Rights of the child: legal reform to help protect children from sexual violence in conflict
“I want to tell the world that we need peace – stop the war. We need to make sure children and women are protected. People who rape need to be arrested.” – Félicité, aged 13, who was raped in DRC.
Rape and sexual violence in conflict are clearly outlawed by international criminal, humanitarian and human rights laws, as well as most national laws. Nevertheless these horrific crimes remain endemic in many conflicts all over the world – from DRC to Afghanistan to Colombia to Somalia – and perpetrators are rarely brought to justice.
The UK Government has committed to using its G8 presidency in 2013 to raise awareness of the issue and campaign for stronger international and national action, including through its Prevention of Sexual Violence Initiative. On 10 April, Foreign Ministers will come together to decide what action to take.
In the lead up to this meeting, Save the Children will publish a report highlighting that children constitute a significant proportion of survivors of sexual violence in conflicts, in some cases the majority. Consequently it is key that efforts to prevent, protect and respond to sexual violence recognise and include the gender- and age-specific needs and vulnerabilities of survivors.
Girls in particular are disproportionately affected, with rape having disastrous consequences on their future lives, health and livelihoods, often condemning them to a life of exclusion and poverty. Some are forced to marry their attacker, ostracised or rejected by their family and community as a result of perceived “dishonour”. They may be expelled from school, especially if they fall pregnant as a result of the rape. Although less apparent, sexual violence against boys is more common that we think, and because of the stigma against homosexuality in many countries, reporting levels for boys are even lower.
In our upcoming report, Save the Children will propose a holistic approach to combatting sexual violence against children, requiring broad action to empower children and communities, change social norms, reform laws and institutions and deliver comprehensive child-centred services. We will be calling for increased political priority and funding for preventing and responding to sexual violence on the ground in conflict-affected countries, including ensuring that funding for protection of women and children (including from sexual violence) is considered as essential, life-saving and part of every humanitarian response.
So how can legal reform help to protect the children from these terrible rights infringments, if at all? Clearly, increasing the prosecution of offenders is essential. Of 14,200 reports of rape registered in South Kivu between 2005 and 2007, for example, only 2% of perpetrators were brought to justice.
States need to ensure their national criminal laws are compliant with international law standards, and criminal justice systems are made accessible and effective to encourage reporting and increase prosecution rates. This includes ensuring that justice is accessible and sensitive to the needs of child survivors through the inclusion of child-friendly justice mechanisms and procedures, and ensuring that sufficient medical and psychological support and protection services are available.
Evidentiary and procedural barriers to prosecutions for rape and sexual violence – both within and outside of conflict – need to be identified and removed. An extreme example is Sudan, where many judges require four male witnesses to testify that the rape took place to secure a conviction. Any rigid approach to the prosecution of sexual offences, such as requiring proof of force or physical resistance, also risks leaving certain types of rape unpunished.
Even where national laws are in line with international law, customary laws or practice still prevail in many parts of some states to penalise survivors for adultery or homosexuality when they try to report the rape. In Afghanistan, for example, a comprehensive law criminalising all forms of violence against women, including rape, was introduced in 2009, yet in many parts of the country married women who have been raped are still subject to punishment for adultery.
Beyond reforming and enforcing criminal laws, however, equally important is using laws and policies to address discriminatory gender attitudes, social norms and other underlying causes of sexual violence. Discriminatory laws relating to child marriage, statutory rape, domestic violence and sexual exploitation, for example, help to perpetuate a culture where sexual violence is tolerated. In too many countries, rape or violence within marriage is not considered wrongful, a rapist can escape criminal liability by marrying their victim and child marriage and exploitation is widespread.
Unless such norms are addressed in stable conditions, then the disruption and breakdown of social order during conflict will inevitably continue to lead to increased levels of sexual violence when a conflict begins.
Save the Children welcomes the UK Government’s initiative, but to be successful it must go wider than increasing the number of prosecutions and it must tackle the root causes of sexual violence. Law reform is only one aspect of wide ranging international and national action that is needed, but it may be an essential stepping stone to achieving long-term improvements for survivors and future potential victims of sexual violence in conflict.
Save the Children’s report, plus a more detailed analysis of law reforms to help prevent sexual violence, will be available via the A4ID website when they are published. •
Ashley Jones is a lawyer and policy adviser for child survival at Save the Children