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The Sexualized Dimensions of Torture in the Independent International Commission of Inquiry Report on Ukraine and Survivor-Centric Justice

April 08, 2024

Rangita de Silva de Alwis
Rangita de Silva de Alwis

The scale of conflict-related sexual violence has created a new public reckoning on the sexual dimension of torture in Ukraine and other parts of the world.

In what was referred to as a “pathway of death,” a Ukrainian woman sheltering in a hospital described the abuse, including sexual abuse, in terrifying detail. Despite the long and tragic history of gender violence in conflict, survivors and witnesses remain mired in a quagmire of impunity in cases relating to sexual violence in conflict.

Under Article 7 of the Rome Statute, adopted by the International Criminal Court in 2002, torture is recognized as a crime against humanity. Beginning in the late 1980s, Rhonda Copelond provided the intellectual framework for the analysis of the gendered norm of torture. In 1986, the UN Special Rapporteur on Torture, Peter Kooijmans, argued that rape in prison should be regarded as torture. The Committee Against Torture has continued to address this issue since the adoption of its General Comment No. 2 in January 2008.

Torture may also constitute a “war crime” as specified in the Rome Statute. The Convention on the Elimination of Discrimination against Women CEDAW GR 30 in paragraph 23 references the Rome Statute on crimes against humanity. The Rome Statute in Article 7 (1) (g) identifies various acts, including but not limited to “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity,” as prosecutable offenses when committed as part of a widespread or systematic attack on a civilian population, with awareness of the assault.

Most recently, the Special Rapporteur on Torture has solicited comments from the public to inform her Report to be submitted to the 79th Session of the UN General Assembly on “Identifying, Documenting, Investigating, and Prosecuting Crimes of Sexual Torture Committed during Conflicts, and Rehabilitation for Victims and Survivors.” The narrowly defined focus of her impending report on sexual torture “perpetrated during war or armed conflicts” is an acknowledgment of the staggering scale of conflict-related sexual violence in many parts of the world.

The Independent International Commission of Inquiry on Ukraine submitted its report to the Human Rights Council in accordance with the Council’s resolution 52/32 on March 15, 2024. The Report marks the two-year anniversary of the Russian Federation’s full-scale invasion of Ukraine and the International Court of Justice’s provisional ruling in March 2022 calling upon the Russian Federation to immediately abstain from military aggression against Ukraine and attacks on civilians, including, “women, older persons, persons with disabilities, and children.”

The Commission’s latest findings reveal violations of international human rights and humanitarian law, as well as corresponding war crimes committed by Russian authorities in areas under their control within Ukraine. An important hallmark of the Commission’s report is its recognition of gender-based violence as tantamount to torture.

The Commission underscores its previous conclusions regarding the widespread and systematic use of torture by Russian authorities, both in Ukraine and within the Russian Federation itself. This evidence highlights horrific instances of mistreatment of Ukrainian prisoners of war, both women and men, in various detention facilities in Russia. The report also exposes incidents of rape and other forms of sexual violence against women, often amounting to torture.

Sexual and gender-based violence perpetrated by Russian authorities has been extensively documented in multiple provinces of Ukraine. The widespread nature of these atrocities includes girls and women of various ages who have been subjected to rape and other forms of sexual violence during house searches. In one instance recorded by the Commission, a “Russian armed forces officer came to a house, searched it, grabbed a 15-year-old girl who lived there, stated that he needed to interrogate her, and ordered her to accompany him. He drove her to an abandoned shop, forced her to undress and drink alcohol, punched her in the face, and raped her.”

The Ukraine Commission of Inquiry Report provides an important bridge to the impending report of the Special Rapporteur on Torture. However, the follow up to both Reports must broaden its scope to examine sexualized dimensions of torture within the scope of international obligations under the Women, Peace and Security Agenda. Participation of women in all aspects of conflict resolution is one of the cardinal pillars of the Agenda. Similarly, the Special Rapporteur on Torture signals that her report will adopt as an important theme, the role of “victim participation and protection during investigation and prosecution.”

The Women Peace and Security corpus consists of ten security council resolutions, including the UN Security Council Resolution UNSCR 2467 adopted in 2019 which takes note of “United Nations commissions of inquiry and United Nations fact-finding missions” and their mandates to verify and “investigate allegations of violations and abuses of international human rights law and violations of international humanitarian law,” as well as their recommendations to “advance accountability and justice and protection for survivors.” In July 2023, the Secretary General’s latest report on sexual violence in conflict highlights the war in Ukraine, and calls for “survivor- and witness-centered” approach in line with UNSCR 2467.

The Rome Statute represents a significant advancement in international criminal law, particularly regarding its inclusion of gender-related offenses. This includes gender persecution, which targets individuals based on their gender and constitutes a crime under the statute. The recent case of Prosecutor vs. Al Hassan demonstrates the Court’s commitment to holding perpetrators accountable for crimes of sexual and gender-based violence, but it remains the first charge of gender-based persecution at the ICC.

In December 2022, the Office of the Prosecutor (OTP) released its Policy on Gender Persecution, signaled its commitment to pursuing accountability for crimes of sexual and gender-based violence, with particular focus on the offense of gender persecution. The policies call for the statute’s provisions to be construed and applied in a manner consistent with internationally recognized human rights and with the use of discriminatory distinctions based on factors such as gender. In addition, the 2022 Gender Persecution Policies expressly embrace an intersectional approach that fully acknowledges the interplay between gender and other facets of an individual’s identity or circumstances. Intersectionality, as a concept, examines how an individual’s overlapping identities shape their lived experiences, including instances of discrimination. Within this context, the notion of intersectional persecution recognizes that victims may become targets not solely due to their perceived gender but also as a result of other distinct factors, such as race, religion, pregnancy, or sexual orientation.

Revisiting an examination of UNSCR 2467, we see that it addresses the continued absence of justice to survivors of sexual violence: The “inaction and impunity for sexual violence crimes in conflict and post-conflict situation[s]” and calls upon states “to end impunity and to prosecute those responsible for crimes of genocide, crimes against humanity, and war crimes, perpetrated against women and girls.”

Many UN Working Groups have documented conflict- related sexual violence. However, the question may be raised, what happens next. Accountability at the domestic level is as important as accountability in international courts. Karim Khan, the current ICC prosecutor and former Special Adviser and Head of the Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD) in his final briefing to the Security Council as a member of the investigative team emphasized that it was not sufficient to simply document ISIL’s crimes, including crimes of sexual slavery but that new domestic legislation must be drafted to ensure that perpetrators are prosecuted when there is “clear and convincing evidence that the crimes… clearly constituted genocide. ” He argued that legislation is needed to ensure that a state has in place a legal architecture “to prosecute this haemorrhage of the human soul: not as common crimes of terrorism, heinous though they are, but as acts of genocide, crimes against humanity and war crimes.”

As we explore this question of improving criminal accountability for “sexualized forms of torture,” the Special Rapporteur on Torture and the Independent Commission of Inquiry for Ukraine must also consider the Women Peace and Security Agenda and its commitment to piercing the veil of impunity. The norms of Jus cogens— which include prevention of torture, or other inhuman or degrading punishment—are considered peremptory in the sense that they do not admit derogation. The Special Rapporteur’s report to the 79th Session of the UN General Assembly must make the clear argument that sexual violence in conflict rises to the level of a crime against humanity and thus invokes the obligations of the international community of States as a whole.

Rangita de Silva de Alwis is faculty at the University of Pennsylvania Carey Law School and a Visiting Fellow at the Faculty of Law Mansfeld College, Oxford (2024. She is an expert on the treaty body to the UN Convention on the Elimination of Discrimination against Women (CEDAW) and the focal point on Women Peace and Security.