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Sensemaker: Prosecuting rape in war

Sensemaker: Prosecuting rape in war

What just happened

Long stories short

  • Marine Le Pen ran Emmanuel Macron a close second in the first round of voting for the French presidency (more below). 
  • Imran Khan was ousted as Pakistan’s prime minister after the country’s supreme court upheld a no-confidence vote in parliament.
  • Boris Johnson paid a visit to Kyiv by plane and train, to meet Volodymyr Zelensky and promise more weapons including armoured fighting vehicles.

Rape in Ukraine

Using rape as a weapon of war is a war crime. But is there any hope of justice for those being raped by Russian soldiers in Ukraine?

Reports. Accounts of rape and sexual violence in Ukraine have risen steadily in number since the war began. The UN Human Rights Monitoring Mission in Ukraine is investigating reports of gang rape and rapes in front of children perpetrated by Russian forces, and the deputy mayor of Ivankiv, north of Kyiv, has reported that women and girls are cutting their hair to be “less attractive” so they won’t be assaulted. If history is any guide the use of rape as a weapon to destroy communities will not be a formal part of Russian military strategy, but will be tacitly condoned and even encouraged. As Jelke Boesten of King’s College, London, said last week, “there tends to be a facilitation”.

Response. An unprecedented effort is under way to gather evidence and identify suspects, but without regime change Russia will not extradite them. The result is an agonising paradox: more awareness and evidence of conflict rape than ever, with only scant hope of successful prosecutions.

Investigations. In addition to the UN investigation…

  • Iryna Venediktova, Ukraine’s prosecutor general, has announced investigations into more than 2,000 alleged war crimes, including multiple claims of sexual violence by Russian soldiers.
  • Karim Khan, chief prosecutor of the International Criminal Court (ICC), has opened a broad war crimes investigation against Russia after a referral by 39 countries including the UK, and said there must be “zero tolerance” of sexual violence and gender-based crimes in Ukraine.

History. Sexual violence during armed conflict has been formally recognised as a war crime since 2000, but prosecutions have been rare.

  • The ICC has successfully prosecuted one person for crimes of sexual violence in war. Another conviction was overturned on appeal. 
  • 32 individuals have been convicted of crimes of sexual violence by the International Criminal tribunal for the Former Yugoslavia. Between 20,000 and 50,000 women and men were sexually assaulted and raped during the 1992-1995 Bosnian war.
  • Iraqi courts have convicted one Isis fighter for the rape and abduction of Yazidi women. Thousands of Yazidi women were held captive by Isis. Some were reportedly burned to death in cages for refusing to have sex with soldiers. 

Requirements. There are several essential components to any successful prosecution of atrocity crimes, says Maxine Marcus, a US-based international criminal prosecutor and investigator. These include

  • political will, which Ukraine in general and Venedyktova in particular have so far demonstrated;
  • resources – including funding, technology and people to gather and process evidence – which the EU and US have both promised; and
  • expertise, including lawyers, law enforcement officials, human rights advocates and NGOs with personnel skilled in collecting evidence of atrocities.

“There’s a major flurry of experts running to help,” Marcus says. In addition, the UN is supporting local civil society organisations to deliver services to survivors of sexual violence in Ukraine, but where and how to bring cases against perpetrators who are likely to be shielded by a hostile regime remains fraught. 

Courts. There are plenty to choose from but none that are ideal.

  • Domestic. Ukraine’s own courts are the obvious forum for prosecuting crimes committed on its territory – or would be if they had a reputation for probity and justice. Unfortunately the reverse is true. Ukraine’s courts have secured almost no convictions in the past 30 years. The war could change that but as Venedyktova has admitted, “before the war, the majority of Ukrainians did not trust the state”. 
  • International. The ICC is investigating allegations of war crimes at Kyiv’s request, but it’s a “court of last resort” to be used when domestic courts are “unwilling or unable” to prosecute. It exists to prosecute the most egregious breaches of international law, so would charge only more senior Russian leaders with command responsibility. 
  • Ad-hoc. The UN Security Council has in the past authorised the creation of international criminal tribunals to investigate war crimes and crimes against humanity, but Russia would use its veto power to prevent that happening in this case.

Obstacles. War crimes cases have to be brought against individuals, not states. Even if Putin were removed from power, an end to Russia’s bar on extraditing its own citizens would be far from inevitable.

Some Russian soldiers may be arrested before leaving Ukraine, but otherwise it will be up to European and international law enforcement agencies to catch wanted individuals who enter their jurisdictions.

Expectations. Most victims of sexual violence in war never experience justice in the legal sense, says Tanya Domi of Columbia University. She suggests there are alternatives, however, and urges Ukraine to establish a “continuum of care” to help survivors of sexual violence seek justice and recognition “in their own independent ways”. 

Bosnia is praised as an example of how to prosecute perpetrators of war rape in an international forum, but the process of bringing a case to trail can be deeply traumatic for the victims. As Bakira Hasecic, a Bosnian human rights activist, told the author Christina Lamb: “The courts don’t help. We have women who were raped fifty or a hundred times by twenty different perpetrators. Instead of just giving one statement with everything as we did in the Hague, she has to testify each time one of these men is tried and go through the whole thing all over again. A woman should be allowed to say the things the way she wants, tell the story she wants”.


Rishi refers himself
How could Rishi Sunak have been so slow to get the Tory memo about not being a citizen of the world? His career as a top rank UK politician hung by a thread last week after the disclosure of his wife’s non-dom tax status, and it hangs by an even thinner one today following the news that he had a green card entitling him to US residency until last autumn, a year and a half after taking the job of chancellor. There’s nothing illegal about having a green card and a UK passport, but ministers are conspicuously not backing him for not handing it in earlier. (George Eustice to Sky: “I’ve never had one myself, nor would I ever seek to have one to be honest.”) He’s referred himself to the purportedly independent adviser on ministers’ interests, Lord Geidt, who has already indicated he’s “completely satisfied” Sunak hasn’t broken the ministerial code, but removal vans are already taking the chancellor’s family’s belongings from Downing Street to their home in Kensington. If Johnson wanted shot of him as a neighbour, he’s nearly there.


Macron by a hair
Macron won 27.6 per cent of the vote in round one of France’s presidential election, to Le Pen’s 23.4. Cue relief at Macron’s campaign HQ, where an upset first place for Le Pen looked suddenly conceivable from opinion polls last week; and deep breaths at the scale of the task ahead as Le Pen seeks to woo working class voters more or less as Boris Johnson did in the UK in 2019. Le Pen’s appeal to the blue collar vote could resonate: there is no love lost for Macron among the 7.2 million voters who backed Jean-Luc Mélenchon, the losing socialist candidate; nor among the gilets jaunes who threatened to derail Macron’s first term in 2018. The traditional parties of the left and right were wiped out last night, leaving the run-off on 24 April between a pro-EU centrist of his own invention and a nationalist who would take France out of Nato. To note: Macron hardly campaigned for the first round. He still has some bons carburants in his tank.


Meta mess
Meta, aka Facebook, is having a war to be ashamed of. It gave a global audience misinformation about the Russian attack on a Mariupol maternity hospital because false posts about a pregnant woman photographed there did not technically fall foul of company rules. It continued to allow false posts about the attack by the Russian embassy in London to circulate a week later. And it ended up enabling hate speech after trying to carve out cyberspace for Facebook users to vent about Russia. Reuters has a dispatch from the cyber frontline based on whistleblower accounts from content moderators hired by Meta through a contractor. One moderator said posts about the woman were vile but could not be taken down because they did not specifically mention the attack. Meta made over $46 billion in profits last year. Why is it outsourcing content moderation when it could bring it in-house, pay moderators more, and do the job properly?

The 100-year life health, education AND GOVERNMENT

Texan mercy
A 26 year-old who was charged with murder in Texas last week for having an abortion will have the charges dropped. The Starr County Sheriff’s Office said Lizelle Herrera had “intentionally and knowingly” caused the death of an individual by self-induced abortion, but the country district attorney said at the weekend the case was “not a criminal matter”. The DA’s decision appears to be based on the fact that last year’s new Texas law targeting abortion after six weeks is aimed at those who facilitate abortion rather than those who undergo it. Also, it provides for civil lawsuits, while Herrera (briefly) faced a criminal prosecution. She may now be free to get on with her life, but more attempted prosecutions of this kind are likely if the US Supreme Court overturns the constitutional right to abortion enshrined in Roe v Wade, as expected, later this year.

Our planet CLIMATE AND geopolitics

Sooty Arctic
Shipping is contributing to a feedback loop that’s speeding up the retreat of Arctic sea ice. Partially combusted bunker fuel from tankers and other big ships using the so-called Northern Route leaves soot on the ice, which darkens it, which increases the rate at which it melts. Rising from an admittedly low base, emissions of black carbon from shipping in the Arctic rose by 85 per cent between 2015 and 2019, according to a research paper seen by the Guardian. The Northern Route used to be passable only in summer and then only at considerable risk to ships without specially hardened hulls. Now tankers can push through the thin ice even in February, and Russian under current management regards it as a business opportunity rather than a warning. Filters could cut shipping’s particulate pollution by 90 per cent, but the sector is unregulated, so many owners don’t bother to install them.

Thanks for reading. Please share this around and tell us what we’ve missed. News tips and story ideas are welcome. Email them to sensemaker@tortoisemedia.com.

Ella Hill

Phoebe Davis

With additional reporting by Giles Whittell.

Photographs by Getty Images

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