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Domestic accountability for sexual violence: The potential of specialized units in Kenya, Liberia, Sierra Leone and Uganda

Published online by Cambridge University Press:  02 March 2015

Kim Thuy Seelinger
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Abstract

From 2011 to 2014, the Human Rights Center at the UC Berkeley School of Law conducted qualitative research in Kenya, Liberia, Sierra Leone and Uganda to identify accountability mechanisms and challenges related to sexual violence committed during periods of conflict or political unrest. This article shares two aspects of that research: first, it presents key challenges related to the investigation, prosecution and adjudication of sexual violence committed during and after the periods of recent conflict. Second, it flags the emergence of specialized units tasked with investigating and prosecuting either sexual and gender-based violence or international crimes, noting the operational gap between these institutions. It notes that if not bridged, this gap may impede responses for the intersecting issue of sexual violence committed as an international crime. The article closes with recommendations for a more coordinated response and more accountability at the domestic level.

Keywords

sexual violenceconflict-related sexual violenceinternational crimesRome Statutecomplementarityaccountabilitywartime rapespecialized unitsKenyaLiberiaSierra LeoneUganda
Type
The legal prohibition of rape and other forms of sexual violence
Information
International Review of the Red Cross , Volume 96 , Issue 894: Sexual violence in armed conflict , June 2014 , pp. 539 - 564
Copyright
Copyright © icrc 2015 

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References

1 See useful early discussion in Askin, Kelly D., “Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status”, American Journal of International Law, Vol. 93, No. 1, 1999, pp. 97–123CrossRefGoogle Scholar.

2 States signatory to the Rome Statute accept their obligations under the principle of complementarity: the concept that the International Criminal Court (ICC) has complementary jurisdiction to national criminal courts over serious crimes, with primacy resting in the national courts. Among other things, this means that national courts should prosecute crimes considered as such under international law (including sexual violence). See Lee Stone and Max du Plessis, “The Implementation of the Rome Statute in African Countries”, available at: www.issafrica.org/cdromestatute/pages/document.pdf (all Internet references were accessed in December 2014). See also Muli, Elizabeth, “The Domestication of the Rome Statute: A Case Study of the International Crimes Bill in Kenya”, Moi University Law Journal, Vol. 2, No. 1, 2008, pp. 50–53Google Scholar.

3 For the purposes of this study, we defined “conflict period” in our case studies as follows. Liberia: from 1989 to 1996 and from 1999 to 2003; Sierra Leone: from 1991 to 1999; Uganda: conflict in northern Uganda, lasting from 1986 to 2006 and running up to the end of the formal encampment period in 2008; Kenya: post-election violence period, late December 2007 through February 2008. We understood that Kenya's 2007–2008 post-election violence may not constitute an armed conflict in the strict sense under international humanitarian law. However, we included Kenya as a case study because of the relatively recent nature of the conflict there, the diversity it provided in terms of length of duration of emergency period, and the potential for finding helpful response strategies in such a highly developed country. Also, the incidents of sexual violence reported to local and international investigators during Kenya's 2007–2008 post-election violence were sufficiently similar to acts of sexual violence committed in other conflict contexts as to invoke the same questions of accountability and response.

4 Study participants were selected purposefully based on their involvement in and/or knowledge about responses to sexual violence during or after the conflict period. Sampling aimed to include both policy-makers and practitioners working in health care, law enforcement, the judiciary, prosecution units, civil society organizations and traditional justice systems.

5 Dara Kay Cohen, Amelia Hoover Green and Elisabeth Jean Wood, Wartime Sexual Violence: Misconceptions, Implications, and Ways Forward, United States Institute of Peace Special Report No. 323, United States Institute of Peace, Washington, DC, February 2013.

6 Johnston, Kirsten, Scott, Jennifer, Rughita, Bigy, Kisielewski, Michael, Asher, Jana, Ong, Ricardo and Lawry, Lynn, “Association of Sexual Violence and Human Rights Violations with Physical and Mental Health in Territories of the Eastern Democratic Republic of the Congo”, The Journal of the American Medical Association, Vol. 304, No. 5, 2010, pp. 553–562CrossRefGoogle Scholar; Johnson, Kirsten, Asher, Jana, Rosborough, Stephanie, Raja, Amisha, Panjabi, Rajesh, Beadling, Charles and Lawry, Lynn, “Association of Combatant Status and Sexual Violence with Health and Mental Health Outcomes in Postconflict Liberia”, The Journal of the American Medical Association, Vol. 300, No. 6, 2008, pp. 676–690CrossRefGoogle ScholarPubMed.

7 Amowitz, Lynn L., Reis, Chen, Lyons, Kristina Hare, Vann, Beth, Mansaray, Binta, Akinsulure-Smith, Adyinka M., Taylor, Louise and Iacopino, Vincent, “Prevalence of War-Related Sexual Violence and Other Human Rights Abuses Among Internally Displaced Persons in Sierra Leone”, The Journal of the American Medical Association, Vol. 287, No. 4, 2002, p. 518CrossRefGoogle ScholarPubMed; Recovery of Historical Memory Project (REHMI), Guatemala: Never Again! The Official Report of the Human Rights Office, Archdiocese of Guatemala, Orbis Books, Maryknoll, NY, 1999Google Scholar.

8 United States Office on Colombia, ABColombia and Sisma Mujer, Colombia: Women, Conflict-Related Sexual Violence and the Peace Process, 2013, available at: www.abcolombia.org.uk/downloads/ABColombia_Conflict_related_sexual_violence_report.pdf.

9 Cohen, Dara Kay, “Explaining Rape during Civil War: Cross-National Evidence (1980–2009)”, American Political Science Review, Vol. 107, No. 3, 2013, pp. 461–477CrossRefGoogle Scholar; Tompkins, Tamara, “Prosecuting Rape as a War Crime: Speaking the Unspeakable”, Notre Dame Law Review, Vol. 70, No. 4, 1994, pp. 845–890Google Scholar.

10 Palermo, Tia, Bleck, Jennifer and Peterman, Amber, “Tip of the Iceberg: Reporting and Gender-Based Violence in Developing Countries”, American Journal of Epidemiology, Vol. 179, No. 5, 2014CrossRefGoogle ScholarPubMed.

11 Use of the term “conflict-related sexual violence” to describe some of these harms has gained substantial traction in recent years. Though inconsistently described by academics and policy-makers, this has foggily come to include acts such as rape, sexual slavery, coerced undressing, forced pregnancy, forced abortion, sexual mutilation, sexual exploitation and other non-penetrative sexual assault, usually by one or more armed actors. Thus the more private, perennial forms of sexual violence that are not unique to conflict periods but nonetheless occur during them – like intimate-partner violence – fall out of the lexicon and to the conceptual and political wayside. See Wood, Elizabeth Jean, “Variation in Sexual Violence during War”, Politics & Society, Vol. 34, No. 3, 2006, pp. 307–341CrossRefGoogle Scholar; Suk Chun and Inger Skjelsbaek, “Sexual Violence in Armed Conflicts”, PRIO Policy Brief, International Peace Research Institute, Oslo, January 2010; Michele Leiby, “State-Perpetrated Wartime Sexual Violence in Latin America”, Ph.D dissertation, University of New Mexico, July 2011.

12 The World Health Organization has described sexual violence as “any sexual act, attempt to obtain a sexual act, unwanted sexual comments or advances, or acts to traffic, or otherwise directed, against a person's sexuality using coercion, by any person regardless of their relationship to the victim, in any setting, including but not limited to home and work … Sexual violence includes rape, defined as physically forced or otherwise coerced penetration – even if slight – of the vulva or anus, using a penis, other body parts or an object.” See Rachel Jewkes, Purna Sen and Claudia Garcia-Moreno, “Sexual Violence”, in Etienne G. Krug et al. (eds), World Report on Violence and Health, World Health Organization, 2002, available at: http://whqlibdoc.who.int/publications/2002/9241545615_chap6_eng.pdf.

13 Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, 17 July 1998 (entered into force 1 July 2002) (Rome Statute), Art. 7(1)(g), “Crimes against Humanity”. See also Art. 8(2)(b)(xxii), Art. 8(2)(e)(vi) on “War Crimes”. Sexual violence could also constitute an act of genocide under Art. 6(b), “Causing Serious Bodily or Mental Harm to Members of the Group”.

14 Ibid.; see also ICC, Elements of Crimes, Document No. ICC-PIDS-LT-03-002/11_Eng, The Hague, 2011, Art. 6 (p. 2), Art. 7 (p. 5) and Art. 8 (p. 13).

15 Rome Statute, Arts 25, 28 and 30. This may be “direct responsibility” if the accused committed (directly or indirectly), ordered, solicited, induced, aided and abetted or otherwise contributed to the commission of the crime (by action or omission). Direct responsibility is also borne where a group acted with a common purpose. Alternatively, an accused may be culpable via “command” or “superior” responsibility. Broadly speaking, this can be proven where the accused is a military or civilian commander who is shown to have had effective “command and control” or authority over subordinates; to have known or disregarded the fact that subordinates were committing the crimes in question; and to have failed to take reasonable measures to prevent their commission, punish the perpetrators or submit the matter to competent authorities for investigation.

16 Annan, Jeannie and Brier, Morah, “The Risk of Return: Intimate Partner Violence in Northern Uganda's Armed Conflict”, Social Science and Medicine, Vol. 70, No. 1, 2010, p. 152CrossRefGoogle ScholarPubMed.

17 Ibid.

18 Dyan Mazurana et al., Making Gender-Just Remedy and Reparation Possible: Upholding the Rights of Women and Girls in the Greater North of Uganda, Feinstein International Center, August 2013; Amnesty International, Uganda Doubly Traumatised: Lack of Access to Justice for Female Victims of Sexual and Gender-Based Violence in Northern Uganda, AFR 59/005/2007, 2007, p. 3; anonymous interview with representative of international justice organization, Uganda, March 2013.

19 Okello, Moses Crispus and Hovil, Lucy, “Confronting the Reality of Gender-Based Violence in Northern Uganda”, International Journal of Transitional Justice, Vol. 1, No. 3, 2007, p. 439CrossRefGoogle Scholar.

20 Liberian Truth and Reconciliation Commission, Report of the Liberian Truth and Reconciliation Commission, Vol. 3: Appendices, Title 1: Women and the Conflict, 2009, p. 40.

21 Johnson, Kristen et al. , “Association of Combatant Status and Sexual Violence with Health and Mental Health Outcomes in Post-Conflict Liberia”, JAMA, Vol. 300, No. 6, 2008, pp. 676–690CrossRefGoogle Scholar.

22 Liberia Institute of Statistics and Geo-Information Services et al., Liberia Demographic and Health Survey 2007, June 2008, pp. 231–241, available at: http://dhsprogram.com/pubs/pdf/fr201/fr201.pdf.

23 Human Rights Watch, Sowing Terror: Atrocities against Civilians in Sierra Leone, July 1998, available at: www.hrw.org/legacy/reports/reports98/sierra/.

24 Ibid.

25 Forum for African Women Educationalists Sierra Leone treated fourteen boys between the ages of nine and fifteen who had been raped. Human Rights Watch, “‘We'll Kill You If You Cry’: Sexual Violence in the Sierra Leone Conflict”, Human Rights Watch Short Report, Vol. 15, No. 1(A), 2003, p. 42.

26 Commission of Inquiry into the Post-Election Violence in Kenya, Report of the Findings of the Commission of Inquiry into the Post-Election Violence in Kenya, 2008 (Waki Report), pp. 237–271, available at: http://reliefweb.int/sites/reliefweb.int/files/resources/15A00F569813F4D549257607001F459D-Full_Report.pdf.

27 Report from OHCHR Fact-Finding Mission to Kenya, 2–28 February 2008, United Nations High Commissioner for Human Rights, available at: www.ohchr.org/Documents/Press/OHCHRKenyareport.pdf, p. 13.

28 Johnson, Kirsten, Scott, Jennifer et al. , “A National Population-Based Assessment of 2007–2008 Election-Related Violence in Kenya”, Conflict and Health, Vol. 8, No. 2, 2014CrossRefGoogle ScholarPubMed, available at: www.conflictandhealth.com/content/8/1/2.

29 Waki Report, above note 26, pp. 238–239.

30 K. Johnson et al., above note 28, p. 8.

31 Anonymous interview with prosecutor, Uganda, September 2013.

32 Anonymous interview with a representative of a civil society organization, Liberia, September 2013.

33 Anonymous interview with a representative of a civil society organization, Kenya, May 2011.

34 Anonymous interview with a representative of a civil society organization, Sierra Leone, November 2013.

35 Anonymous interview with a representative of a civil society organization, Uganda, January 2013.

36 Anonymous interview with shelter staff member, Kenya, March 2014.

37 Anonymous interview with government official, Nairobi, Kenya, March 2014.

38 Anonymous interviews with shelter staff members in Liberia, August 2012, and Kenya, March 2014.

39 Anonymous interview with prosecutor, Uganda, September 2013.

40 Anonymous interview with former employee of an international aid organization, Sierra Leone, November 2013.

41 Anonymous interview with public hospital staff member, Kenya, March 2014.

42 Anonymous interview with WACPS unit police officer, Liberia, August 2012.

43 Anonymous interview with staff member from civil society organization, Liberia, March 2013. For more information about legal support efforts during conflict periods, see Human Rights Center (HRC), University of California, Berkeley, School of Law, The Long Road: Domestic Accountability for Sexual Violence in Conflict and Post-Conflict Settings, forthcoming, 2015 (to be published on the HRC website, available at: www.law.berkeley.edu/hrc.htm).

44 Anonymous interview with staff member of international aid organization, Uganda, October 2013.

45 Anonymous interview with nurse, Liberia, August 2012.

46 Anonymous interview with women's rights advocate, Liberia, August 2012.

47 Anonymous interview with representative of a community-based organization, Kenya, March 2014.

48 Sabrina Karim, Ryan Gorman, C. Clarence Massaquoi, Abraham S. Kromah and William K. Mulbah, Building a More Competent Security Sector: The Case of the Liberian National Police, Working Paper, Emory University, 2014.

49 Robinah Rubimbwa and Maude Mugisha, Security Council Resolution 1325: Civil Society Monitoring Report, Global Network of Women Peacebuilders, Civil Society Monitoring, 2010, p. 119, available at: www.gnwp.org/wp-content/uploads/2010/02/Uganda.pdf; anonymous interview with police official, Uganda, January 2013.

50 Anonymous interview with police inspector, Liberia, August 2013.

51 Anonymous interview with representative of women's rights organization, Kenya, March 2013.

52 Anonymous interview with civil society organization representative, Liberia. August 2013.

53 These gender desks are staffed by regular police officers who rotate duty. The officer at the gender desk may not have specialized training or experience in handling cases involving sexual or gender-based violence, but all of Kenya's police recruits receive basic training on sexual and gender-based violence while at police academy; it is unclear whether systematic training is available after that.

54 In 1995, the UPF created “gender desks” – reception desks in police stations for women filing complaints of gender-based violence. In 1998, the UPF broadened the mandate to include children and the family and changed the name to the Child and Family Protection Unit.

55 The Gender-Based Violence Department of the CID was not functional at the time of fieldwork (September and October 2013).

56 For example, in cooperation with social workers of the Ministry of Social Welfare, Gender and Children's Affairs, FSU officers also run a phone hotline to assist survivors calling in for support.

57 UNICEF, “News Note: New Women and Children Protection Section for Liberia's Police”, 1 September 2005, available at: www.unicef.org/media/media_28159.html.

58 Cecil Griffiths (ed. Anike Doherty and Aiko Holvikivi), Mapping Study on Gender and Security Sector Reform Actors and Activities in Liberia, Geneva Centre for the Democratic Control of Armed Forces, Geneva, 2011.

59 Anonymous interview with police official, Liberia, August 2013.

60 Laura Bacon, Building an Inclusive, Responsive National Police Service: Gender-Sensitive Reform in Liberia, 2005–2011, Innovations for Successful Societies, Princeton University, available at: http://successfulsocieties.princeton.edu/sites/successfulsocieties/files/Policy_Note_ID191.pdf; anonymous interview with police representative, Liberia, August 2012. Note that interviewees mentioned that even within this specialized unit, it can be hard to recruit and retain female officers. In Liberia, police rotations require years of service out in the rural counties, and there is not always separate living space for female officers. Also, informants explained that it is very difficult to move for each assignment when one has children, so not many women apply to join the police force.

61 L. Bacon, above note 60.

62 Anonymous interviews with police officers in Uganda, September 2013, and Liberia, August 2012.

63 Anonymous interview with police investigator, Sierra Leone, February 2014.

64 Anonymous interview with police official, Liberia, August 2012.

65 Anonymous interview with prosecutor, Uganda, September 2014.

66 Anonymous interview with prosecutor, Uganda, September 2013.

67 Anonymous interview with prosecutors, Kenya, March 2014.

68 Emmanuel Saffa Abdulai, Evaluation: Strengthening of Prosecution of SGBV Offenses through support to the Sexual and Gender Based Violence Crimes Unit (SGBV CU), UNFPA, Monrovia, November 2010, p. 14.

69 See www.cartercenter.org/resources/pdfs/peace/conflict_resolution/liberia/SGBV-ProsecutionHandbook-v1.pdf.

70 See news coverage such as Athran Amran, “Post-Election Violence Suspects May Face International Law”, Standard Digital, 18 August 2012, available at: www.standardmedia.co.ke/?articleID=2000064300&story_title=post-election-violence-suspects-may-face-international-law&pageNo=1; quotation cited in Tom Maliti, “Kenya Prosecutor: Insufficient Evidence Has Made Prosecuting Post Election Violence Difficult”, International Justice Monitor, 26 October 2012, available at: www.ijmonitor.org/2012/10/kenyan-prosecutor-insufficient-evidence-has-made-prosecuting-post-election-violence-cases-hard/.

71 Act Establishing Court E, 2008, Section 25.1.

72 Ibid., Section 25.2(3).

73 Anonymous interview with member of the judiciary, Liberia, August 2013.

74 Anonymous interview with a judge, Sierra Leone, February 2014.

75 UNDP, “Saturday Courts Help Tackle Sexual and Gender-Based Violence in Sierra Leone”, 2012, available at: www.sl.undp.org/content/sierraleone/en/home/ourwork/democraticgovernance/successstories/Saturday_Courts_Help_Tackle_SGBV/; UN Women, “Sexual Offences Law, ‘A Victory for Sierra Leoneans’ Says Minister Gaojia”, August 2012, available at: unwomenwestafrica.blog.com/2012/08/21/%E2%80%9Ca-victory-for-sierra-leoneans%E2%80%9D-says-minister-gaojia-of-sierra-leone%E2%80%99s-enactment-of-sexual-offences-law/.

76 UNDP, Improving the Rule of Law and Access to Justice Programme, available at: www.sl.undp.org/content/sierraleone/en/home/operations/projects/democratic_governance/improving-the-rule-of-law-and-access-to-justice-programme/.

77 Kenya signed the Rome Statute on 11 August 1999 and ratified on 15 March 2005. Liberia signed the Rome Statute on 17 July 1998 and ratified it on 22 September 2004. Sierra Leone signed the Rome Statute on 17 October 1998 and ratified it on 15 September 2000. Uganda signed the Rome Statute on 17 March 1999 and ratified it on 14 June 2002. See the list of States party to the Rome Statute: “Rome Statute of the International Criminal Court”, United Nations Treaty Collection, available at: https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&lang=en.

78 As defined by Legal Notice No. 10 in 2011. See “International Crimes Division”, on the website of the Judiciary of the Republic of Uganda, available at: www.judicature.go.ug/data/smenu/18/International_Crimes_Division.html.

79 That of Thomas Kwoyelo, which is currently on hold due to deliberations about Kwoyelo's ability to be prosecuted as a beneficiary of an amnesty grant. For a glimpse of the amnesty-related aspects of the Kwoyelo trial, see www.judicature.go.ug/files/downloads/THOMAS%20KWOYELO%20ALIAS%20LATONI%20RULING.pdf.

80 For an excellent discussion of the proposal for an International Crimes Division of the High Court of Kenya, see Kenyans for Peace with Truth and Justice and the Africa Centre for Open Governance, A Real Option for Justice? An International Crimes Division of the High Court of Kenya, July 2014, available at: http://kptj.africog.org/wp-content/uploads/2014/08/A_Real_Option_for_Justice_The_International_Crimes_Division.pdf.

81 Study data indicate possible advantages and disadvantages to this specialized approach, especially where “regular” police forces may then abdicate responsibility for sexual violence crimes, as was reportedly once the case in Liberia. For more details, see HRC, above note 43.

82 For more details regarding these specialized units, see ibid.

83 All four countries have recently adopted substantial legislation criminalizing various forms of sexual and gender-based violence. Similarly, all four have ratified the Rome Statute, with only Kenya and Uganda having passed domestic implementing legislation.

84 Uganda Penal Code, para. 123.

85 Ibid., para. 145.

86 Rome Statute, Art. 7(1)(g).

87 Aranburu, Xabier Agirre, “Sexual Violence Beyond Reasonable Doubt: Using Pattern Evidence and Analysis for International Cases”, Leiden Journal of International Law, Vol. 23, No. 3, 2010, pp. 609–627CrossRefGoogle Scholar.