Legal responses to conflict-related sexual violence
FOREIGN COURTS AND THE UNIVERSAL JURISDICTION MECHANISM
A new level for adjudicating sexual violence linked to conflicts
The courts of each State normally have jurisdiction only over crimes that have a link with that State (the crime is committed on its territory, and the victim or perpetrator is a national of that country). However, there is a special mechanism for international crimes that allows the courts of a State to take jurisdiction over a case, regardless of the nationality of the perpetrator or the victim, and regardless of where the crime was committed: this is the mechanism of universal jurisdiction. It is based on the idea that these crimes are so serious that every State must be able to judge them.
This mechanism differs according to the State and national legislation, and imposes more or less strict criteria to enable these crimes to be judged. Depending on national legislation, a link with the State is still required, in which case the accused must reside or be president of the country. Countries such as Germany, Belgium and the UK were pioneers in this field, enabling them to judge perpetrators of international crimes.
Over and above these criteria, which are specific to each State, in order to be able to lodge a complaint for acts of conflict-related sexual violence as an international crime, these acts must be qualified, depending on the circumstances in which they were committed, as genocide, a crime against humanity, a war crime or an act of torture. Each of these crimes has constituent elements as defined by the Rome Statute of the International Criminal Court.
UNIVERSAL JURISDICTION IN FRANCE
France defends a restrictive application of this mechanism, and French law lays down conditions that are fairly difficult to fulfil, known as the "four locks of universal jurisdiction". This type of trial can only be initiated :
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With the request of the public prosecutor;
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If the ICC has declined jurisdiction;
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If the accused has resided in France for a certain period of time;
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If there is dual criminality, i.e. the crime is punishable under both French law and the law of the country where the crime was committed.
This criterion was recently interpreted restrictively in a ruling by the French Cour de Cassation, which held that Syrian law does not provide for the criminalisation of crimes against humanity, which prevents French courts from judging Syrian crimes. However, the ruling was revised in May 2023, reversing this restrictive interpretation and allowing two Syrian cases to be prosecuted.
A key case
© Leslie Lumeh / New Narrative
Although the scope of this universal jurisdiction has often been reduced and criticised, France has recently done justice where it had never been done before, thanks to this exceptional mechanism. For the first time, France exercised universal jurisdiction over a crime that was not linked to the Rwandan genocide.[3] After a 16-day trial, Kunti Kamara was sentenced to life imprisonment for "acts of barbarism" committed during the first civil war in Liberia (1989-1996). He was convicted in particular in his capacity as commander of the rebel group United Liberation Movement of Liberia for Democracy (ULIMO), for having allowed his men to commit acts of rape and sexual slavery against vulnerable populations.
Some universal jurisdiction cases concerning conflict-related sexual violence
Several countries make particular use of universal jurisdiction, and conduct trials on this basis for international crimes committed particularly in conflict zones. Every year, the NGO TRIAL International produces a report listing cases based on universal jurisdiction around the world. The 2022 edition focuses on "Universal jurisdiction, a little-known tool in the fight against conflict-related sexual violence" [1]. According to this report, in 2021, out of 125 charges of international crimes, only 17 concerned conflict-related sexual violence. Although there has been some progress, this figure reflects the fact that few prosecutions are brought for such violence.
Here are a few (non-exhaustive) examples of trials based on universal jurisdiction and including charges of sexual violence as international crimes, or convictions for such crimes.
GERMANY
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Crimes committed in Syria :
An emblematic case in terms of universal jurisdiction is the so-called "Koblenz trial", which is the first trial in Europe to prosecute crimes committed by the Syrian state. It targets former intelligence officers of Bashar al-Assad's regime, accused of crimes against humanity. The main defendant, Anwar Raslan, head of investigations for the 251 branch of the secret services, was found guilty of 27 murders, 4,000 cases of torture and aggravated illegal detention, one case of rape and two cases of sexual assault, all of which constitute crimes against humanity. He was sentenced to life imprisonment. This is a historic conviction, as it is the first in the world to address the abuses committed by Bashar al-Assad's regime. It also recognises and punishes the use of sexual violence by the Syrian intelligence services as a real tool of repression and terror. The second defendant in this trial, Eyad al-Gharib, was also found guilty on 24 January 2021 of crimes against humanity.
© Thomas Lohnes, AFP (archives)
January 2022 also saw the start of another trial linked to the Syrian regime, also involving charges of sexual violence. Alaa Moussa, a doctor in a military prison in Homs, is on trial before the Frankfurt Regional Court for crimes against humanity, for the torture of opponents of the regime, the murder of a detainee, and acts of sexual violence [6]. He is accused of "spraying alcohol on the genitals of an adolescent in the emergency room of the military hospital in Homs, before setting fire to them".
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Crimes against the Yezidi minority :
On 16 June 2021, the Higher Regional Court of Düsseldorf convicted "Sarah O", a German national and member of the group Islamic State in Iraq and the Levant, of crimes against humanity committed against the Yezidis [7]. She is guilty of complicity in rape, slavery and religious and gender-based violence, persecution as crimes against humanity, and was sentenced to six years and six months in prison. She and her husband imprisoned and enslaved seven Yezidi women, and she "aided and encouraged her husband to commit sexual violence against at least two of them".
On 30 November 2021, the Frankfurt High Regional Court found Iraqi Islamic State jihadist Taha Al-Jumailly guilty of genocide [8], crimes against humanity, war crimes and complicity in war crimes, against the Yezidi group. He and his wife held a 5-year-old Yezidi girl and her mother whom they bought as slaves. They forced them to convert to Islam and are accused of leaving the Yezidi girl to die of thirst. Although this case does not concern crimes of conflict-related sexual violence, it is the first conviction by a court of a member of the Islamic State for the genocide perpetrated against the Yezidi minority. This decision therefore offers hope for future prosecutions, including for sexual crimes committed against this minority.
© FRANK RUMPENHORST / dpa-Pool / AFP
On 21 June 2023, the Higher Regional Court of Koblenz found "Nadine K", a German national, guilty of complicity in genocide, crimes against humanity and war crimes. She was sentenced to 9 years and 3 months in prison. During the Islamic State's violent campaign to eradicate the Yezidi minority in Iraq and Syria, she enslaved and abused a young Yezidi woman. The defendant knew that her husband regularly beat and raped this young woman and chose not to intervene when she "could have and should have". The Court is convinced that the defendant acted out of conviction because she "identified" with the ideology of the Islamic State.
ITALY
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Crimes committed against migrants in Libya
Osmann Matammud, a Somali national and director of the Bani Walid detention camp, was sentenced on 10 October 2017 by the Milan court for various crimes including rape, committed against migrants in Libya in 2015-2016 [9].
© Fotogramma
SWEDEN
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Crimes committed in Syria
Sweden is a pioneering country in Europe when it comes to prosecuting crimes committed in Syria. It held the first trial for war crimes leading to the first conviction of a regime soldier. A complaint filed in February 2019 by survivors of regime detention centres targets 25 high-ranking Syrian intelligence officers. The charges include crimes against humanity, war crimes, torture and degrading treatment, and rape [10].
REFERENCES
[1] Justice Info, LA COMPÉTENCE UNIVERSELLE ET LES VERROUS DU DROIT FRANÇAIS, 23 octobre 2016.
[4] Trial International, Universal Jurisdiction Annual Review 2022, UJAR. Avril 2023.
[8] Justice Info.ALLEMAGNE : PREMIÈRE CONDAMNATION POUR LE GÉNOCIDE DES YÉZIDIS, 7 décembre 2021.
[9] Trial International,Osmann Matammud, 28 juillet 2020.