חומר רקע

CHAPTER IX Yael Vias Gvirsman WOMEN, HUMAN SECURITY AND INTERNATIONAL CRIMINAL LAW: OBJECTS AND AGENTS IN STABILISATION AND RECONSTRUCTION Abstract Sexual and gender-based violence (SGBV) is a serious threat to international peace and security and must be addressed for there to be reconstruction and stabilization in conflict and post-conflict situations. SGBV is committed systematically, whether by state or non-state armed groups, as a form of terrorism, a war crime, a crime against humanity or genocide. The International Criminal Court (ICC) has adopted a com- prehensive approach to investigating and prosecuting SGBV, further structuring the case law of its predecessors, the ad hoc International Criminal Tribunals (ICTs) pros- ecuting atrocities committed systematically in the Balkans and Rwanda. The ICC is an improvement compared with previous ICTs but there is still much to do to provide victims of SGBV with effective remedies. In the 21st century, the UN provides a normative framework recognising SGBV as a threat to international peace and security against which states must act. It also offers mechanisms for investigat- ing SGBV, enhancing domestic and international prosecutorial accountability mech- anisms and striving to end impunity for international crimes of a sexual nature. Examples include the focus given to SGBV478 by mechanisms such as the UN Counter-Terrorism Executive Directorate (UN-CTED), the establishment of special- ising entities such as the UN Special Representative (UNSR) on SGBV and the UN Team of Experts on Gender-Based Crimes (GBCs). 478 UN Counter-Terrorism Executive Directorate (UN CTED), Towards Meaningful Accountability: Sexual and Gender Base Violence linked to Terrorism, November 2023, p.6. Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment 223 International crimes of a sexual nature are referred to as sexual and gender-based violence, sexual and gender-based crimes, gender-based violence or gender-based crimes, often interchangeably. Not all violence constitutes an international crime but taken as a whole, it creates an environment conducive to the commission of crimes of a sexual nature. Gender-based violence or crimes can also be of a non-sexual nature. Case studies offer best practices of victim-led or victim-inclusive justice initia- tives for reconstruction. These include justice for Islamic State of Iraq and al- Sham (ISIS) crimes in Syria and Iraq against Yazidi women and girls, the Mukwege Foundation initiatives against widespread SGBV committed in the Democratic Republic of Congo (DRC); the Colombian Special Jurisdiction for Peace (JEP) special unit for SGBV; and the systematic and widespread SGBV committed as part of the attack launched by Hamas and other Palestinian militia on 7 October 2023. Three case studies will be the focus of this chapter. The framework for ac- countability, reconstruction and strategic partnership presented in this chapter constitutes the result of past lessons and offers a forward-looking framework for future SGBV committed in conflict. The general framework for account- ability must be implemented intelligently in close partnership with the affected communities to bring trust and greater impact to sustain reconstruction and sta- bilisation. Keywords: SGBV, SGBC, victim-centred, ISIS, accountability. 1. Introduction While the development of modern international criminal law can be traced back over two centuries based on the common understanding that international 224 Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment crimes ‘threaten the peace, security, and well-being of the world’,479 crimes systematically targeting women and girls in armed conflict or in peacetime re- ceived official recognition as an international crime only much more recently. The role of women as both systematic targets of international crimes (objects) and agents for stabilization and reconstruction (agents) has only recently been recognised480 and still deserves significant attention from scholars, decision-mak- ers and policymakers. Rape in armed conflict or peacetime was not always con- sidered a crime. Indeed, the first known recorded international prosecution of war crimes – the trial of Sir Peter van Hagenbach in 1474481 – convicted him of rape committed by his soldiers only because ‘he had instituted terror without first having declared war’.482 This shows that in certain circumstances of war, rape was even considered legal.483 Historically, women were often considered the property of men, and ‘to the vic- tor goes the spoils’.484 Some voices were raised against rape, notably the jurist Al- berico Gentili (1555-1608)485 and the forefather of international law, Hugo Grotius (1584-1645),486 stating rape ‘should not go unpunished in war any more than in 479 International Criminal Court (ICC) Rome Statute, Preamble, (1998). https://www.icc-cpi.int/sites/de- fault/files/Publications/Rome-Statute.pdf. The first serious proposal for an International Criminal Court was made by Gustave Moynier on 3 January 1872 to enforce the obligations of Contracting Par- ties to armed conflict under the 1864 First Geneva Convention on Wounded Soldiers, see Gustave Moynier, ‘Note sur la création d’une institution judiciaire internationale propre à prévenir et à réprimer les infractions à la Convention de Genève’, Bulletin international des Sociétés de secours aux militaires blessés, Comité international, No. 11, (avril 1872), p. 122. See further in Christopher Keith Hall, ‘The first proposal for a permanent international criminal court’, International Review of the Red Cross, No. 322, (31 March 1998). https://www.icrc.org/en/doc/resources/documents/arti- cle/other/57jp4m.htm. 480 See for example UN Security Council Resolution 1325 on Women, Peace and Security, 2000. 481 M Cherif Bassiouni, International Criminal Law,A Draft International Criminal Code,1980 p. 8; and Bassiouni, The Time has Come for an International Criminal Court,International and Comparative Law Review, 1, 1 (1991). 482 Donald A Wells, War Crimes and Laws of War, 2nd Edition 1991, pp 93-94. 483 Kelly D. Askin, War Crimes Against Women: Prosecution in International War Crimes Tribunals, Lei- den, Netherlands: Martinus Nijhoff Publishers, 1997, p. 29. 484 Ibid, p. 21. Referencing to Peter Karsten, Law, Soldiers and Combat, 5, 1978. 485 Ibid.pp 23-26; quoting Alberico Gentili, De Iure Belli Libri Tres, 1612; see also Theodore Meron, Henry’s Wars and Shakespeare’s Laws, 111-113, 1993. Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment 225 peace’.487 The 1945 International Military Tribunal (IMT) of Nuremberg largely ignored SGBV although sexual crimes were committed and reported to the IMT.488 The two ad hoc ICTs for former Yugoslavia (ICTY) and for Rwanda (ICTR) pun- ish sexual crimes as war crimes and crimes against humanity. However, the Statute lists only ‘rape’ and ‘enforced prostitution’, taking a very narrow per- spective on the issue. Nevertheless, ICTY’s case law implemented the crimes and solidified future steps to prosecute SGBCs. ICTY raised the bar by recognising rape as a form of genocide, as will be discussed below. In 1998, the Rome Statute of the ICC offered new hope. Human rights organisations hailed the Rome Statute as offering a ‘dramatic and long-awaited improvement in how international crimes against women are treated and greatly increases the possibility for re- dress’.489 To date, the ICC has yet to implement sanctions and convictions for such acts, as opposed to the crimes of torture or degrading treatment as war crimes and crimes against humanity. This chapter provides theoretical and practical guidance for any entity con- sidering a productive response to SGBV in armed conflict or peacetime. Part I describes the essential development of recognising SGBV against anyone – male or female – as an international crime (Part I). It then focuses on why there is a need to recognise it as a factor destabilizing communities and reducing chances for sustainable peace and reconstruction. In Part II, the chapter examines recent normative developments. This includes the most recent policies and guidelines and the specialised mechanisms mandated to 486 Grotius, De Jure Belli Ac Pacis Libri Tres, 1646, pp 656-657. 487 Ibid, quoted in Askin, supra note 6, p. 30. 488 Kelly D. Askin, War Crimes Against Women: Prosecution in International War Crimes Tribunals, Lei- den, Netherlands: Martinus Nijhoff Publishers, 1997, pp. 14 and 97. 489 Human Rights Watch, ‘International Justice for Women: The ICC Marks a New Era Human Rights’, Watch Backgrounder, (July 1, 2002). https://www.hrw.org/legacy/campaigns/icc/icc- women.htm. 226 Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment fight, sanction and prevent SGBV. Part III focuses on recent case studies of sys- tematic SGBV, examples of good practice and means of redress. Special focus is given to building a victims-based approach, engaging civil society as comple- mentary to state authorities, the importance of first responders, using strategic litigation for human rights to ensure accountability, building bridges for coordi- nated, interstate and international judicial cooperation, increasing expertise, and the need for specialised units to investigate, prosecute and prevent SGBV in every jurisdiction. 2. Solidifying Recognition of SGBV as an International Crime Threatening International Peace and Security History shows us that sexual violence is something that can destroy towns, na- tions, communities, and can be used as a means of genocide to destroy groups.490 Patricia Sellers, Special Adviser on Gender to the ICC Prosecutor, 2018 Every practitioner should master the main legal developments in the process of recognising SGBV as an international crime at the earliest stages of investigat- ing atrocities in conflict-ridden areas. The fundamental understanding of the need to address past wrongs to build a stable future is a cornerstone of building stability in conflict situations.491 For centuries, and despite some recognition,492 the prohibition of SGBV was 490 As reported in, Women’s Initiative for Gender Justice, ‘Blogpost: Calling it what it is: It is time to de- fine sexual violence’, (13 December 2018). 491 See in general on the need to address past wrongs in a forward looking perspective, Ruti Teitel, Transi- tional Justice, Oxford University Press, 2000. 492 See in Ancient Times the writings of Cicero, Gentilli, Grotius as mentioned in the Introduction above; or more recently, cf eg Article 44 of the 1863 Lieber Code which provides that all rape of persons in the invaded country is prohibited, Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Order No. 100 by President Abraham Lin- coln, Washington D.C., 24 April 1863. Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment 227 not codified and sanctioned despite the widespread, systematic reality of armed conflicts that led to atrocities.493 From Nuremberg494 to The Hague,495 interna- tional accountability for SGBV saw its codification and implementation, de- spite the challenges. The most significant development is that international accountability evolved from a state-centred to a victim-centred justice where victims are allowed a more active role as participants in the procedure who can bring to the opening of an investigation, provide evidence, communicate their concerns directly to judges independently from the prosecution, and can ex- press their views at key moments of the criminal procedure. 2.1 International Recognition of Sexual and Gender-Based Crimes At Nuremberg, sexual and gender-based evidence was brought before the IMT but rape was not included in the indictment nor the judgement of the major Nazi war criminals.496 Nevertheless, Article II(1)(c) of the 1945 Allied Control Council Law No. 10, which was the main legal foundational act for the twelve Nuremberg trials that followed the judgement of the major Nazi war crimi- nals, provided that ‘rape, or other inhumane acts committed against any civil- ian population’ was a crime against humanity. While the three Geneva Conventions do not mention rape or any other form of SGBV, Article 27(2) of the 1949 Fourth Geneva Convention provides: ‘Women shall be especially pro- tected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault’. Common Article 3(1)(c) of the 493 Kelly D. Askin, War Crimes Against Women: Prosecution in International War Crimes Tribunals, Lei- den, Netherlands: Martinus Nijhoff Publishers, 1997, pp.12-13. 494 The ad hoc International Military Tribunal was established in Nuremberg in 1945 to try the Major Nazi War Criminals, for more information see Holocaust Museum website at https://encyclopedia.ushmm.org/ content/en/article/international-military-tribunal-at-nuremberg. 495 The Hague refers to the establishment of the permanent International Criminal Court (ICC) by the 1998 Rome Statute. 496 Nuremberg Trial Proceedings Vol. 1 Indictment, The Avalon Project, Yale Law School; INTERNA- TIONAL MILITARY TRIBUNAL (NUREMBERG) Judgment of 1 October 1946, ICC Legal Tools. 228 Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment four 1949 Geneva Conventions (GCs) provides that ‘outrages upon personal dignity’ are prohibited at any time and in any place whatsoever with respect to persons hors de combat.497 The ICTR Statute recognised the ad hoc tribunal’s jurisdiction to prosecute violations of common Article 3 of the 1949 GCs, in- cluding rape, enforced prostitution, and any form of indecent assault.498 2.1.1 ICTY and ICTR landmark cases on SGBV ICTY issued several landmark cases relating to sexual and GBCs499 in the appli- cation of Article 5(g) of the 1993 ICTY Statute, providing that: ‘rape, when com- mitted in armed conflict, whether international or internal in character, and directed against any civilian population, constitutes a crime against humanity’.500 It should be recalled that the widespread and systematic rapes and sexual vio- lence committed during the Balkans War alongside ‘ethnic cleansing’ were the crimes the International Inquiry Commission led by Prof Mahmoud Cherif Bassiouni highlighted and what led to the establishment of the first international criminal tribunal since Nuremberg and Tokyo. 497 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949, Article 3(1)(c); Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, Article 3(1)(c); Convention (III)relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 3(1)(c); Con- vention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 3(1)(c). 498 Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law in the Territory of Rwanda and Rwan- dan citizens responsible for genocide and other such violations committed in the territory of neighbor- ing States between 1 January 1994 and 31 December 1994, adopted by the UN Security Council, Res. 955, 8 November 1994, as amended by Res. 1165, 30 April 1998, and by Res. 1329, 30 November 2000, Articles 3(g) and 4(e). 499 For further reading see, Valerie Oosterveld, The Legacy of ICTY and ICTR on Sexual and Gender-Based Violence, in Sterio M, Scharf M, eds. The Legacy of Ad Hoc Tribunals in International Criminal Law: Assessing ICTY’s and the ICTR’s Most Significant Legal Accomplishments, Cambridge University Press; 2019, pp.197-220. 500 Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Vi- olations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, adopted by the UN Security Council, Res. 827, 25 May 1993, as amended by Res. 1166, 13 May 1998 and by Res. 1329, 30 November 2000, (herein ICTY Statute) Article 5(g). Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment 229 The ICTR was established soon thereafter, in 1994. As one author emphasises [footnote added]:501 Rape was explicitly listed in the ICTR Statute, and implicitly listed in ICTY Statute, as a violation of the laws and customs of war, including as an outrage upon personal dignity.502 […] Prior to its consideration by ICTY and ICTR, rape had never before been defined in international criminal law. Rape was widespread during the 1994 genocide in Rwanda: Women were raped in every prefecture of Rwanda, throughout the geno- cide, most often in the open in plain view, including at roadblocks, in of- ficial and governmental buildings such as military camps, churches, schools and university premises, hospitals, health clinics, stadiums and marketplaces.503 The ICTR became the first international tribunal to grapple with the definition of rape. There was no precedent in international law and national laws varied and did not offer a single definition. Existing definitions in domestic laws did not address the complexities of rape in armed or mass atrocity. While rape was not initially charged in the ICTR’s first case, Prosecutor v. Akayesu,504evidence of rape emerged during the trial and charges were added.505 In the Akayesu Case, the ICTR prosecuted rape as genocide and convicted the former mayor 501 Valerie Oosterveld, The Legacy of ICTY and ICTR on Sexual and Gender-Based Violence, in Sterio M, Scharf M, eds. The Legacy of Ad Hoc Tribunals in International Criminal Law: Assessing ICTY’s and the ICTR’s Most Significant Legal Accomplishments, Cambridge University Press; 2019, p199. 502 ICTY Statute, Article 3; Statute of the International Criminal Tribunal for Rwanda, 8th November 1994, UN Doc S/RES/955(1994), Annex, 1994, 33 ILM 1598 (herein ICTR Statute), Article 4(e). 503 Linda Bianchi, The Prosecution of Rape and Sexual Violence: Lessons from the Prosecutions of the ICTR, in Sexual Violence As And International Crimes: Interdisciplinary Approaches 123, 135, Anne- Marie de Brouwer, Charlotte Ku, Rene ´e Ro ¨mkens & Larissa van den Herik, eds., 2013. 504 Prosecutor v. Akayesu, Case No. ICTR-96–4-T, Judgment, para. 688 (Sept. 2, 1998). 505 Prosecutor v. Akayesu, Case No. ICTR-96–4-T, Judgment, para. 688 (Sept. 2, 1998), paras 416-417. 230 Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment Akayesu, for rape and other acts of sexual violence constituting genocide.506 ICTY confirmed this jurisprudence finding that given the correct contextual and mental elements, rape could constitute genocide.507 ICTY carried out extensive in- vestigations and prosecution of wartime sexual violence, raising several indict- ments for sexual violence committed in Bosnia and Herzegovina as early as 1995. Since then, more than 70 individuals have been charged with crimes of sexual vi- olence including sexual assault and rape. As of early 2011, almost 30 had been convicted.508 ICTY advanced the development of international justice in the realm of gender crimes by enabling the prosecution of sexual violence as a war crime, a crime against humanity and genocide. The Duško Tadić case, 509 the first international war crimes trial since Nuremberg and Tokyo, was the first interna- tional war crimes trial on sexual violence. The Trial Chamber convicted Tadić of cruel treatment and inhumane acts for the part he played in incidents of sexual vi- olence.510 Two years later, the Appeal Chamber additionally classified the acts as inhumane treatment and wilfully causing great suffering or serious injury to the body or health.511 ICTY examined other incidents of sexual violence against men in several other cases including those against Češić, Mucić et al., Todorović and Simić. In Mucić et al,512ICTY convicted three of the four accused of rape and the use of 506 The ICTR record on prosecuting rape was mixed, for example, criticism see Binaifer Nowrojee, ‘Your Justice Is Too Slow’: Will the ICTR Fail Rwanda’s Rape Victims? (UN Research Institute for Social De- velopment Occasional Paper 10,November 2005), www.unrisd.org/80256B3C005BCCF9. 507 See below in the Furundzija case. 508 UN ICTY, Official Website on Landmark Cases. https://www.icty.org/en/features/crimes-sexual-vio- lence/landmark-cases. 509 ICTY Case Number: IT-94-1, Judgement convicting in May 1997. 510 ICTY Prosecutor v. Duško Tadić, IT-94-1-T, Opinion and Judgment, (7 May 1997). https://www.ref- world.org/jurisprudence/caselaw/icty/1997/en/40193. 511 ICTY Prosecutor v. Duško Tadić, IT-94-1-A, Appeal Judgment, (15 July 1999). https://www.icty.org/ x/cases/tadic/acjug/en/tad-aj990715e.pdf. 512 ICTY Prosecutor v. Zdravko Mucić, Hazim Delić and Esad Landžo ICTY Case No.: IT-96-21-T, Judge- ment, (16 November 1998). https://www.icty.org/x/cases/mucic/tjug/en/981116_judg_en.pdf. Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment 231 sexual violence as torture. One was convicted of command responsibility over acts committed by his subordinates. The crimes consisted of acts against male inmates of extreme cruelty relating to male genital organs and acts against two women detained in the camp during interrogations. The judges ruled that the pur- pose of the rapes was to obtain information, punish the women for their inability to provide information and intimidate and coerce them. The Trial Chamber also found that the violence suffered by the two women had a dis- criminatory purpose – it was inflicted on them because they were women. When pass- ing this judgement in 1998, the Trial Chamber considered ‘the rape of any person to be a despicable act which strikes at the very core of human dignity and physical in- tegrity’.513 The judges held that acts of rape constitute torture under customary interna- tional law and therefore it is a crime in international and non-international armed conflict and a prohibition applicable to all parties taking part in hostilities, whether state or non- state armed groups. The Furundžija case514 made a significant step forward by recog- nising rape as genocide, following Prosecutor v. Akayesu. Additional notable cases are Kunarać et al.515 which broadened the acts that constitute enslavement as a crime against humanity to include sexual enslavement and determined the relationship of gender crimes to customary law. The judgement recognised a ‘campaign’ of sexual abuse as a means for expulsion through terror and to ensure ethnic superiority or victory.516 Fi- nally, the Krstić case517 established a link between rape and ethnic cleansing, which, in the Srebrenica crimes in July 1995, was closely associated with genocide.518 513 ICTY Case No.: IT-96-21-T, para. 495, Judgement, (16 November 1998). https://www.icty.org/x/cases/ mucic/tjug/en/981116_judg_en.pdf. 514 ICTY Prosecutor v Anto Furundžija IT-95-17/1-A, Appeal Judgement, (21 July 2000). https://www.ref- world.org/jurisprudence/caselaw/icty/1998/en/20418. 515 IT-96-23 & 23/1. 516 See for the Trial Chamber Judgement of 2001, upheld by Appeal Chamber in 2002 and other key deci- sions in the case at https://www.icty.org/en/case/kunarac. 517 IT-98-33 518 Ibid, See case information sheet300 available at chrome-extension://efaidnbmnnnibpcajpcglclefind- mkaj/https://www.icty.org/x/cases/krstic/cis/en/cis_krstic_en.pdf. 232 Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment 2.1.2 The 1998 Rome Statute established the ICC and a comprehensive framework for investigating and prosecuting SGBV In promoting the investigation and prosecution of SGBV, the ICC offers a com- prehensive framework, whereas previous international courts or tribunals lacked the required expertise and structure to properly deal with these crimes. For in- stance, in previous tribunals, victims did not take an active role in the proceedings. At most, they could be witnesses and in certain instances were further humiliated and even mocked during the trial.519 Giving a more central role to victims of atrocity crimes, especially SGBV, em- powers victims in their journey for reconstruction. The ICC framework marks an improvement in investigating and prosecuting SGBV in mass atrocity or armed conflict, although there are still improvements to be made in implementing the ICC mandate. First, the codification of crimes. The ICC criminalises SGBV as war crimes520 and crimes against humanity521 and expands the definition using the term ‘other forms of grave sexual violence’.522 The ICC Rome Statute does not require to prove the absence of consent and recog- nises an act of sexual nature ‘by force or by threat of force or coercion, … or by tak- ing advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent’523 such as would generally exist during an attack against a civilian population. ICC codification of SGBV in mass atrocity better matches the 519 See B. Nowroojee, ‘‘Your Justice is Too Slow’ Will the ICTR Fail Rwanda’s Rape Victims?’, United Na- tions Research Institute for Social Development, November 2005. 520 8(2)(b)(xxii), and 8(2)(e)(vi) of the Rome Statute. 521 Articles 7(1)g, 7(2) c and 7(2)e of the Rome Statute. 522 ICC Elements of Crime,which serve judges and participants in the procedure, defines other forms of grave sex- ual violence to include ‘acts of a sexual nature’, Article 7(1)g-6, para.1 Elements of Crime, Official Records of the Review Conference of the Rome Statute of the International Criminal Court, Kampala, 31 May -11 June 2010 (International Criminal Court publication, RC/11). However, what acts are considered of a ‘sexual nature’ is not defined and is left to the interpretation of ICC case law, see for example Women’s Initiative for Gender Justice, ‘Blogpost: Calling it what it is: It is time to define ‘sexual violence‘, 13 December 2018. 523 Ibid. Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment 233 reality of the commission of crimes of this nature. Despite the milestone marked by the ICC’s broad codification of sexual violence constituting war crimes or crimes against humanity, ICC case law is still shy of implementing this recognition in prac- tice.524 The conviction of Dominic Ongwen525 on 61 counts, including as an indirect and direct perpetrator of sexual and GBCs and of Bosco Ntaganda526 for indirect perpetration of rape, sexual slavery and persecution as war crimes and crimes against humanity, mark a new turning point for victims of SGBV in mass atrocity. Second, the ICC offers procedural protections for victims and witnesses. Rule 17 of the Rules of Procedure and Evidence (RPE) entrusts the Victims and Witness Unit (VWU) with specific functions tailored to victims and witnesses of sexual violence. The Court is required to protect the safety, physical and psychological well-being, dignity, and privacy of victims and witnesses, with special regard to factors such as their gender and whether the crime involved sexual or gender violence.527 The Registry is specifically responsible for ‘taking gender-sensitive measures to facilitate the participation of victims of sexual violence at all stages of the pro- ceedings’.528 Other gender-sensitive measures are also in place that did not exist in previous international courts.529 524 In the Bemba Case, ICC-01/05-01/08, the prosecutor alleged sexual violence was committed as Bemba’s soldiers subjected men and women to forced nudity to humiliate them. However, the Pre-Trial Chamber did not consider the acts constituted ‘sexual violence’ as it did not regard them to be of ‘comparable grav- ity’. See, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prose- cutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, June 15, 2009. In the Kenyata Case, the Pre-Trial Chamber rejected the qualification of ‘sexual violence’ for acts of forcible circumcision or am- putation of men’s genitals and rather qualified the acts as ‘other inhumane acts’ under Article 7 (1) (k) of the Statute. 525 Prosecutor v Dominic Ongwen, ICC-02/04-01/15-1762-Red, 4 February 2021. 526 Prosecutor v. Bosco Ntaganda ICC-01/04-02/06, convicted on 8 July 2019, as confirmed by the Ap- peal Chamber on 31 May 2021. 527 Rule 86, RPE. 528 Rule 16(1)d, RPE. 529 For example, Rule 112(4) RPE encouraging the Prosecution to use video or audio recording to avoid re- traumatisation of the victim and Rule 69(4), ICC Rules of Procedure and Evidence shields victims from damaging or intrusive attacks on their sexuality or credibility. 234 Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment Third, the Statute requires the ICC Prosecutor and Registry to include staff with trauma-informed and legal expertise in crimes of a sexual nature. Fourth, and fi- nally, the ICC provides a more adequate framework for victims of all interna- tional crimes, including of SGBV, since the role and rights of victims as participants are enshrined in the Statute, whereby victims can file communica- tions to the Prosecutor, at the origin of investigations. They can communicate with the Court, provide evidence, question witnesses, provide legal and factual information throughout the trial and participate in the reparations stage follow- ing a conviction. This empowers victims allowing them to actively participate in accountability mechanisms carried out in their name, notwithstanding re- maining challenges for an effective and meaningful victim role at the ICC.530 3. A Systemised Approach against Sexual and GBCs for Strategic Partnerships and Stabilization If sexual violence is not addressed squarely in ceasefires and peace processes, there will be no peace for women. (Former Under-Secretary-General for Human- itarian Affairs Jan Egeland, at a New York meeting on peace talks and sexual violence or- ganised by UN Action Against Sexual Vio- lence in Conflict, June 2009) In the aftermath of the groundbreaking UN Security Council Resolution 1325 (2000) – also known as the UNSC Resolution on Women Peace and Security – recognising the particular impact of war on women and the importance of women’s full and equal participation in conflict resolution, peacebuilding, peace- keeping, humanitarian response and post-conflict reconstruction, several devel- 530 For further reading see, Kinga Tibori-Szabó and Megan Hirst, (Editors), Victim Participation in Inter- national Criminal Justice Practitioners’ Guide, Springer 2017. Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment 235 opments followed focusing specifically on SGBV in conflict or mass atrocity, the need for strategic partnerships and taking SGBV in peace processes, stabiliza- tion and reconstruction. 3.1 UN Security Council Resolutions dedicated to SGBV in armed conflict and mass atrocity The UN Security Council adopted two resolutions addressing sexual violence as a tactic of war and the need to address it in peace processes. UNSC Resolution 1820, adopted in 2008, recognises sexual violence as a weapon and tactic of war. It notes that rape and other forms of sexual violence can constitute a war crime, a crime against humanity or a constitutive act concerning genocide and it stresses the need for the exclusion of sexual violence crimes from amnesty provisions in the post- conflict resolution processes. It also calls on member states to comply with their obligations to prosecute those responsible for such acts, to ensure that all victims of sexual violence, particularly women and girls, have equal protection under the law and equal access to justice and stresses the importance of ending impunity for such acts as part of a comprehensive approach to seeking sustainable peace, justice, truth and national reconciliation. UNSC Resolution 1888, adopted in 2009, on Women, Peace, and Security531 stresses the UN’s commitment to addressing the issue of SGBV in armed conflict, peace processes and mediation efforts. It calls on parties to armed conflict, including non-state actors, to protect civilians from sexual vio- lence, enforce military discipline, uphold command responsibility and prosecute perpetrators. It also establishes effective support mechanisms such as the establish- ment of a rapid response team of judicial experts and improved monitoring and re- porting mechanisms on trends, early warning indicators and patterns of attack.532 531 S/RES/1888 (2009), adopted by the Security Council at its 6195th meeting, on 30 September 2009, avail- able at https://www.un.org/shestandsforpeace/content/united-nations-security-council-resolution-1888- 2009-sres18882009#:~:text=%2F1888(2009)-,United%20Nations%20Security%20Council%20Resolutio n%201888%20(2009)%2C%20S%2F,situations%20of%20particular%20concern%20with. 532 See especially Articles 4 and 8 for operative article, UN SC Res 1888(2009). 236 Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment 3.2 Dedicated UN mechanisms to address SGBV in armed conflict and mass atrocity Following these UN Security Council Resolutions and others, several mecha- nisms were established, some directly under the UN Secretary-General. In 2007 the UN Action Against Sexual Violence in Conflict was established.533 This is a network of 24 UN entities engaged, in line with their respective mandates, to pre- vent conflict-related sexual violence, enhance accountability and meet the needs of survivors. In 2010, under Article 4 of UN Security Council Resolution 1888, calling for the appointment of a: Special Representative to provide coherent and strategic leadership, to work effectively to strengthen existing United Nations coordination mech- anisms and to engage in advocacy efforts, inter alia with governments, including military and judicial representatives, as well as with all parties to armed conflict and civil society, in order to address, at both head- quarters and country level, sexual violence in armed conflict, while pro- moting cooperation and coordination of efforts among all relevant stakeholders, primarily through the inter-agency initiative ‘United Na- tions Action Against Sexual Violence in Conflict.534 Since April 2017, the Special Representative of the Secretary-General (UN- SRSG) for Sexual Violence in Conflict, has been Ms. Pramila Patten of Mauri- tius. In the latest episode of conflict-related sexual violence that caught international attention related to sexual violence committed in the Hamas attack against civilians in Southern Israel on 7 October 2023, Ms. Patten issued the first UN report focusing on SGBV which recognised on reasonable grounds that SGBV was systematically committed during the attack and is most likely still 533 See official website at https://www.un.org/sexualviolenceinconflict/about-us/un-action/. 534 Accordingly, in April 2010, the first Special Representative, Ms. Margot Wallström of Sweden, estab- lished the Office. In September 2012, Ms. Zainab Hawa Bangura of Sierra Leone took over the role. Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment 237 being committed against hostages in captivity in Gaza at the time of writing this chapter.535 One of the main tools of action of the UNSRSG on conflict-related sexual vio- lence is the monitoring, analysis and reporting arrangements (MARA) on con- flict-related sexual violence in armed conflict, post-conflict and other situations of concern.536 A major aspect of MARA is the strategic partnerships it harnesses to gather ac- curate and timely information: MARA draws on information gathered from a variety of sources, includ- ing local government authorities and institutions, health and psychosocial service providers, UN Civilian, Police and Military Peacekeeping pres- ences, UN Country Team actors, local and international non-govern- mental organisations (NGOs), civil society organisations, religious institutions and faith-based networks. Additionally, under Article 8 of UN Security Council Resolution 1888 (2009), a UN Team of Experts on the Rule of Law and Sexual Violence in Conflict was es- tablished. It is composed of a Team Leader reporting to the UN SRSG on SVC and experts from the Department of Peace Operations (DPO), the Office of the United Nations High Commissioner for Human Rights (OHCHR), the Office of the SRSG-SVC and the United Nations Development Programme (UNDP), each of whom report to both the Team Leader and their respective entities. The team’s main focus and areas of work include: (i) criminal investigations and prosecu- 535 Office of the Special Representative of the Secretary General, Sexual Violence in Conflict, Mission re- port Official visit of the Office of the SRSG-SVC to Israel and the occupied West Bank 29 January – 14 February 2024, issued March 2024, accessible at chrome-extension: //efaidnbmnnnibpcajpcglclefind- mkaj/ https://www.un. org/sexualviolenceinconflict/wp-content/uploads/2024/03/report/mission-report- official-visit-of-the-office-of-the-srsg-svc-to-israel-and-the-occupied-west-bank-29-january-14-february- 2024/20240304-Israel-oWB-CRSV-report.pdf. 536 The MARA was established based on UN Security Council Resolution 1960 (2010). 238 Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment tions; (ii) military justice; (iii) legislative reform; (iv) protection of victims and witnesses; (v) reparations for survivors; and (vi) security sector oversight.537 Since its inception, the Team of Experts has actively engaged in the Central African Republic (CAR), Colombia, the DRC, Guinea (Conakry), Iraq, South Sudan and other areas. The team’s work is especially noteworthy in building strategic part- nerships between international, domestic and civil actors.538 3.3 Multilateral Conventions for Strategic Partnerships and Cooperation against SGBV Two central and recent international law instruments present a milestone in pre- venting and punishing SGBV domestically, in armed conflict and mass atrocity. First, the 2011 Istanbul Convention Against Violence Against Women539 is an ad- ditional impetus for effectively combatting SGBV against women, girls, men and boys in armed conflict. This regional convention, open only to member states of the European Council and associated states, aims to prevent, protect, prosecute and coordinate policies of fighting impunity for SGBV in member states. Second, in May 2023 in Ljubljana, states issued the Hague Convention on International Cooperation in the Investiga- tion and Prosecution of The Crime of Genocide, Crimes Against Humanity, War Crimes and Other International Crimes, (Mutual Legal Assistance and Extradition or MLA Convention) listing rape and sexual violence as war crimes and crimes against humanity. The Convention seeks to reinforce state cooperation to better fight impunity against international crimes, including SGBV. 537 See UN Team of Experts on Rule of Law and Sexual Violence in Conflict official website, available at https://www.un.org/sexualviolenceinconflict/our-work/team-of-experts/. 538 For further reading on UN SRSG and UN Team of Experts tools of action, including an annual report by the UN SRSG, please go to the UN SRSG on SVC website. 539 Council of Europe Convention on preventing and combating violence against women and domestic vi- olence Istanbul, 11.V.2011 [henceforth ‘Istanbul Convention’]. Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment 239 3.4 Best Practice Guides against Conflict-Related Sexual Violence For the past two decades, organisations specialising in organised crime, human rights, human trafficking, counter-terrorism and investigating and prosecuting in- ternational crimes have devoted substantial efforts to developing policies and lessons learned for good practice.540 In November 2023 the UN Counter-Terror- ism Executive Directorate (UN-CTED) released an updated study titled ‘Towards Meaningful Accountability: Sexual and Gender Base Violence Linked to Terror- ism’.541 The report reiterates a broad definition of what constitutes sexual-based vi- olence to include ‘rape, sexual abuse, forced pregnancy, forced sterilisation, forced abortion, forced prostitution, sexual enslavement, forced circumcision, castration and forced nudity’. The report recalls that “the Security Council has recognized that SGBV is known to be part of the strategic objectives and ideology of certain terrorist groups”.542 Seeing the specific nature of terrorism, SGBV committed as part of a terrorist attack require a specific framework when addressing these crimes. Notably, The report underlines six dimensions of ‘SGBV linked to terror- ism’, in such a comprehensive manner, that it is worth quoting in its entirety: The first dimension of SGBV linked to terrorism is where violent extrem- ists and terrorist groups systematically commit SGBV in a manner that is integral to their operation. Examples include Al-Shabaab’s use of abduc- tion, rape, and forced marriage to subjugate those in areas under its con- 540 For further study, see for example UNDOC, dozens of guidelines and handbooks issued in the past decade available here https://www.unodc.org/unodc/en/justice-and-prison-reform/cpcj-tools-gender.html; along- side domestic and EU legislation and best practices, see the European Parliament Study on ‘The legislative frameworks for victims of gender-based violence (including children) in the 27 Member States‘, 2022; OSCE, Preventing and Addressing Sexual and Gender-Based Violence in Places of Deprivation of Liberty Standards, Approaches and Examples from the OSCE Region, 2019; IOM, PROTECT – Preventing Sexual and Gender-Based Violence against Migrants and Strengthening Support to Victims, 2019; International Commission of Jurists, Women’s Access to Justice for Gender-Based Violence A Practitioners’ Guide, 2016; ICC Policy on Gender Prosecution, 2022, ICC Policy Paper on Sexual and Gender-Based Crimes, 2014. 541 UN Counter-Terrorism Executive Directorate (UN CTED), Towards Meaningful Accountability: Sexual and Gender Base Violence linked to Terrorism, November 2023 (‘UN CTED Nov 2023 Report). 542 UN CTED Nov 2023 Report, , p. 8 recalling Security Council resolutions 2242 (2015), 2331 (2016), 2388 (2017) and 2467 (2019). 240 Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment trol. The deliberate use of SGBV to spread terror is the second dimen- sion. The third dimension is where SGBV is used to finance and sustain terrorist activity. This dimension may include using SGBV as a form of compensation and reward to fighters as well as ransoming trafficked and abducted women and girls back to their families. With the fourth dimen- sion, terrorist groups deliberately use SGBV as a means of persecuting a group based on its political, ethnic, or religious identity. This dimension is now understood also to include persecution on the basis of gender, and which can be illustrated by targeted attacks by ISIL on members of the LGBTQ+ community. Terrorist groups have also adopted SGBV as part of a strategy for radi- calization, recruitment, and retention of its members, and this constitutes the fifth dimension of SGBV linked to terrorism. According to one of the interlocutors, an illustration of this fifth dimension that may easily be overlooked is the use of gendered narratives to indoctrinate and radical- ize female students into Boko Haram for use as suicide bombers. Infor- mation collected for this study also suggests that human trafficking for the purpose of terrorist activities is another example of the fifth dimension. The sixth dimension of SGBV linked to terrorism is where these crimes are committed pursuant to and/or in furtherance of an ideology. Ideologies held by terrorist groups that entail SGBV include the subjugation of women in society and the control of their bodies and reproductive health to breed a generation of future group members or promote the survival of one ethnic or racial group over another.”543 The report takes into account linkages between relevant international and national legal frameworks, identifies the main challenges detected in different contexts of 543 UN CTED Report November 2023, p.9. emphasis in the original text, footnotes ommitted. Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment 241 SGBV committed in linkage to terrorism and identifies best practice through case studies. The report identifies challenges in the criminal justice system, interna- tional cooperation, victims’ access to justice and gender.According to the report, challenges to effective redress and accountability within the criminal justice sys- tem include a lack of coordination between practitioners as where counter-terror- ism units are embedded in national or international investigation systems, they often lack expertise in SGBV. A better inter-agency approach is thus needed. Sec- ond, the report addresses the challenge of narrow investigative and prosecutorial strategies. There is the urge to act quickly in addressing crimes and a lack of in- depth study on the modus operandi of terrorist groups such as ISIL that is suffi- ciently connected to investigations. There is also little if any support and strategy for investigations focusing on SGBV and terrorist groups: Failure to prioritise SGBV linked to terrorism could result in investigators overlooking essential evidence that could support such cases. Experts in investigating SGBV linked to terrorism recommend identifying and in- vestigating all perpetrators, including high-level individuals. This ap- proach ensures a thorough and effective investigation of SGBV, holding all those responsible accountable for their actions.544 Evidentiary challenges are perhaps the most crucial. These include prosecuting SGBV outside their place of commission, domestic impediments and requirements such as proving specific use of force or lack of consent, whereas the general context is an attack and that of violence. There is also a seeming bias among investigators that perhaps there is a higher evidentiary requisite to prove systematic SGBV in any attack as opposed to systematic murder, torture or other crimes. The response should be of equal evidentiary requirements for SGBV as for any other crime. Challenges relating to engaging with victims of SGBV must be addressed. This is 544 UNCTED Nov 2023 Report, page 35. 242 Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment due to the profound trauma, social stigma and the victim’s wish to protect them- selves and their family and community which could all lead to a lack of engagement by that victim. Creating a safe environment for the victim is crucial. International co- operation is essential in addressing SGBV especially when linked to terrorism by non-state armed groups operating and hiding across jurisdictions. Fighting and changing the social stigma associated with SGBV is also essential and victim repa- ration mechanisms outside the criminal justice system are ever more significant. These can include transitional justice mechanisms and processes where perpetrators and victims participate in a healing process based on truth and recognition of the wrongdoing, reparations for victims of SGBV linked to terrorism and international, regional or domestic sanctions to ensure there is no haven for members of organi- sations that employ SGBV as part of their attacks against civilian populations. In December 2023, the ICC issued its Policy on GBCs545 aiming to provide stronger guidelines for investigating and prosecuting SGBV compared with the previous 2014 ICC Policy. It takes a survivor-centred trauma-informed approach. The guideline pur- sues five main objectives following Article 54 of the Rome Statute that imposes a duty upon the ICC Prosecutor when investigating and prosecuting crimes to ‘take into ac- count the nature of the crime, in particular where it involves sexual violence, gender violence, or violence against children’. 4. Victim-led or victim-inclusive case studies to enhance post-conflict In the challenge to investigate mass crimes and particularly SGBV committed in armed conflict, best practices do stand out. Clear good practices from specific situations of SGBV can be a lighthouse. To briefly name a few notable examples, we can learn from experience addressing: the most widespread and systematic commission of SGBV in armed conflict in the 20th and 21st centuries: the Democratic Republic of 545 International Criminal Court, ‘Policy on Gender-Based Crimes’, December 2023, https://www.icc- cpi.int/sites/default/files/2023-12/2023-policy-gender-en-web.pdf. Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment 243 Congo546 (DRC) or in Darfur-Sudan, ISIL SGBV committed against Yazidi women and girls in Syria and Iraq,547 SGBV committed in Ukraine by Russian occupying forces in Bucha;548 or the Colombian example of SGBV-focused justice and the Spe- cial Jurisdiction for Peace established as an integral part of the Colombian Peace Agree- ment.549 There is an ever-growing understanding of the need to address SGBV, including in: (1) ensuring a victims-based, trauma-based approach in treatment, evi- dence collecting and reparations and in ensuring access to justice; (2) enhancing first responder capacity in the immediate response at a location of commission of the crimes (crime scene) which is often also a battlefield and where the number of casualties sur- passes the response capacity; (3) training and building expertise through international and domestic cooperation; (4) structural investigations and inter-agency cooperation; (5) strategic litigation for human rights and victims of atrocities including SGBV; and (6) a role for civil society organisations, especially those with existing expertise in in- ternational crimes but also civil society specialising in victims of SGBV regardless of a mass context, where SGBV is systematic and the number of victims overwhelming. Providing an in-depth examination of each of the needs and lessons listed above would require an entirely new chapter devoted entirely to this question, followed by training to implement these insights. Three case studies will highlight the current challenges and the way ahead based on best practice and the general framework de- veloped to address SGBV, for stabilisation and the importance of a strategic, holistic, comprehensive and victim-centred response, including through strategic partnerships. 546 See for example Global Survivors Fund, ‘Denis Mukwege’, n.d., https://www.globalsurvivorsfund.org/ who-we-are/our-board/denis-mukwege/. 547 See for a victim led initiative Nadia’s Initiative, ‘About Nadia’s Initiative’, n.d., https://www.nadiasini- tiative.org/nadias-initiative; followed by criminal trials in Sweden and Germany. 548 See for more information Europol’s official website: https://www.europol.europa.eu/media-press/news- room/news/europol-participates-in-joint-investigation-team-alleged-core-international-crimes-in-ukraine. 549 See the full text (English Translation) available at chrome-extension://efaidnbmnnnibpcajpcglclefind- mkaj/https://peaceaccords.nd.edu/wp-content/uploads/2023/02/Colombia-Final-Accord-Text-in-En- glish.pdf . Chapter 5 of the Agreement establishes the Special Jurisdiction for Peace and the role and rights of victims. 244 Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment 4.1 Colombia’s special jurisdiction for peace: A progressive approach to addressing SGBV in armed conflict Colombia’s Special Jurisdiction for Peace (JEP) stands out as a pioneering and pro- gressive mechanism for addressing the complex issue of conflict-related sexual vi- olence. Established as part of the peace agreement between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) in 2016, the JEP serves as an exemplary model for dealing with SGBV crimes within the frame- work of transitional justice. By examining the features of Colombia’s JEP and draw- ing parallels with other conflict zones, it is evident that this approach holds significant promise for promoting accountability, reconciliation and justice in the aftermath of conflict-related sexual violence. One of the key strengths of Colombia’s JEP lies in its comprehensive framework for accountability specifically tailored to address SGBV crimes. It acknowledges the unique nature of these crimes and ensures that they are not overlooked during the transitional justice process. According to the UN Team of Experts (mentioned above), the special unit for SGBV was one of the pos- itive results of the strategic partnership between the UN Team of Experts and Colom- bian national authorities.550 The team worked with the Office of the SRSG-SVC and UN Women to advocate for the inclusion of sexual violence as a key aspect of the peace and ceasefire agreements between the Government and the FARC in 2016 and the National Liberation Army (ELN) in 2017. The team also provided technical advice on Law 1719 on Access to Justice for Victims of Sexual Violence in Colom- bia (2014). Within the JEP, there is a specialised chamber known as the ‘Special Ju- risdiction for Peace Chamber for Recognition of Truth, Responsibility and Determination of Facts and Conduct’ (Sala de Reconocimiento de Verdad, Respon- sabilidad y Determinación de los Hechos y Conductas) dedicated to investigating and prosecuting cases related to SGBV crimes that occurred during the armed conflict. 550 See the official website of UN Team of Experts on Rule of Law and Sexual Violence in Conflict avail- able at https://www.un.org/sexualviolenceinconflict/our-work/team-of-experts/. Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment 245 The specialised chamber is tasked with recognising the truth about the com- mitted crimes, determining responsibility and establishing the facts and con- duct surrounding these crimes. It focuses on the unique dynamics of SGBV, ensuring that these cases are treated with the specificity and sensitivity they re- quire. Finally, Colombia’s JEP is victim-oriented and takes steps to prevent stigmatisation and re-traumatisation. Consequently, it prioritises the inclusion of victims in the justice process, giving them a platform to share their experi- ences and seek redress. The use of closed-door hearings, protective measures for witnesses and the careful handling of testimonies contribute to creating a safe environment for survivors to come forward. Therefore the JEP is victim- inclusive and trauma-sensitive by design. Time will tell whether its results live up to its objectives. 4.2 ISIS crimes in Syria and Iraq against civilians and the Yazidi minority: a multifaceted response SGBV and other crimes committed by ISIS are international crimes committed systematically in the pursuit of terrorism. The judicial response to the terror regime implemented by ISIS has been multifaceted. First, in the absence of in- ternational jurisdiction over these crimes due to the absence of membership or UN Security Council referral of these crimes to the ICC, the United Nations Inves- tigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL UNITAD was created. This is an international investigation and fact-finding mis- sion for ISIS crimes committed in Iraq. In parallel, the International, Impartial and Independent Mechanism (IIIM) for Syria was established fulfilling a crucial man- date for accountability for victims and collecting and preserving evidence that will serve prosecutions internationally and domestically. The IIIM operates in- dependently to investigate and document SGBV crimes perpetrated in Syria since March 2011, including those committed by ISIS. The mechanism employs a hy- 246 Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment brid model involving international and national collaboration to ensure a compre- hensive approach to addressing SGBV and other serious crimes. By focusing on the experiences of survivors, it seeks to provide a platform for their voices and for justice to be pursued. Both UNITAD and IIIM recognise the challenges and needs of victims of SGBV-related crimes and apply specialised procedures. Both insti- tutions have been instrumental in empowering domestic courts of third parties, under the principle of universal jurisdiction. In 2021, a German Court found an ISIL member guilty of genocide in connection with the treatment of Yazidis held hostage, which resulted in the death of a five-year-old girl.551 Although the charges did not expressly reference the gendered nature of the crime, in dismissing the defendant’s appeal in January 2023, the Federal Court of Justice confirmed that [i]t was precisely the organised enslavement of women and girls, espe- cially in connection with religious reeducation, that served to destroy the Yazidi religious minority in order to establish an Islamic caliphate. All in all, the approach was capable of bringing about […] the (partial) de- struction of this group as such.552 The UN Team of Experts also played a significant role in assisting domestic au- thorities in Iraq to promote accountability for ISIS crimes.553 Finally, Nadia’s Initiative, helping victims and survivors of SGBV includes judicial action or strategic litigation for victims and implements restorative and reconstructive 551 Doughty Street Chambers, ‘German Federal Court of Justice Confirms the First-Ever Conviction of an ISIS Member for Genocide’, 26 January 2023, available at www.doughtystreet.co.uk/news/germanfed- eral-court-justice-confirms-first-ever-conviction-isis-member-genocide. 552 Ibid. 553 United Nations, ‘UN Team of Experts on Rule of Law and Sexual Violence in Conflict – United Nations Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict’, Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict, n.d., https://www.un.org/sexualviolenceinconflict/our-work/team-of-experts/. Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment 247 programmes empowering victims, helping women and girls to rise from their victimhood to mass atrocity. Nadia Murad, a Yazidi woman who survived captivity under ISIS, has become a prominent voice for her community. In 2018, she was awarded the Nobel Peace Prize for her efforts to end the use of sexual violence as a weapon of war and armed conflict. Her organisation, in cooperation with others, brought at- tention to the Yazidi genocide, advocated for justice and supported survivors. Murad’s advocacy extends beyond raising awareness; she actively engages with world leaders, international organisations and legal institutions to promote ac- countability for ISIS crimes. 4.3 Systematic SGBV as part of Hamas October 7th attack: strategic partnerships for fact-finding and justice within an ostensibly politicised context The 7 October attack orchestrated by Hamas and other armed groups included systematic rape and crimes of a sexual nature as part of the attack554 This case study focuses on the main challenges, the response and the need to focus on vic- tims’ rights in reaching accountability (not revenge), in a politicised and po- larised situation and the need to ensure strategic partnerships between stakeholders. First, it is important to address inherent and particular challenges. As in other SGBV situations, challenges in capturing the full nature and scale of crimes remain.555 These relate to collecting and preserving evidence where the initial priorities was to secure the area during combat, rescue the survivors, iden- 554 See the statement of the ICC Prosecutor on the request for three arrest warrants against M. Mohamed Def, Sin- war and Hanya, 20 May, 2024 at https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-kc-ap- plications-arrest-warrants-situation-state; March 2024 Mission Report of the UN Special Representative of the Secretary General on Sexual Violence in Conflict, Mission report Official visit of the Office of the SRSG-SVC to Israel and the occupied West Bank 29 January – 14 February 2024, (‘Patten Report March 2024’)for exam- ple para. 44 available at: chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.un.org/sexualvi- olenceinconflict/wp-content/uploads/2024/03/report/mission-report-official-visit-of-the-office-of-the-srsg-svc-to -israel-and-the-occupied-west-bank-29-january-14-february-2024/20240304-Israel-oWB-CRSV-report.pdf. 555 Patten Report March 2024, para. 56. 248 Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment tify 3,200 missing people and gather and identify the bodies of 1,200 murder victims.556 The initial focus was not on preserving evidence. An additional double-challenge re- lated to the broad dissemination of images of the atrocities over social media along- side extreme polarisation and fake news. This shaped international public opinion and stirred social unrest and violence, including in democracies far from where crimes were committed. Images of the crimes were captured on the body cameras the perpetrators were wearing during the attack and footage of summary executions and torture was posted on social media. This dissemination of the atrocities, includ- ing of SGBV, through Telegram and other social media was an element of the attack. The challenge of the widespread use of social media consists of establishing the truth amidst many counter-narratives while protecting victims and survivors from ex- posure. Additional challenges relate to truth-seeking and the difficulty of holding fair trials while armed conflict is going on and while Hamas is still holding hostages. In terms of investigations and prosecutions, several jurisdictions are relevant. The pri- mary authority to investigate and prosecute is the State of Israel but trials are at a standstill until a ceasefire is reached. Other jurisdictions, both international and do- mestic, are relevant to investigating and prosecuting international crimes. 557 The ICC has jurisdiction and victims have been invited to express their views and concerns relating to the Prosecutor’s request to issue arrest warrants.558 Ger- man, French, US, Israel, UK and other jurisdictions are also seized. Faced with 556 See Human Rights Watch (HRW): offical summary of its July 2024 report “Human Rights Watch found evidence of acts of sexual and gender-based violence by fighters including forced nudity, and the posting without consent of sexualized images on social media...” available at https://www.hrw.org/report/2024/07/17/i-cant-erase-all-blood-my-mind/palestinian-armed-groups-oc- tober-7-assault-israel. 557 The author is leading a pro bono strategic litigation front for the victims and estbalished a Non-Profit to ensure sustainable judicial action named October 7 Justice Without Borders (for more information see october7justice.org/en). 558 Both Palestinian and Israeli victims expressed their views. For an example of victims’ views submitted by Victims Representative of the Hamas attacks see, ICC-01/18-333, Views, Concerns and General In- terests of Victims of the October 7 Attack under Article 68(3), 12 August 2024. Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment 249 on-going challenges, the response needed to address SGBV relates to strategic part- nerships between domestic, grassroot civil society organisations and international or third-state entities. The response must be victim-centred, as only a response relying on universal, established principles can provide a road map for independent and im- partial justice. Given the politicised situation, victims’ rights can be easily instru- mentalised, presented as competitive between the suffering of innocent Palestinian civilians and innocent Israeli civilians: ‘In a competition for pain, no one wins’, Jon Goldberg-Polin, the father of since-murdered hostage, Hersh Golberg-Polin stated at a US election event. Faced with this reality, victims from all sides must be treated equally, regardless of the identity of the victim or the perpetrator. All belligerents are bound by international humanitarian law and prohibited from committing acts amounting to war crimes or crimes against humanity. Interna- tional and domestic investigators must be guided by universal humanitarian prin- ciples to alleviate all human suffering to investigate and prosecute international crimes. Most of all, investigative and prosecutorial authorities must exercise ju- risdiction independently, impartially and based on tangible evidence. To begin any judicial action, there is dire need to collect and preserve evidence. Despite early outcries that all victims of SGBV were murdered and all evidence was lost or burned, forensic evidence remains. The office of the UN Special Representative of the Secretary-General on Sexual Violence in Conflict concluded that there were ‘reasonable grounds to believe that conflict-related sexual violence occurred during the October 7 attacks in multiple locations across Gaza periphery, including rape and gang rape, in at least three lo- cations’.559 The UN Independent International Commission of Inquiry on the Oc- cupied Palestinian Territory, including East Jerusalem and Israel (UN Commission of Inquiry) conducted an investigation into crimes including those committed dur- 559 See Patten Report, para 12. 250 Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment ing the 7 October assault. In the Commission’s June 2024 report, it wrote that it had ‘documented cases indicative of sexual violence perpetrated against women and men in and around the Nova festival site, as well as the Nahal Oz military outpost and several kibbutzim, including Kfar Aza, Re’im and Nir Oz’.560 Strategic partnerships between international and domestic official and civil soci- ety organisations are needed to establish the truth, implement victims’ rights and ensure accountability for SGBV under the highest judicial standards. 5. Conclusion: the state of the art and prospects ahead for stabilisation and reconstruction in SGBV mass atrocity This chapter has provided a historical overview of the recognition of the threat posed by SGBV in armed conflict and mass atrocity to international peace and security and covered key international case law that contributed to this understanding. Addressing the reality of widespread or systematic commission of SGBV is im- portant in creating stability and preventing future mass atrocity. The chapter also highlighted the importance of recognising that when mass atrocity crimes are com- mitted all are targeted but women and girls are targeted in additional ways for dif- ferent reasons, including for the role they hold in traditional and modern societies. This is not to say that men and boys are not also subjected to gender-related crimes. The chapter reviewed the main tools in the hands of practitioners such as UN Se- curity Council Resolutions, designated UN mechanisms and their tools as well as multilateral treaties providing a framework and guidelines which promotes state cooperation and strategic partnerships with international, domestic and civil society actors. Any action for redress must be led by the fundamental principle of ‘do no harm’. Practitioners interacting with victims need to acquire the tools 560 Report of the Independent International Commission of Inquiry on the Occupied Palestinian Ter- ritory, including East Jerusalem, and Israel (COI) – Advance unedited version (A/HRC/56/26), para 25. Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment 251 to help their actions be constructive, avoid re-traumatising victims, avoid cor- ruption or duplication of evidence and provide victims with the necessary psy- chological support needed to ensure their resilience. Three case studies were highlighted and others mentioned as were victim-led initiatives for account- ability. The courage of victims and those supporting victims stands out. The need to ensure norms and institutions fit the realistic needs of accountability, includ- ing avoiding barriers to justice such as requiring a higher threshold to prove the systematic nature of SGBVs, erasing the burden on victims to prove they did not consent and adopting a broad enough definition of SGBV to ensure ac- countability are all needed steps. Experience has shown that accountability efforts must be strategic and multifaceted. Multiple actors can play a constructive role in partnership in support of victims, in fact-finding missions and in prosecuting crimes. Most recent events in Syria, Ukraine and Israel show that SGBV is not part of the past. Systematic and widespread SGBV committed in those regions are still to be accounted for. Efforts to collect and preserve evidence, including direct evidence, digital evidence and with the specific expertise in collecting evidence of SGBV, avoiding re-traumati- zation, contamination and duplication of evidence is key in any mass atrocity, and even more so in relation with SGBV, where victims suffer additional stigmatisation and are often reluctant to step forward and expose their painful experience. Strate- gic partnerships are key and international, interstate and inter-agency cooperation will be important to address the crimes committed and ensure stabilisation and re- construction. Punitive efforts are not enough. Prevention must be the focus of considerable re- sources in schools, youth movements, the public sphere, social media and poli- tics. There must be zero tolerance for SGBV in daily life, the workspace, armed conflict and in any movement for national liberation. Governments participating 252 Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment in hostilities must speak and act clearly against gender-based discrimination in their jurisdictions and must stand against inhumane acts committed in or outside their territory, regardless of the politics. Corporate entities also have a role to play in implementing a risk-based approach to avoid or end potentially funding state or non-state armed groups involved in any such crimes. If the free world based on democracy, basic freedoms and the rule of law holds a chance of surviving the shift of paradigms this generation is facing, universal values must be implemented fearlessly, demonstrating unconditional humanity in front of atrocity crimes, in- cluding those of a sexual nature. The response must be of equal standard, victim- centred and trauma-informed and placing women as agents of stabilisation, applying an inclusive approach. Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment 253 Suggested further reading Askin, Kelly D, War Crimes Against Women: Prosecution in International War Crimes Tribunals, Leiden, Netherlands: Martinus Nijhoff Publishers, (1997). https://doi.org/10.2307/2555278. Association of Rape Crisis Centers in Israel, (2024). https://res.cloudinary.com/ hb0stl6qx/image/upload/v1708517564/ARCCI_report_-_sexual_crimes_in_ the_october_7_xsponl.pdf. European Parliament, ‘The legislative frameworks for victims of gender-based vi- olence (including children) in the 27 Member States’, (2022). https://www.eu- roparl.europa.eu/thinktank/en/document/IPOL_STU(2022)738126. Human Rights Watch, ‘International Justice for Women: The ICC Marks a New Era’, Watch Backgrounder, (July 1, 2002). https://www.hrw.org/report/2002/07/ 01/international-justice-women-icc-marks-new-era/human-rights-watch-back- grounder-july. ICC ‘Elements of Crime‘. ICC Rules of Procedure and Evidence. International Commission of Jurists, Women’s Access to Justice for Gender- Based Violence: A Practitioners’ Guide, (2016). https://www.un.org/sexualvio- lenceinconflict/wp-content/uploads/2019/06/report/womens-access-to-justice-for -gender-based-violence/Universal-Womens-accesss-to-justice-Publications-Prac- titioners-Guide-Series-2016-ENG.pdf. International Criminal Court, Strategy on Gender Equality and Workplace Cul- ture for the International Criminal Court, (2022). https://www.icc-cpi.int/sites/de- fault/ files/2022-12/gender-strategy.pdf. International Organisation for Migration (IOM), ‘Protect – Preventing Sexual and Gender-Based Violence Against Migrants and Strengthening Support to Vic- tims’, (2019). https://eea.iom.int/protect-preventing-sexual-and-gender-based-vi- olence-against-migrants-and-strengthening-support-victims. Klar-Chalamish, Dr. Carmit, ‘Sexual Crimes in the 7 October War Association of Rape Crisis Centers in Israel, (2024). https://res.cloudinary.com/hb0stl6qx/ 254 Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment image/upload/v1708517564/ARCCI_report_-_sexual_crimes_in_the_october_7_ xsponl.pdf. Klar-Chalamish, Dr. Carmit, ‘Sexual Crimes in the 7 October War’. Rome Statute of the International Criminal Court (ICC). United Nations Security Council – Counter-Terrorism Committee Executive Di- rectorate (CTED), ‘Member States Concerned by the Growing and Increasingly Transnational Threat of Extreme Right-Wing Terrorism’, CTED Trends Alert, (April 2020). https://www.un.org/securitycouncil/ctc/content/trends-alert-%E2% 80%93-april-2020. Judgements of the Rome Statute on the Charges of the Prosecutor Against Jean- Pierre Bemba Gombo, ICC-01/05-01/08-424, 15 June 2009. Prosecutor v Jean-Paul Akayesu, ICTR-96-4-A. Appeal Chamber, 1 September 1998, International Criminal Tribunal for Rwanda 1998. Prosecutor v Anto Furundžija IT-95-17/1-A, Appeal Judgement, 21 July 2000, International Criminal Tribunal for the former Yugoslavia, 2000. Prosecutor v. Duško Tadić, IT-94-1-A, Appeal Judgement, 7 May 1997, Interna- tional Criminal Tribunal for the former Yugoslavia, 1999. Enhancing Stabilization and Strategic Partnership in a Post-Conflict Environment 255