Time for a victim-centric approach in prosecuting sexual and gender-based violence committed by terrorists

Introduction 

Over the years, sexual and gender-based violence (SGBV) committed as a tactic of terrorism has taken various forms, notably: forced recruitment; rape; forced marriage, pregnancy, and abortion; sexual slavery; and the use of women and girls to carry out suicide attacks. Numerous terrorist groups, including ISIS, Boko Haram, al-Shabaab, Ansar Eddine, the Taliban, and al-Qaeda, are known to commit such crimes in the states where they operate. In 2016, an emerging focus on the linkages between terrorism and SGBV resulted in the UNSC’s affirmation that victims of sexual violence committed by terrorist groups should be recognised as victims of terrorism. 

Today, the rates of terrorist prosecutions for SGBV remains extremely low. In April 2022, Nadia Murad, Nobel Peace Prize Laureate and UNODC Goodwill Ambassador, advocated before the UN Security Council for immediate action and demanded for “more government support for victims, who are too often left alone to pick up the pieces of their lives.” One year later, the UN Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict’s (OSRSG-SVC) report reaffirmed the lack of accountability for SGBV and the necessity to consider survivors’ and victims’ needs.  

In early 2023, the UN Secretary-General’s report on the activities of the UN system in implementing the UN Global Counter-Terrorism Strategy (UN Strategy) highlighted that “[a]dvancing the victims’ agenda should remain at the core of the efforts of the United Nations and Member States to counter terrorism.” Taking into account victims’ needs in the fight against terrorism could indeed not only be beneficial to victims but also to states’ efforts to combat terrorism. For instance, ICCT’s Victims’ Voices initiative in Indonesia demonstrated that victims were enthusiastic about their experience in participating in P/CVE outreach activities, and the target group (youths at risk to violent extremism and terrorist recruitment) had changed attitudes and opinions relating to the use of violence. Inspired by the UN’s growing interest in victims of terrorism, the present analysis focuses on a victim-centric approach in prosecuting SGBV committed by terrorists, and its contribution to countering terrorism. It concludes that adopting such an approach, which includes in the first place prosecuting these crimes, is indeed not only beneficial to the SGBV victims, but also constitutes a vital tool in the fight against terrorism. In the following sections, the victim-centric approach will first be explained, before demonstrating how it can strengthen counter-terrorism efforts. 

What is a victim-centric approach and what does it entail? 

A victim-centric approach is characterised by ensuring the mental, psychological, and physical wellbeing of the victims, respecting the Do No Harm principle, and avoiding secondary victimisation. Its main goals include victims’ empowerment and restoration of victims’ dignity, self-respect and private life. In achieving these goals, a victim-centric approach should respect certain principles. These principles adhere to victims’ needs and rights, and are outlined in more detail below. A victim-centric approach can be implemented inside and outside the courtroom, however, the following section addresses the victim-centric approach within the criminal justice and is applied to victims of SGBV committed by terrorists. In this kind of violence, the gender-specific needs of these crimes are added to other additional victims’ needs. The present section utilises the OSRSG-SVC’s Model Legislative Provisions and Guidance on Investigation and Prosecution of Conflict-Related Sexual Violence (Model Legislative provisions). This document has been informed by national practice from twenty-eight states, survivors of sexual violence and other international crimes, academics, and practitioners. It aims at assisting legislators, international organisations, practitioners, and civil society organisation in implementing a legal and procedural framework in line with international standards and obligations.  

Victims must always be treated equally and their racial, ethnic, religious, or ideological differences should not impact the prosecution of the crimes (non-discrimination principle). In the case of SGBV, particular attention must be paid to the inclusion of members of marginalised groups, and stereotypes based on gender or other social categories must be avoided (Article 42 Model Legislative provisions). 

In addition, victims’ rights to privacy and safety, as well as medical assistance and psychological support by specialised personnel, should be ensured. Victims of SGBV might need specific protective measures during the trial, such as holding closed sections, testifying by using image/voice-altering devices, assigning pseudonyms, allowing victims to attend the trial from an observation room, appointing a support person, etc. (Article 62 Model Legislative provisions). Medical assistance, i.e. treatment for sexually transmitted infections, safe abortion services and other sexual and reproductive healthcare, should be ensured inside and outside the courtroom. 

Furthermore, victims’ right to access to justice should be respected and reinforced in systems where they might face obstacles. Facilitating access to justice should be combined with victims’ participation in criminal proceedings and legal aid when necessary. Participation can be accomplished either by joining the criminal proceedings as civil parties, or through victims’ impact statements. Regarding SGBV, a victim-centric approach requires that victims be allowed to attend public hearings and be afforded the right to be heard on release, plea, pardon or sentencing, irrespective of the legal system (Article 58 Model legislative provisions). Particular attention should be paid to the fact that some victims place more importance on the length of the sentence than the actual charges for which a person has been convicted. Although this is often linked to victims’ demand for strict punishment, the non-requirement of their testimony might play an important role. In this case, interrogating victims before the court in a respectful manner will facilitate their willingness to testify and contribute to the crime’s correct qualification. 

A victim-centric approach also includes providing information about each stage of the proceedings and the outcome of the latter. For the victims of SGBV, information on the protective measures available to them, the participation options, the possibility to be assisted by a legal representative and a support person, the progress of the proceedings, and the existing possibilities relating to the implementation of a decision, should be explained in a clear and accessible manner by officials with the same gender as the victim, if so requested (Article 50 Model legislative provisions). 

Last but not least, victims’ right to reparation is at the heart of a victim-centric approach. Enshrined in multiple human rights legal instruments, reparation can be individual and/or collective and take multiple forms. Satisfaction measures, such as commemoration events and memorials, can respond to victims’ need for remembrance and social acknowledgement of the harm SGBV entails. The results of such initiatives might include the acceptance of children born out of rape and victims of SGBV by their community. Ensuring victims’ access to reparation, which can be either judicial or administrative must be an important component of the approach adopted. In cases of SGBV, the reparation programme must take into account the gender dimension of the crimes and strictly avoid reproducing a gender bias. Access to reparation must be ensured without resulting in the victim’s stigmatisation. For instance, the distribution of financial compensation or access to rehabilitation measures, such as psychological support or HIV medication, might need specific arrangements. Indeed, in some states, women do not have a bank account in their name or they are not in charge of their income, therefore the access to compensation can be extremely challenging. Furthermore, certain victims might be reluctant to take advantage of medical service in order not to be identified as victims of SGBV by the members of their community. 

Taking into consideration the above-mentioned principles, a victim-centric approach in prosecuting SGBV committed by terrorists is beneficial to the victims because it better responds to their needs, respects their rights, avoids secondary victimisation, and ensures their physical and mental health. However, despite its importance, the potentially weak national judicial system, the lack of expertise on how to deal with such crimes, and the scarcity of financial means can negatively influence its application. The Memorandum on Criminal Justice Approaches to the Linkages between Terrorism and Core International Crimes, created under the auspices of the Global Counterterrorism Forum, provides guidance to states for such challenges and recommendations for national-level prosecutorial strategies.  

Why a victim-centric approach in prosecuting SGBV is beneficial to counter-terrorism 

On 22 June 2023, during the eighth review of the UN Strategy, the UN General Assembly (UNGA) adopted resolution A/RES/77/298 which encourages the Member States to provide victims of terrorism and their families “with proper support and assistance, […] to ensure that their physical, medical and psychosocial needs are met, and their human rights are recognized and protected, in particular for women and children and victims of sexual and gender-based violence committed by terrorists” (para 117). The Member States are further encouraged to take into account “considerations regarding recognition, acknowledgment, remembrance, dignity, respect, reparation, accountability, justice and truth” (para 117). These recommendations are part of the fourth pillar of the revised Plan of Action included in the UN Strategy (“Measures to ensure respect for human rights for all and the rule of law as the fundamental basis of the fight against terrorism”). The Plan of Action is composed of four pillars which all together aim at strengthening national, regional and international efforts to combat terrorism. The victim-centric approach presented in the previous section corresponds to UNGA’s proposed measures, and, therefore, can be beneficial to an effective counter-terrorism strategy. This section will zoom in on how this can be achieved focusing on SGBV victims of terrorist groups.  

A victim-centric approach can contribute to countering terrorism through the creation of a victim-friendly environment, where victims and survivors of SGBV can share their experiences and have their voices heard. This possibility will provide an effective counter-narrative to that of terrorist groups. In other words, terrorists often justify their acts on the grounds of political, ideological or religious ideals. However, the attitude that a group at risk to terrorism recruitment has towards violence can change by listening to the stories of victims as the target group can put a face on the people suffered directly by the terrorist acts, witness the consequences of the acts, and acknowledge the inexistence of any ground for resorting to such violence. Nonetheless, victims’ participation in such activities can be a painful experience. Engaging victims in the fight against terrorism should always respect their willingness and capacity to do so. Counter-terrorism activities are not only about sharing victim’s stories but pointing out the lessons to learn, engaging in dialogue with the public, and use the story as a basis to trigger public discussions on human rights, rule of law, and democratic values, aiming at fostering citizens resistant to terrorism recruitment. Therefore, victims should be conscious about this commitment and how it might affect their emotional and psychological condition. To ensure this, clear and precise information about the objectives of their personal story’s dissemination should be provided beforehand and ensure that victims are comfortable with their role throughout the whole process. 

Furthermore, a victim-centric approach in prosecuting SGBV can counter terrorism by motivating victims to report crimes more readily. Specialised staff in SGBV and effective investigations which respect victims’ rights and avoid secondary victimisation will result in victims’ willingness to collaborate closely with the police and the prosecution. Reporting crimes can further contribute to documenting them and unveiling terrorist groups’ modi operandi. Many SGBV victims have lived within the terrorist groups, therefore, they may know their way of functioning, their administrative structure and their locations. Collaborating with victims will thus be beneficial to find out more, and hence fight these groups. This must be done with utmost care, paying particular attention to victims’ needs, rights and boundaries. Prosecutors and investigators should also be aware that  the information provided by victims might not always be coherent. Victims of SGBV lived in distress while with the terrorists. Most victims suffer with long lasting emotional and psychological trauma since they found themselves in a safe environment. As such, police officers and investigators cannot expect consistent and comprehensive testimonies. To address this challenge, on the one hand, victims should be given the necessary time and the possibility to express their need regarding the place and the sex of the person who will interview them. On the other hand, investigators should conduct the necessary research to cross-check the information received. 

This collaboration between victims and the prosecution can also assist in charging matters, as victims’ testimonies may lead to the extension of the initial charges. For instance, charging foreign terrorist fighters only with membership in a terrorist organisation instead of including SGBV is a common practice because of the lack of victims’ testimonies or other evidence. However, if victims of SGBV feel comfortable speaking out, these crimes can be included in the charges. In June 2021, the Higher Regional Court of Düsseldorf convicted Sarah O. for membership in a terrorist organisation as well as assault, deprivation of liberty, aiding and abetting rape, enslavement and religious and gender-based persecution as crimes against humanity. The cumulative charges were possible thanks to the collaboration of the victims who have been held as slaves by the convicted person and her husband. Indeed, the Chamber extended the initial charges against Sarah O. based on the testimonies of victims participating in the trial and submissions by the victims’ counsel. Sonka Mehner, one of the German attorneys, declared that “[t]hanks to the victims, the full extent of the defendant’s criminal conduct could be established.” Victims’ testimonies have played a crucial role also in other verdicts against ISIS members, namely in the case of Nadine K. (Higher Regional Court of Koblenz, June 2023) and Jalda A. (Higher Regional Court of Hamburg, July 2022). Furthermore, victims’ testimonies contributed to the opening of two investigations in France, which include SGBV (Sabri Essid and Nabil Greseque). However, victims’ testimonies do not always guarantee that the charges will be extended. As this can lead to frustration and disappointment among victims, officials should clearly communicate this possibility and not create false expectations. 

In addition, victims’ empowerment and resilience as a result of a victim-centric approach in prosecuting SGBV committed by terrorist groups can contribute to fighting terrorism more efficiently. Victims who have been affected by SGBV committed by terrorists and who have dealt with their trauma can be agents of explaining the harm inflicted. Empowered SGBV victims can assist in building up a society resistant to terrorism by implementing projects, fostering policies and counter-terrorism strategies, and becoming messengers of counter-terrorism in national and international media and within local communities. Likewise, resilient societies can contribute to deterring the recruitment of terrorist groups by explaining the harm caused to the community and engaging in a discussion with its members who may be interested in joining terrorist groups.  

Conclusion 

Prosecutions of SGBV committed by terrorists constitute an exemption to the rule. Yet prosecuting these crimes by adopting a victim-centric approach could benefit both victims and states’ counter-terrorism strategies. Nowadays, despite the UNSC’s awareness on the topic, the resolutions’ impact in practice remains limited. This analysis demonstrated that adopting a victim-centric approach in prosecuting SGBV assists in combatting terrorism in multiple ways. Thus, states have an interest in following the UN Strategy’s Plan of Action and prosecuting the crimes committed by terrorists, including SGBV, on the basis of a victim-centric approach. This demands notably implementation of the legislation, capacity building programmes, sufficient resource allocations, and adequate trainings for prosecutors and investigators.