Written Evidence submitted by Dr Maria O’Reilly (Leeds Beckett University)

Inquiry: Promoting dialogue and preventing atrocities: The UK government approach

1. Executive Summary

1. This submission examines the topic outlined in the terms of reference, ‘Lessons learned in atrocity prevention from Bosnia and other contexts since the 1990s’.
2. The main focus of this submission is the importance of responding to atrocity crimes using a gender framework.
3. Evidence from Bosnia & Herzegovina (hereafter Bosnia) demonstrates that atrocity crimes are not gender-neutral. Gender significantly shapes: the forms of violence that are experienced by victims; patterns of perpetration of atrocities; and the harms that are generated by atrocity crimes.
4. Gender is therefore a crucial factor that must be prioritised in the design and implementation of post-atrocity justice initiatives.
5. The UK Government should work to fully integrate both women and gender into atrocity prevention and protection initiatives. This requires, among other things, explicitly recognising the impact of atrocity crimes on women and girls; prioritising gender equality in prevention and protection programmes; and expanding the participation and representation of women in atrocity prevention and protection initiatives.
6. In the aftermath of war and mass atrocities, transitional justice mechanisms are often used to deal with complex legacies of violence.
7. The widespread use of sexual and gender-based violence (SGBV) in situations of war and/or where mass atrocities are being committed calls justice mechanisms to be put in place that can positively transform (rather than reinforce) underlying gender inequalities that enabled these forms of violence to be perpetrated.
8. This submission outlines two approaches to gender justice which aim to tackle gender inequality and respond to SGBV. The first, legal justice, is a top-down, formal approach that involves states and/and international organisations establishing courts and tribunals to bring to trial perpetrators of SGBV. The second, the creation of women’s courts and tribunals, is a bottom-up informal approach. It involves grassroots actors creating informal truth-telling mechanisms, which aim to better respond to the needs of survivors and the communities in which they live.
9. Both top-down and bottom-up approaches to gender justice have been implemented in Bosnia. This submission review both approaches to gender justice, considers the impact achieved, and indicates some of the key obstacles encountered. It finds that both approaches have been valuable in responding to legacies of mass atrocities in Bosnia.

2. Brief Background and Relevant Experience

1. This evidence is submitted by Dr. Maria O’Reilly, Senior Lecturer in Politics and International Relations at Leeds Beckett University.
2. For over a decade, I have researched the role of transitional justice initiatives in responding to atrocity crimes committed during the 1992-95 war in Bosnia.
3. My research publications examine international peacebuilding interventions in Bosnia, the role of unofficial truth-telling mechanisms (namely the Women’s Court for the former Yugoslavia) in dealing with the legacies of the 1992-95 war in Bosnia, and have documented how women take up agential roles in response to wartime sexual violence and missing persons.
4. This research has generated insights which I hope will be of use to the Inquiry.

C.               Gender and Atrocity Crimes: Understanding the Connections

1. Atrocity crimes – including genocide, war crimes, ethnic cleansing, and crimes against humanity - exert a devastating impact on victims and the communities in which they live. There is an urgent need to identify effective methods of atrocity prevention, and to find solutions that can address the root causes of mass atrocities and violent conflict.
2. Evidence from the 1992-95 war in Bosnia demonstrates that atrocity crimes are not gender-neutral. Gender significantly shapes the forms of violence that are experienced by victims. The case of the genocide in Srebrenica illustrates this point, since men were more likely to be killed or imprisoned, and women forcibly displaced.[1]
3. Gender also substantially impacts patterns of perpetration of atrocities. For example, it is men rather than women who constitute the vast majority of those responsible for criminal acts during the war in Bosnia including mass atrocities. During this conflict, most men were mobilised into regular armed forces, paramilitaries, and local territorial defence groups. Women, in contrast, were not obliged to undertake military service, and were instead mobilised into civilian defence roles and obliged to carry out compulsory work obligations.[2] A consequence of these wartime gender roles and gendered distinction between civilians and combatants is that men represent the vast majority of accused and convicted persons.[3]
4. Gender also influences the harms that are generated by atrocity crimes. For example, women who were forcibly displaced from Srebrenica and other locations have suffered multiple harms including poverty, loss of community/social networks and education/employment opportunities, and many were forced to take up the additional burden of being sole carers and breadwinners following the disappearance of male relatives. [4]
5. Another example of the gendered impact of atrocity crimes are the different harms that may be experienced by victims of sexual violence in conflict. The perpetration of sexual violence is connected to gendered and heterosexist understandings of womanhood and manhood. The harms that flow from crimes of sexual violence are therefore shaped by cultural constructions of masculinity and femininity that often connect sexual violation with (in the case of female victims) the loss of “sexual purity” and (in the case of male victims) the loss of power and virility. [5]
6. These connections highlight the importance of preventing and responding to atrocity crimes using a gender framework. Gender is a key factor that enables atrocities to be committed and must therefore be integrated into atrocity prevention and protection efforts. Gender also shapes the violations and harms experienced by victims of atrocities and must therefore be prioritised in the design and implementation of justice initiatives.

D.               Prevention and Protection from Atrocity Crimes: Gender and the ‘Responsibility to Protect’

1. The UK is an advocate of the ‘responsibility to protect’ (R2P) - a political commitment made by state leaders to protect populations from atrocities. This international norm emerged in response to the international community’s failure to prevent and halt mass atrocities in Bosnia and Rwanda in the 1990s. The killing of over 8000 Bosnian Muslim men and boys in mass executions during the 1995 genocide in Srebrenica galvanised international support for R2P. UN peacekeepers failed to protect civilians living in this UN-designated “safe area” from mass executions perpetrated by Army of Republika Srpska forces.
2. R2P calls for the prevention of four atrocity crimes: genocide, crimes against humanity, war crimes, and ethnic cleansing. The principle of R2P rests on three pillars: a) it is the State that has the primary responsibility to protect its population from atrocities (Pillar I); b) the international community has a responsibility to help states protect their populations (Pillar II); and c) the international community has a responsibility to take timely and decisive action to protect populations when a state is failing to protect its population or is perpetrating atrocity crimes.[6]
3. The important connections between gender and mass atrocities (outlined above in Section C) point to a need to prevent and respond to atrocities using a gender framework. Despite these links, existing research has highlighted the tendency for R2P policies and practices to be “gender blind”.[7] To address this gap, the UK Government should work to fully integrate both women and gender into atrocity prevention and protection initiatives.
4. A key criticism of R2P is the lack of substantive engagement with the UN’s Women, Peace and Security (WPS) agenda. UN Security Council Resolution 1325 on Women, Peace and Security and subsequent WPS resolutions have identified four priority areas (or pillars) which aim to address the gendered impact of violent conflict and insecurity, and which aim to ensure that women can fully and equally participate as agents of peace and security. These four pillars emphasise the importance of:
1. adopting measures that focus on the prevention of violence and violent conflict
2. increasing the participation of women at all levels of decision-making on peace and security matters
3. ensuring the protection of women and girls in conflict and humanitarian settings from SGBV, and
4. promoting relief and recovery, including ensuring that the specific needs of survivors of SGBV, displaced women, and women with disabilities, are met as part of relief and recovery work.[8]
5. There are strong connections between the R2P and WPS agendas, yet critics argue that more work is required by policymakers and researchers to unlock the positive synergies between the two.[9]
6. Failure to integrate WPS and R2P creates a risk that women and girls, and survivors of SGBV in particular, will continue to be marginalised from decision-making on the prevention of atrocities and responses to them. Another danger is that the importance of tackling gender inequality will be downplayed or ignored by policymakers and practitioners even though gender inequality is often identified as a structural cause or enabling factor for atrocity crimes.[10]
7. The 2020 Annual Report of the UN Secretary-General on R2P takes positive steps towards increasing the gender-responsiveness of efforts to prevent and protect populations from atrocity crimes. This report makes explicit the links between the R2P and WPS agendas. It emphasises the importance of gender equality in preventing atrocities; explicitly recognises the impact of atrocity crimes on women and girls; and highlights the vital roles that women play in atrocity prevention and protection.[11]

E.              Dealing with the Legacy of Mass Atrocities: The Importance of Gender Justice

10. The widespread use of SGBV in situations of war and/or where mass atrocities are being committed has led to calls for justice mechanisms to positively transform underlying inequalities that enabled these forms of violence to be perpetrated.
11. In post-war and post-atrocity contexts, transitional justice mechanisms - including criminal trials, truth-telling initiatives, reparations programmes, and institutional reform - are often used to address complex legacies of mass violence and violations of human rights. 
12. However, research has shown that without integrating a gender framework into their design, transitional justice mechanisms may work to reinforce, rather than transform, gendered inequalities of power. When gender is not taken into account, transitional justice mechanisms often fail to achieve accountability for SGBV and leave many victims without redress for gender-based violations and harms.[12]
13. In recent years, there have been growing calls for gender justice to be integrated into transitional justice mechanisms. Gender justice can be defined as efforts to recognize, and provide redress for, the gendered harms that are generated by wartime violence and mass atrocities. Gender justice requires ensuring that justice mechanisms fully recognise and respond to acts of SGBV, and also address a wide range of gender-based harms.[13]
14. UN Security Council Resolution 1325 and subsequent resolutions on Women, Peace and Security stress the importance of integrating gender justice into peace and justice initiatives. Resolution 1325, for example, stresses that states have responsibility for prosecuting those responsible for atrocity crimes including sexual violence.[14] Resolution 2106, furthermore, highlights the importance of a comprehensive approach to justice that includes both judicial and non-judicial mechanisms where appropriate. [15] In addition, Resolution 2122 stresses the need to address obstacles that block women’s access to justice in conflict and post-conflict settings. Resolution 2122 also recognises the importance of ensuring that “transitional justice measures address the full range of violations and abuses of women’s human rights, and the differentiated impacts on women and girls of these violations and abuses as well as forced displacement, enforced disappearances, and destruction of civilian infrastructure”. [16]
15. A key goal of gender justice is to promote transformative change by identifying and transforming structural inequalities that enable SGBV to be perpetrated in the first place. This means recognising and attending to hierarchies of power - of gender, but also race, class, sexuality, nationality, disability, etc. - which provide the enabling conditions for SGBV to emerge. The justice mechanisms that are put in place must be context sensitive. They must also recognise women and survivors of SGBV as agents of justice and wider peacebuilding processes, rather depicting them in stereotypical ways as passive victims of violence.[17]
16. There are two main approaches to achieving gender justice. The first, legal justice, is a top-down, formal approach to gender justice. This involves states and/and international organisations establishing courts and tribunals where perpetrators of SGBV are held accountable. The second, the creation of women’s courts and tribunals, is a bottom-up informal approach to gender justice. This entails grassroots actors creating informal truth-telling mechanisms, which aim to better respond to the needs of survivors and the communities in which they live.[18]
17. Both top-down and bottom-up approaches to gender justice have been implemented in Bosnia, notably through the use of criminal trials (top-down approach) and the creation of a grassroots, truth-telling initiative called the Women’s Court for the former Yugoslavia (bottom-up initiative). The following sections review both approaches to gender justice, consider the impact achieved, and indicate some of the key obstacles encountered.

F. Gender Justice From Above: Criminal Trials

1. Legal justice has been the dominant approach to ‘dealing with the past’ in Bosnia.
2. The UN Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993, in response to mass atrocities in Bosnia and in Croatia. The Tribunal worked to bring to trial individuals who were responsible for many of the worst atrocities perpetrated on the territory of the former Yugoslavia. It aimed to deliver justice to victims and deter future atrocities by holding perpetrators to account.[19]
3. Prosecutions of international crimes have taken place before the ICTY and at courts across Bosnia – at the War Crimes Chamber of the State Court of Bosnia & Herzegovina (state level), and at local courts across the country.
4. Criminal trials have proved to be an important tool in advancing gender justice. For example, the ICTY and its sister Tribunal, the International Criminal Tribunal for Rwanda, set out legal definitions for sexual violence offences and demonstrated that rape and other forms of sexual violence were prosecutable under charges of war crimes, crimes against humanity, and genocide.[20]
5. Significant steps have been taken to encourage victims, particularly victims of sexual violence, to participate as witnesses in court proceedings. A range of victim protection and support measures have been used including the use of pseudonyms and closed sessions, and Victims and Witnesses Sections established to provide counselling and other support.[21]
6. Other steps were taken to advance sexual violence investigations and prosecutions. For instance, at the ICTY, a specialised team was created to investigate sexual violence offences and a legal advisor for gender-related crimes appointed to the Office of the Prosecutor.[22]
7. A study of female witnesses’ experiences of testifying in sexual violence trials at the ICTY and War Crimes Chamber highlighted that most witnesses felt it was important to testify. Witnesses also held different reasons for testifying, including a wish to prevent future violations. This study demonstrated that criminal trials provided several benefits to witnesses – they enabled some to find relief through testimony, to experience moments of satisfaction by confronting perpetrators in the courtroom, and to provide recognition of their suffering and the suffering of others. Yet, many witnesses also described testifying as a traumatic and stressful experience.[23]
8. Considering the widespread nature of sexual violence perpetrated during the war in Bosnia, there have been relatively few prosecutions for sexual violence offences to date. At the ICTY for example, only 78 individuals (48% of the 161 accused) had charges of sexual violence included in their indictments, of which 32 were convicted.[24] Within Bosnia during the period 2004-2016, 162 individuals had charges of sexual violence included on indictments, of whom 123 were convicted.[25]  This leaves many perpetrators unpunished for their crimes.
9. My interviews with representatives of survivors’ associations highlighted the importance of criminal justice to survivors of wartime sexual violence. Survivors have actively engaged with these processes and highlight their role as agents (rather than passive victims) of justice who help to hold accountable perpetrators of atrocities. Yet, they also voice frustration with the slow pace of investigations and prosecutions, and raise concerns about the adequacy of witness protection and support available.[26]
10. War crimes and issues relating to the legacy of the war are also deeply politicised, and nationalist actors have sought to profit from the violence and harms sustained by survivors.[27]
11. Furthermore, redistributive forms of justice have been largely overlooked, and existing laws and policies provide survivors of wartime violence with unequal and inadequate access to reparations. So far, the state has failed to develop a comprehensive approach to justice which would enhance the status and position of all victims of the war, and uphold the rights of victims to restitution, compensation, satisfaction, and guarantees for non-repetition. [28]
12. Against this background, survivors’ associations, women’s organisations, and other civil society organisations have for several decades campaigned for a more holistic form of justice to be introduced – one that offers recognition to victims and enhances their social status and position; addresses structural inequalities and redistributes resources fairly across Bosnian society; and ensures the full and equal participation and representation of women and victims of SGBV in justice processes. These organisations have also worked to address the gaps in justice provision – by, for example, providing legal, psychological, and material assistance to survivors; creating structures of support for survivors; raising public awareness of victims’ needs; campaigning for reparations, etc. [29]

G. Gender Justice From Below: The Women’s Court for the former Yugoslavia

1. Due to the limitations of legal justice, feminist organisations and women’s organisations have pioneered the development of informal truth-telling mechanisms to provide gender justice from below.
2. Over the last two decades, Women’s Courts and Women’s Tribunals have been organised across the world. These involve civil society actors, instead of states or international organisations, creating informal truth-telling processes which are specifically designed to acknowledge women’s experiences of violence and injustice, and provide recognition of gender-based harms. Women’s Court and Tribunals are designed as women-only hearings, with the goal of providing supportive spaces for survivors of SGBV to testify, due to the fact that these forms of violence are often under-reported. [30]
3. In 2015, the Women’s Court for the former Yugoslavia was held in the Bosnian capital, Sarajevo. The event was organised following a five-year period of preparation, during which practical and psychological support was provided to witnesses, and awareness raised in local communities of the initiative, with the goal of ensuring witnesses felt safe and empowered to voice their experiences of violence and injustice. Thirty-six women from all Yugoslav successor states testified at the four-day event, in front of an audience of around 500 people. [31]
4. A key strength of the Women’s Court was its recognition of the gendered nature and impact of wartime violence. Witness testimonies highlighted many forms of violence that women suffered (in public and private spaces, in wartime and in peacetime) and the harms they have endured many of which are long-lasting. Expert testimonies outlined the context of witnesses’ accounts, and highlighted the structural inequalities and hierarchies of power that underpinned the violence and injustice that women experienced. Significantly, the Women’s Court also foregrounded the agency and resilience of survivors, an aspect which is often overlooked. Witnesses recounted experiences of victimisation, trauma, and loss, yet also spoke of their active efforts to recover from violence and rebuild their lives. [32]
5. The Women’s Court also added weight to calls for redistributive justice. The preliminary decision and recommendations, which was issued on the final day of proceedings, called on governments across the region to provide reparations and redress to victims, and implement structural reforms which would allow social justice to be prioritised.[33]
6. Overall, the Women’s Court offered valuable insights into the gendered impact of wartime violence, and the difficult transition from war to peace. It provided importance insights into the legacies of pain, loss and injury experienced by victims of war, yet also highlighted their strength and empowered survivors to participate as agents of justice.
7. However, as a civil society initiative, the Women’s Court was limited in its ability to advance redistributive justice. It also missed the opportunity to examine the experiences of female ex-combatants whose wartime roles and post-war lives have so far largely been neglected by existing justice mechanisms.[34]
8. Existing studies have so far focused on the organisation, aims and immediate outcomes of the Women’s Court. Further research is required to examine the long-term impact of the initiative.

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