Gender-Based Violence and Sanctions: A Potential UN Security Council Framework

Proposals to add a separate category on sexual and gender-based violations (SGBV) to the sanctions regimes for Sudan, Somalia, and Libya in the past six months have revived the question of which acts of SGBV fall within the United Nations Security Council sanctions mandates. The issue arises again this month, as the Security Council prepares for an open debate on the Secretary-General’s annual report on conflict-related sexual violence. The discussion, taking place around the 10th anniversary of the establishment of the mandate and office of the Special Representative on Sexual Violence in Conflict, is due to focus especially on accountability and on approaches that take into account the survivors of such violence.

The Security Council, unlike other UN bodies, is limited by Chapter VII of the United Nations Charter in its consideration of SGBV in sanctions regimes to situations where SGBV constitutes a threat to peace, security, or stability. Yet, there is very little clarity on what acts of SGBV fall within that definition. This lack of clarity has often made official reporting of violations and the resulting sanctions less comprehensive and gender-sensitive than would otherwise be possible.

The Security Council could remedy this shortfall by adopting a framework to clarify the types of gendered violence that fall within sanctions regimes. Such a framework, as proposed below, would result in more effective SGBV-related determinations by UN bodies and others involved in sanctions — the Security Council; panels of experts (Security Council-mandated groups that investigate and report on, amongst other issues, SGBV); Sanctions Committees (established to assist the Council to implement sanctions); and human rights advocates/actors that regularly engage with these entities.

Recognizing the Link Between SGBV and Peace, Security, and Stability 

The Security Council resolutions applicable to sanctions regimes do not clarify what specific acts of SGBV fall within sanctions mandates. Neither does the report of the Informal Working Group on General Issues of Sanctions, S/2006/997, which provides guidance on methodology and evidentiary standards to panels of experts.

However, some guidance can be derived from individual sanctions resolutions and Security Council practices. In seven of the eight sanctions regimes dealing with SGBV – those for Central African Republic, the Democratic Republic of Congo, Libya, Mali, Somalia, South Sudan, Sudan, and Yemen — there is an identifiable pattern. There, individuals and entities are sanctioned for acts (including SGBV) only when these individuals and entities also are “responsible for or complicit in, or [have] engaged in, directly or indirectly…actions or policies that threaten the peace, security, or stability…” or have been responsible for “engaging in or providing support for acts that threaten the peace, security or stability…” of that country or context.

These examples demonstrate that unless acts of SGBV also undermine or threaten peace, security, or stability, they would not fall within the mandates of existing sanctions regimes. This is underpinned by the fact that sanctions regimes come into operation under Article 41 of the UN Charter only after an Article 39 finding of the Security Council that the situation under review constitutes a threat to peace, a breach of peace, or an act of aggression.

During Security Council debates in 2018 and 2019, states also have continued to require a link between SGBV and peace, security, and stability (see here, here, and here) for considering these acts under sanctions mechanisms. In a situation where such a link is not present, the Russian Federation has consistently advocated that SGBV be considered by national authorities and/or the Human Rights Council.  Even in the Darfur sanctions regime, where the pre-requisite to demonstrate the link between SGBV and threats to peace, security, or stability is not explicitly mentioned (see paragraph 8), Security Council debates have underlined the need for such a link.

Types and Gravity of Acts

Indicators that acts of SGBV fall within Security Council regimes can be found in Security Council sanctions resolutions, thematic resolutions, and Security Council-narrated reasons for listings (these lists, found on the Security Council website, identify the individuals listed for sanctions and provide a summary of the reasons for their listing). In these, the Security Council has identified rape, sexual exploitation, sexual slavery, sexual violence, and sexual abuse, as grounds for imposing sanctions. The categories of victims identified initially included women and girls, and now include migrants, children, and elderly.

It is noteworthy that the 17 identified and listed individuals and entities in cases where designations included sexual or gender-based violence were also involved in wider human rights and humanitarian law violations. Their role in undermining peace, security, and stability was made clear in the listings. The fact that no individual or entity was listed solely for SGBV may indicate that SGBV has not yet been accepted as a reason in itself to levy sanctions. But the more likely explanation is that those commanders, individuals, and entities who are involved in SGBV are also more likely to engage in other grave violations.

In the past, it may have been possible to argue that the Security Council was inclined to sanction only widespread attacks, including “widespread rape” and “widespread sexual violence.” However, in 2019, the Security Council listed an individual for the sexual exploitation of two women, among other sanctionable offenses. This indicates a readiness of the Security Council to sanction individuals for sexual violence that is not established to be widespread or systematic.

Explicit references to non-sexual gendered aspects of violence are relatively rare, with the exception of killings, (for example, see here) and almost exclusively refer to women and girls. This is not an indication that non-sexual gender violence is not or should not be included in sanctions mandates. It might, however, indicate that key UN players in sanctions issues such as the Security Council, sanctions committees, and panels of experts might require further expertise and/or sensitization in this area.

The challenge is to create a cohesive technical framework that provides guidance to those involved in sanctions at the UN. What is clear is that the Security Council’s role as it relates to SGBV is evolving, and any methodology to define SGBV within its mandate must be sufficiently flexible to allow for this evolution.

The Need for a Separate and Independent Classification for Sanctions Regimes

The Secretary-General, the Office of the High Commissioner on Human Rights (OHCHR), and other UN entities have adopted guidelines and definitions through Sexual Exploitation and Abuse policies, the Analytical Framework on SVC, the Gender-Based Violence Information Management System (GBVIMS), and other international protocols. As such, it would be tempting to rely on one or more of those documents to provide guidance to panels of experts.

While these documents can be useful, I do not recommend a holistic adoption, in part because these entities have different mandates and any consideration of SGBV within sanctions regimes should invariably be linked to peace, security, and stability. For example, for OHCHR-related fact-finding bodies, gender violence includes domestic violence and female genital mutilation. These may not fall within Security Council sanctions mandates, unless linked to peace, security, or stability.

Also, as an example, the Analytical Framework on SVC considers only “conflict-related sexual violence.” The Security Council, on the other hand, can impose sanctions on gender-based, non-sexual, violence. The Council also can consider non-conflict contexts falling under Article 39 of the UN Charter (for example, situations of non-proliferation, coup d’état, and terrorism). Indeed, to limit the Security Council’s mandate to only conflict-related sexual violence would be regressive and create fragmentation with existing mandates.

Regarding peacekeepers, the UN has developed several policy documents, but these do not limit reporting within sanctions regimes of SGBV committed by peacekeepers and UN personnel. Indeed, if UN contingents cannot carry out their mandate because their personnel engage in sexual abuse of individuals they are meant to protect, this may of course undermine peace, security, or stability. I am aware of the political, institutional and practical difficulties of holding peacekeepers to account before the Security Council, but peacekeeper abuses should not be categorically excluded from sanctions regimes simply because of the existence of UN and national policies that are meant to tackle the issue.

What Can a Guiding Framework Look Like?

First, any potential framework would be stronger if it moves beyond merely identifying the types of acts (for example, rape and forced abortions) that may fall within a particular category (sexual violence or gender violence) and instead uses the broader categories without specifying acts. This is because gender violence, in sanctions contexts, has to be linked to peace, security, and stability. As a result, it would be difficult to categorically include, or exclude, certain types of acts from any potential framework. For example, while forced abortions may not normally fall within sanctions mandates, if such acts are intended to undermine peace, security, and stability (for example, provoking a conflict between communities), then it can certainly fall within Security Council mandates. But, on its own, as a type of violation, it may only fall within the remit of other UN mandate-holders.

Second, a potential framework would be most effective if it avoids identifying specific categories of victims or perpetrators, also because consensus for certain categories may be difficult to attain at the Security Council. For example, there are rarely, if any, references to lesbian, gay, bisexual, transgender, and intersex communities as victims in Security Council resolutions. Similarly, finding consensus to include peacekeepers in any potential listing as perpetrators will be challenging. Any framework should provide space to identify whoever the victims or perpetrators may be, if acts against them, or by them, can be linked demonstrably to undermining peace, security, and stability. As with the development of other contentious norms under international law, this “soft” approach is more likely to lead to progressive change.

Drawing on the above, the following outlines a proposal for the development of guidelines.

  1. In mandates that permit consideration of SGBV and where such acts demonstrably undermine peace, security, and stability in a given context or region, the following may be considered as falling within Security Council mandates:

a. All acts of gendered violence, including sexual violence, that are linked to armed conflict or other (non-conflict) situations falling under the purview of the Security Council sanctions regimes. This can be further subdivided, for ease of reference, into (a) situations where parties took measures with the intent to commit SGBV (i.e. motive-based SGBV) and (b) where parties undertook actions or omissions that resulted in SGBV, but without the intent to commit SGBV (i.e. result-based SGBV).

Motive-based SGBV (SGBV as a Weapon or Tactic) 

i. Motive-based SGBV may include acts of SGBV that are planned, directed, ordered, or committed with the purpose to further the military, policy, or other institutional objectives of a “party” (a “party” can be any individual or group linked to the conflict/situation under review or exercising authority or control over civilians or a civilian population). The objectives of SGBV can include, for example, to displace civilians from a locality, to terrorize, to inflict individual or collective punishment for actual or perceived civilian support to the enemy, to obtain access to economic resources to fund conflicts/other situations under review, to disrupt disarmament, demobilization, and reintegration processes, and as disciplinary control over civilians in order to control territory.

ii. The Security Council, the Secretary-General and the ICTY have identified some of these acts when committed in armed conflict situations as amounting to the use of SGBV as a “tactic of war” or a “tool of war.” According to the Secretary-General, the strategic nature of SGBV is evident, for example, in the selective targeting of victims that mirrors the fault lines of the conflict or crisis and the explicit enactment of the nationalistic or extremist ideologies espoused by the perpetrators.

Result-Based SGBV (SGBV as a Consequence of Other Acts) 

i. This can include situations where SGBV is the direct result of actions taken by the parties (direct-link to the conflict/ situation) or is a wider result of a conflict/ situation under review (indirect-link to the conflict/situation).

ii. In cases where SGBV is directly linked to the conflict/situation under review, SGBV can be a “natural and foreseeable consequence” of actions and omissions by the parties. Examples may include situations where there was an order to commit ethnic cleansing of an area, and sexual violence was one result. It could also include situations where fighters were permitted to abduct, rape, and pillage as a form of compensation, where physical assault was tolerated to prevent women from accessing economic resources, or where commanders simply did not take the necessary measures to prevent violations by their forces during the conduct of hostilities.

iii. There may also be cases where SGBV is only indirectly linked to the conflict/situation under review, in which SGBV is not the immediate consequence or the direct outcome of hostilities, yet the conflict “…play(s) a substantial role in the perpetrator’s decision, in his or her ability to commit the crime or in the manner in which the conduct was ultimately committed.” This may include situations where SGBV occurs as indirect harm or reverberating effects. For example, the breakdown of economic and rule of law systems can create a conducive environment for individuals to be exploited and abused based on their gendered roles. For example, in the DRC, in 2004, MSF reported that “even now with less fighting, sexual violence continues as the social fabric of the community is still in tatters and perpetrators are not being brought to justice.”

2. In other contexts (irrespective of whether there is a mandate to consider SGBV and irrespective of its link to peace, security, and stability) all acts of SGBV that can be linked demonstrably as a result of sanctions imposed by the Security Council should also be included under any potential framework.

a. This could include, for example, situations where the implementation of sanctions have negatively impacted access to health care and markets and where this then results in abuse against women to restrict their access to limited resources (see here, here, and here on the impact of sanctions in North Korea and here for the impact of these factors on women). This inclusion is proposed because the Security Council retains the primary responsibility to ensure that unintended consequences of Security Council-imposed sanctions do not have a negative impact on the civilian population. Reporting of this nature is also supported by the Informal Working Group on Sanctions, which requires panels of experts to provide an analysis of the implementation of sanctions.

Some Further Clarifications

The proposed framework’s division into motive-based and result-based SGBV may seem arbitrary (even if there is a reference to purpose-based SGBV in the Secretary-General’s report). But the aim is not to create a hierarchy of norms within SGBV. The subdivision merely stems from the practical reality that, due to political differences within the Security Council, sanctions sometimes may not be imposed even where SGBV is directly linked to a conflict/situation under review and where it undermines peace, security, and stability.

In this background, motive-based SGBV somewhat increases the threshold of political gravity, and the definition takes advantage of the Security Council’s explicit intent to sanction those who use sexual violence as a tool of conflict, so as to ensure that even within a divided Security Council, some acts of SGBV may cross a threshold beyond which the Council must seriously and proactively consider its response. It should also be noted that, in the Secretary-General’s report in 2018, only the first category was highlighted, and this too may not be conducive to ensuring accountability. Thus, both categories should be considered side by side in any potential framework that deals with SGBV for sanctions regimes.

The biggest challenge of any framework is to justify the exclusion of those violations that are indirectly linked to conflict, but which may, nevertheless, not fall within Security Council mandates. For example, in Uganda, there was a demonstrable link between increased gender-based domestic violence because of conflict-related disruption to economic resources and exacerbated poverty. To date, it is difficult to envisage the political conditions that would allow domestic violence to be considered by the Security Council as falling within its sanction mandates, even if the link to conflict is evident.

There are other, related matters not addressed here but worth considering: Can threats to engage in SGBV undermine peace, security, and stability, and therefore fall within sanctions regimes? If so, is there a need for a modification of the existing designation criteria to enable the consideration of these threats? Can and should intersectionality be considered in any guiding framework (see here for a critique of the ICTY approach)?

Conclusion 

This article sets out the gaps in identifying what SGBV means within Security Council sanctions regimes and which victims and perpetrators fall within these regimes. More guidance – such as the framework proposed in this article – might enhance the usefulness of sanctions as a tool to prevent and address certain forms of gendered violence, whether perpetrated in conflict or in non-conflict situations. 

The views expressed may not necessarily reflect those of any organization with which the author is or has been affiliated. Alex Moorehead, Lecturer-in-Law at Columbia Law School and Director of the Counterterrorism, Armed Conflict, and Human Rights Project at the school’s Human Rights Institute, contributed to this article.

IMAGE: Photo by DON EMMERT/AFP/Getty Images

 

About the Author(s)

Ruwanthika Gunaratne

Attorney at Law enrolled in the Supreme Court of Sri Lanka, former International Humanitarian Law Expert to four United Nations Security Council Panels of Experts concerning Yemen and Sudan, formerly worked with the International Committee of the Red Cross, the Ministry of Foreign Affairs of Sri Lanka and the Ministry of Justice of the United Kingdom