Foreign Affairs Committee
Oral evidence: Preventing Sexual Violence in Conflict Initiative, HC 961
Tuesday 13 December 2022
Ordered by the House of Commons to be published on 13 December 2022.
Members present: Alicia Kearns (Chair); Chris Bryant; Stewart Malcolm McDonald; Bob Seely; Henry Smith; Royston Smith; Graham Stringer.
Questions 14 - 32
Witnesses
II: Dr Paul Kirby, Associate Professorial Research Fellow, Centre for Women, Peace and Security, London School of Economics; Professor Kim Thuy Seelinger, Special Adviser on Sexual Violence in Conflict.
Examination of witnesses
Witnesses: Dr Kirby and Professor Seelinger.
Q14 Chair: The Foreign Affairs Committee resumes its sitting on preventing sexual violence in conflict. I would be grateful if our witnesses introduced themselves.
Dr Kirby: I am a co‑director of the UKRI GCRF Gender, Justice and Security Hub. I am a senior lecturer at Queen Mary University of London, and a visiting fellow at the Centre for Women, Peace and Security at the LSE.
Q15 Chair: I will come back to that in a moment, because I hear that it might be scrapped. I would love to hear your view on that.
Professor Seelinger: Like Paul, I wear a couple of hats. I am a special adviser on sexual violence in conflict to International Criminal Court prosecutor Karim Khan. My day job here in the US is that I am research associate professor at the Brown School of Social Work, Public Health and Social Policy at Washington University in Saint Louis. I also serve as a visiting professor of law, and I direct the Centre for Human Rights, Gender and Migration. Therefore, I am a lawyer and social scientist.
I represented survivors of conflict-related sexual violence for many years before stepping into academia to study the systems that affect them. Today, I am standing in for prosecutor Khan who sends this Committee his warm regards and gratitude for inviting the office to participate in today’s conversation.
Q16 Chair: Professor Seelinger, over what sorts of crimes does the ICC have jurisdiction, looking particularly at sexual violence and male violence war crimes?
Professor Seelinger: The Rome statute outlines the jurisdiction of the court. Article 6 gives the court jurisdiction over the crime of genocide, which, as you know, has a number of acts, many of which can be related to, or understood to involve, forms of sexual violence. There is the killing of members of a group, but also the infliction of serious bodily or mental harm to members of a group, or the deliberate infliction of conditions of life that affect their ability to survive, or measures that would affect the ability to give birth to members of a group. These are national, ethnic, racial or religious groups. The key to genocide is that you must have the intent to destroy that group, either in whole or in part. It is that intent which makes genocide very specific.
We also have jurisdiction over crimes against humanity under article 7. They are essentially serious violations committed as part of a widespread or systematic attack on a civilian population where the perpetrator knows of the broader attack. This can include a number of different forms of sexual violence, like rape, sexual slavery and different forms of torture, which we know can have a sexual nature, and a wider range of inhumane acts which we find can be expressed through things like forced marriage.
Under article 8, we have jurisdiction over war crimes, which are essentially violations of the laws of war. We focus mainly on grave breaches of the Geneva convention. These can run the gamut from intentional attacks on civilian architecture or institutions like schools or hospitals, to the torture of prisoners of war and the use of child soldiers. In the statute, there is a long list of sexual crimes which can be either crimes against humanity or war crimes. That is how we get to conflict-related sexual violence in our statute.
Q17 Chair: Which cases in the ICC’s current caseload concern crimes of sexual violence? It would be really interesting to understand the threshold for those. For example, we have all been reading horrendous reports about forced abortions taking place in Nigeria, which I would argue, not as a legal expert, is a form of genocide, because there is an attempt to destroy a population or a particular ethnic group. It would be interesting to understand where that threshold is to trigger an ICC investigation, and how many sexual war crimes, crimes against humanity and forms of sexual violence involving genocide make it to the ICC.
Professor Seelinger: At the ICC, we have seen over the years increased consideration of crimes of sexual violence. I have to say it has been quite impressive. In last year’s report from the Women’s Initiative for Gender Justice—the head of the prosecution office changed from Fatou Bensouda to Karim Khan—it was found that each of the 14 investigations that prosecutor Khan inherited from prosecutor Bensouda involved sexual and gender-based charges, which is an indication of how seriously prosecutor Bensouda was taking this and how prosecutor Khan has taken this up and charged his office with furthering the investigations and determining what charges can be brought.
For most of the cases before the court, gender analysis is showing things that could be charged in terms of sexual and gender-based crimes or they are already part of the official charging. I also think that in the Central African Republic, Ukraine, Myanmar, Afghanistan and Burundi situations we are considering sexual and gender-based crimes committed against men and boys too, which is testament to the understanding and consideration of the way this crime affects all different kinds of people and has been taken up by the Office of the Prosecutor.
I do not know whether you want a full list of the cases involved, but in the majority of cases we are conducting a gender analysis to make sure we are capturing rape, sexual slavery and now different forms of gender persecution against different groups.
Q18 Chair: The final question from me is about evidence collection. I have felt very strongly for a long time that there is a real challenge around the fact that when it comes to sexual violence the evidence disappears incredibly fast unless a child emanates from the rape and, even then, proving it was non-consensual. The problem is that quite often those who are seeking evidence do so after a conflict has ended, or only once it is significantly under way.
What is the mechanism? Do we need a new independent body whose sole job is that when a conflict breaks out, or we see the use of rape en masse, or even in small numbers, a specialist team of experts in forensics and accountability is deployed, and it is their job to collect evidence to make sure it is stored for any future prosecution? How do we make sure? It feels that for organisations like Bellingcat, which do amazing work to reveal the kinetic aspects of war, with the more obvious different tranches of war and things that you can prosecute, sexual war crimes risk being left behind as it is more difficult to prove that they took place.
Professor Seelinger: That is the $1 million question in my view. There is a difference between what we would normally need to prove for an international crime of sexual violence and what we would normally do in day-to-day London, San Francisco or somewhere else.
You mentioned the issue of consent. If we take rape as one of the main forms of sexual violence that we have discussed and have seen in conflict and in peacetime, many of us know from cases in peacetime that often what we are trying to prove under domestic legal provisions is the identity of the perpetrator and whether it was consensual. These are the main things we are trying to prove. To do that we have rape kits; we try to analyse whether there was actual sexual contact; we do toxicology tests to determine whether the person was under the influence of something that inhibited their ability to give full consent. This is the thrust of the domestic law approach.
For international crimes, we do not need most of that. We have jurisprudence and an understanding that in a situation of armed conflict, where you are dealing with either armed actors or massive political disparities in power, it is really not possible to give genuine consent, so we tend not to look for the factual proof of whether you said yes or no.
We also do not really need individual perpetrators. The individual DNA testing that we do in day-to-day peacetime situations is less relevant because often you cannot identify the perpetrator. It was an armed actor. Maybe you know what unit they were in because that was the group moving through your town at the time.
What we try to do at the national crimes level is that, if you can prove that this crime happened to a certain number of people in a community, or even just a few people as part of a broader attack, the real trick is how you connect that person to the higher-level commander, who is probably in the defendants’ box. As you know, the ICC and other courts are trying to economise and focus their resources and attention on those most responsible for the most serious crimes and the highest amount of harm. Often, the commander is not the one who directly perpetrated the physical act but is still responsible as an architect, leader or as one giving permission or acquiescing to that type of violence.
The really hard part in these cases is to get linkage evidence. That is where some of the digital evidence is interesting, because you can show layers of troop movements through satellite imagery or geo-tagging information online that shows who has been moving where.
There is a place for digital evidence and open source investigations to prove conflict-related sexual violence. We can let you know a little more if you are interested. Often, that is not where you find the visual or actual proof of the act itself, but that is how you bring the connection to the higher-level command.
Your colleague mentioned the sale of Yazidi women. Some of that is online, so there are times when you will see the direct act captured, but more often than not the value of digital evidence is in the connection building. There are all the social barriers that you mention—for example, the shame of coming forward. All of that is a key initial barrier.
Q19 Royston Smith: Dr Kirby, we spoke to the previous panel about what has happened in the DRC and what is happening in Ukraine, and the fact that Ukraine is known to everyone either through Government support for Ukrainians or the media. It made me think about what people know and what we know. We are very privileged to meet people like yourselves and to be given access to information, but my constituents are not, or maybe they do not look. In layman’s terms, how prevalent are crimes of sexual violence in conflict?
Dr Kirby: It is a great question and I wish I had a straightforward answer. Some studies have tried to quantify that, usually over a longer time. There is a piece of conversation about how much levels and prevalence have changed. From some of that work by colleagues, not me, which I am happy to share with the Committee, we know that about 40% of the state actors and participants in conflicts between about 1989 and 2015 were reported to have committed crimes of sexual violence in conflicts to which they were party, and that the level for rebel groups and militia is about half that; it is between 19% and 23%.
As for reports of perpetration, that is a very high number. Usually, the datasets we use for that have a lag. Some of the research that has been published just this year takes us only up to 2015 or so in terms of the conflict set. If we are talking about something like PSVI, which got going only in 2012, clearly monitoring the impact that the initiative might have on those perpetration levels is a little bit trickier.
It is clear that there are several significant conflicts that have entered into full force since the mid-2010s where we have seen very credible evidence of high levels, whether you take Syria, Myanmar or Ukraine. I had a little look at the Secretary-General’s last report to the Security Council on conflict-related sexual violence, of which there is one a year. I believe there were 15 country situations of concern, so active conflicts with thresholds high enough for the Secretary-General to be reporting on them. That report came out before Ukraine was really a factor. We have Ukraine going through that as well.
Clearly, the level of perpetration is extensive. I should qualify that further by saying that often when we talk about perpetration—it has been a feature of PSVI and much public discussion—the focus is on military strategic sexual violence, but sexual violence in conflict and the conflict-related bit of the acronym CRSV is much broader than that. If you start looping into partner violence that may be a direct result of the conflict—demobilised soldiers in the aftermath of a conflict, civilian actors who may be taking advantage of the breakdown in social order, sexual exploitation and abuse sometimes, very unfortunately, committed by humanitarian actors—all of those are other forms of sexual violence that often are not captured in our attention to exactly what the Russian military is doing in Ukraine. The closer we get to the present the less definitive the quantification can be, but I do not think there is any question of it diminishing by any great measure as a tactic or feature of war.
Q20 Royston Smith: May I ask about what the Government are doing? Do you think there is any impact on the PSVI initiative from the cut in the official development budget? Do you think that puts it in jeopardy, or makes it less likely to be successful?
Dr Kirby: Certainly, the cuts will have an impact and will damage both the extent of the programmes and the trust of the groups that the British Government often work with. I can speak a little about that anecdotally and in terms of the figures I have. There was almost a halving of the PSVI spend, as I understand it, between 2019-20 and 2020-21, so clearly there are fewer programmes and initiatives, and that will have ramifications.
I mentioned that I am a co-director of the Gender, Justice and Security Hub, which is a UK-funded five-year initiative. It is not directly funded by PSVI but it works on gender in conflict, sexual violence issues and so on. In our third year of operation of the five years, which was the period in which most of the activity would have taken place, we had a 66% cut to our budget, which effectively froze all research and meant that projects that had been organised, often with the involvement of survivor groups and marginalised groups, had to be suspended. A lot of people who were involved in our projects felt very betrayed by that and are extremely wary of British funding and British promises because of that. It did not help that in parallel we had a project in Afghanistan and there were issues there after withdrawal in getting out researchers affiliated with us, but that was not primarily a funding issue; it was more about the logistics of withdrawal.
In the round, clearly that is an issue. I was very glad to see in the recently released PSVI strategy a commitment to £12.5 million spending over three years, but that is significantly below the average over the past eight years, which I think is about £6 million a year. If you take out the £5 million or so that is earmarked for the survivors fund, which is welcome money but is for somebody else’s pot, we are looking at about the lowest levels of PSVI funding in the next couple of years compared with what we have had in the past decade.
Q21 Chris Bryant: Dr Kirby, you said “tactic or feature”. Could you explain how, in some diseased mind, it might be a tactic?
Dr Kirby: We would normally distinguish between a tactic or strategy and a practice. When we say “practice”, we would mean that a commander at some level of the chain of command tolerates sexual violence, but does not directly command it. That is also a criminal act—I am sure that Professor Seelinger can speak to that as well—but it is not necessarily proof of direction.
In other circumstances, whether on its own or as part of a broader repertoire of violence aimed at civilians, we have had cases where it seems clear that commanders have instructed soldiers to rape.
Q22 Chris Bryant: Like the case of Milošević, which we were talking about earlier.
Dr Kirby: The classic cases are usually those which have a genocidal component, so we would be talking about Yugoslavia, Rwanda or other cases that people most often reference.
That is a different kind of threshold of proof to think about, but in both cases you are dealing with sexual violence committed by armed actors, not necessarily, given the questioning in the previous session, in combat or battlefield situations, but it is taking place only by virtue of the fact that they are parties to an armed conflict. That is one part of the overall scene of sexual violence in conflict.
Q23 Chris Bryant: The Russian ambassador to the UK, Andrey Kelin, was asked about the situation in Ukraine, in particular in relation to some of the issues we are talking about today. He said that these things happen in war, or things happen in war. What is your response to that?
Dr Kirby: Without having looked into the cases or having the investigatory documentation in front of me, I could not say there was a strategy of which we would have a paper trail, but that sounds very much like an excuse for what we would call practice of sexual violence, which is no more permitted than strategic sexual violence. Commanders have obligations to prevent sexual violence by their subordinates, so the fact that somebody may have done this on their own initiative, as it were, is no justification. It would say quite worrying things about the command and control of a purportedly professional modern army such as the Russian one.
Q24 Chris Bryant: If every one of your troops was engaged in it, it might suggest it is not just them acting independently.
Dr Kirby: Exactly.
Q25 Chris Bryant: Professor Seelinger, do you have any comment on that?
Professor Seelinger: It is an important question. I will piggyback off what Paul has given already.
Traditionally, we have thought about it as either opportunistic or strategic, opportunistic being the bad apples who in their spare time, or on their own, are committing this violence. What Paul is describing is an emergent theory from Elisabeth Wood at Yale University that practice is not truly just opportunistic; it is the socialisation and horizontal forces within an armed group that allow things to happen, even if they are not ordered, so they are tolerated.
Q26 Chris Bryant: Perhaps you would speak up just a little because I may be slightly deaf.
Professor Seelinger: Sorry. I just got back from Europe two nights ago, so could not turn around and join you, but wish I could be there.
Traditionally, for many years we have described the sexual violence that happens in wartime as either opportunistic—some aberrant actor or bad apple committing this violence without the approval or support of either his commander or peers—or strategic, as Paul described it, where there is some military or policy objective as a reason to do it.
You asked for examples of that. Maybe a couple of other examples would be the use of sexualised torture and detention when interrogating somebody for information. This is widespread and has happened since the dawn of time. That is a very clear example of a military objective that would be met by utilising sexual violence or sexual torture.
Q27 Chris Bryant: Torture was a very common part of Latin American dictatorship in the ’80s and ’90s.
Professor Seelinger: Exactly. We have that at one end, and then you have the random drunk soldier idea, which I think the Russian representative was referring to and trying to describe, but, as Paul said, there is all of this in the middle that is the result of horizontal socialisation among armed actors that allow things to happen. All of these are crimes. What is interesting is that if the international tribunals, because of their resource constraints, are focused on those highest in command and most responsible for architecting this, or letting it happen, or, as Paul said, they are not punishing it if they are aware that it is happening, that is one layer of accountability that has to happen. Everything else is still a crime and can be taken up by national actors. Where one can identify the direct perpetrator, a low-ranking soldier, that can be taken up by some court, too, ideally in a national system or potentially through universal jurisdiction where the courts of another country take responsibility for that file and for bringing it into their system to prosecute. We have many avenues to justice for any of this that happens.
Q28 Chris Bryant: Can you talk about male rape and child rape? I understand that is part of the equation in some cases.
Professor Seelinger: Some of the studies we have seen over the past 10 years have started to ask about male survivors of sexual violence. For example, studies conducted in Sierra Leone, Liberia and the Democratic Republic of Congo started asking for the first time whether men had been affected by sexual violence. They found surprisingly high rates, ranging from the low 20% to mid-30% depending on the conflict. We know from studies even 10 years ago that this has been happening.
You have just had before you my dear friend Kolbassia. We also know that there are more advocacy groups and survivors able to speak out now, whether it is Kolbassia, the Refugee Law Project in Uganda or Promundo working in Latin America. We see in the jurisprudence of the Yugoslav tribunal, for example, very disturbing cases of victimisation.
I think the reporting and accountability challenges are similar, although we have different forms of stigma, and, depending on the jurisdiction, you may have same-sex sexual contact or homosexuality itself criminalised, which can impede survivors from coming forward out of fear that either they will be imputed to be homosexual and then prosecuted for that or they are actually gay and they were prosecuted on account of their sexual orientation and they are terrified of being arrested for that.
We have some specific impediments. As for children, technically those under 18, in the slave markets you or your colleague described there are many young women, probably from 10 to 18, who are bought and sold along with adult women. We know that happens. As I think Kolbassia mentioned, in trying to draw the link between what happens in active wartime and then, in displacement, you see some sexual exploitation of very young girls and young boys when they are displaced and outside their regular networks of support and protection. People forced out of their homes across borders become incredibly vulnerable in crossing borders or accessing food for their families. This includes children. This leads to sexual abuse even by those who are not armed actors, as Paul mentioned; that is, humanitarian workers and civilians. We have to remember that these things happen to men and children, too.
Q29 Chris Bryant: Dr Kirby, you might want to answer that, but I want to ask you another question. Has the UK’s PSVI made a difference in war zones—for instance, in Ethiopia?
Dr Kirby: I certainly cannot speak specifically to Ethiopia.
Let me quickly say something about men and boys and then come back to that question.
Every conflict is different, but I think we are getting to the point where we can say that there are certain settings in which men and boys are at greater risk: detention settings, because of sexual torture, and forced recruitment, which often has a sexual violence element. Targeting on the basis of perceived sexual orientation or gender identity is another.
Legally, we are at a stage where I do not think there is any definitional problem around acts of sexual violence and recognising men and boys, but there are political ones, which Kolbassia alluded to earlier, where we have refugee or asylum regimes, or politics, which start to suggest that, while women and children—interestingly, children often have no gender in that phrasing—are welcome, men are somehow suspect or are unlikely to have experienced violence and so on, so there remains an issue there.
In terms of the record of PSVI in conflict zones, it is a difficult piece on which to put any single judgment. We have 10 years and about £50 million in spending. There are a number of areas where we can see progress. It is not a question of whether PSVI has had an impact; it certainly has. The issue is whether it has had the impact it should have had given that spending and whether the strategy has been sufficiently coherent and directed to have substantive change.
Q30 Chris Bryant: Your answer is?
Dr Kirby: No, on the latter. In the areas of progress we have a lot of investment in codes of good practice in guidelines, which can be very useful to a range of actors that genuinely distil expertise in the necessary way. We have the convening power of the UK that you have heard about in terms of the summits and securing diplomatic statements; we have funding to other bodies, such as the OSRSG at the United Nations and some of the survivors funds—all of that is very welcome—and some training, arguably, to partner militaries has been helpful, but it has been a decade without a strategy document and a series of mechanisms of change.
I still do not think that many of the criticisms that the independent aid commissioner made back in early 2020 have been dealt with, perhaps with the exception of centring survivor voices more. The summit is partly a testament to that, as is the spending, but one of the reasons it is difficult to answer the question is that PSVI spending has been so fragmented over so many small projects that there are not really mechanisms to know what has or has not worked. It is great that the money has been spent, but it has not been tied to a theory of change and a single coherent aim.
Q31 Chair: There is a final quick question from me. Dr Kirby, LSE is reportedly closing its centre for women, peace and security, where you mentioned you work. It is the only centre in the UK like this. Is that a definite? Is that something I can personally express my concern about?
Dr Kirby: I do not think it is a definite. Part of the answer is about the particulars of LSE. Centres there have to generate their own funding. I think there has been a shortfall at the centre, partly because of the covid years and partly because of other factors.
It would be a serious mistake if leadership at LSE allowed those short-term pressures to lead to the closure of the only dedicated WPS centre in the UK.
For the British Government and other funding agencies, it is very striking that over the years we have heard talk about a centre of excellence on CRSV. I believe it was initially approved in 2019. Then it went away and has not really come back. I think it would be a serious mistake to reinvent the wheel in creating something like that rather than funnelling support to the organisations that are already doing the work. I do hope that the leadership at LSE will revisit that if a decision has been made, but I am not party to those discussions.
Q32 Chair: I know that a number of MPs were discussing this issue yesterday, so I am not alone in feeling strongly about it.
Before we close, are there any final comments that you wish to make? Please know that we are always open to receiving your thoughts on what more we could be doing. Is there anything else you want to add?
Dr Kirby: Not from me.
Professor Seelinger: Not from me. I am happy to be in touch afterwards if you have any additional questions about what the Government can do to help the ICC, of course, but I am very glad to speak with you today.
Chair: We are very grateful to both of you for coming today to talk about this important topic. We are grateful for the work that you do, for opening the world’s awareness and for prosecuting those who should seek justice, because that is only how we deter and end impunity and make sure we do not see continually rising rates of this. Thank you both very much for your work.