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Panel 1: An Overview of the Issues Involved in Prosecuting Conflict-Related Sexual Violence
Coordinator: Mr Tom Hamilton, Legal Consultant, United Nations Assistance to the Khmer Rouge Trials
Chair: Baron Serge Brammertz, Chief Prosecutor, ICTY
Panelists
Professor Louise Anette Chappell, Professor, School of Social Sciences, The University of New South Wales
Title: What's the Problem? Addressing Gender Misrecognition, Misrepresentation and Maldistribution in International Criminal Law
Abstract: For centuries, women's experiences of war and conflict have been ignored or marginalised in international law - including in relation to their experiences of sexual and gender-based atrocities. Practices of misrecognition, misrepresentation and maldistribution have carried through to contemporary legal practices, even where new standards have been encoded. Addressing these legacies is key to addressing the gender injustices of law and advancing prosecutions for conflict-related crimes of sexual and gender based violence.
Ms. Kelisiana Thynne, Regional Legal Advisor for Southeast Asia, International Committee of the Red Cross
Title: Developments in IHL on Sexual Violence and the Requirement to Prosecute: How Far Have We Come?
Abstract: Sexual violence has occurred in conflict as far back as conflicts have existed. However, it was addressed as a lesser issue than other violations of international humanitarian law until very recently; and indeed it is mostly international tribunals that address sexual violence as a war crime, not domestic courts. This becomes worrisome given the widespread nature of sexual violence in armed conflict; the limited range of actors who can be prosecuted at international tribunals; and the involvement in many missions of peacekeepers who are accused of sexual abuse and appear to fall in a legal black hole. This presentation will provide a brief overview of the historical development of prohibitions on sexual violence in conflict under international humanitarian law, the requirement to investigate, prosecute and punish such violations domestically and the law's recommended trajectory, such that sexual violence in armed conflict continues to be prosecuted as an IHL violation.
Mr. Tom Hamilton, Legal Consultant, United Nations Assistance to the Khmer Rouge Trials
Title: The Bemba Case and Rape at the ICC
Abstract: The ICC's judgment in the case of Jean-Pierre Bemba-Gombo on 21 March 2016 has been broadly hailed as a landmark for the prosecution of sexual violence in the context of war crimes and crimes against humanity. Mr. Bemba was the first person to be convicted of rape as a Rome Statute crime, as well as the first person charged by any international criminal tribunal with the rape of male victims. The Trial Chamber's annunciation of the applicable legal elements presents a timely opportunity to review the possibilities and limitations of the legal definition of rape as an international crime.
Professor Gregory S. Gordon, Associate Professor and Associate Dean (Development and External Affairs), Faculty of Law, CUHK
Title: Incitement to Commit Sexual Violence in Armed Conflict
Abstract: Surprisingly, neither existing international humanitarian nor criminal law prohibits or criminalizes incitement in the armed conflict context. This presentation will suggest this gap in the law has helped contribute to the problem of sexual violence in armed conflict. It will begin by providing examples through history of incitement to sexual violence that has gone unpunished. And it will explain how such incitement tends to dehumanize victims and conditions troops to carry out the violence. It will then explain how existing humanitarian law and international criminal law could be amended to prohibit such speech and criminalize instances of it. Additionally, the presentation will examine potential issues that could be raised such as the chilling of free speech in the military and operational impediments such as stifling legitimate troop education and motivation. It concludes that now is an ideal time to amend the law – the problem of sexual violence in armed conflict is only getting worse and the nature of modern warfare, including the use of civilian media figures to incite troops, calls for normative progress sooner rather than later.
Panel 2: Sexual Violence in Armed Conflict in the Asian Context
Coordinator: Professor Suzannah Linton, Distinguished Professor, Zhejiang Gongshang University Law School, Hangzhou
Chair: Dr. Philip Beh, Associate Professor, The University of Hong Kong
Panelists
Dr. Rachel Killean, Lecturer, Queen's University Belfast, Northern Ireland
Title: Pursuing Visibility for Victims of Sexually Violent Crimes at the Extraordinary Chambers in the Courts of Cambodia
Abstract: This paper explores the feminist critique that progress in the classification of rape and sexual crime within international criminal law has not been matched by sufficient legal enforcement, leading to a continued exclusion of sexual crime from international criminal prosecutions. It takes the Extraordinary Chambers in the Courts of Cambodia (ECCC) as a case study, exploring the various myths, investigative failures and procedural developments that have hindered the ECCC’s effective investigation of sexual crimes. The paper argues that it remains a crucial feminist goal to see that sexual crimes are adequately investigated and prosecuted, due to the normative value of such prosecutions. The paper then explores the normative value of the non-judicial measures pursued by the ECCC’s Victim Support Services, but argues that relying on such measures to address the harms of sexual violence creates a danger of playing into a hierarchy of harm. It concludes with some suggestions as to how the ECCC can improve account.
Professor Suzannah Linton, Distinguished Professor, Zhejiang Gongshang University Law School, Hangzhou
Title: Sexual Violence in Bangladesh and East Timor
Abstract: Professor Linton will begin with the features of the sexual violence in the Bangladeshi war of independence (1971) and that which took place in Indonesian-occupied East Timor (1975-1999). This will lead into consideration of the handling of sexual violence in two criminal justice institutions, the Bangladesh International Crimes Tribunal (ongoing) and the Special Panel for Serious Crimes in East Timor, and also two non-legal mechanisms, the informal Gono Adalat (People's Tribunal) in Bangladesh and the statutorily established Reception Truth and Reconciliation Commission of East Timor. Professor Linton will then develop some of the more significant themes that emerge, such as (1) common features in the way that violence was deployed against women and girls; (2) shared social attitudes about disgrace and dishonour, and the ostracisation of survivors of sexual violence; (3) the commonly shared difficulty faced in persuading survivors to come forward across the board, and its impact; (4) instances of undercharging in indictments, for example charging rape but not sexual enslavement or inhumane treatment (eg. forced nudity); (5) prosecutorial strategies that do not attend to gender or secondary aspects of sexual violence; (6) instances of using evidence of sexual violence only to prove the context for crimes against humanity (eg. in a murder as a crime against humanity charge); (7) the weakness of protective and support measures for witnesses; and (8) the dearth of, or inadequacy of, reparatory measures. Professor Linton will, in concluding, reflect on whether the different approaches have been able to deliver on expectations, provide effective remedies, and have had meaningful societal impact.
Ms. Priya Gopalan, former ICTY Prosecutor, The Office of the United Nations High Commissioner for Human Rights OHCHR
Title: Accountability for Conflict-Related Sexual Violence in Sri Lanka: Advances and Obstacles
Abstract: Sri Lanka’s civil war that spanned almost three decades pitted the Government of Sri Lanka against the Liberation Tigers of Tamil Eelam (LTTE). The UN Office of the High Commissioner for Human Rights Investigation on Sri Lanka (UN Investigation) found that both parties to the conflict had committed a multitude of grave human rights violations. One of the UN Investigation’s most distressing findings was the prevalence, and extreme brutality of sexual violence committed by Sri Lankan security forces, with men and boys as likely to be victims as women and girls. Against this backdrop, this paper discusses the prospects for accountability for conflict-related sexual violence in Sri Lanka. It will argue that accurately contextualising sexual violence, establishing an appropriate legal framework and embedding a survivor-centred approach into the accountability process are key strategies for seeking justice. The paper will also assess the steps forward that have been taken and the challenges that remain, in light of the Government of Sri Lanka’s commitment to pursue a domestic accountability process for all conflict-related crimes
Ms. Kelisiana Thynne, Regional Legal Advisor for Southeast Asia, International Committee of the Red Cross
Title: Prosecuting Sexual Violence in Conflict – Whys and Wherefores of Challenges in Southeast Asia
Abstract: This presentation looks at why sexual violence in armed conflict may be an issue for South East Asian countries, and indeed why IHL is relevant in South East Asia. It looks at existing sexual violence and IHL laws in South East Asia, and highlights the challenges that remain for prosecuting those who have committed sexual violence in armed conflict. It also addresses some of the steps that organisations promoting IHL, such as the ICRC, can take to ensure states meet their obligations.
Panel 3: Building Bridges Between International and National Practitioners
Coordinator: Dr. Joseph Rikhof, Part-Time Professor in International Criminal Law, Faculty of Common Law, University of Ottawa; Senior Counsel, Manager ofthe Law, Crimes Against Humanity and War Crimes Section, Department of Justice
Chair: The Honourable Justice Kevin Zervos, Judge of the Court of First Instance of the High Court
Panelists
Dr. Joseph Rikhof, Part-Time Professor in International Criminal Law, Faculty of Common Law, University of Ottawa; Senior Counsel, Manager of the Law, Crimes Against Humanity and War Crimes Section, Department of Justice
Title: Domestic Jurisprudence involving Sexual Violence as an International Crime
Abstract: The topic of my presentation will cover three distinct but related issues. The first issue will be a general overview of attempts made at the national level to bring to justice perpetrators of sexual violence as an international crime; prosecutions carried out in countries from a territorial jurisdiction perspective will be covered under this heading. Secondly, efforts in investigating and prosecuting such perpetrators in countries basing their work on universal jurisdiction will be addressed; more details will be provided in terms of the law applicable in those countries, the results of specific cases as well as some of the practices utilized in cases of sexual violence. Lastly, the example of Canada will be utilized to provide a more in-depth analysis of the efforts taken by one particular universal jurisdiction country including the successes and pitfalls of the investigation and prosecution of this particular international crime.
Ms. Kathy Roberts, Legal Director, Centre for Justice and Accountability
Title: They Did It For You: The Role of Victims' Attorneys in Prosecuting Conflict-Related Sexual Violence in National Courts
Abstract: Although sexual and gender-based violence is a well-known and persistent feature of armed conflict, more than 70 years after the first war crimes trial at Nuremberg there are still enormous barriers to bringing perpetrators to justice, let alone giving voice and redress to the victims and survivors. Civil society's role is crucial in overcoming some of these barriers. As recent developments in national courts illustrate, effective collaboration by prosecutors and victim lawyers to empower victims and survivors can enhance not only the quality of litigation but also extend the reparative potential of criminal justice processes.
Mr. Jeremy Dein, Queen's Counsel, 25 Bedford Row
Title: The Defence Perspective in Sexual Violence Cases at the Domestic Level
Abstract: Sexual violence in conflict has historically been accepted as unavoidable. Rape was considered one of the legitimate spoils of war. There was no question of perpetrators being brought to justice. However, war crimes tribunals have the potential to help emerging democracies discover the benefits of a strong legal system. Victims regain their sense of power, lost in the chaos of war. The accused is entitled to fearless defence, whatever the horrendous crime charged. But for nations struggling to move from repression to democracy, by what means are bridges to be built between national and international practitioners? How are the lawyers of a violated society to put their faith in the equitable rule of law? The encouragement and empowerment of domestic practitioners, together with the sharing of expertise across international boundaries, are vital to the rule of law. The international community has responsibility for the education, training and support of lawyers worldwide, if war ravaged nations are to embrace the accurate and effective implementation of criminal justice. National practitioners must assume the confidence of their international counterparts for such nations to embrace fair trials.
National courts and their practitioners must learn to try cases of sexual violence in conflict, and the like, with the expertise, vigilance, and integrity of international tribunals. An increasingly shared commitment between international and national practitioners is imperative if bridges are to be built. This, and related issues, will be the focus of my presentation.
Professor Nina Jørgensen, Professor, Faculty of Law, CUHK
Title: Coordinating Investigative Responses to Conflict-Related Sexual Violence in Syria and Iraq
This presentation will briefly outline the context of sexual slavery of the Yazidis in Iraq and Syria with reference to relevant UN and NGO reports and then discuss a series of issues related to coordination within and among international and domestic investigative and prosecutorial initiatives. These issues of coordination range from purely evidential questions, to determining which body – international and/or domestic – can ensure the prosecution of these crimes against the Yazidis (which may be underlying acts of genocide), how senior ISIS commanders and policy makers can be brought to justice especially if domestic courts are the only option, and how further crimes against the Yazidis can be prevented.
Panel 4: "Comfort Women": Sexual Slavery in Asia During World War II
Coordinator: Professor Suzannah Linton, Distinguished Professor, Zhejiang Gongshang University Law School, Hangzhou
Chair: Professor Gregory Gordon, Associate Professor and Associate Dean (Development and External Affairs), Faculty of Law, CUHK
Panelists
Dr. Yuki Tanaka, Researcher, Sexual Violence in Armed Conflicts, Hamburg Institute of Social Studies
Title: Why Did the Tokyo War Crimes Tribunal Ignore Japan's Military Sex Slaves?
Abstract: In the first half of my paper I briefly examine the history of the widespread and systematic sexual enslavement of women (the so called "comfort women system") that was operated by the Japanese Imperial Forces in many parts of the Asia-Pacific during the 15-year Asia-Pacific War between 1931 and 1945. I then examine the distinctive characteristics of this system, comparing it with military violence against women committed by military forces of other nations, such as Germany and the U.S. during World War II and the post-war occupation period. In addition, I analyze the differences and similarities between Japanese military sex slaves and the military prostitution system operated by many other military forces during World War II.
In the second part of my paper, I will explore the question of why the Tokyo War Crimes Tribunal, which was conducted between May 1946 and November 1948, failed to deal with the issue of Japan's military sex slave system. This was despite the fact that it examined a number of mass rape cases committed by Japanese troops in various parts of the Asia-Pacific region, the most notable case of which was the so-called "Rape of Nanjing." During the war, the U.S., British and Dutch military authorities had collected ample evidence, which could have been utilized at the Tokyo War Crimes Tribunal. What was the reason that they decided not to raise this issue at the A-class war crimes tribunal while prosecuting the Japanese for this crime at the B & C-class war crimes tribunals?
Professor Suzannah Linton, Distinguished Professor, Zhejiang Gongshang University Law School, Hangzhou
Title: International Law Barriers to Remedies
Abstract: Professor Linton will address the International Law barriers to remedies for World War II military sexual enslavement. The presentation will provide an overview of the many attempts of survivors and their representatives to seek legal redress in different jurisdictions and at various institutions. The discussion will then focus on three barriers to remedies in International Law: the capacity of individuals to bring claims in International Law and more specifically International Humanitarian Law, State immunity and the San Francisco Treaty and other agreements involving waiver of the right to claim reparation.
Dr. Danny Friedmann
Title: Three "Excavated" Batavia Cases and the Crime of Enforced Prostitution
Abstract: War crimes and crimes against humanity of enforced prostitution have been seriously under-prosecuted, and there is a dearth of jurisprudence on this matter. In turn, prosecutors are timid to charge and prosecute this crime, and instead opt to charge and prosecute crimes with richer jurisprudence, thereby perpetuating the vicious cycle of the scarcity of enforced prostitution jurisprudence. The result has been impunity for past perpetrators. Accordingly, the deterrence that should be the result of prosecution and punishment has not come to fruition.
Instead of waiting for this crime to be prosecuted in the future so that enforced prostitution jurisprudence develops, this presentation asserts it would be more beneficial if society and the legal community looked at the judgments of the Temporary Courts-Martial in the former Dutch East Indies between 1946 and 1949 that are "buried" in the Royal Dutch Archive and NIOD. Astoundingly, given the massive scale of enforced prostitution during the Japanese occupation of the countries in South East Asia, and while most countries already considered enforced prostitution as a war crime, the proceedings at Batavia turn out to be unique among the post-Second World War trials. Never before and never since the Batavia cases has the war crime of the abduction of girls or women been cited for the purpose of enforced prostitution. The Batavia judgments have never been made publicly accessible, and will only be made accessible 75 years after their publication. This means that the first cases will be accessible in 2022 and the last ones in 2025. However, the author fortunately managed to obtain three of these cases of the Temporary Courts-Martial in Batavia that are highly relevant to enforced prostitution. He ensured they were translated into English and made freely accessible, actions that the CRJ of CUHK generously endorsed.
Professor Nina Jørgensen, Professor, Faculty of Law, CUHK
Title: Legal Characterization of the Crimes Against 'Comfort Women' in the Light of the Batavia Cases
Abstract: Professor Jørgensen will focus on the ICL aspects, in particular the relationship between enforced prostitution and sexual slavery (noting that the People's Tribunal stated very firmly that sexual slavery was the appropriate term, but the ICC retains enforced prostitution alongside other categories). This will involve looking at some of the modern developments, and the ECCC presents a good example in terms of examining crimes of sexual violence occurring in the 1970s, and working out the applicable customary international law.
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