The Protocol to the African Charter on the Rights of Women: Preventing and Punishing Conflict-Related Sexual Violence

Introduction

Twenty years after its adoption and eighteen years of enforcement, as a ‘home-grown’ women’s human rights treaty, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women (“the Protocol”) [1] is still problematic for the most part. One of the tenaciously unaddressed issues in the African Charter on Human and Peoples’ Rights (“the Charter”) [2] was its failure to protect women from conflict-related sexual violence (CRSV)[3], not only deem a harmful practice but also constituting crimes against humanity and war crimes especially when committed during conflict as “part of widespread or systematic attacks against civilians” or “as part of a plan or policy”.[4] The Protocol, referred to as an “offspring” of the main Charter, was aimed at addressing some of these growing concerns stemming from the continuous violation of women’s rights, including CRSV.[5]

Although CRSV is everything but new in conflicts, research holds that it is being ‘weaponized’ in several conflicts across Africa.[6] The UN Secretary-General recently in his report on “Conflict-Related Sexual Violence” (2017), identified forty-six armed groups linked to sexual violence, inter alia, systematic rape, forced pregnancy, forced prostitution, sexual mutilation, sexual slavery, and forced marriage in the Democratic Republic of Congo, Somalia, Burundi, Libya, Mali, South Sudan, Nigeria, Sudan, and Ethiopia.[7]

It is irrefutable that when conflict reaches civilian areas, one way to evaluate its impact is to examine how women and girls are disproportionately and adversely affected. The health, physical, and psychological effects (both directly and indirectly) of CRSV are irrefutable and overwhelming on individuals and affected communities as a whole during conflicts and sometimes go beyond hostilities.[8]

Despite successive indictments of several individuals for CRSV crimes by the ad hoc International Criminal Tribunal for Rwanda (ICTR)[9] and the Special Court for Sierra Leone (SCSL)[10] and more recently by the International Criminal Court (ICC) for gender-based crimes in armed conflicts[11], sexual violence still remains prevalent in countries embroiled in conflict. Although the Protocol provides a normative framework of universal standards to prevent, protect, and punish sexual violence disproportionately affecting women, states have not delivered on these obligations. Consequently, non-state armed actors and government forces committing systematic sexual violence in conflicts continue to enjoy absolute impunity.

Obligation to Prosecute CRSV Under International Law

CRSV has long been codified as a grave breach of International Law.[12] Either states punish themselves or are obliged to facilitate the prosecution of perpetrators by other states for breach of peremptory norms of jus Cogens character.[13]The rationale here is that: systemic and widespread violation of women’s rights, including sexual violence occurring anywhere, affects the international community in the same way for which accountability must be sought.[14] In the case of CRSV, which is ipso jure war crime, crime against humanity, and or genocide, under the Maputo Protocol, member states have an erga omnes obligation to prosecute such crimes or facilitate their prosecution by other states—which unfortunately is not the practice in most parts of the continent until now.

Legal Framework Prohibiting CRSV in the Protocol

Can the Protocol Mitigate CRSV?

The preceding legal framework echoes and extends state parties’ obligations under International Humanitarian Law —granting protection to women in times of conflict. Notwithstanding this legal protection, there is still a stark contrast between promise and practice in relation to the effective implementation of the Protocol by member states, mainly as a result of the existing “gender gap and persistent discriminatory practices based on sex.”[16] Moreover, not all states are parties to the Protocol: of 54 African states, 49 have signed, and 42 have ratified the women’s rights Protocol[17], and only a few member states have proceeded to implement the Protocol—albeit patchy and slowly, especially those embroiled in conflict, for example, in the case of the longstanding armed conflict in eastern DRC[18] and Nigeria-Boko Haram armed insurgency.[19] Eliminating all harmful practices against women entails that state parties translate the Protocol into domestic legislation and empower competent institutions like courts to adjudicate gender-based crimes at all times. Without sincere commitment and compliance, Sigsworth warns of an impending danger of the Protocol becoming a ‘paper tiger.’[20]

Conclusion

The Women’s Rights Protocol provides the appropriate legal framework to prevent and protect women from conflict-related sexual violence as a serious breach of Humanitarian Law applicable in armed conflicts in particular and human rights law in general. The impact of the Protocol, however, remains far less remarkable across the continent, especially for victims of CRSV. One of the effects of inaction on the part of member states to fulfil their obligations when it comes to CRSV is that: it impedes women from fully accessing and enjoying all rights within the Protocol on equal bases. Without effective implementation through accountability and continuous “weaponization” of sexual violence in times of conflict, perpetrators are, on the one hand, embolden, and women will, on the other hand, remain perpetual victims without any recourse or remedy.  

[1] The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women, [adopted July 2003]  [entered into force  November 2005], <https://au.int/sites/default/files/treaties/37077-treaty-charter_on_rights_of_women_in_africa.pdf> accessed 20 March 2023.

[2] The African Charter on Human and Peoples’ Rights [adopted 1981] [came into force,1896] 1520 UNTS 217<https://www.achpr.org/legalinstruments/detail?id=49#:~:text=The%20African%20Charter%20on%20Human,freedoms%20in%20the%20African%20continent> accessed 25 December 2022.

[3] “The term “conflict-related sexual violence” as used in this paper, is limited to violence perpetrated against women or girls that is directly or indirectly linked to a conflict. UNSG reported Conflict-related sexual violence, adopted by the United Nations Security Resolution S/2020/487 on 3 June 2020. para. 4.

[4] ‘Rome Statute of the International Criminal Court’, [adopted, July 1998] [ entered into force, July 2002], 2187 U.N.T.S. 90.<https://ihl-databases.icrc.org/en/ihl-treaties/icc-statute-1998> accessed 27 June 2023.art 7 (1) (g) and 8 (2) (b) (xxii).

[5] “Despite the ratification of the African Charter on Human and Peoples’ Rights and other international human rights instruments by the majority of states parties, and their solemn commitment to eliminate all forms of discrimination and harmful practices against women, women in Africa continue to be victims of discrimination and harmful practices.” <https://www.ohchr.org/sites/default/files/Documents/Issues/Women/WG/ProtocolontheRightsofWomen.pdf> accessed 15 December 2022. preamble, para 12.

[6] Carly Brown, ‘Rape as a Weapon of War in the Democratic Republic of the Congo’ (2012) 22.; Carlo Koos, ‘Sexual Violence in Armed Conflicts: Research Progress and Remaining Gaps’ (2017) 38 Third World Quarterly 1. 24–36; Nathaniel Danjibo and Adebimpe Akinkuotu, ‘Rape as a Weapon of War against Women and Girls’ (2019) 17 Gender and behaviour 13161.  <https://www.ajol.info/index.php/gab/article/view/188028> accessed 26 June 2023.

[7] UN Secretary-General, ‘Report of the Secretary-General on conflict-related sexual violence’ <https://digitallibrary.un.org/record/1298526> accessed 26 June 2023.

[8] Megan Bastick, Karin Grimm and Rahel Kunz, Sexual Violence in Armed Conflict: Global Overview and Implications for the Security Sector (Centre for the Democratic Control of Armed Forces (DCAF) 2007) 15.; Joanne Csete and Juliane Kippenberg, The War within the War: Sexual Violence against Women and Girls in Eastern Congo (Human Rights Watch 2002) 64–67.

[9] The Prosecutor V. Akayesu, [1998], ICTR 96-4-T, ICTR [1998].

[10] The Prosecutor V. Alex Tamba Brima, [2008] (SCSL-2004-16-A) SCSL 23 [2008] <https://old.sierralii.org/sl/judgment/special-court/2008/23> accessed 27 June 2023.

[11] The Prosecutor V. Germain Katanga and Mathieu Ngudjolo Chui, [2008] ICC-01/04-01/07, ICC [2008] [para. 339-3340]; The Prosecutor V. Jean-Pierre Bemba Gombo, [2009] ICC-01/05-01/08, ICC [2009] [para.72]; The Prosecutor V. Dominic Ongwen, [2016] ICC-02/04-01/15, ICC [2016] [paras 205, 206, 207, 208, 216, 217 and 218].

[12] ‘Additional Protocol II to the four Geneva Conventions of 12 August 1949, applicable to non-international armed conflicts [1977], 1125 U.N.T.S., Article 4 (2) (e). <https://www.icrc.org/en/doc/assets/files/other/icrc_002_0321.pdf> accessed 23 March 2023. 85.

[13] Ntombizozuko Dyani, Ebenezer Durojaye, Emezat H. Mengesha, “Protocol on the Rights of Women in Africa: Protection of Women from Sexual Violence during Armed Conflict”, (2006) AHRLJ 6 (1). <https://genderandsecurity.org/projects-resources/research/protocol-rights-women-africa-protection-women-sexual-violence-during> accessed 22 May 2023.

[14] M Cherif Bassiouni, ‘Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice’ (2001) 42 Virginia Journal of International Law 81 <https://heinonline.org/HOL/P?h=hein.journals/vajint42&i=91> accessed 26 June 2023.

[15] The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women. supra note. 1, art 11.

[16]Asuagbor-Special Rapporteur on the Rights of Women in Africa, ‘Combatting sexual violence and its consequences’ (15 April 2016) <https://reliefweb.int/report/world/report-commissioner-asuagbor-special-rapporteur-rights-women-africa-combatting-sexual> accessed 27 June 2023. 3.

[17] List of countries to the Protocol to the African Charter on Human and People’s Rights on the rights of women in Africa, at <https://au.int/sites/default/files/treaties/36440-treaty-protocol_to_the_achpr_on_the_rights_of_persons_with_disabilities_in_africa_e.pdf > accessed on 23 March 2023. 

[18] Joanna Mansfield, ‘Prosecuting Sexual Violence in the Eastern Democratic Republic of Congo: Obstacles for Survivors on the Road to Justice’ [2009] AHRLJ.

[19] Theresa U Akpoghome and Ufuoma V Awhefeada, ‘Challenges in Prosecuting Sexual Violence in Armed Conflict under Nigerian Law’ (2020) 11 Beijing Law Review 262 <http://www.scirp.org/Journal/Paperabs.aspx?paperid=99026> accessed 27 June 2023.; Deborah D Adeyemo, ‘The Rights of Victims of Core International Crimes to Reparation in Nigeria’ (2021) 21 African Human Rights Law Journal 1, 1061 <http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962021000200018&lng=en&nrm=iso> accessed 27 June 2023.

[20] Romi Sigsworth and Liezelle Kumalo, ‘Women, Peace and Security: Implementing the Maputo Protocol in Africa’ (ISS Africa, 4 August 2016) <https://issafrica.org/research/papers/women-peace-and-security-implementing-the-maputo-protocol-in-africa> accessed 27 June 2023.