Victimised twice: Wartime rape in South Sudan is a women’s rights violationPosted: 14 May, 2018 | Author: AfricLaw | Filed under: Dunia Mekonnen Tegegn | Tags: armed conflict, CEDAW, Convention on the Elimination of Discrimination against Women, gender-based discrimination, Geneva Conventions, harmful traditional practices, Maputo Protocol, rape, religious dogmas, sex stereotypes, sexual slavery, sexual violence, social prejudice, South Sudan, war, war crimes, women empowerment, women's rights |2 Comments
Author: Dunia Mekonnen Tegegn
Human rights lawyer, Ethiopia
In December 2013, South Sudan was plunged into a massive scale of violence because of the outbreak of conflict between the Sudan Liberation Army and the Sudan People Liberation Movement. The fight took an ethnic turn as soldiers from the country’s largest groups, the Dinka, and Nuer, divided their loyalties to either President Kiir or his deposed vice, Mr Machar respectively. While some civilians were caught in the cross fire, others were deliberately targeted along ethnic lines. Women are the immediate victims of this conflict because of rampant sexual abuse perpetrated against them.
The gender discrimination South Sudanese women were subjected to in their society before the conflict contributed to their victimisation during the conflict. Women suffered in the areas of educational access, domestic violence, non-recognition of marital rape, and forced marriage. Even though South Sudan’s constitution, particularly under article 16, provides full and equal dignity with men, women survivors of rape are still victims of gender-based discrimination due to the prevailing weak justice framework, and thus, are victimised twice.
Within the South Sudanese society the role and status of women is directly related to a culture that puts women as the core of the strength of the family. The male is the acknowledged master of his family. Marriage is on the other hand viewed as a means of strengthening the link between families and ethnic groups. Thus, the role of women in this society is that of cementing family ties through bride-wealth and of producing children. For many external audiences who believe in the equality of men and women, the status of women in this region is that of property.
Wartime sexual violence including rape, gang rape, and sexual slavery remains a shocking reality in South Sudan today. The cultural perception of women as the property of men has led to a situation where warring factions employ rape of women as a tool of war to emasculate and demean the men in the opposing warring faction. Thus, rape is used as a means of showing these men that they are incapable of protecting their women. Women who survive rape face threats and experience trauma and are usually stigmatised by their own communities. As a result, many women are very reluctant to report rape. These are exacerbated by the absence of appropriate support services particularly health centres, counseling programmes, and the lack of accountability through the prosecution of offenders.
A call for justice and accountability
The most authoritative gender specific treaty, the Convention on the Elimination of Discrimination against Women (CEDAW) was ratified by South Sudan in April 2015. CEDAW defines discrimination against women to include gender-based violence; that is, violence directed against a woman because she is a woman, or that affects women excessively. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty. In the context of the definition provided under article 1 of CEDAW, wartime rape is a discrimination against women and has adversely affected women.
Article 5 of CEDAW calls on state parties to take all measures to fight social and cultural patterns of men and women to eliminate social prejudice and stereotyped roles to protect women from the abuse of any kind that happen within family, in work and in the context of armed conflicts including through laws that implement protection from sexual violence and also by facilitating services to those who are subject to sexual violence. All parties to the South Sudan conflict hence have an obligation to take measures to protect women and girls from wartime rape by eliminating sex stereotypes in the armed conflict. In addition to this, CEDAW is very specific, particularly as far as government’s obligation to provide full comprehensive services to contribute to gender equality and women empowerment is concerned. These services include medical, psychological and shelter services to those who are subject to sexual violence.
The CEDAW Committee also affirmed that implicit in CEDAW and, in particular, article 2(c), is a right to an effective remedy. It explained that for a remedy to be effective, adjudication of a case involving rape should be dealt with in a fair, impartial, timely and expeditious manner. In the context of the civil war in South Sudan, although non-state actors cannot become parties to CEDAW, the CEDAW Committee has stressed that under certain circumstances, in particular where an armed group with an identifiable political structure exercises significant control over territory and population, non-state actors are indebted to respect international women’s rights laws.
CEDAW also elaborates what constitutes violence against women (VAW) to include obligations of means or conduct and obligations of results. It highlights that ending violence against women in all contexts requires efforts that include for instance state’s duty to abstain from invading the right of women. It also includes actions that are positive towards fulfilling and realising women’s rights through the provision of relevant services. Under article 2 of CEDAW, the obligation to respect, the obligation to protect and the obligation to fulfill are also discussed. The obligation to respect under article 2 of CEDAW as elaborated by the CEDAW Committee is a negative obligation of the government and prohibits the government from intervention in the exercise of rights recognised under the convention. This intervention includes using legislations that threaten the exercise of the rights or through institutional structures that do not respect the rights recognised in the convention.
The second obligation, the obligation to protect, is the obligation of a government to protect women’s rights against infringement by third parties, including private companies. This also extends to protecting women from harmful traditional practices and religious dogmas that have adverse effects on women. Finally yet importantly, governments have an obligation to fulfill women’s rights enshrined under the convention. This is sometimes referred as positive obligation. It entails affirmative and temporary measures to bring women to an equal footing with men.
In addition to CEDAW, all members of the African Union including South Sudan are bound to respect the rights protected under the African Charter on Human and people’s Rights. The African Charter demands the eradication of discrimination against women, and calls for the protection of women’s rights as guaranteed under international human rights frameworks. The Charter’s clear reference to international women rights instruments is very strong and provides more protection to women in Africa including their protection from wartime rape. More specifically article 5 of the charter prohibits all forms of exploitation and degradation including slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment. Interpretations provided by the African Commission have directly refereed to the application of article 5 not only to physical and psychological harm but also to those, which relate to the individual’s personhood. Therefore, it is submitted that article 5 of the Charter guarantee protection of women from wartime rape.
Article 3 of the Maputo Protocol also enshrines that every women has the right to dignity inherent in human beings and to respect as a person and to the free development of her personality. This protocol also clearly prohibits violence against women including women’s protection from physical, sexual, psychological, and economic harm. From the definition provided by the Protocol, it is clear that such protection also includes protection from wartime rape during an armed conflict.
The Maputo Protocol also protects women from the violation of their human rights both in their private and public life; during both peace time and conflict times. The protocol also stipulates that states are under an obligation to protect women seeking asylum and refugee status because of a given armed conflict by categorising acts that have happened during the conflict including wartime rape as a war crime, genocide and crimes against humanity.
Article 11(2) of the Protocol further underlines that women in whatever ethnic group they belong in a conflict, should be provided civilian protection from violence. Here, the Maputo Protocol is very clear that wartime rape and other types of sexual violence constitute international war crime as stipulated under the Geneva Conventions and the Rome Statute of the ICC.[i] The Protocol also position sexual violence including wartime rape as genocide and requires African states when in conflict to adhere to the principles of international humanitarian law which unfortunately are yet to be respected by the newest African Nation; South Sudan.
South Sudan therefore needs to take appropriate legislative and practical measures to ensure that women are protected from sexual violence during the conflict and that those women who are unfortunate victims of sexual violence are provided with the necessary medical and other support necessary for their physical and mental wellbeing. Finally, the government needs to ensure that all perpetrators of sexual and other violence against women during the conflict are prosecuted to serve as deterrence and the women victims granted other relevant remedies including compensation.
[i] Though South Sudan has not yet ratified the Maputo Protocol, it has signed it. This creates an obligation on South Sudan to refrain, in good faith, from acts that would defeat the object and the purpose of the protocol (see Vienna Convention on the Law of Treaties, 1969) that defines what the legal term signed an international instrument entails.
* The author would like to extend her gratitude to Ambassador Dr Salah Hammad, Gender and Human rights expert at the African Union Commission for his continued expert advice on this topic.
About the Author:
Dunia Tegegn is a human rights lawyer born and raised in Ethiopia. She has been working as a Human Rights Officer at OHCHR EARO and as Program Officer on Ending violence against Women at UN Women country office. Dunia has also worked with the Ethiopian Women Lawyers Association and UNOPS as a seconded staff for UNICEF. She is known for organising human rights moot court competitions in Ethiopia and has represented her country in the 14th African Human Rights Moot Court Competition that took place in Pretoria. Dunia is a graduate of law from Bahirdar University and also hold a master’s degree in human rights from Addis Ababa University College of Law and Governance and an LLM in National Security from Georgetown University Law Center with a certificate in Women’s law and public Policy. Dunia has co-edited and published a book on “Unleashing African resilience: Pan African renaissance in the new Africa century” and “Security and empowerment: African women in the 21st century.” Dunia also contributes original papers on Women rights and Gender in the Social Science Research Network. Dunia currently works at Women Learning Partnership for Rights, Development and Peace
Good commentary on a subject that has long been seen as sensitive considering the context in which these alleged violations are reported. I would have liked to see an analysis along international human rights law and international humanitarian law as there are blurring lines as to what obligations accrue to different actors in the conflict.
Thank you . My focus is on human rights law but humanitarian law as far as the protection of civilians is concerned can be raised too.