and de facto authority to investigate incidents of sexual and gender-based violence. It has urged thorough and proactive judicial investigations, but caution that these should not become an unbearable experience for victims.

Victims deserve respect and cannot continue to be let down. Previous mandate holders have called for full cooperation by police and security agencies to identify those responsible, including at the command level. There is no doubt that the road to prevention starts with accountability. Impunity emboldens perpetrators and perpetuates violence.

Moreover, it would be important to realize that gender-based violence has not just been highlighted in my mandate’s thematic reports to the Human Rights Council and my mandate’s country visits but also those of other special procedures, most notably the Working Group on Discrimination against Women and Girls in practice and in law as well as the Special Rapporteurs on trafficking, the human rights of migrants – to name a few.

Collectively, we have called for perpetrators of violence to be prosecuted in law and in practice. These calls have not been limited to only GBV against women in different settings that render them vulnerable to exploitation and abuse, but also girls (such as for example through our call for laws in certain countries to be amended to prosecute child marriages).

Now it is important to realize that my mandate like other mandates has its limitations. We cannot enforce a response to our communications, nor enforce change in a problematic policy or action. Moreover, my office’s capacity for follow-up on the communications we send is very limited. At the same time, the special procedure’s main “power” so to speak, “soft power” of course, lies in its ability to draw attention to a situation where violence is occurring, is about to occur, or has occurred. By spotlighting attention on it, often in a very public way, it can lead to results. 

Of course, you may be asking yourself whether my mandate has ever cooperated with the ICC. I have also asked that very same question. Obviously I am still new as a mandate holder, so I have not had approached the ICC or other tribunal for that matter. That said, I have not found any indications, at least not in writing, that this has been the case by my predecessors (but I stand to be corrected by any of the panelists or participants).

Irrespective of whether there was direct engagement or not, my predecessor had explored some of the connections between international human rights law and international criminal law in her last thematic report to the Human Rights Council on the issue of rape. The report highlights the contribution that ad hoc criminal courts have made in putting forth a definition of rape that came to guide international law, and reminds that, according to the Rome Statute, the ICC’s application and interpretation of law must be consistent with internationally recognized human rights (Article 21, 3).
Of course, I understand why engagement with the ICC may not have been a straightforward matter. On one hand, the mandate holder is meant to be independent and guard that independence staunchly. The court’s decisions and actions often if not always become politicized quite quickly. 

Moreover, there are many areas where the Special Procedures differ. For example, the target of my communication is often the State, and to a lesser degree a non-State actor that is a de facto authority. The Court’s emphasis however is on individual criminal responsibility. While my mandate can and does send a communication with regards to individual cases, it refers to State obligations regarding that case and is usually to illustrate a pattern of human rights abuse or violation, though the recipient of the communication is expected to respond to the allegations presented in the communication. The purpose is also different. Largely, what we hope may happen is that actors at the receiving end of our advocacy and communications (usually States) change their behaviors and policies and comply with their human rights obligations. When successful, our efforts may prevent violations from being committed (it is a very rewarding feeling when this happens). We also advocate for and remind States of their obligation to ensure that victims be compensated for wrongs committed against them.

So where does that leave us? Does this mean there is no room for closer dialogue, engagement, and information exchange? 

I would argue on the contrary. 

As my predecessor noted in her report to on rape, the human rights and international criminal frameworks overlap and complement each other in many ways. In that sense, there is room for ample thematic exchanges and dialogue, which could provide mutual support to the Special Procedures and the ICC in their respective mandates. 

Reports and communications produced by the Special procedure can be very valuable for the ICC to understand the overall context in a situation at all stages in a proceeding, as it can give a flavor. 

Furthermore, there is nothing that prevents the Court, victim or party representing a victim in a situation where the ICC is involved or considering involvement to submit information to the Special Procedures, on the understanding that it is done voluntarily and only following an informed decision. In such a case, they will have to be fully aware of the differences in how such information will be used and what come out of it, to manage expectations. 

Though the special procedure cannot replace a criminal investigation we all know that the ICC does not and will not be able to investigate all situations. Any such engagement will have to be done in a careful and structured manner that respects the roles of each but that also allows for identifying synergies and complementarities.