Foreign Relations & International Law

The Lawfare Podcast: Prosecuting Sexual and Gender-Based Violence in Armed Conflict

Natalie K. Orpett, Fionnuala Ní Aoláin, Jen Patja
Tuesday, February 6, 2024, 8:00 AM
Why is it so hard to prosecute sexual and gender-based violence?

Published by The Lawfare Institute
in Cooperation With

Among the many horrific stories emerging out of the conflicts in Ukraine and Israel/Gaza are instances of sexual and gender-based violence. It’s an issue that is pervasive in many armed conflicts, and yet, even now, it’s often treated as an afterthought. There are a lot of reasons for that, but one of the lesser-appreciated ones is the limitation of existing law. Lawfare Executive Editor Natalie Orpett spoke with Fionnuala Ní Aoláin, a professor at University of Minnesota Law School and a former UN Special Rapporteur. They talked about the legal framework around sexual and gender-based violence, the challenges of prosecuting these acts of violence as international crimes, and where the law fails.

Click the button below to view a transcript of this podcast. Please note that the transcript was auto-generated and may contain errors.



[Audio Excerpt]

Fionnuala Ní Aoláin: Why is it so hard, given what we know about the widespread and systematic nature of these harms for women in multiple conflicts, why is it just so hard to get convictions? And I would bring us back and remind us of the same dynamic in domestic courts; how difficult it is to prosecute this crime. Partly because we have evidential challenges. We have evidential challenges because often the only evidence is the rape victim himself or herself. That's complicated even all the more in these conflict contexts where you may not have access to a rape kit. There may not be actual physical evidence that supports the testimonial evidence of a victim.

[Main Podcast]

Natalie Orpett: I'm Natalie Orpett, Executive Editor of Lawfare. And this is the Lawfare Podcast, February 6th, 2024.

Among the many horrific stories emerging out of the conflicts in Ukraine and Israel/Gaza are instances of sexual and gender-based violence. It's an issue that is pervasive in many armed conflicts, and yet, even now, it's often treated as an afterthought. There are a lot of reasons for that, but one of the lesser-appreciated ones is the limitations of existing law. I spoke with Fionnuala Ní Aoláin, a professor at University of Minnesota Law School and a former UN Special Rapporteur. We talked about the legal framework around sexual and gender-based violence, the challenges of prosecuting these acts of violence as international crimes, and where the law fails.

It's the Lawfare Podcast, February 6th, 2024: Prosecuting Sexual and Gender-Based Violence in Armed Conflict.

Okay, Fionnuala, thank you so much for joining. I've invited you on to talk about the challenges of prosecuting sexual and gender-based violence in the context of armed conflict, but, I think it is an issue that has received some attention, in my opinion, belated and inadequate attention, recently because of Russian attacks in Ukraine and Hamas's attacks in Israel. But I want to just start by level-setting because, of course, those two conflicts are not at all the only instances in which we see sexual and gender-based violence. These are issues you've spent a lot of time studying, and I'd like to just start by setting the scene. So can you, just to situate us, tell us what is sexual violence, what is gender-based violence, and how does the distinction between them matter?

Fionnuala Ní Aoláin: Yeah, so I think it's worth acknowledging that as long as there has been war and armed conflict, there has been sexual and gender-based violence as a part of it. I think the challenge that we've faced is that historically, these kinds of acts, whether those be acts of rape or other forms of violence that have either a sexual or a gendered element, have largely been ignored by international law. There have historically been few prosecutions. And of course, that maps more generally what's happened in domestic legal systems. International law is often merely a reflection of the ways in which certain norms play out domestically. So, just as it has taken centuries--and even in some countries, we still have massive gaps in the prosecution of violence, whether that's intimate partner violence or the successful prosecution of rape in domestic courts. These are just difficult crimes to prosecute for social, for legal, for reasons related to the intimacy and the nature of the crime itself.

Maybe just to say when we talk about sexual violence, it's often assumed that what we're really talking about is penetrative sexual violence, violence of a sexual nature that involves sexual harm to the body, and that can be either a male or a female body. When we talk about gender-based violence, we're talking about a much wider array of acts that can include, but are not limited to, sexual harm. They can include different forms of gendered violence, institutional violence. We could think of something like obstetric violence as a form of gender-based harm that's not sexual, but is really fundamentally linked to the person, to the gender of the person experiencing the harm.

Natalie Orpett: Great. And I'm glad you mentioned the sort of delay and the legacy of the law not meeting the need for a definition of sexual violence and gender-based violence as crimes or as prohibited under international law. Because I think there's a common misperception in the general public that sexual violence, gender-based violence, in addition to being part of everyday society, so I guess, sure, it must continue in armed conflict. There's also a sort of misperception that both types of violence are sort of incidental to armed conflict. But, of course, experts are really clear that this type of violence in the context of hostilities is of a different nature. So can you just talk about that a little bit?

Fionnuala Ní Aoláin: Yeah, I think I would start by saying that often this idea that sexual violence doesn't happen in war, that gender-based violence doesn't happen in war, is mistaken. But that doesn't mean that in every single war, we have sexual or gender-based violence. In fact, I think of, I just recall work of scholars like Dara Cohen and Elisabeth Wood at Yale who have really demonstrated through us, through a theory called variance theory, that we actually have conflicts where we don't see sexual violence. It's not inevitable in armed conflict. And there's some conflicts where it exists, but at a very low level. There are some conflicts that are clearly marked by sexual violence as a, you might say, a sort of a sustained and structural element of the violence. So that's a really important thing.

The other thing I would stress is that often people see sexual and gender-based violence in war as different from the kind of, if we want, routine violence that happens in everyday life. And I think that's wrong, actually, as both wrong empirically, but wrong in terms of understanding the logic of sexual violence. Because often, at least very certainly in my own work, what I have stressed is the ways in which structural discrimination against women, structural inequality in particular against women that proceeds. armed conflict is often absolutely essential to understanding the nature and the form of violence that occurs during war. So that actually there are deep continuities between violence that takes place before conflict and violence that happens as a course or a part of the armed conflict itself. So I'm actually one of those people who says, "No, this sort of idea of exceptionality doesn't really help us very much to understand the kind of continuities of violence for women."

And I would also stress that one of the things that we also see is that generally there's an assumption that when you see sexual violence or gender-based violence in war, that that's the only kind of violence that women are experiencing. And as my own work and the work of multiple other feminist scholars has demonstrated, actually, what women often experience is layered violence. They get violence from multiple sources during armed conflict. They get violence from combatants. They often get intimate violence at home. They continue to experience structural violence from discrimination and exclusion. So that actually layered harms are a much more appropriate way to understand the complexity of violence and that you're not going to address the violence that takes place in conflict without understanding those underlying conditions.

Natalie Orpett: Right. And of course, women are often disproportionately civilians. And so, to the extent the war crimes or crimes against humanity that are going on are directed at civilians, it will disproportionately fall on women as it is.

Fionnuala Ní Aoláin: Yes, that's true. Although, I would also say one thing for us not to forget, and we're talking about both sexual violence and gender-based violence is, and I'm guilty of this too, where we allied or kind of collapsed gender-based violence into talking only about women. And so, one of the things that we know, and I think of the work of people like Philipp Schulz and others, who have demonstrated to us that actually men are at sizeable risk of both sexual violence in war and gender-based harm during war. So men being targeted as men, men being the subject of sexual violence, which is often even much harder to surface than the violence that women experience in war, because if there are taboos and stigma for women to talk about war, things that happen to them in war of a sexual nature, those stigmas and taboos are just profoundly more complex for men.

Natalie Orpett: Yeah, I totally agree. And I think that's an important point. Before we continue to talking about prosecuting these types of violence, I did want to pause because I know you have spent a lot of time also looking at the language around sexual violence, rape, I think also gender-based violence in the context of counterterrorism. Can you just talk to us a little bit about that?

Fionnuala Ní Aoláin: Sure. I would say more generally, I've been highly critical of the ways in which gender and sexual-based violence is sort of elevated, I would say sometimes strategically and sometimes instrumentally during wartime in general. That there's a sense in which actually the ways in which we talk about women's bodies can in itself become I would say a perversion and sometimes a kind of a titillation. The bodies that we talk about in war, women's bodies, are sexually harmed bodies. And that focus on sexual violence--which is not unimportant, I've been a staunch advocate for accountability--but that that actually tends to eclipse or elide the total complexity of violence that women experience during war. And there's this sort of obsession, if you want, with the act of rape and the act of sexual violence, which for many women--and I've interviewed hundreds of women over the course of my work in a couple of decades--for some women that will be the worst, and men, that will be the worst harm that they will experience. But for others it won't be. Having your child killed in front of you might be the most horrific harm you've experienced, right? So we have to be very careful about how gender and sexual violence gets elevated and pulled in and think really critically about who's doing the calling in and to what end.

I would also say that we've seen an increased use of the language of sexual violence in the context of counterterrorism. And I say, I see two things happening there. One is that I've taken the position in a number of General Assembly reports that actually counterterrorism is displacing the law of war. That there's a deliberate strategy by some states to invoke counterterrorism norms over treaty and customary international law of armed conflict. And the reason for that is that counterterrorism is far more permissive to the state. And it doesn't have the same kinds of requirements of protection and enforcement that we find under international humanitarian law. And so, when I see contexts that are armed conflict, contexts being redefined as quote "counterterrorism contexts," and rape being introduced into those spaces, I worry about accountability. I worry about the precision and normative content of the rules that are being applied. And I generally think women and men who've experienced either sexual or gender-based harm will have less accountability, less transparency, and actually less rights in the universe of an expanding counterterrorism world than they will have in appropriately using international human rights, international humanitarian, and international criminal law to address these violations.

Natalie Orpett: That's so interesting. Okay, well, I think, since we're sort of at an entry point here, let's turn back to prosecuting these crimes under the context of what the parties, or the relevant parties, are acknowledging as armed conflict. And just talk about the international law around that. I was taking note of your comment about the legacy of these crimes and the difficulty of deciding in what manner they should be characterized. And I'm curious whether you think that the focus on rape being such a central type of violence to the extent, as you said, that it might unfairly deprioritize other types of violence that women experience, I wonder to what extent you think that's a sort of legacy of the slow way in which rape and sexual violence emerged as a crime. Because early treaties, like the Geneva Conventions, had not specified sexual violence as a crime, but had talked about the special need for protection of women and had talked about crimes against honor rather than rape, for example, or sexual violence as a violent crime.

Fionnuala Ní Aoláin: Yeah. No, I think those observations are really important to kick off this part of our conversation. So of course, we all, I think many listeners--but maybe to recap a well-trodden tale, which is that if we look at the early development of international humanitarian law, rape doesn't exist. It's not included as a grave breach of the Geneva Convention. It's a crime or a breach of lesser status. If we go to the ad hoc tribunals for the former Yugoslavia and Rwanda, because they lean into the existing established law, there isn't a specificity of crimes included in the statute of those bodies. It's really only when we get to the International Criminal Court statute, the Rome Statute, that we start to see actually the language of violation that we know from the experience of women and men and boys and girls who've been subject to harm. We see that language actually multiply and start to capture the range of harms that we really--I think about it as like a vocabulary of harm that emerges through the ICC's process of negotiation, and a kind of a capture of a range of harms.

That said, when we look at those harms, they overwhelmingly focus on penetrative sexual violence. And again, I am absolutely clear about the importance of addressing penetrative sexual violence. But I also want us to be cautious. I want to go back to a word that you've said, which is the word "honor." And so, as the word "rape"" or sexual violence" is missing from the historical sort of treaties and customs that we have, what is there, in fact, is a different word, a word that has a really problematic weight for women and girls in particular, which is the word "honor". And the honor here, when we trace the kind of genealogy of the word "honor" in the law of war, that word is not the honor of the woman who's been harmed. It's the honor of the man to whom she is attached, right? His honor is the honor that's being protected here.

Natalie Orpett: And the honor of the nation, right?

Fionnuala Ní Aoláin: And the honor of the nation or the clan or the community, right? It's those concentric circles. And so, I worry a lot that when people use the language of, "Rape is the worst thing that can happen," and I think that may be true for some and not for others, but it actually reaffirms--unwittingly perhaps--but it reaffirms and re-encapsulates that language of honor, that language of chastity, that language of purity. What is, in fact, the thing that is most harmed here--and I worry when that is the thing that's elevated in a way that actually then detaches that harm from the context in which women and men can be subject to such violence, but also I think misses out on the context. What's producing that violence in society? What's producing systematic rape in some conflicts and not in others? And again, we've had a number of incredibly great studies. I think of [Erikkson Baaz and Stern's] study that really demonstrates, really in part, focused on perpetrators, to understand what are the conditions that produce this sexual violence in a particular context. And while I think we have to focus on accountability, what we really have to be focused on is prevention. Because at the end of the day, even in the best case scenario, if you get an international proceeding, the fraction of people held accountable for sexual penetrative violence will be tiny, and that's also true in domestic legal systems.

So we got to be doing a better job at prevention and not putting all our eggs, frankly, in the basket of prosecution because that hasn't served either women or men so well in the last couple of decades.

Natalie Orpett: Yeah, I totally agree. So I hope this next pivot will not sound that I don't. But I do want to walk people through the existing law that is available for accountability purposes, and get into what about it is inadequate, other than the fact that, of course, when you're targeting individuals, you are missing a lot of much broader, structured, and layered kinds of violence. But to back up and look at the structure of the laws that are available for trying to find accountability, I just want to go through chronologically. So we've spoken about the Geneva Conventions, having not much of anything. You mentioned the International Criminal Tribunals for the former Yugoslavia and for Rwanda, both of which, correct me if I'm wrong, I believe included rape as an enumerated crime. The ICTR--I think both, actually, as a crime against humanity, and the ICTR also as a war crime and an act of genocide.

Fionnuala Ní Aoláin: Yes. So, it's important to-- this history, I think if we look at, for example, the ICTR, we have the crime of genocide fully set out. We certainly have the other crimes, crimes against humanity that include, under Article 3, rape. So, they appear there. I guess the broader point I would make is that we've just had a really short history of including these crimes. And even under the Geneva Conventions, by the time we get to the Additional Protocols, which are these additional treaties added in the 1970s, rape is included later on. But that means that we've had centuries of practice of sexual violence and gender-based violence in conflict, and really, we have a nanosecond of both a language of harm and a practice of accountability, if that makes sense.

Natalie Orpett: Yeah, absolutely. Although, I think it's always shocking for people to hear that rape as a crime in this respect under international law didn't really exist until, at least for some countries in the 1970s, those who acknowledge the Additional Protocols of the Geneva Conventions, and not until the 1990s from the ICTR and the ICTY. And then I did want to talk next, as you mentioned about the Rome Statute for the International Criminal Court, which does classify rape as both a war crime and a crime against humanity and reflects much more deliberative negotiation between states.

Fionnuala Ní Aoláin: Right.

Natalie Orpett: So can you just talk about how that came about and how it's defined and how it works?

Fionnuala Ní Aoláin: Sure. So, the statute has, it really has jurisdiction over four crimes: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. It's worth saying that one of the things that led to this kind of vocabulary of expanded harm under international criminal law was an enormously powerful coalition of women activists across the globe who really understood that to redress this historical gap of accountability, that they would need to be present, engaged, negotiating, prodding states to account for these crimes, not only in kind of a general way, but in a very specific way.

So if we look at the ICC statute, the crime of genocide is really just a cut and paste, for want of a better word, of the Genocide Convention. And it's worth noting that there are ways in which you can read the genocide provision of Article 6 and the Genocide Convention itself in a gender specific way. So, for example, if you take the provision that says that genocide includes "imposing measures intended to prevent births within a group," that clearly signals us to gender-based harms. Sterilization, other practices that might prevent children being born or prevent women from getting pregnant. The other provision of the Genocide Convention on forcibly transferring children. I think, again, interestingly, this is a gender-based provision, in part because as a result of our patriarchal societies, women are largely those responsible for the care and protection of children. And so, much of the work that, or some of the work that I've done, particularly, for example, on Holocaust harms, is that, for me, the separation of children from their mothers constitutes a gender-based crime. And one of the things we fail to do is to understand how significantly gendered that act is. Of course, we're going to get to see that in real time if we end up with the ICC being able to deliberate on the current warrants, that's it's issued on separation of children in relation to Russia and Ukraine for President Putin and the Child Commissioner.

And then that brings us to crimes against humanity. And again, what we notice here is just, again, paragraph 7G to be very, very specific, talks about rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any form of sexual violence of comparable gravity. And again, I think what that does is this vocabulary of harm. You take one word, rape, but actually you add and you elevate all of these other practices that are gender-based, but that harm women in a way, and men, in a way that can in fact be criminally defined and criminally prosecuted. And similarly, we see the same in respect of war crimes. So I think it's this elongation of language that we see in the ICC statute that is powerful. But language is just, I'd close by saying, just one step on the ladder to addressing the violence and also just one step towards prosecution.

Natalie Orpett: So I think we've done a survey now of the types of harms and the laws that exist to try to address them. I want to turn now toward the sort of mechanics of trying to prosecute them. So there are obviously different jurisdictions for trying to bring prosecutions, and there are also different criminal law regimes. Of course, those are interrelated in some senses. So can you just talk through, let's start, I guess, with the difference in what it means to prosecute something as a war crime versus a crime against humanity versus a genocide.

Fionnuala Ní Aoláin: Yeah, absolutely. So, we'll start by saying that, of course, you can't prosecute unless the state in question has signed that you have a basis for jurisdiction. So that, even beyond the nitty gritty of what box you're in, whether you're war crimes, crimes against humanity, or genocide, actually there are these broader mechanics of standing, of whether, in fact, the state is a party and whether the prosecutor can issue warrants or start investigations, and also whether the Security Council would be prepared to make a reference to the ICC, something so far the Security Council has evidenced very little willingness to do.

But let's start with war crimes. And it states a really obvious point that in order to prosecute a war crime, there has to be a war. And as lawyers, we know that actually it's not always obvious if there is an armed conflict or not. An international armed conflict between two states, well, generally speaking, that's pretty straightforward to identify, even though there are anomalies to that where states who might have, for example, border skirmishes or engage in certain hostilities with each other won't acknowledge a full-blown armed conflict, even if there is gender-based violence happening in these kind of more constrained ways.

But the place where it's really tough on armed conflict and war crimes is whether you have an internal armed conflict or a non-international armed conflict. Because the Rome Statute makes this distinction between the kinds of war crimes that can be applied in a conflict between states, which frankly there are more of those crimes and a wider legal basis, and internal armed conflicts or non-international armed conflicts, where actually there's a much shorter list of crimes that can be prosecuted. But perhaps more problematic, most states, most of the time, will not acknowledge that they have a non-international armed conflict happening on their territory. And so that unwillingness of states to acknowledge the nature of the hostilities actually makes the application of this law exceedingly difficult.

Natalie Orpett: Right. Because the ICC can't exercise jurisdiction in that case.

Fionnuala Ní Aoláin: Exactly. Exactly.

And then that brings us to crimes against humanity. And it's worth noting that when crimes against humanity were first constructed--they go back to the Nuremberg Tribunal--early on, the stricture on crimes against humanity was that they also had to take place in a context of hostilities. But actually, the category of crimes against humanity has expanded over time to essentially bring us to the point where a crime against humanity can be committed both in a time of conflict, but also when there isn't a conflict. The challenges of course in prosecuting a crime against humanity is one of threshold because Article 7 of the statute says, very simply, and I'll just read it, which says: "A crime against humanity means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population." And so, again, when we think about rape, sexual slavery and forced prostitution, there's kind of a threshold here of gravity that has to be met in order for a prosecutor to believe that we're in the category of crimes against humanity.

And maybe finally, I'll just say a word about genocide. And genocide is much in the news, of course, with the ICJ proceedings this week and decision in relation to Russia and Ukraine, but also the order issued last week in relation to Israel and South Africa. And just worth noting that while the word "genocide" is an extremely powerful word, the prosecution of genocide is exceedingly difficult. And if we think about since the day this treaty was agreed 75 years ago, we've had a really tiny number of prosecutions of genocide generally, and only, I would say, on one hand, number of cases that directly address rape or sexual violence as part of the crime of genocide.

Natalie Orpett: So do you think it's fair to say that the most straightforward context in which sexual violence, and perhaps gender-based violence, although that's trickier, can be prosecuted is as a war crime, because the threshold there is to establish that there is an armed conflict, and then of course to meet the the elements of the crime? But, as opposed to a crime against humanity, where there's a difficult threshold of proving that a practice is widespread or systematic? Or genocide, where you have the intent element that can be very difficult to prove?

Fionnuala Ní Aoláin: So I think,, in part that's right. But I would also say that I think in general, genocide is-- it states an obvious, that genocide is an extremely. difficult crime to prosecute. And a lot gets loaded into that category as a symbolic, as a emotional, as a political matter. And genocide actually rarely fails to deliver in terms of its capacity to meet the expectations of those who use the word.

But, I would also just have caution about war crimes. And I, here, I want to give a shout-out to a wonderful Australian colleague, Louise Chappell, who's written a wonderful book called "The Politics of Gender Justice at the International Criminal Court." and what Louise did in this kind of groundbreaking empirical study was demonstrate, she simply looks at the numbers, she looks at how often rape or sexual violence was charged as a war crime, and she tracks through those cases over their kind of life course of the case. And what she demonstrates actually is that even though the International Criminal Court for the former Yugoslavia made this huge effort to charge war crimes, including sexual violence, that when you look at the outcomes, a lot of those cases dropped out along the way. The charges dropped. And so, that proves, I think, an essential point that it's also really tough to get war crimes convictions on this crime. So it's a better bet for a prosecutor if you get over the threshold of an armed conflict. But the hard evidence we have from the court that's tried to prosecute the most of these cases shows a tremendous drop-off between charging and getting, actually securing conviction in these cases.

Natalie Orpett: And did her work extend to investigate why, in particular, the charges were dropped over time? Was it primarily an evidentiary challenge? Or was it legal?

Fionnuala Ní Aoláin: Yes, it's both. And I think we have some key insights, and maybe this is a good point to turn to why is it so hard, given what we know about the widespread and systematic nature of these harms for women in multiple conflicts, why is it just so hard to get convictions? And I would bring us back and remind us of the same dynamic in domestic courts, how difficult it is to prosecute this crime, partly because we have evidential challenges. We have evidential challenges because often the only evidence is the rape victim himself or herself. That's complicated even all the more in these conflict contexts where you may not have access to a rape kit. There may not be actual physical evidence that supports the testimonial evidence of a victim.

The third thing I would say, and this is really difficult for those of us who work in this area to articulate, but also critical to understand, is many victims who are deeply traumatized find it very hard to give evidence in a way that secures convictions. Traumatic memory is a really complicated space. Victims will have had multiple experiences--displacement, violence to their homes, loss of family members--and all of that can make securing adequate and effective victim testimony really difficult.

Natalie Orpett: Right. Well, you mentioned the difficulty of prosecuting in domestic courts. I did just want to spend a moment talking about the fact that I think that this type of prosecution may be less on people's radar when it comes to the context of armed conflict. But, it is actually possible, and under the ICC charter, in fact, it is required that countries try to prosecute under their own domestic law, even war crimes, even of this nature. So I noted in both the case of Israel and Ukraine, there are domestic law efforts to prosecute perpetrators of sexual violence in domestic systems. But, could you talk a little generally about how that works?

Fionnuala Ní Aoláin: So, I think a lot of international lawyers will say that the ICC should always be a court of last resort. International law, international criminal law, will have done its job well when domestic courts are doing their job, which is making sure that these cases never have to leave the domestic system because they're being dealt with at home. And I think that also fundamentally and often serves victims better than traveling to courts far away. I think one of the things we underestimate is the harm, something I've written about in my own work, the kind of secondary harms that fall to victims from the processes they undergo. The criminal justice processes they have to [undergo]. I think of victims that I know who traveled from Bosnia to The Hague. I spent a year working for the International Criminal Tribunal for the former Yugoslavia. And the emotional, economic, physical hardship that that cost them. Trials at home would have been much easier and much more accessible, actually, to the victim community.

We start from that principle. It's better if you can do it at home. It fulfills a state's obligation under the ICC statute, and it may serve the victim better because the victim and the victim's family, and the victim's community, and all of those concentric circles that we talk about can actually hear and understand both what the harm has been and see the perpetrator held responsible. And that will have a much larger effect happening in a courtroom near you than it will in a courtroom far away a lot of the time.

But I do want to stress one other thing about domestic proceedings in the aftermath of war. Which is the absolute requirement that these are fair processes. We do not serve victims well if we don't have fair processes. And the ICC statute, of course, recognizes that by actually allowing the ICC to step in if it takes the view that the domestic legal system isn't providing a fair trial to someone who's been charged with a war crime, any war crime. So here, what I'd stress is that, particularly in the aftermath of conflict, doing justice fairly is an obligation to the victims as much as it is to the process of justice itself.

And that can sometimes be really hard when emotions run high when a society, whether it's Ukraine or Israel, or other places--you think of the violence in Sudan and other places, Tigray as an example--where emotions run really high, and they particularly run really high around sexual and gender-based violence.

Natalie Orpett: That's such a good point. I want to talk about one last type of prosecution that is available in some instances, which is to use the domestic legal systems of third parties, like, for example, France or Germany, which have universal jurisdiction statutes and are able to hear these cases. So I was reading about an attorney named Yael Vias Gvirsman, I apologize if I pronounced her name incorrectly, who represents victims of Hamas's attack on October 7th. And she has brought a case on behalf of those individuals in French court and is arguing that these individuals should be found liable for crimes in that system, which I think is quite surprising to, especially to Americans, where this is sort of a foreign concept. Can you talk a little bit about how those types of cases work?

Fionnuala Ní Aoláin: Yeah, we have our own version of this in the United States, of course. The Alien Tort Claims Statute has allowed, going back to the Filártiga case, has allowed for the prosecution of persons. Now it's a tort statute, not a criminal statute, but again allows for claims to be brought in United States courts for harms that happened in other territories. I think it's regrettable that we've seen a real clipping of the wings of the Alien Tort Statute capacity in the United States over the past decade, but it demonstrates, I think, the principle that many legal systems have historically, and some still viewed, the possibility of doing justice for acts that happened far away from the territory, as an integral part of their own, if you want ergo omnes, or global obligations. We see a healthy jurisprudence of universal jurisdiction in some European countries. We've seen it in Germany, for example, where the German prosecutors have used the universal jurisdiction statute to prosecute for the crimes of ISIL in Syria, as well as the crimes of the Syrian regime, the government of the Syrian Arab Republic in German courts.

I think this is a powerful tool. I think it works both ways. Obviously, one of the challenges I think we see in the context of these proceedings in France is they sit in a universe of other cases being brought, universal jurisdiction cases being brought against the state of Israel. So you have this sort of jewel, if you want, jewel space being occupied by universal jurisdiction. At the end of the day, I would say universal jurisdiction is a powerful tool, and it can bring great comfort to victims when there's no capacity to get justice at home. I think the key point, though, is universal jurisdiction is not likely to be a solution for most victims, right? It will only be a small number who will get justice under this type of mechanism.

And it brings us back to the broader point that international law can play a supporting role in accountability, but that ultimately, accountability for gender and sexual violence in armed conflict only and primarily can happen in a fulsome way when it happens in the territory where the crimes took place.

Natalie Orpett: Yeah. And do you have a sense at all of how often or to what degree of success sexual violence or gender-based violence claims have been brought through universal jurisdiction cases?

Fionnuala Ní Aoláin: We don't have a huge, and I don't know if anyone has tracking those numbers. We've seen cases involving Syria. We've seen some cases in Belgium. But remember, it's only a tiny number of countries who have universal jurisdiction statutes. And it's also worth remembering that those statutes have come under enormous pressure from countries, including the United States, who view these statutes as not always helpful to their geopolitical and other interests.

So it isn't the case, unfortunately, that there's a sort of an embrace of universal jurisdiction. What we've seen actually is the challenge going the other way, is that powerful states who worry that their officials might end up caught in the crosshairs of a universal jurisdiction proceeding have encouraged and sometimes cajoled and I would say sometimes threatened other states with wide jurisdiction statutes to limit them.

Natalie Orpett: Right. Well, I think we have successfully demonstrated the tangled mess that is trying to prosecute sexual violence and gender-based violence. So I did just want to turn back to the point that you made earlier and give you the opportunity to expand on it, which is your point that addressing these issues through finding accountability through criminal law is very limited and unlikely to do enough. And you had mentioned prevention as being an area that should receive more focus. So tell us a little bit more about that.

Fionnuala Ní Aoláin: Yeah, I think there's a welcome and necessary focus on both the normative regulation of sexual violence, the vocabulary of harms that we've talked about, and naming the harm, which is enormously important to victims, creating accountability, and ensuring that victims feel like it is possible to have different forms of accountability.

But the bottom line is that we will not address the pervasiveness of sexual violence in our societies, plural, not just in the context of armed conflict, but more generally, the pervasiveness of both penetrative sexual violence, but also other forms of gender-based violence that women experience every day, and men, but particularly women in the context of intimate partner violence, obstetric violence, sexual harassment, and the structural harms of inequality, for example, for women, that makes it likely that they are more at risk of a range of harms.

And we only change that dynamic by fundamentally committing to equality. And so, I actually would take us out of violence and take us to a different set of norms, which is the affirmation of the full equality of women and men, and the protection of women's rights in society as a whole. And if you just focus on the violence piece, you miss the broader penumbra of rights that actually are the insulation to protect women from violence in the first place. And it's our lack of attention to equality, and maybe our failure to ensure that women are actually equal in society. That is, in a way, at the heart of what it would require to address the violence, which is the downstream consequence of that.

Natalie Orpett: Okay. I think we're going to leave it there. Fionnuala Ní Aoláin, thank you so much for joining us.

Fionnuala Ní Aoláin: Thank you.

Natalie Orpett: The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad-free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter through our website, You'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts.

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The podcast is edited by Jen Patja, and your audio engineer this episode was Noam Osband of Goat Rodeo. Our music is performed by Sophia Yan. As always, thank you for listening.

Natalie Orpett is the executive editor of Lawfare and deputy general counsel of the Lawfare Institute. She was previously an attorney at the law firm Jenner & Block, where she focused on investigations and government controversies, and also maintained an active pro bono practice. She served as civilian counsel to a defendant in the Guantanamo Military Commissions for more than eight years. She also served as counsel to the National Security and Foreign Policy Legal Team of the Biden-Harris Transition Team.
Fionnuala Ní Aoláin is a Regents Professor, the Robina Chair in Law, Public Policy, and Society, and directs the Human Rights Center at the University of Minnesota Law School.
Jen Patja is the editor and producer of The Lawfare Podcast and Rational Security. She currently serves as the Co-Executive Director of Virginia Civics, a nonprofit organization that empowers the next generation of leaders in Virginia by promoting constitutional literacy, critical thinking, and civic engagement. She is the former Deputy Director of the Robert H. Smith Center for the Constitution at James Madison's Montpelier and has been a freelance editor for over 20 years.

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