Transitional Justice for Survivors of Sexual Violence by the ISIS: Part 1
By Kirthi Jayakumar
Source: Sites of Conscience
Six months after I listened to Nadia Murad’s Nobel Lecture, I listened to Rukmini Callimachi’s Caliphate. After an episode where she interviewed a young woman who had returned home after being a sex slave for the ISIS for three years, my mind was filled with questions around justice for these survivors. The Caliphate was not recognized as a state though the ISIS claimed otherwise. The Security Council had not passed a resolution to hand the case over to the International Criminal Court (ICC). On March 23, 2019, the Caliphate had been declared defeated, but ISIS was still deemed a threat after having evolved into a “covert network” (UN 2019). Very few were talking about justice for the victims of sexual violence by the ISIS.
Framing institutional approaches to justice for victims of sexual violence by the ISIS would likely be informed by precedents, drawing from past experiences of prosecuting sexual violence after armed conflict. This five part essay critiques existing transitional justice mechanisms to present an idea of what justice for survivors of sexual violence by the ISIS could look like. This part will start by setting the context.
Transitional Justice
Transitional justice is “the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation” (UN 2011). Although it speaks of society and not state, transitional justice has conventionally centred on the state as it aims at redress for past abuses committed by a dictatorship or an authoritarian regime (Seibert-Fohr 2015). Rebel groups, insurgents, and other actors involved in armed conflicts have been the subject of prosecuted in transitional justice proceedings, such as the Lord’s Resistance Army in Uganda (Sriram and Pillay 2010), the Hutu genocidaires in Rwanda (Gahima 2013), and the Justice and Equality Movement in Darfur (Oette 2016). Kalyvas (2015) called the ISIS a revolutionary group since it controlled parts of Syrian and Iraqi territory and used "hybrid military tactics." This essay will proceed on the understanding that there was an armed conflict in which mass atrocities were carried out.
Victims of Sexual and Sexualised Violence by the ISIS
Sexual violence refers to forced and unwanted sexual activity without the consent of a person (NSVRC 2010). Sexualised violence refers to violence targeting one’s sex, sexual orientation, and/or sexuality (VSAC n.d.). This paper will specifically look at sexual and sexualised violence. Rape and sexual violence are the most notable kinds of gender harms, and the prosecution of sexual violence in transitional justice mechanisms have included a dedicated focus on these kinds of crimes (O'Rourke 2016, Askin 1997, Askin 2003, Chinkin 1994, Copelon 1994, Gardam 1997). By widening the definition of sexual violence to include sexualized violence, this paper acknowledges all forms of violence that target an individual’s gender identity or sexual orientation. From the information documented in the literature, it appears that there are two sets of acknowledged victims of sexual violence by the ISIS: Yazidi women and LGBTQIA+ people in the region. While Yazidi women faced sexual violence, the LGBTQIA+ people faced both sexualized and sexual violence. This paper places these two demographics at the center of the discourse, while also acknowledging that men and boys may have been subject to sexual violence as well. In any mention of “sexual violence” in the rest of this essay, the words “sexualized violence” are also included.
References
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Askin, K. (2003) Prosecuting Wartime Rape and Other Gender-Related Crimes under International Law: Extraordinary Advances, Enduring Obstacles. Berkeley Journal of International Law, 21, 288–349.
Chinkin, C. (1994) Rape and sexual abuse of women in international law. European Journal of International Law 5, 326–41.
Copelon, R. (1994) Surfacing gender: re-engraving crimes against women in humanitarian law’, Hastings Women’s Law Journal 5(2), 243–66.
Gahima, G. (2013) Transitional justice in Rwanda: accountability for atrocity. London: Routledge.
Gardam, J. (1997) Women and the law of armed conflict: why the silence? International and Comparative Law Quarterly 46, 55.
Kalyvas, S.N. (2015) Is ISIS a Revolutionary group and if Yes, What are the Implications?. Perspectives on Terrorism9 (4), 42-47.
NSVRC. (2010) ‘What is Sexual Violence.’ National Sexual Violence Resource Center [online] available at https://www.nsvrc.org/sites/default/files/Publications_NSVRC_Factsheet_What-is-sexual-violence_1.pdf [25 July 2019].
Oette, L. (2016) Criminal law reform and transitional justice: Human rights perspectives for Sudan. London: Routledge.
O'Rourke, C. (2016) ‘Gender and Transitional Justice.’ in Handbook on Women and War. ed. by Sharoni, S., Welland, J, Steiner, L, and Pedersen. New York: Edward Elgar Publishing.
VSAC (n.d.) ‘Sexualized violence.’ Victoria Sexual Assault Centre [online] available at https://vsac.ca/sexualized-violence/[25 July 2019].
Seibert-Fohr, A. (2015) Transitional Justice in Post-Conflict Situations Max Planck Encyclopedia of Public International Law [MPEPIL].
Sriram, C.L. and Pillay, S. (2010) Peace versus justice? The dilemma of transitional justice in Africa. New York: James Curry.
United Nations Secretary-General (2011) The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, New York: United Nations.
UN. (2019) ‘Eighth report of the Secretary-General on the threat posed by ISIL (Da’esh) to international peace and security and the range of United Nations efforts in support of Member States in countering the threat’ United Nations [online] available at https://undocs.org/S/2019/103 [25 July 2019].
