Enough of impunity - The legal experts

2017-10-02 L’Osservatore Romano

The figure that emerges from UNICEF’s most recent report, drafted on the basis of a series of interviews with migrant women, is alarming. About half the total sample of people interviewed suffered sexual abuse on their journey, often on various occasions and in different places. This figure should not come as a surprise if we only think of the innumerable situations of risk to which these people are exposed once they have started on the migratory path. As was recently confirmed by many reports of international organizations – see, in addition to the one mentioned above, those of the European Parliament and of Amnesty International – acts of sexual violence happen as often in the countries of transit as in the countries of arrival and in the reception centres.

Moreover a dramatically recurrent element in the stories of asylum seekers is what happens in Libya. Here migrants, the majority of whom come from sub-Saharan Africa, are often held in veritable prison camps while waiting to cross the Mediterranean, frequently because they are unable to pay for their passage. In these private camps, run by traffickers, they are subjected to every possible kind of torture and ill-treatment.

Female children, young girls and women are raped under the threat of death, often in groups even if they are pregnant.

Having taken note of the gravity of the facts, a first problem is the impunity of those who commit these crimes.

Given the number of the countries concerned and the need to give the victims supranational protection too, the first reference is that of international law.

The way to take can only be to (re)affirm a “universal jurisdiction” for violence against women, a valid principle for serious crimes against humanity which permits any state to punish the person responsible regardless of where the act was committed and of the criminal’s nationality as well as that of the victim, thereby disregarding the traditional principle of territoriality.

Despite the gravity of this kind of crime which not only targets a fundamental good such as sexual freedom but can strike human dignity itself, and even though it is obvious that in contexts of strong social and political instability women have always been particularly vulnerable, the process which has led to the introduction of legal instruments for their protection has been far from rapid.

Indeed, one only needs to think of how, in the trials that followed the Second World War, there was no significant mention of acts of sexual violence committed during the war. Similarly, in the four Geneva Conventions of 1949 which introduced a body of minimal norms to be respected in the case of armed conflict, the so-called “humanitarian law”, explicit references to this type of crime are virtually non-existent.

It was only after the numerous abuses reported during the conflict in the former Yugoslavia that rape came to the attention of the international authorities who provided for the insertion of this crime into the Statutes of the International Criminal Tribunal for the Former Yugoslavia (icty, 1993), defining it as crime against humanity alongside torture and extermination.

Similarly, in 1998 the International Criminal Tribunal for Rwanda (ictr, 1994) recognized in the “Akayesu” case that rape and other forms of sexual violence were used in the conflict as a means to commit the very real crime of genocide.. In the same sentence it was established that this kind of abuse, if it is perpetrated against civilians in a widespread and systematic way, to all effects and purposes constitutes a crime against humanity.

Moreover in this pronouncement rape is once again clearly identified as a form of torture.

“Like torture”, one reads, “rape is used to intimidate, degrade, humiliate, discriminate against, punish, control and destroy a person. Like torture, rape is an outrage against personal dignity”. Finally, the Rome Statute of the International Criminal Court, in force since 2002, also includes rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or “any other form of sexual violence of comparable gravity” among the crimes against humanity, but here too only if it is committed in a widespread or systematic manner. In March 2016 this court pronounced its first condemnation for sexual and gender-based crimes against Jean-Pierre Bemba Gombo, former Vice-President of the Democratic Republic of the Congo, for the rapes committed by the troops which he headed at the time of the war that tore the country apart in 2002.

Then, remaining in an exclusively European context, it is worth mentioning the “Aydin v. Turkey (1997)” sentence of the European Court of Human Rights. In this pronouncement, rape is once again traced back to the violation of Article 3 of the European Convention of Human Rights (cedu), an article which provides for the absolute prohibition of courses of action leading to torture and other inhumane and degrading treatment.

Sexual violence, in this case perpetrated by a group of Turkish policemen on an under-age girl, was in fact recognized as torture rather than as the less serious crime of inhumane and degrading treatment in view of the victim’s special condition of vulnerability and the powerful position of her assaulters.“Rape”, we read in the pronouncement, “committed by an official or person in authority on a detainee must be regarded as punitive treatment of an especially severe kind. Such an offence struck at the heart of the victim’s physical and moral integrity and had to be characterized as a particularly cruel form of ill-treatment, involving acute physical and psychological suffering”, recognizing that “furthermore rape leaves deep psychological scars on the victim which do not respond to the passage of time as quickly as those occasioned by other forms of physical and mental violence”.

If this was the way taken by international and supranational courts, it should be pointed out that greater attention to the subject of gender violence has also been a concern of conventional law. To cite an emblematic case, this is addressed by the Istanbul Convention, an initiative of the Council of Europe signed by Italy in 2012. Specifically the instrument seeks to introduce a standard of minimal protection defining the various types of harmful conduct and introducing obligations for states to penalize them in their internal legal systems.

If we are to draw some conclusions on what has been said so far, a slow but inexorable increase of attention with respect to the subject of gender violence on the part of the international legal system should be acknowledged.The hope is that this trend will continue so as to facilitate the introduction and application of the necessary legal instruments for the punishment of these crimes also in contexts that are legally fragmented because of the number of actors and territories involved, for example, in countries of migration.Indeed, the silence of the international community, even though it has been pressed by several parties (journalists’ investigations, detailed reports from humanitarian organizations, the denouncements of victims) is truly intolerable. Recalling Martin Luther King, we are horrified not only by the evil of the wicked but also by the silence of the honest.

If this concerns the punishment of those who are stained by crime, however, the destiny of those who suffer these violent acts must not be disregarded. In other words it will also be necessary to intervene in the system of their acceptance. Effective training for the agents involved in the phases that immediately follow their arrival in their country of destination will be fundamental.Indeed, as an article in Open Migration reports, victims of sexual violence frequently fail to be recognized as such.

This happens, for example, because of the inadequate training for dealing with these cases of the agents and the members of the territorial commissions competent to examine requests for asylum. Interviews, in other words, must be carried out with all the precautions and astuteness that this kind of trauma requires. In addition it should be realized that the victims themselves are in many cases hesitant to recount what has happened to them through shame or for fear of losing the job they were promised before they left. It has even emerged from some interviews that many women victims of slavery are subjected to Voodoo rituals before their departure which bind them to their torturers who will curse their families should they not behave as required. Sometimes, however, the problem is procedural and the migrant does not even manage to request asylum because of the procedure of pre-identification which takes place immediately after disembarkation. This phase is often carried out in such haste that the people interviewed, even while they are still in a state of shock, give erroneous answers and thus end up on the list of those to be expelled.

The entire reception system should therefore be brought back, as far as possible, to the courseof an efficient and humanitarian legality, avoiding simple and ineffective solutions such as the automatic rejection of victims into the hands of the same people from whom they have escaped, thereby causing them to find themselves once again in a no man’s land far from their country of origin. Hence, legal channels of access should be created instead of leaving the phenomenon in the hands of criminals. However, this must go hand in hand with the cultural action of promoting suitable measures against xenophobia, discrimination and the marginalization of migrants and refugees, both in the countries of transit and in those of their destination.

Nicola Canestrini and Giuseppe Sambataro