The year after Boko Haram kidnapped hundreds of girls from their school in Chibok in 2014 and the world learned that ISIS was abducting and selling Yezidi women and girls, the United Nations Security Council proclaimed that “certain terrorist groups” use sexual and gender-based violence as a “tactic of terrorism.“ Building on the longer-standing recognition of rape as a weapon of war, they meant that such groups use sexual violence in conflict to generate revenue, support recruitment, and destroy communities, all to advance their terrorism objectives.
To combat such tactical use of sexual violence, the Security Council called for “more integration” of its previously separate agendas: counterterrorism and violent extremism; and women, peace, and security (WPS). This further developed a commitment by the council several years earlier to give attention to WPS in the fight against terrorism. More recently, the council has also called on States to ensure their domestic efforts to combat terrorism give consideration to sexual and gender-based violence.
But while mobilizing counterterrorism measures to address conflict-related sexual violence may sound like a step forward for women’s rights, it’s not. In practice, counterterrorism approaches lead to more insecurity and risk for women in conflict.
Engaging Counterterrorism Laws
Of particular concern is that recently U.N. officials and other influential voices have called for States to adapt and use their counterterrorism laws in the fight against sexual violence in conflict. In the last few months, U.N. Secretary-General António Guterres and U.N. Special Representative on Sexual Violence in Conflict Pramila Patten criticized Nigeria, Iraq, and Mali, pointing out that ongoing counterterrorism trials in these countries do not take sexual violence offenses into account, despite their use in each place as a tactic of terrorism. The Secretary General also raised concerns, for example, that Nigeria’s Terrorism Prevention Act “does not explicitly criminalize sexual violence as an act of terrorism, and counter-terrorism investigators and prosecutors have failed to address sexual violence as an integral aspect of Boko Haram ideology and operations.”
Such high-level public pressure is having an impact. The Iraqi authorities have asserted recently that they are considering expanding their counterterrorism law to explicitly include sexual violence. Various U.N. entities have provided technical guidance and training setting out how other provisions of counterterrorism laws could be interpreted to include such offences, beyond specific amendments to specifically criminalize sexual violence. Nigerian officials have reported that, based on such guidance, they have prepared terrorism charges for Boko Haram cases involving sexual violence, which now await trial. Meanwhile, action to limit the expanding use of counterterrorism measures, despite clear indications of misuse around the world, have had little traction.
Legitimizing a Human Rights Disaster
Efforts to invoke the legal frameworks of counterterrorism to address sexual violence in conflict have glossed over the human rights implications of these laws and trials, which often fail to respect basic fair-trial guarantees and cause terrible harms, including to women. In promoting them, proponents risk legitimizing abusive counterterrorism laws and procedures and increasing their use. They also may undermine broader efforts to advance equality and human rights protection for women.
In Nigeria, where I have worked with Amnesty International to document abuses of women’s rights in the conflict, the Terrorism Prevention Act gives what appears to be carte blanche to the military for indefinite detention. Most of its incredibly broad and vague provisions set out a minimum prison sentence of 20 years and allow for the death penalty. In parallel, our research has documented that tens of thousands of people have been arbitrarily detained in counterterrorism responses. Several thousand suspects, including children, have been brought to trial in sham proceedings meant to provide legal cover for years already spent in arbitrary detention. Almost all appeared to be victims of arbitrary arrests, incommunicado detentions, and torture and other ill-treatment, and most were charged with non-violent crimes related to membership in or support to Boko Haram.
It’s not just men and boys who have been caught up in counter-terror dragnets; women and girls are also detained or prosecuted in arbitrary and often discriminatory ways. In both Nigeria and Iraq, women have been imprisoned or charged under counterterrorism laws simply because they had family members who were suspected Boko Haram or ISIS members. In Iraq, women have been convicted of terrorism offences for having concealed a family member who is an alleged terrorist offender. Women also suffer indirectly when family members and loved ones are detained or subjected to enforced disappearance. This has emotional, economic, and security implications, including where female-headed households are at increased risk of sexual and gender-based violence when they are displaced.
Fox in Charge of the Hen House
Invoking counterterrorism laws and measures to address sexual violence in conflict effectively means empowering the security forces, when they have often been responsible for committing serious and systematic sexual violence crimes themselves, and also acting abusively towards those assisting survivors. It also affords the security forces a huge amount of authority and impunity, given the political imperative to combat terrorism at all costs and the lack of sympathy accorded to anyone accused of being affiliated with terrorism.
In Nigeria, I documented that security forces conducting counterterrorism operations have perpetrated rape, sexual exploitation, enforced prostitution, and human trafficking — in some cases possibly amounting to crimes against humanity. They also subjected many survivors of Boko Haram abduction, rape, and forced marriage to years of arbitrary detention. In Iraq, security forces have likewise committed sexual violence in their counterterrorism efforts. Of course, the use of counterterrorism legal mechanisms to respond to sexual violence also offers nothing to address the impunity gap for abuses committed by State actors.
No Justice for Victims of Sexual Violence Under Counterterrorism Laws
An approach that favors the counterterrorism legal frameworks can’t provide the justice that many survivors are entitled to. As I’ve written previously at Just Security, a narrow focus on prosecutions is already frequently at odds with survivors’ priorities for intervention and accountability.
Where survivors do want prosecutions – and certainly many do – the use of counterterrorism laws and procedures may be far from what they were promised. Nobel Prize recipient and Yezidi survivor activist Nadia Murad called on the Security Council to recognize ISIS’s human trafficking as genocide and to “find a way to open a case before the International Criminal Court.” Instead, in 2016, the council was more interested in identifying that human trafficking could also be a potential tactic of terrorism. While some survivors may wish to see perpetrators punished whatever the legal framework applied, for those hoping for recognition as survivors of atrocity crimes, the application of a counterterrorism legal process may be a disappointment.
Even for those who do seek prosecutions, irrespective of charges, counterterrorism trials – at least as currently formulated – may not satisfy that desire. In both Iraq and Nigeria, these trials have been heavily flawed not only from a due process perspective, but also in terms of providing justice to victims. Though there have been a small number of important exceptions, victims have been largely shut out of the proceedings in both countries, even as witnesses. Charging suspects with violating counterterrorism laws rather than specific offenses under ordinary criminal laws may also make it harder to establish a thorough judicial record of the range of crimes the armed groups have committed.
Efforts to invoke counterterrorism laws to combat sexual violence may also sideline any consideration of root causes, as well as efforts to ensure other important legal reforms. Advocacy for the use of counterterrorism laws to address sexual violence in Nigeria, for example, may replace or de-prioritize efforts to bring into national law the Rome Statute that established the International Criminal Court and sets out crimes of genocide, crimes against humanity, and war crimes.
Likewise, a focus on counter-terror prosecutions comes at the expense of general criminal laws, which often include better human rights protections. In Nigeria again, some proponents of using the counterterrorism legal framework to combat sexual violence have pointed to the marital rape exemption in the general criminal law, and also to onerous evidentiary requirements imposed to prove rape – standards that are particularly hard to meet in the chaos of war. But if advocates’ efforts were directed at amending the general criminal law to bring it in line with international human rights standards, instead of trying to re-direct cases into the counterterrorism system, they could benefit a wider category of survivors.
Tactical Advantages vs. Human Rights Costs
There are, of course, strategic advantages of framing sexual violence and human trafficking in conflict as tactics of terrorism. Doing so demands that such abuses by groups such as ISIS and Boko Haram be recognized as a global national security priority; it calls for the re-direction of counter-terror measures to address these harms; and it potentially gives women a stronger claim for participating in forums where key security decisions are made. The appeal of using counterterrorism laws in particular to combat sexual violence is especially stark in contexts such as Iraq and Nigeria, where these are the primary legal mechanism through which ISIS and Boko Haram members are being prosecuted, and into which State energy and resources are being directed.
But despite the rapidly growing interest in gender in the development of counterterrorism responses, including counter-terror legal frameworks, there has been very little interest in human rights. As Fionnuala Ní Aoláin has pointed out, it would be naïve for women’s rights advocates to think this dismissive attitude towards human rights may change if gender perspectives are mainstreamed through counter-terrorism measures. There is little evidence this will be the case. Indeed, in some cases, gender has become an alternative to human rights. In this human rights void, engaging counterterrorism measures to address sexual violence committed by so-called terrorist groups will almost certainly come at a heavy cost to human rights more widely, including women’s rights.