Handbook on
GENDER DIMENSIONS
of criminal justice
responses to terrorism
Cover photo: © iStock
HANDBOOK ON
GENDER DIMENSIONS OF CRIMINAL
JUSTICE RESPONSES TO TERRORISM
UNITED NATIONS OFFICE ON DRUGS AND CRIME
Vienna
UNITED NATIONS
Vienna, 2019
© United Nations, 2019.
e designations employed and the presentation of material in this publication do not imply the expression of any opinion
whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city
or area or of its authorities, or concerning the delimitations of its frontiers or boundaries. Mention of rm names and
commercial products does not imply the endorsement of the United Nations.
Publishing production: English, Publishing and Library Section, United Nations Oce at Vienna.
iii
Contents
Acknowledgements .............................................................v
Introduction ...................................................................1
Chapter 1. Criminal justice and counter-terrorism in the context of the international legal and policy
framework for women’s rights and gender equality .................................. 5
A. Non-discrimination, gender equality and women’s rights ..........................................5
B. Mainstreaming gender in counter-terrorism and criminal justice ..................................12
C. Gender equality, the Women, Peace and Security Agenda and the Sustainable Development
Goals: the nexus to counter-terrorism ...........................................................17
D. e special policy and legal framework for the protection of the girl child ..........................21
Chapter 2. Gender dimensions of terrorism oences ......................................... 29
A. Roles of women in terrorist groups ..............................................................30
B. e criminalization of “support roles” ...........................................................39
C. Oences commied by persons involuntarily associated with a terrorist group .....................47
D. Gendered impacts of measures against terrorism nancing .......................................56
Chapter 3. Investigation and prosecution of terrorism cases ................................... 61
A. Gender aspects of investigations ................................................................62
B. Interviewing victims, witnesses and suspects ....................................................70
C. Witness protection ............................................................................75
D. Strengthening women’s representation in law enforcement and the judicial system ..................83
Chapter 4. Imprisonment and other forms of deprivation of liberty ............................. 91
A. International legal framework and standards ....................................................92
B. Gender-sensitive prison management, management of violent extremist prisoners and
conditions of imprisonment ....................................................................93
C. Prison-based disengagement, rehabilitation and social reintegration measures for violent
extremist prisoners .......................................................................... 104
D. Gender-specic aspects of preventing torture, inhuman and degrading treatment of people
deprived of their liberty ...................................................................... 106
E. Detention of close family members of suspects ................................................ 113
F. Alternatives to imprisonment in terrorism cases ............................................... 115
G. Administrative detention of persons associated with terrorist groups ............................ 121
iv
Chapter 5. Criminal investigations and prosecutions of sexual and gender-based violence
perpetrated by terrorist groups ................................................ 127
A. Sexual and gender-based violence perpetrated by terrorist groups ............................... 128
B. Legal accountability frameworks for sexual and gender-based crimes and associated tracking
in persons oences commied by terrorist groups ............................................. 137
C. Sexual and gender-based violence as international crimes under the Rome Statute ............... 146
D. Enhancing investigations and prosecutions of sexual and gender-based crimes
commied by terrorist groups ................................................................ 154
E. Extraterritorial jurisdiction and international cooperation regarding sexual and
gender-based crimes commied by terrorist groups ............................................ 160
Chapter 6. Access to justice and remedies for victims ....................................... 169
A. Gender dimensions of access to justice through the judicial system ............................. 170
B. Access to remedies and reparations for victims of terrorist crime ................................ 177
C. Gender-sensitive remedies and reparations .................................................... 179
D. Remedies for victims of sexual and gender-based violence and tracking in persons
perpetrated by terrorist groups ................................................................184
E. Transitional and traditional justice mechanisms ............................................... 195
Glossary ................................................................... 201
v
ACKNOWLEDGEMENTS
e Handbook on Gender Dimensions of Criminal Justice Responses to Terrorism was prepared by the
Terrorism Prevention Branch of the United Nations Oce on Drugs and Crime (UNODC).
e handbook was wrien by Ulrich Garms and Lara Wilkinson, UNODC Terrorism Prevention
Branch, and Amrita Kapur, independent consultant.
UNODC is grateful for the invaluable contributions of the Oce of Counter-Terrorism, the Oce of
the United Nations High Commissioner for Human Rights, the United Nations Entity for Gender
Equality and the Empowerment of Women (UN-Women), the Counter-Terrorism Commiee
Executive Directorate, the Team of Experts on Rule of Law and Sexual Violence in Conict, and the
Oce of the Special Representative of the Secretary-General on Sexual Violence in Conict.
In particular, UNODC is grateful to the following United Nations colleagues for their contributions to
the handbook: Caitlin Boyce, Soa Coelho Candeias, Federica Donati, Edward Flynn, Yu Kanosue,
Adwoa Kufuor, Megan Manion, Cecilia Naddeo, Yukiko Omagari, Alejandro Sanchez, Carolin Schleker
and Manel Stambouli.
UNODC wishes to express its gratitude to the numerous government ocials and civil society
representatives from Member States who shared information on national laws and practice. Special
thanks also go to Laura Nyirinkindi, Africa Regional Vice President of the International Association of
Women Lawyers (FIDA International), and Gina Vale, of the International Centre for the Study of
Radicalisation at King’s College London, for their contributions to the publication.
e following UNODC sta and personnel contributed to the handbook: Hadiza Abba, Marisol
Aguilar, Silke Albert, Siham Al Figuigui, Chloé Brière, Harry D. Cheng, Martin Fowke, Anika
Holterhof, Alexandra Martins, Philipp Meissner, Panagiotis Papadimitriou, Katharina Peschke,
Dayan Farias Picón, Sven Pfeier, Azzeddine Salmane, Hannah Stallard and Timothy Wilson.
Introduction
e United Nations Oce on Drugs and Crime (UNODC) is mandated to provide assistance to
requesting countries on the legal and criminal justice aspects of countering terrorism.
UNODC sees equality, non-discrimination and respect for women’s rights as key components of a
robust criminal justice framework guided by the core principles of the rule of law, due process and
protection of human rights. e present publication has been developed with the conviction that an
eective criminal justice response to terrorism must include a gender perspective, adopt an approach
based on gender mainstreaming and human rights, and take account of the multifaceted and distinct
ways that women and men are involved in, and impacted by, terrorist acts.
Women and men, girls and boys are among the victims of acts of terrorism, such as hostage-taking,
explosives aacks in public places, or aeroplane hijacking. Terrorist groups, however, also specically
target women through acts of sexual and gender-based violence – such as rape, sexual slavery and
forced marriage – as a means of achieving tactical, strategic and ideological aims. Many terrorist groups
encroach on women’s human rights and impede their socioeconomic development, including by
restricting their movement. In some contexts, women disproportionately experience internal displace-
ment as a result of terrorist threats, and lose access to livelihoods owing to terrorist aacks. Women
may also face gender-specic diculties when aempting to access justice and seeking r emedies as
victims of terrorism.
Some women actively and voluntarily support terrorist groups, ideologically and operationally, and
are involved in the commission of terrorism-related oences. e active participation of women in ter-
rorist groups is not a new phenomenon. Women fullled frontline roles in, for example, the Euskadi
Ta Askatasuna (ETA) and Partiya Karkerên Kurdistan (PKK), and leadership roles in the Liberation
Tigers of Tamil Eelam (LE). e circumstances of women’s association with contemporary terrorist
and violent extremist groups, the roles they full in these groups and the levels of violence with which
they engage, however, dier from men in many contexts, and are oen based on gender roles and
stereotypes. In some conicts, women become associated with these groups through coercion or
abduction, and may commit terrorism-related oences while themselves being victims of violence by
terrorist groups.
Despite these dierent impacts and associations, traditional analysis has oen placed women on the
periphery of terrorism and counter-terrorism discourses, being viewed either as victims or as unwilling
or incidental associates of the primary terrorist actors. ere has, however, been a discernible shi at
the international level towards recognizing that women are associated with, and aected by, acts of ter-
rorism in many dierent ways. e Security Council helped to shi international dialogue on these
maers with the adoption of resolution 2242 (2015), in which the Council recognized the dierential
impact of terrorism on the human rights of women and girls, and called for the greater integration by
Member States and the United Nations of their agendas on Women, Peace and Security; counter-
terrorism; and countering violent extremism. In 2016, the General Assembly, in its resolution 70/148,
urged States to ensure that gender equality and non-discrimination were taken into account when
shaping, reviewing and implementing all counter-terrorism measures, and to promote the full and
eective participation of women in those processes.
A corollary of this shi is an increased recognition of the need to examine how gendered experiences
and practices should inform and shape the criminal justice response to terrorism. In 2017, the General
Assembly, in its resolution 72/194, encouraged UNODC to assist Member States, upon request, in
mainstreaming gender perspectives into criminal justice responses to terrorism, in full compliance with
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
human rights law, in order to prevent the recruitment of women and girls as terrorists and promote the
full protection of women and girls from any form of exploitation or violence perpetrated by terrorists.
e present publication is designed to complement existing tools that UNODC has developed,
some of which provide guidance on the ratication and implementation of the universal legal instru-
ments against terrorism, and others that are focused on strengthening specic aspects of the criminal
justice responses to terrorism, including from a human rights perspective. e publication also com-
plements the broader work of UNODC in mainstreaming gender across all its programmes, practices
and policies, as reected in its Guidance Note for UNODC Sta: Gender Mainstreaming in the Work of
UNODC, and the Gender Equality Strategy for the United Nations Oce on Drugs and Crime and the
United Nations Oce in Vienna (2018–2021).
e present handbook will be relevant to the work of judicial ocials, prosecutors, law enforce-
ment and corrections ocers, and lawyers assisting suspects or victims of terrorism. It will also be
useful to policymakers, lawmakers, and civil society organizations active in the elds of women’s rights
and counter-terrorism and the prevention of violent extremism.
Legal and policy recommendations are provided, based on international standards and promising
practices of international, regional and selected national bodies, in order to assist the users in addressing
some of the key gender issues arising in the criminal justice response to terrorism. e handbook fol-
lows a multidisciplinary approach, integrating best practice from the elds of counter-terrorism, criminal
justice, promotion of women’s rights and equality, and the elimination of violence against women.
e handbook contains a number of tools to enable readers to engage with the material in an
in-depth manner. “Focus” boxes provide a deeper insight into specic concepts, and “example” boxes
facilitate a comparative approach by supplying case studies that illustrate national and international
practice and jurisprudence. Information on further reading is provided in order to direct readers to
additional sources on specic topics. Finally, a summary of key points is included at the end of each
chapter to provide a concise checklist of issues raised in that chapter.
e handbook consists of six chapters. Chapter 1 contains an examination of the concept of gender
mainstreaming in counter-terrorism and in the criminal justice system. It also examines how this con-
cept ts into the international human rights framework and the policy context of the Women, Peace
and Security agenda and the Sustainable Development Goals.
Chapter 2 includes an exploration of the ways in which the criminalization of acts of terrorism may
aect women dierently than men. It begins with a brief review of the diering roles of women in con-
temporary terrorist groups. e chapter also includes a look, with a gender perspective, at selected
terrorism-related oences, such as supporting acts of terrorism, nancing of terrorism and oences
related to foreign terrorist ghters. It also covers criminal justice responses to situations where an indi-
vidual is alleged to have commied a terrorism-related oence while having been involuntarily
associated with a terrorist group.
Chapter 3 is focused on gender perspectives and good practices regarding the investigation and
prosecution of terrorism cases. It covers investigative methods and powers, interviewing, witness pro-
tection and the importance of strengthening the representation of women in law enforcement and the
judicial system, including in specialized counter-terrorism units.
Gender-based vulnerabilities are oen acute in the contexts of imprisonment and other forms of
deprivation of liberty. As such, chapter 4 contains a discussion of vulnerabilities and good practices
regarding the imprisonment of persons suspected, accused or convicted of having commied
terrorism-related oences, and provides guidance on implementing gender-sensitive policies and
practices, as well as the protection of women’s rights in this regard. Chapter 4 also contains an examina-
tion of alternative measures and detention outside the criminal justice context.
INTRODUCTION
Terrorist groups have targeted women, men, girls and boys through acts of sexual and gender-based
violence to achieve tactical objectives and ideological aims. Chapter 5 contains a discussion of the legal
frameworks that can be used to hold the perpetrators of these crimes accountable, including terrorism
oences, tracking in persons oences, and war crimes and crimes against humanity. e chapter also
includes a discussion of the key challenges and good practices for investigation and prosecution, which
is complemented by an analysis of international cooperation aspects.
Finally, chapter 6 includes an examination of the gender dimensions of challenges that victims of
terrorism may experience in obtaining access to justice and remedies, and good practices to overcome
these challenges. e chapter also contains an examination of access to justice and remedies for vic-
tims of sexual and gender-based violence and tracking in persons perpetrated by terrorist groups.
Lastly, it includes a discussion of the role of gender-sensitive transitional and traditional justice
mechanisms as alternatives to criminal justice proceedings.
top: The Security Council Open Debate on Women and Peace and
Security held on 27 October 2017. © UN Women/Ryan Brown
centre: In observance of International Women's Day, participants march
from the centre of Monrovia to the Temple of Justice, home of the
Liberian Supreme Court. © UN Photo/Eric Kanalstein
CRIMINAL JUSTICE AND COUNTER-
TERRORISM IN THE CONTEXT OF
THE INTERNATIONAL LEGAL AND POLICY
FRAMEWORK FOR WOMEN’S RIGHTS
AND GENDER EQUALITY
Chapter 1 contains an examination of women’s rights and the gender dimensions of criminal justice
responses as they relate to terrorism, as seen within the wider international policy context and the
international human rights framework. e present chapter seeks to establish the importance of exam-
ining gender perspectives and making the issue of women’s rights central to counter-terrorism eorts,
in order to provide a framework for the discussions in the chapters that follow.
e topics addressed in chapter 1 are as follows:
• Section A contains an overview of the international and regional norms relating to gender,
women’s rights and criminal justice systems and includes a look at the role of the criminal justice
system in upholding these rights.
• Section B contains an examination of the concepts of gender mainstreaming in counter-terrorism
and in the criminal justice system.
• Section C includes a discussion on the policy impetus behind, and growing recognition of, the
links between counter-terrorism eorts and the Women, Peace and Security Agenda, particularly
in the light of widespread sexual and gender-based violence perpetrated by terrorist and violent
extremist groups. e section also contains a look at the clear links between the 2030 Sustainable
Development Goals and the integration of women’s rights and gender dimensions into counter-
terrorism eorts, and the emphasis on gender equality and human rights, peace, development,
and the rule of law.
• Section D includes an overview of the special policy and legal framework for the protection of
the girl child.
A. Non-discrimination, gender equality and women’s rights
. The right to equality and non-discrimination on the basis of sex
States parties to international human rights treaties are required to respect, protect and full those
human rights. is requires States to not only refrain from violating human rights and fundamental
freedoms through its actors and those acting on behalf of the State, but also creates a positive
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
obligation for States to protect those under their jurisdiction against abuses by private persons or
entities,
1
including terrorist groups. States parties are therefore required, under international law, to
prevent, investigate and punish human rights violations by both State and non-State actors.
e right to equality and non-discrimination, including on the basis of sex, is one of the foundational
principles of human rights law, and is essential for the eective protection of human rights and the rule
of law. e international and regional human rights instruments contain two forms of protection that
States are obligated, under international law, to provide in this regard.
First, the instruments guarantee equality and non-discrimination in the application of treaty rights.
Article 2 of the International Covenant on Civil and Political Rights, and the International Covenant
on Economic, Social and Cultural Rights prescribe that all rights contained therein must be ensured
without discrimination on the basis of, inter alia, sex. In addition, article 3 of the International
Covenant on Civil and Political Rights and article 3 of the International Covenant on Economic, Social
and Cultural Rights emphasize gender equality by highlighting the equal right of men and women to
enjoy all the rights set forth in those instruments.
e guarantee of non-discrimination in the protection of treaty rights, including on the basis of sex,
is similarly reected in regional instruments, including the following:
• Article 1 of the American Convention on Human Rights and article 3 of its Additional Protocol
• Article 14 of the European Convention for the Protection of Human Rights and Fundamental
Freedoms
• Article 2 of the African Charter on Human and Peoples’ Rights
• Article 3, paragraphs 2 and 3, of the Arab Charter on Human Rights (Arab Charter)
Second, the instruments guarantee equality before the law and/or a prohibition of discrimination
in the application of any law. Such protection is reected in article 26 of the International Covenant on
Civil and Political Rights, which recognizes that all persons are equal before the law and are entitled
without any discrimination to the equal protection of the law. e International Covenant prohibits
discrimination in law or in fact in any eld regulated and protected by public authorities.
2
Article 15,
paragraph 1, of the Convention on the Elimination of All Forms of Discrimination against Women
oers similar protection to women, according them equality with men before the law.
At the regional level, such protection is contained in the following instruments:
• Article 24 of the American Convention on Human Rights
• Article 1, paragraph 1, of Protocol No. 12 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms
• Article 3 of the African Charter on Human and Peoples’ Rights and article 8 of the Protocol to the
African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol)
• Article 11 of the Arab Charter
• Principles 2 and 3 of the Association of Southeast Asian Nations (ASEAN) Human Rights
Declaration, which is a non-binding instrument
Although human rights treaties enable States to derogate from some of their guarantees in times of
public emergencies that threaten the life of the nation, such derogations must not involve discrimina-
tion solely on a number of specied grounds, including sex (see art. 4, para. 1, of the International
Covenant on Civil and Political Rights; art. 27, para. 1, of the American Convention on Human Rights;
and art. 4, para. 1, of the Arab Charter).
1
Human Rights Commiee, general comment No. 31 (2004) on the nature of the general legal obligation imposed on States
parties to the Covenant, para. 8.
2
Human Rights Commiee, general comment No. 18 (1989) on non-discrimination, para. 12.
CHAPTER 1. INTERNATIONAL LEGAL AND POLICY FRAMEWORK
> FOCUS: THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS AND PROTECTING THE RIGHTS OF
WOMEN IN COUNTER-TERRORISM EFFORTS
Part 1, paragraph (h), of the Principles and Guidelines on Human and Peoples’ Rights While Countering
Terrorism in Africa, adopted by the African Commission on Human and Peoples’ Rights, underlines that:
States shall ensure that legislation, procedures, policies and practices are designed to respect and protect
the rights and special status and distinct needs of women and children who are victims of terrorism or
subject to counterterrorism measures, including but not limited to searches and investigations, all forms
of detention, trials and sentencing.
. Women’s rights and gender equality, and protection from sexual
and gender-based violence
e international human rights framework also contains instruments specic to women’s rights and
gender equality. e most comprehensive instrument is the Convention on the Elimination of All
Forms of Discrimination against Women, the objective of which is to eliminate all forms of discrimina-
tion in law and practice against women on the basis of sex and gender.
3
Pursuant to that goal, States
parties are required to take all appropriate measures to guarantee women the equal recognition, enjoy-
ment and exercise of all human rights and fundamental freedoms on a basis of equality with men.
4
e
Convention prescribes State obligations to address not only discriminatory laws, but also practices and
customs, and discrimination against women by private actors.
5
According to the Commiee on the Elimination of Discrimination against Women, the body
charged with monitoring the implementation of the Convention on the Elimination of All Forms of
Discrimination against Women, article 2 of the Convention establishes that the overarching obligation
of States parties is to pursue by all appropriate means and without delay, a policy of eliminating
discrimination against women.
6
As established in article 2, States are required to:
• Enforce gender equality through national law and adopt legislation prohibiting discrimination
against women, including sanctions
7
• Establish legal protection of the rights of women on an equal basis with men and to ensure
eective protection through national redress mechanisms
8
• Refrain from discriminating against women and to take action to eliminate discrimination against
women by any person, organization or enterprise
9
• Abolish existing laws and practices, and repeal national penal provisions, constituting discrimination
against women
10
3
See also Commiee on the Elimination of Discrimination against Women, general recommendation No. 28 (2010) on the
core obligations of States parties under article 2 of the Convention, para. 5; and article 2 of the Protocol to the African Charter
on Human and Peoples’ Rights on the Rights of Women in Africa, which requires States parties to combat all forms of
discrimination against women through legislative, institutional and other measures.
4
Convention on the Elimination of All Forms of Discrimination against Women (United Nations, Treaty Series, vol. 1249,
No. 20378), art. 3.
5
See also article 18 of the African Charter on Human and Peoples’ Rights, which requires the State to ensure the elimination
of every discrimination against women, and principle 4 of the Association of Southeast Asian Nations (ASEAN) Human Rights
Declaration, which recognizes the rights of women as an inalienable part of human rights and fundamental freedoms.
6
Commiee on the Elimination of Discrimination against Women, general recommendation No. 35 (2017) on gender-based
violence against women, updating general recommendation 19, para. 21.
7
Convention on the Elimination of All Forms of Discrimination against Women, art. 2, paras. (a)–(b).
8
Ibid., art. 2, para. (c).
9
Ibid., art. 2, paras. (d)–(e).
10
Ibid., art. 2, paras. (f)–(g).
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
(i) Positive obligation of States to protect women from gender-based violence
committed by terrorist groups
Faced with the devastating impact of terrorism on women, States have the obligation to put women’s
rights, gender equality and the prohibition of discrimination against women and gender-based violence
against women at the centre of their response to terrorism and violent extremism. In the 2017 report of
the Secretary-General on conict-related sexual violence, it was noted that sexual violence had been
used as a tactic of terrorism by a range of violent extremist groups as a means of achieving strategic
objectives and generating revenue, as well as for operational purposes, with victims of sexual slavery
used as human shields and suicide bombers. At the same time, certain counter-terrorism measures
have also infringed upon women’s rights and freedoms, with sexual violence also being used in the
context of counter-insurgency operations.
11
e report of the Secretary-General on women and peace and security states that
Terrorist and violent extremist groups have continued to carry out aacks against civilians, with the
subjugation and exploitation of women and girls a common element across the agendas of the
various groups. Because of this, the advancement of gender equality is key to stemming abuse,
exploitation and recruitment by violent extremist and terrorist groups.
12
e Commiee on the Elimination of Discrimination against Women denes gender-based violence
against women as violence that is directed against a woman because she is a woman or that aects women
disproportionately. As such, gender-based violence constitutes discrimination against women within the
meaning of article 1 of the Convention on the Elimination of All Forms of Discrimination against Women
and is a violation of women’s human rights.
13
It therefore engages all State obligations under article 2 of
the Convention.
14
ese obligations are of an immediate nature, and delays cannot be justied on any
grounds, including in periods of armed conict or during states of emergency.
15
In that respect, the
Commiee has noted that armed conict and states of emergency have a deep impact on and broad
consequences for the equal enjoyment and exercise by women of their fundamental rights.
16
e prohibition on gender-based violence against women is also a principle of customary interna-
tional law.
17
A comprehensive denition of such violence and a commitment by States in respect of
their responsibilities concerning the elimination of violence against women is set out in the Declaration
on the Elimination of Violence against Women, adopted by the United Nations General Assembly in
its resolution 48/104 in 1993.
ere are two aspects of a State party’s responsibility stemming from its obligation to pursue a
policy of eliminating gender-based violence against women. First, the State is responsible for acts and
omissions by its organs and agents that constitute gender-based violence against women, including
acts by the executive, legislative and judicial branches.
18
Second, States have an obligation of due diligence to address and prevent gender-based violence
against women commied by non-State actors.
19
Accordingly, States will be responsible if they fail to take
all appropriate measures to prevent, as well as to investigate, prosecute, punish and provide reparations
for, acts or omissions by non-State actors that result in gender-based violence against women.
20
11
S/2017/249, paras. 8–9.
12
S/2017/861, para. 43.
13
General recommendation No. 35, para. 1, updating general recommendation No. 19, para. 9.
14
Ibid., para. 21.
15
Ibid.
16
CEDAW/C/GC/28, para. 11.
17
General recommendation No. 35, para. 2.
18
Ibid., para. 22.
19
General recommendation No. 28, para. 13, and Declaration on the Elimination of Violence against Women, art. 4, para. (c).
20
General recommendation No. 35, para. 24; see also general recommendation No. 19, para. 9.
CHAPTER 1. INTERNATIONAL LEGAL AND POLICY FRAMEWORK
e Special Rapporteur on violence against women, its causes and consequences, has claried that State
responsibility to act with due diligence is both a systemic-level responsibility, i.e. the responsibility of
States to create good and eective systems and structures that address the root causes and consequences
of violence against women; and also an individual-level responsibility, i.e., the responsibility of States to
provide each victim with eective measures of prevention, protection, punishment and reparation.
21
> FOCUS: THE OBLIGATION OF STATES TO PROTECT THE RIGHTS TO LIFE AND PERSONAL SECURITY
e due diligence obligation to prevent gender-based violence against women commied by terrorist
groups is an important aspect of the broader positive obligation of States under international human rights
law to protect the rights to life and personal security. As explained by the Oce of the United Nations
High Commissioner for Human Rights (OHCHR) with regard to the terrorist threat against the right to
life of all (women and men, girls and boys):
e protection of the right to life includes an obligation on States to take all appropriate and necessary
steps to safeguard the lives of those within their jurisdiction. As part of this obligation, States must put
in place eective criminal justice and law enforcement systems, such as measures to deter the commis-
sion of oences and investigate violations where they occur; ensure that those suspected of criminal
acts are prosecuted; provide victims with eective remedies; and take other necessary steps to prevent
a recurrence of violations. In addition, international and regional human rights law has recognized that,
in specic circumstances, States have a positive obligation to take preventive operational measures to
protect an individual or individuals whose life is known or suspected to be at risk from the criminal
acts of another individual, which certainly includes terrorists. Also important to highlight is the obligation
on States to ensure the personal security of individuals under their jurisdiction where a threat is known
or suspected to exist. is, of course, includes terrorist threats.
a
a
Oce of the United Nations High Commissioner for Human Rights (OHCHR), Human Rights, Terrorism and
Counter-Terrorism, Fact Sheet No. 32 (Geneva, 2008), p. 8.
States may also have obligations to protect against sexual and gender-based violence under regional
human rights instruments.
• In the Inter-American regional system: article 3 of the Inter-American Convention on the
Prevention, Punishment and Eradication of Violence against Women entrenches the right of
every woman to be free from violence in both the public and private spheres.
• In the African regional system: article 3 of the Maputo Protocol ensures the right to dignity of
every woman, and places an obligation on States to implement appropriate measures to prohibit
any exploitation or degradation of women, and to ensure the protection of every woman’s right to
respect for her dignity and protection of women from all forms of violence, particularly sexual and
verbal violence. e International Conference on the Great Lakes Region Protocol on the
Prevention and Suppression of Sexual Violence against Women and Children establishes a legal
framework for the prosecution and punishment of sexual violence crimes.
22
Further, the
Guidelines on Combating Sexual Violence and its Consequences in Africa, adopted by the African
Commission on Human and Peoples’ Rights in May 2017, provides guidance to Member States of
the African Union in implementing their commitments and obligations to combat sexual violence
and its consequences.
21
A/HRC/23/49, para. 20.
22
It establishes a number of procedural protections for victims of sexual violence in article 6, including victim-sensitive meas-
ures for the prosecution of perpetrators, assistance with the rehabilitation and reintegration of victims, and for sensitizing
criminal justice ocials in handling sexual violence cases.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
• In the European regional system: the Council of Europe Convention on Preventing and
Combating Violence against Women and Domestic Violence (the Istanbul Convention) sets
standards to prevent gender-based violence, protect victims of violence and punish perpetrators,
and to contribute to the elimination of all forms of discrimination against women.
23
• In Asia: the Declaration on the Elimination of Violence against Women in the ASEAN Region
further sets out the normative framework for States to eliminate violence against women through
the punishment of perpetrators and the protection and support of victims.
(ii) Obligations of non-State actors
In specic circumstances, non-State actors have direct obligations under international human rights and
humanitarian law. Where an armed group with an identiable political structure exercises signicant
control over territory and population, non-State actors are obliged to respect international human rights.
24
Non-State armed groups that are a party to an armed conict are also bound by international humanitarian
law. Common article 3 of the four Geneva Conventions of 1949 establishes fundamental, non-derogable
rules applicable to all parties in non-international armed conicts, including to non-State actors. It requires
all parties to refrain, with respect to all persons taking no active part in hostilities, from commiing, inter
alia, violence to life and person, including murder, cruel treatment and torture; the taking of hostages; and
outrages upon personal dignity, in particular humiliating and degrading treatment.
25
. Access to justice and remedies
ere is a comprehensive international and regional human rights law framework establishing the
right of women to equal access to and treatment within the criminal justice system. e frameworks
for remedies and reparations for persons whose rights have been violated under these instruments,
and the corresponding obligations of States to ensure access to such mechanisms, are discussed in
chapter4.
e International Covenant on Civil and Political Rights contains a number of provisions enshrining
the rights of all women and men, on the basis of equality and non-discrimination, to judicial redress
and remedies. Article 2, paragraph 3, of the International Covenant guarantees the right to eective
remedies by competent judicial, administrative and legislative authorities to women and men whose
rights under the Covenant have been violated, and to the enforcement of such remedies. Pursuant to
article 2, paragraph 3, in addition to eective protection of Covenant rights, States parties must also
ensure that individuals have accessible and eective remedies to vindicate those rights.
26
Article 14
addresses the administration of justice, guaranteeing women equality before courts and tribunals on
the same basis as men without discrimination.
23
Article 49 requires States parties to implement necessary legislative or other measures, having regard for the gendered
understanding of violence, in order to ensure the eective investigation and prosecution of oences established in accordance
with the Convention.
24
Commiee on the Elimination of Discrimination against Women, general recommendation No. 30 (2013) on women in
conict prevention, conict and post-conict situations, para. 16; and A/HRC/8/17, para. 9, and A/HRC/25/21, para. 11. e
Security Council has addressed the human rights responsibilities of non-State actors in specic situations (see, for example,
Council resolutions 1376 (2001), para. 5; 1417 (2002), para. 4; and 1906 (2009), para. 10).
25
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, of
12 August 1949 (First Geneva Convention) (United Nations, Treaty Series, vol. 75, No. 970); Geneva Convention for the
Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, of 12 August 1949
(Second Geneva Convention) (United Nations, Treaty Series, vol. 75, No. 971); Geneva Convention relative to the Treatment of
Prisoners of War, of 12 August 1949 (ird Geneva Convention) (United Nations, Treaty Series, vol. 75, No. 972); and Geneva
Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949 (Fourth Geneva Convention)
(United Nations, Treaty Series, vol. 75, No. 973), art. 3, para. 1 (a)–(c).
26
General comment No. 31, para. 15.
CHAPTER 1. INTERNATIONAL LEGAL AND POLICY FRAMEWORK
e Commiee on the Elimination of Discrimination against Women has stated that the right of
access to justice for women and girls, on the basis of equality, encompasses justiciability, availability,
accessibility, good quality and accountability of justice systems, and the provision of remedies for
victims.
27
e Commiee has emphasized that discrimination against women, based, inter alia, on
gender stereotypes, stigma, and gender-based violence, adversely impacts women’s ability to access
justice on an equal basis with men.
28
Access to justice and remedies for human rights violations are also reected in regional human
rights instruments, including under those specically relating to protection against sexual and gender-
based violence:
• In the Inter-American regional system: article 25 of the American Convention on Human Rights
guarantees the right of all persons to judicial recourse and remedies, and to the enforcement of
such remedies. Article 4, subparagraph (f), of the Inter-American Convention on the Prevention,
Punishment and Eradication of Violence prescribes the right of every woman to equal protection
before the law and of the law. In addition, article 7, subparagraphs (f) and (g), of the Convention
place upon States the duty to establish fair and eective legal procedures for women who have
been subjected to violence and to establish the necessary legal and administrative mechanisms to
ensure that women subjected to violence have eective access to restitution, reparations or other
just and eective remedies.
• In the African regional system: States parties are required to adopt measures addressing barriers
to justice for acts of sexual and gender-based violence, which may amount to torture and other
ill-treatment in violation of article 5 of the African Charter on Human and Peoples’ Rights.
29
Further, article 8 of the Maputo Protocol requires States parties to take appropriate measures to
ensure women’s eective access to judicial and legal services, and to reform existing discrimina-
tory laws and practices in order to protect women’s rights. Notably, article 8, paragraph (d),
requires law enforcement organs at all levels to be equipped to eectively interpret and enforce
gender equality rights.
• In the European regional system: article 13 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms enshrines the right to an eective remedy for
everyone whose rights have been violated under the Convention. Article 5 of the Council of
Europe Convention on preventing and combating violence against women and domestic vio-
lence requires States parties to take legislative and other due diligence measures to prevent,
investigate, punish and provide reparation for acts of sexual and gender-based violence
perpetrated by non-State actors. Further, article 49 of the Istanbul Convention requires States
parties to ensure that investigations and judicial proceedings carried out pursuant to the
Convention are executed without undue delay, and consider the victim’s rights at all stages of
the criminal proceedings.
• In the Arab regional system: article 12 of the Arab Charter requires States parties to guarantee all
persons within their jurisdiction the right to seek a legal remedy before courts of all levels.
27
Commiee on the Elimination of Discrimination against Women, general recommendation No. 33 (2015) on women’s
access to justice (CEDAW/C/GC/33), para. 1.
28
Ibid., para. 8.
29
African Commission on Human and Peoples’ Rights, “General comment No. 4 on the African Charter on Human and
Peoples’ Rights: the right to redress for victims of torture and other cruel, inhuman or degrading punishment or treatment
(article 5)” (Banjul, 2017), paras. 57–61.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
B. Mainstreaming gender in counter-terrorism
and criminal justice
One of the key strategies for promoting gender equality and women’s rights, and eliminating all forms
of discrimination against women on the basis of sex and gender, is gender mainstreaming. Gender
mainstreaming emerged as an internationally agreed strategy for promoting gender equality at the
Fourth International Conference on Women, held in Beijing, and was later adopted by the General
Assembly in its resolution 50/203 as a United Nations system-wide policy. Gender mainstreaming
promotes the human rights of women and the elimination of discrimination against women. It also
contributes to ensuring that measures to prevent and counter violent extremism and terrorism are
beer informed and targeted, ultimately making those measures more eective.
> FOCUS: GENDER MAINSTREAMING CONCERNS BOTH WOMEN AND MEN
e integration of a gender perspective into policies, practices and programmes involves examining the
needs and experiences of both women and men.
A gender-neutral approach, which does not dierentiate between the impact of terrorism and counter-
terrorism measures on women and men and assumes that they share the same experiences, needs and
concerns, can be problematic because it may reect the assumption that only men’s experiences of terrorism
and counter-terrorism are relevant. Because men typically dominate decision-making at the household and
community levels, a gender-neutral approach may in fact largely reect male priorities.
International responses to terrorism should consider and be shaped by the experiences of both men and
women: experiences as perpetrators of acts of terrorism, as victims of terrorism, and as agents in State and
non-State institutions (such as social movements) involved in countering terrorism.
a
It has been observed, however, that when gender has been considered in the context of counter-terrorism,
lile consideration has been given to “men” as a category. Instead, the term “gender” has been equated
with “women” as a category. As a result, there has been lile policy reection on what elements of mas-
culinity, male identity, male bonding and male status are implicated in radicalization, extremism and
engagement in political violence.
b
Considering the role of masculinities in terrorism can be critical to
understanding motivations for engaging in violent extremism or terrorism, and the ways in which mascu-
linities are employed in recruitment tactics:
… men who cannot meet traditional expectations of masculinity – such as breadwinner, respect and
honor, wealth, access to sexual partners of choice – may precisely nd that radical or extremist political
mobilization oers a compelling substitute for regular masculinity authentication. It is therefore not
accidental that terrorist/violent extremist groups manipulate gender stereotypes to recruit men and
women, ISIS notably employs hypermasculine images to portray its ghters, as well as promised access
to sexual gratication, marriage and guaranteed income as a reward for the glory of ghting. ese
motifs have proven indisputably alluring to marginalized men whose capacity to access any similar social
capital or status in their own communities will be extremely limited.
c
While recognizing the importance of analysing the role of masculinities, the present publication looks
predominantly at how women experience and are impacted by the justice system’s response to terrorism.
is focus is justied, given that a gender-neutral approach, which has characterized most criminal justice
responses to terrorism to date, is premised on the implicit assumption that terrorists, victims of terrorism
and counter-terrorism agents are primarily or exclusively male.
a
Jayne Huckerby, “Gender, counter-terrorism and international law” in Research Handbook on International Law and
Terrorism, Ben Saul, ed. (Cheltenham, United Kingdom, Edward Elgar Publishing Limited, 2014), p. 165.
b
Fionnuala Ní Aoláin, “e complexity and challenges of addressing conditions conducive to terrorism”, in Using
Human Rights to Counter Terrorism, Manfred Nowak and Anne Charbord, eds. (Cheltenham, United Kingdom, Edward
Elgar Publishing Limited, 2018), p. 187.
c
Ibid., p. 190.
CHAPTER 1. INTERNATIONAL LEGAL AND POLICY FRAMEWORK
ere exist two distinct policy priorities for mainstreaming gender, including one for measures to
counter terrorism and prevent violent extremism and another covering the criminal justice system in
general. e present publication is aimed at integrating these two perspectives in order to provide
guidance on mainstreaming gender into criminal justice responses to terrorism.
. Mainstreaming gender into counter-terrorism and preventing
violent extremism
e widespread recognition of the need to account for gender considerations throughout the scope of the
response to terrorism is a relatively new phenomenon. Such considerations range from the roles of women
and girls involved in terrorist activities and in preventing violent extremism, as well as their needs as
victims, to the eect that masculine gender constructs have on radicalization and the commission of terror-
ist acts against women. e global study on the implementation of Security Council resolution 1325
(2000) emphasized that the promotion of gender equality had been an aerthought in the response of the
international community to terrorism and violent extremism,
30
which was a reection of the gender-neutral
lens through which counter-terrorism responses had largely been developed.
e United Nations Global Counter-Terrorism Strategy, which was adopted by the General
Assembly in its resolution 60/288 and is reviewed every two years, represents the rst time that
Member States agreed upon a common strategic and operational approach to ghting terrorism. While
women’s rights were included under pillar IV, on the protection of human rights while combating ter-
rorism, the Strategy did not specically incorporate a gender perspective. In 2013, the Assembly, in its
resolution 68/178 on the protection of human rights and fundamental freedoms while countering ter-
rorism, called upon Member States to shape, review and implement all counter-terrorism measures in
accordance with the principles of gender equality and non-discrimination. is shi towards consider-
ing gender dimensions in State responses to terrorism was further reected in 2014, when the
Assembly, in its resolution 68/276 on the United Nations Global Counter-Terrorism Strategy Review,
encouraged Member States, United Nations entities and international and regional organizations to
consider the participation of women in eorts to prevent and counter terrorism.
31
More recently, in
2016, the Assembly, in its resolution 70/291 on the United Nations Global Counter-Terrorism
Strategy Review, urged Member States and United Nations entities to integrate a gender analysis on
the drivers of radicalization for women to terrorism, and to consider the impacts of counter-terrorism
strategies on women’s human rights and women’s organizations when developing strategies to counter
terrorism and violent extremism conductive to terrorism.
32
In its resolution 2178 (2014), which focused on the threat posed by foreign terrorist ghters, the
Security Council recognized, for the rst time, the need to empower women as a mitigating factor to
the spread of violent extremism and radicalization. Further, the Counter-Terrorism Commiee
Executive Directorate, in its third report on the implementation of Security Council resolution 2178
(2014) by States aected by foreign terrorist ghters, noted specically the growing phenomenon of
women and girl foreign terrorist ghters, recommending that the design, implementation, monitoring
and evaluation of strategies to counter violent extremism should include aention to the gender
perspective and should engage women from civil society and the security sector.
33
30
United Nations Entity for Gender Equality and the Empowerment of Women (UN-Women), Preventing Conict,
Transforming Justice, Securing the Peace: A Global Study of the Implementation of United Nations Security Council resolution 1325
(New York, 2015), p. 225.
31
General Assembly resolution 68/276.
32
General Assembly resolution 70/291.
33
S/2015/975, para. 28.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
> FOCUS: EMPOWERMENT OF WOMEN IN THE SECRETARY-GENERAL’S PLAN OF ACTION TO PREVENT
VIOLENT EXTREMISM
In the report of the Secretary-General on the Plan of Action to Prevent Violent Extremism, it was
emphasized that, in line with Security Council resolution 2242 (2015), “we must ensure that the
protection and empowerment of women is a central consideration of strategies devised to counter
terrorism and violent extremism”. In this regard, the Secretary-General recommended that Members
States do the following:
(a) Mainstream gender perspectives across eorts to prevent violent extremism;
(b) Invest in gender-sensitive research and data collection on women’s roles in violent extremism, includ-
ing on identifying the drivers that lead women to join violent extremist groups, and on the impacts of
counter-terrorism strategies on their lives, in order to develop targeted and evidence-based policy and
programming responses;
(c) Include women and other underrepresented groups in national law enforcement and security agencies,
including as part of counter-terrorism prevention and response frameworks;
(d) Build the capacity of women and their civil society groups to engage in prevention and response
eorts related to violent extremism;
(e) Ensure that a portion of all funds dedicated to addressing violent extremism are commied to projects
that address women’s specic needs or empower women.
a
a
A/70/674, para. 53.
e fact that women and girls are involved in and aected by terrorism and violent extremism in a
spectrum of ways that is highly gendered and can dier substantially to the experience of men and
boys, was also identied in the Global Survey of the Implementation of Security Council Resolution 1373
(2001) by Member States, compiled by the Counter-Terrorism Commiee Executive Directorate in
2016. It noted in the survey that women played multiple roles in terrorism-related policy, including
those of victims of terrorist violence, active ghters, sympathizers and mobilizers for terrorist groups,
and of being agents of social change, helping to prevent acts of terrorism and violent extremism.
34
Accordingly, the survey called for Member States to develop criminal justice responses that assist in
the rescue, disengagement, rehabilitation and reintegration of women as victims or perpetrators in
order to take account of these dierent modes of involvement and the individual experience of women,
requiring personalized and evidence-based approaches.
> FOCUS: GENDER MAINSTREAMING IN GOOD PRACTICES ON WOMEN AND COUNTERING VIOLENT
EXTREMISM OF THE GLOBAL COUNTERTERRORISM FORUM
e Global Counterterrorism Forum has developed a guidance document entitled Good Practices on Women
and Countering Violent Extremism, which contains good practices and focuses on women and gender aspects
in the context of eorts to counter violent extremism. e Forum acknowledges the failure of past eorts
aimed at countering violent extremism to mainstream gender, despite the participation of women and girls
in violent extremism and terrorism, as well as their roles in prevention.
Good Practice 1 establishes the need to include women and girls and gender mainstreaming in the design,
implementation, monitoring and evaluation of all policies, laws, procedures, programmes and practices
related to countering violent extremism.
34
S/2016/49, annex, para. 26.
CHAPTER 1. INTERNATIONAL LEGAL AND POLICY FRAMEWORK
According to the Global Counterterrorism Forum, mainstreaming gender in countering violent extremism
is based on the understanding that:
• Gender mainstreaming improves the design and implementation of eorts to counter violent
extremism and ensures that such eorts account for the dierent ways that women and girls are
involved in violent extremism.
• A comprehensive approach to countering violent extremism should integrate considerations of how
violent extremism and counter-terrorism eorts impact women and girls dierently than they impact
men and boys.
• Eorts to counter violent extremism should take into account the way in which societal gender norms
and expectations associated with belonging to a particular gender, shape people’s lives in order to
deliver more targeted interventions.
e document also underscores that the practical integration of women and girls into all aspects of programming
related to countering violent extremism can only occur in the context of broader guarantees of the human
rights of women and girls. In particular, such guarantees should include addressing the causes of gender inequal-
ity, such as the subordination of women and discrimination on the basis of sex, gender, age and other factors.
e promotion and protection of women’s rights and gender equality needs to underlie programmes and
strategies to counter violent extremism. e human rights of women and girls, as with all human rights, should
be promoted and protected at all times and not just as a means for countering violent extremism.
. Mainstreaming gender into criminal justice
Criminal justice systems – most of which were developed by and based on the experience of men – are in
many cases based on gender stereotypes about women and men who come into conict with the law (see
table 1). As a result, women may be discriminated against and disadvantaged at various points of contact
with the system, including the following: crime prevention eorts; phase of initial contact with law
enforcement; the investigation phase; before, during and aer the trial; and during imprisonment.
Table 1
ASPECT OF THE CRIMINAL
JUSTICE SYSTEM GENDER DIMENSION
The nature of victims and
oenders
• There is a tendency in the criminal justice system to stereotype men’s roles as
perpetrators of violence and women as passive victims.
• There are, however, dierences in the nature and frequency of crimes committed
against women compared with men, and which are driven by dierent risk factors.
For example, men are more often victims of crime that occurs in the public sphere,
and of homicides and assaults, while women are more likely to be aected by
oences in the private sphere, and by sexual assaults.
a
Criminalization of oences
• Some criminal law frameworks may overtly be discriminatory or have entrenched
gender-based inequalities. Others may be seen to operate equally with regards to
women and men, but in practice have dierential eects due to structural gender
inequalities.
• Some sexual crimes may be dened in an explicitly gendered way that precludes their
equal application to both men and women. For example, in some jurisdictions, legal
denitions of rape only recognize women as potential victims.
• Oences penalizing adultery, sexual misconduct or prostitution, even when formulated in
a gender-neutral manner, tend to disproportionately aect women. Women are in many
contexts more liable to be punished for such “moral oences”.
b
• In some jurisdictions, forms of violence against women are normalized on the basis of
culture, tradition and religion, and are not criminalized. As a result, victims of such
crimes are not protected under the criminal law or able to obtain redress.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
ASPECT OF THE CRIMINAL
JUSTICE SYSTEM
GENDER DIMENSION
The administration of criminal
justice, including gender-related
barriers in accessing justice and
responding to gender-based
violence
• Harmful gender stereotypes may inform the bias of criminal justice personnel,
including police, lawyers and judges. Such bias may manifest itself in sexual
violence cases influenced by, for example, beliefs about victim behaviour or
attitudes towards marital violence.
c
• Women may face barriers in accessing justice because of lower socioeconomic and
education status, and they may be less aware of their legal rights.
• Legal aid may not be available to women and men on an equal basis; for example,
women may not have equal access to the family income, which is often used as the
basis to determine eligibility for legal aid.
• Women are more likely to be victims of gender-based violence. Authorities may also
hold certain views towards gender-based violence that prevent women from
accessing justice.
Deprivation of liberty and
alternatives to imprisonment
• Men may be more likely to be detained without trial.
• Detention is used in some contexts as a form of “protection” for victims of rape, or
for those who are at risk of becoming victims of honour crimes.
d
• Women have a range of particular needs in detention that may not be considered in
prison systems that were designed for male needs. Women in detention facilities, for
example, are more likely to be subject to sexual abuse than male oenders.
• Deprivation of liberty may also not take into account, for example, the roles as
caregivers and mothers, which are usually attributed to women by society and
communities.
• Women may be disadvantaged in accessing alternatives to imprisonment. This may
be the case where, for example, gender-neutral conditions are imposed, such as
(a) bail conditions requiring regular reporting to authorities, which disadvantage
women who are primary caregivers or who are only able to travel while accompanied
by a male chaperone, or (b) cash bonds that women cannot aord because they do
not have equal access to household resources.
Source: Adapted from UNODC, Guidance Note for UNODC Sta: Gender Mainstreaming in the Work of UNODC
(Vienna, 2013), pp.69–73; and UN-Women and others, A Practitioner’s Toolkit on Women’s Access to Justice Programming:
Module 4–Women in Conict with the Law (New York, 2018), pp. 8–10.
a
Guidance Note for UNODC Sta, p. 69.
b
Handbook on Women and Imprisonment, Criminal Justice Handbook Series (United Nations publication, Sales No. E.14.
IV.3), pp. 81–87.
c
UNODC, Handbook on Eective Prosecution Responses to Violence against Women and Girls, Criminal Justice Handbook Series
(Vienna, 2014), pp. 29–37.
d
See, for example, A/HRC/4/33/Add.3, paras. 39 and 72.
In order to mainstream gender into criminal justice, one needs to take account of the dierentiated
impact of laws, policies and practices, and as well as of crimes, on women and men. In addition, one
must analyse how issues pertaining to the rule of law, security and justice are sustained by social and
power relations, question the biases built into such institutions and structures, and ensure that the
experiences, needs, priorities and capacities of both women and men are taken into account in any
criminal justice reform.
35
Mainstreaming gender is an essential step in strengthening the rule of law through the prevention of
crime and the promotion of eective, human rights-compliant and accountable criminal justice sys-
tems.
36
Further, as underscored in the guidance note on gender mainstreaming in the work of
UNODC, gender mainstreaming is vital to ensuring long-term sustainable criminal justice reform, as
it identies and uses opportunities for improving gender equality in projects and policies that would
35
Guidance Note for UNODC Sta, p. 68.
36
Ibid.
Table 1 (continued)
CHAPTER 1. INTERNATIONAL LEGAL AND POLICY FRAMEWORK
not have otherwise been considered gender issues.
37
It is also essential in order to avoid exacerbating
inequalities in criminal justice systems and maximizing the practical eectiveness of the system. Given
that the criminal justice system provides dierent experiences for women and men, who also possess
dierent perspectives and experiences, gender mainstreaming provides an opportunity to understand
those dierences and inequalities, which can help identify needs, target assistance and ensure that all
needs are met.
38
e right to equality and equal protection under the law requires the adoption of gender-responsive
approaches in the practices, aitudes, skills and gender composition of personnel. In general, inequali-
ties that occur in society at large – such as unequal gender power relations, gender stereotypes and the
aribution of dierent status and value to the sexes – permeate the composition and work of public
institutions. Personnel in criminal justice systems may consciously or subconsciously reinforce the
pervasive unequal power relations that characterize wider societal paerns of relations between
women and men.
FURTHER READING
• UNODC developed a tool entitled Gender in the Criminal Justice System Assessment Tool as part of
its Criminal Justice Assessment Toolkit. e assessment tool provides practical guidance on how to
comprehensively assess the role of gender in criminal justice systems, including the legal and regulatory
framework, policing, accessing justice, custodial and non-custodial measures, and victim and witness
protection.
• e Organization for Security and Cooperation in Europe has developed Understanding Gender and
Preventing and Countering Violent Extremism and Radicalization Leading to Terrorism: Good Practices for
the Security Sector (forthcoming).
C. Gender equality, the Women, Peace and Security Agenda
and the Sustainable Development Goals: the nexus
to counter-terrorism
. Women, Peace and Security Agenda
e Women, Peace and Security Agenda is a policy framework that is aimed at promoting gender
equality and enhancing the rights, participation and protection of women in conict and post-conict
contexts, including with respect to conict-related sexual and gender-based violence. e rst Security
Council resolution on women, peace and security was resolution 1325 (2000) which, in addition to
resolutions 1889 (2009) and 2122 (2013), addresses broad themes such as the specic experience of
women in conict and their role in peacebuilding, peacekeeping and conict resolution. Five subse-
quent resolutions also cover these issues, but focus more on conict-related sexual violence. ose
resolutions are resolutions 1820 (2009), 1888 (2009), 1960 (2010), 2106 (2013) and 2242 (2015).
e core notion underlying this agenda is that conict aects women and girls dierently from men and
boys, and that comprehensive, eective engagement with women in conict prevention and resolution
37
Ibid., pp. 7–8.
38
Ibid., p. 9.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
is integral to long-term peace and security.
39
Resolution 1325 (2000) is commonly seen as comprising
four pillars of engagement with issues concerning women in these contexts, namely, participation;
prevention; protection; and relief and recovery, which includes peacebuilding and prosecution.
More recently, increasing international focus has centred on linking core principles of the Women,
Peace and Security Agenda to countering terrorism and violent extremism, as a response to the devel-
oping understanding of the ways in which women and men are disparately aected by, and are involved
in, terrorist activities.
In its resolution 2242 (2015), the Security Council recognized the dierential impact on the human
rights of women and girls of terrorism and violent extremism, including in the context of their health,
education and participation in public life, and that they were oen directly targeted by terrorist groups,
and urged Member States and requested relevant United Nations entities to conduct and gather
gender-sensitive research and data collection on the drivers of radicalization for women and the
impacts of counter-terrorism strategies on women’s rights. e resolution called for greater integration
of the Women, Peace and Security Agenda into counter-terrorism measures, including by integrating
women’s participation, leadership and empowerment in developing strategies to counter terrorism and
violent extremism.
Addressing conict-related sexual and gender-based violence is a key component of the Women,
Peace and Security Agenda, and investigating and prosecuting such oences commied by terrorist
groups are examined in detail in chapter 5. In its resolution 1325 (2000), the Security Council called
upon all parties to armed conict to take special measures to protect women and girls from gender-
based violence, particularly rape and other forms of sexual abuse, and all other forms of violence in
situations of armed conict. A number of subsequent Council resolutions, including 1820 (2008),
1888 (2009), 1960 (2010) and 2106 (2013), have recognized sexual violence, when used as a strategy
in conict and commied systematically, as a fundamental threat to international peace and security
that demands an eective State response.
In its resolutions 2331 (2016) and 2388 (2017), the Security Council recognized the connection
between tracking in persons, sexual violence, and armed conict and terrorism, and also recognized
that that connection could prolong and exacerbate conict and instability or intensify its impact on
civilian populations. In its resolutions 2253 (2015) and 2368 (2017), the Council further recognized
the connection between tracking in persons by ISIL, Al-Qaida, and associated individuals and groups,
which may support such actors nancially, and the perpetration of sexual violence by these actors.
e integral role of the criminal justice system in protecting women and girls from conict-related
sexual and gender-based violence has equally been emphasized. Pursuant to Security Council
resolution 1325 (2000), special measures to protect women and girls from gender-based violence
should guarantee the respect for human rights of women and girls, especially in the judicial system. In
that resolution, the Council also urged States to prosecute crimes of sexual and other violence against
women and girls and called on all actors involved to take into account the special needs of women
and girls during rehabilitation, reintegration and post-conict reconstruction. Similarly, the General
Assembly, in resolution 65/228, underscored the implications of conict-related sexual and gender-
based violence for criminal justice responses to violence against women, recognizing the special
needs of women and children in situations of armed conict, and urging Member States to investi-
gate, prosecute and punish all perpetrators, and to ensure that women have equal protection under
the law and equal access to justice. Additionally, Council resolutions 1325 (2000), 1820 (2009) and
2106 (2013) stressed the need to exclude sexual violence crimes from amnesty provisions in the
context of conict resolution processes.
39
See UN-Women, UN-Women Sourcebook on Women, Peace and Security (2012).
CHAPTER 1. INTERNATIONAL LEGAL AND POLICY FRAMEWORK
National action plans for the implementation of Security Council resolution 1325 (2000) should
be developed by States in order to localize international commitments under the Women, Peace and
Security resolutions.
40
Where relevant, national action plans should include means for integrating the
Women, Peace and Security Agenda into national counter-terrorism measures. A number of States
have introduced measures, through their national action plans, aimed at preventing and addressing
conict-related sexual and gender-based violence, with some having framed their plans in the context
of ongoing security threats posed by, among others, terrorist groups. Regionally, the Economic
Community of West African States (ECOWAS) and the African Union have introduced regional
action plans aimed at encouraging Member States of those regional organizations to integrate strategic
and operational measures to realize the Women, Peace and Security Agenda at the national level.
41
> FOCUS: NATIONAL ACTION PLAN FOR NIGERIA FOR THE IMPLEMENTATION OF SECURITY COUNCIL
RESOLUTION 1325 (2000)
In March 2017, the Federal Ministry of Women Aairs and Social Development of Nigeria published a
national action plan for the implementation of Security Council resolution 1325 (2000) and related
resolutions in Nigeria, which provided a national policy framework for the realization of Security Council
resolution 1325 (2000) and Council resolutions related to the Women, Peace and Security Agenda. e
national action plan revised the earlier plan of 2013, in accordance with the changing security context and
emerging concerns related to terrorism, violent extremism and the developing humanitarian crisis.
It prescribed the roles of national bodies working with security, foreign policy, development and gender equality
relevant to the needs of women before, during and aer conict according to the following ve pillars:
1. Prevention and disaster preparedness: focused on the prevention of violations against women and
girls, including sexual and gender-based violence, discriminatory practices, and exploitation during
conict and violence
2. Participation and representation: aimed at securing the full and equal participation of women at all
levels of decision-making, including in relation to conict prevention and peacebuilding
3. Protection and prosecution: focused on ensuring protection against and prosecution of violations of
women and girls’ rights during conict
4. Crisis management, early recovery and post-conict reconstruction: aimed at ensuring the specic relief
and recovery needs of women and girls in crisis, recovery and post-conict situations
5. Partnerships coordination and management: aimed at increasing capacity and resources to coordinate,
implement, monitor and report on plans and programmes related to women, peace and security
Additionally, the national action plan provides for zonal action plans for six geopolitical zones in Nigeria
in order to tailor policies to meet the specic needs of those regions.
. Sustainable Development Goals
ere is clear policy congruence between the integration of women’s rights and gender dimensions
into criminal justice responses to terrorism and the Sustainable Development Goals, which are
grounded in gender equality and human rights, development, peace and the rule of law.
42
Goals 5
and 16 are particularly relevant in the present context.
40
Security Council, Presidential statements of 28 October 2004 (S/PRST/2004/40) and 27 October 2005 (S/PRST/2005/52).
41
See “ECOWAS plan of action for the implementation of United Nations Security Council resolutions 1325 and 1820”
(2010), African Union, “Gender policy” (2009); and African Union Commission, Implementation of the Women, Peace, and
Security Agenda in Aica, D. Bineta, J. B. Butera and S. eophilia, eds. (Addis Ababa, 2016).
42
General Assembly resolution 70/1, preamble.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
(i) Sustainable Development Goal 5
Sustainable Development Goal 5 (“Achieve gender equality and empower all women and girls”) is also
a key goal of the gender mainstreaming approach adopted in the present publication (see table 2).
Table 2
TARGET RELEVANCE OF GENDER-SENSITIVE CRIMINAL JUSTICE
RESPONSES TO TERRORISM
5.1 End all forms of discrimination
against all women and
girls everywhere
Eliminating discrimination against all women and girls requires
addressing discrimination in justice systems (including the way in
which those systems deal with women as victims, witnesses and
perpetrators), in eliminating gender-discriminatory laws and in
reducing discrimination in access to justice and remedies.
5.2 Eliminate all forms of violence
against all women and girls in the
public and private spheres, including
tracking and sexual and other
types of exploitation
Recognizing victims of sexual violence and tracking committed by
terrorist groups as victims of terrorism, including for the purpose of
obtaining redress and support, is a key criminal justice response to
this form of violence.
5.3 Eliminate all harmful practices, such
as child, early and forced marriage
and female genital mutilation
Ensuring accountability for harmful practices perpetrated by
terrorist groups, such as sexual enslavement, forced marriage and
tracking, is a key criminal justice measure aimed at eliminating
these practices.
5.5 Ensure women’s full and eective
participation and equal opportunities
for leadership at all levels of
decision-making in political,
economic and public life
Full participation and representation of women in the criminal justice
system, including in specialized counter-terrorism investigation and
prosecution units, is an important aspect of realizing equal access to
justice. Participation of women in conflict and post-conflict settings
and peacebuilding initiatives also reflects a key principle of the
Women, Peace and Security Agenda.
5.c Adopt and strengthen sound policies
and enforceable legislation for the
promotion of gender equality and the
empowerment of all women and girls
at all levels
Gender-sensitive criminal justice responses, including to terrorism,
require legal frameworks and processes that are responsive to the
experiences, realities and needs of women who interact with them
as victims, witnesses and/or perpetrators.
(ii) Sustainable Development Goal 16
Sustainable Development Goal 16 (“Promote peaceful and inclusive societies for sustainable
development, provide access to justice for all and build eective, accountable and inclusive institutions
at all levels”) contains principles that also inform robust and eective criminal justice responses to
terrorism (see table 3).
Table 3
TARGET RELEVANCE OF GENDER-SENSITIVE CRIMINAL JUSTICE
RESPONSES TO TERRORISM
16.1 Signicantly reduce all forms of
violence and related death
rates everywhere
Fostering respect for women’s rights and integrating gender
perspectives into criminal justice responses to terrorism, including
accountability for sexual and gender-based violence, contributes to
reducing violence.
16.3 Promote the rule of law at the national
and international levels and ensure
equal access to justice for all
Respect for women’s rights in the criminal justice responses to
terrorism promotes the rule of law and contributes to equal access
to justice for all, including victims of terrorism.
CHAPTER 1. INTERNATIONAL LEGAL AND POLICY FRAMEWORK
TARGET RELEVANCE OF GENDER-SENSITIVE CRIMINAL JUSTICE
RESPONSES TO TERRORISM
16.a Strengthen relevant national
institutions, including through
international cooperation, for
building capacity at all levels, in
particular in developing countries,
to prevent violence and combat
terrorism and crime
Building the capacity of criminal justice institutions to mainstream
gender in their responses to terrorist crime is key in preventing
violence and combating terrorism. It results in more eective
approaches to the investigation and prosecution of such crimes,
detention in these cases, and access to justice for victims.
16.b Promote and enforce
non- discriminatory laws and policies
for sustainable development
Mainstreaming gender contributes to criminal justice responses to
terrorism that promote gender equality and non-discrimination and,
in turn, contribute to sustainable development.
D. The special policy and legal framework for
the protection of the girl child
e increasing recruitment and use of boys and girls under the age of 18 for terrorism-related purposes
requires a specialized response of the justice system that is grounded in international human rights law
and the rule of law and that takes into account the specic international and regional legal and policy
framework related to the protection of child rights.
e present publication does not provide a comprehensive examination of criminal justice
responses to terrorism that are specic to children. Rather, the present section is aimed at canvassing,
with a gender perspective, the main policy and legal principles relevant to this area.
> CROSS-REFERENCE
• For a more detailed discussion of gender dimensions of the treatment of children recruited and exploited
by terrorist and violent extremist groups, please refer to the UNODC Handbook on Children Recruited
and Exploited by Terrorist and Violent Extremist Groups: the Role of the Justice System.
. The international policy framework for the protection
of the girl child
The core policy documents referred to in chapter 1 overwhelmingly refer to both women and
girls. Thus, the general principles established above also apply with respect to the girl child. In
addition, there is a substantial international legal framework dealing specifically with children,
including girls, who are in contact with the justice system, including as a result of involvement in
armed conflict.
e rst resolution adopted by the Security Council on the issue of children and armed conict,
resolution 1261 (1999), identied six grave violations during armed conict aecting children’s rights.
ose violations included the killing and maiming of children, recruitment or use of children as
soldiers, sexual violence against children, and abduction of children. In its resolution 1539 (2004), the
Council requested the Secretary-General to devise a systematic and comprehensive monitoring and
reporting system to provide timely information on children aected by armed conict.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
(i) Girls aected by the activities of terrorist groups
More recently, there has been a growing recognition of the specic ways in which children, and in
particular girls, are aected by the activities of terrorist groups and the counter-terrorism response.
Children are aected by terrorism in a number of ways, including as victims, perpetrators or some-
times both. Some have been forcibly recruited or abducted, while others have been led to join armed
groups out of material necessity or as a result of familial association.
In Afghanistan, the Taliban has used children to act as informers, spies, human shields, foot soldiers,
active combatants and even suicide bombers because they are readily available, cheap and useful, and
can be manipulated and terrorized.
43
Boko Haram has used girls as suicide bombers, in part to avoid
detection by security personnel, in support roles as cooks, messengers and lookouts, and as human
shields to protect Boko Haram assets during military operations.
44
At other times, children are
mobilized by State-allied militia and vigilante groups in support roles or as combatants.
45
In certain contexts, girls are targeted and subject to specic forms of violence as the result of the
ideological opposition of certain extremist groups to the education of girls,
46
while in others, girls are
subject to sexual and gender-based violence in order to terrorize, humiliate and weaken their com-
munities.
47
Forms of sexual and gender-based violence, such as rape and forced marriage, commonly
occur in the context of abductions of girls by terrorist groups.
48
e Secretary-General, in his 2017
report on children and armed conict in Nigeria, reported that between January 2013 and December
2016, the United Nations veried 199 incidents of rape and other forms of sexual violence aecting
217 children commied by Boko Haram, and further discussed widespread allegations of rape, sexual
violence and the sexual exploitation of displaced children by members of security forces throughout
2016.
49
A further consequence of sexual and gender-based violence is that children born to survivors
of rape commied by terrorist groups may face a lifetime of marginalization and may themselves
become victims of violence.
50
(ii) Tracking in persons aecting girls
Situations of armed conict and humanitarian crisis present a particular concern for the protection of
girls from tracking, including as the result of displacement.
51
e Secretary-General observed in his
2017 report on conict-related sexual violence that in the context of mass migration, women and
children aected by conict, displacement or violent extremism are particularly at risk of falling prey to
trackers owing to the collapse of protective political, legal, economic and social systems.
52
. The international legal framework, criminal justice responses
to terrorism, and protection of the girl child
While children enjoy the same human rights aorded to all persons under the international human
rights instruments referenced above, including the Convention on the Elimination of All Forms of
43
S/AC.51/2016/1, annex.
44
A/HRC/34/44 (2016), para. 13, and S/2017/304, para. 32.
45
A/70/836-S/2016/360, paras. 13–14.
46
S/2015/203, para. 6.
47
A/HRC/34/44, para. 10.
48
See, for example, A/72/361-S/2017/821, paras. 138 and 179.
49
S/2017/304, paras. 54 and 58.
50
S/2017/249, para. 10.
51
A/72/164, paras. 17–45.
52
S/2017/249, para. 8.
53
is section deals briey with applicable international and regional human rights law. e international humanitarian and
criminal law regimes discussed in chapter 5 may also be applicable.
CHAPTER 1. INTERNATIONAL LEGAL AND POLICY FRAMEWORK
Discrimination against Women and the International Covenant on Civil and Political Rights, the
Convention on the Rights of the Child provides the overarching international legal principles
specically relevant to children’s rights. e rights contained in the Convention are based upon
four guiding principles: non-discrimination (art. 2), the best interests of the child (art. 3), the right
to life, survival and development (art. 6), and respect for the views of the child (art. 12). Other
protections contained in the instrument that are particularly relevant in the context of the present
publication include:
• Protection against all forms of physical and mental violence (art. 19)
• Protection against all forms of sexual exploitation and sexual abuse (art. 34)
• Protection against all other forms of exploitation prejudicial to any aspects of the child’s welfare
(art. 36)
• Right not to be detained unlawfully or arbitrarily, and the requirement to limit any deprivation of
liberty of a child to a last resort and for the shortest period of time (art. 37)
• Provision of recovery and reintegration measures for child victims of neglect, exploitation,
abuse, torture or other forms of cruel, inhuman or degrading treatment or punishment, or
armed conicts (art. 39)
• Article 40 further establishes an extensive set of principles pertaining to juvenile justice, based on
the best interests of the child, participation, and the interest of promoting reintegration. e
Convention requires the establishment of laws, procedures, authorities and institutions speci-
cally applicable to child alleged oenders, and stresses the need to promote non-judicial meas-
ures, as well as alternatives to deprivation of liberty
As observed by the Commiee on the Elimination of Discrimination against Women, special
consideration must be given to the eects that discriminatory laws, procedures and practices in access-
ing justice have on girls in particular, given that the barriers women face are oen magnied for girl
children owing to a lack of social or legal standing.
54
e protection of children associated with armed groups is addressed in a number of instruments
and guidelines.
• International humanitarian law provides broad protection for children in the event of armed
conict, principally through the Fourth Geneva Convention and Additional Protocols I and II.
• e Optional Protocol to the Convention on the Rights of the Child on the involvement of children
in armed conict prohibits the recruitment of persons below 18 by non-State armed groups and the
compulsory recruitment of such persons by State armed forces. It establishes principles on the
participation and protection of children involved in and aected by armed conict.
• e Principles and Guidelines on Children Associated with Armed Forces or Armed Groups
supplement these instruments, and provide specic guidance on the prevention, release, reinte-
gration and protection of girls. ere are a number of key considerations established by the
Principles, notably:
– e denition of a “child associated with an armed force or armed group” refers not only to
those directly partaking in hostilities, but also those fullling support functions, and those
being used for sexual purposes.
54
CEDAW/C/GC/33, para. 24.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
– e Principles call for proactive measures targeting the reintegration and provision of
assistance to girls (principle 3.2), while principles 8.6–8.11 deal specically with the treat-
ment of children within justice mechanisms. Principle 8.7, for example, provides that children
who have been associated with armed groups should not be prosecuted or punished, or threat-
ened with such action, solely on the grounds of their association with the armed group.
– Children accused of crimes under international law commied while they were associated
with armed groups should be considered primarily as victims and not as perpetrators.
Children’s rights relevant to the present publication are further enshrined in a number of regional
instruments, in addition to those discussed in section C of the present chapter. ese instruments
include the African Charter on the Rights and Welfare of the Child, which enshrines, inter alia, pro-
tection against discrimination, sexual exploitation, tracking and abduction, child abuse and torture,
and use in armed conicts. e protections contained in the Maputo Protocol, discussed above, also
extend to girls.
(i) Child victims of tracking
e Convention on the Rights of the Child (art. 35), and its Optional Protocol on the sale of children,
child prostitution and child pornography (2000) prohibits the sale or tracking of children for any
purpose or in any form.
In addition, the Protocol to Prevent, Suppress and Punish Tracking in Persons, Especially Women
and Children, supplementing the United Nations Convention against Transnational Organized Crime,
applies equally to children, including girls. e purpose of the Protocol, as reected in its article 2, is to
prevent and combat tracking in persons; to protect and assist such victims; and to promote coopera-
tion among State Parties to achieve those aims. Pursuant to article 3, paragraph (c), of the Protocol,
tracking in children is to be considered as such even when it does not entail the threat or use of force
or any other form of coercion. Protection measures and access to justice for child victims of tracking
are further addressed in the Guidelines on the Protection of Child Victims of Tracking, developed by
the United Nations Children’s Fund, and the Recommended Principles and Guidelines on Human
Rights and Human Tracking,
55
in particular guideline 8 on child victims.
(ii) Criminal justice responses in the counter-terrorism context
Two aspects are key to ensuring the appropriate treatment of the girl child accused of terrorism-related
oences. First, States have the responsibility to full their obligations to both criminalize acts of terror-
ism and hold the perpetrators accountable, and to uphold children’s rights and respect the principles of
juvenile justice. Second, as has been the case in the past for child soldiers, the focus of media aention
and government action tends to be on boys, who are more oen represented as assuming active roles.
Owing either to their smaller numbers or to the fact that they are perceived to play mere support roles,
girls are more easily forgoen in the design and implementation of public policies, and are subse-
quently treated as women. While they have specic needs related to their gender, it is important to
fully recognize the status of girls as children, and accordingly full their specic rights.
ere is a clear need for States to strengthen the protection of children associated with terrorist
groups who are in contact with the criminal justice system, in line with the principles contained in the
Convention on the Rights of the Child that relate to the best interests of the child and eective reinte-
gration. In its resolution 70/291, entitled “e United Nations Global Counter-Terrorism Strategy
Review”, the General Assembly strongly condemned the systematic recruitment of children by
55
E/2002/68/Add.1.
CHAPTER 1. INTERNATIONAL LEGAL AND POLICY FRAMEWORK
terrorist groups; reiterated that Member States should consider the potential status of children as
victims of terrorism as well as of other violations of international law, including in cases in which they
were accused of terrorism-related oences; and noted that the treatment of children needed to be in
line with relevant international law, including the Convention on the Rights of the Child.
56
As noted in
the report of the Secretary-General on children and armed conict, in Member States’ response to
violent extremism, children are oen systematically treated as security threats rather than as victims,
and are administratively detained or prosecuted for their alleged association.
57
ese practices raise a
number of serious concerns with regard to international norms for the protection of children in the
juvenile justice system:
e type of court or judicial body. Military or special courts dealing with terrorism cases oen fail to
fully observe fair trial standards enshrined in the international instruments, particularly regarding
access to legal assistance, and are ill-equipped to apply juvenile justice principles. Children may
require additional support compared to adult suspects in order to understand the charges against
them, and should be aorded special considerations in the court system, in line with international
standards, commensurate with their status as minors.
e use of detention. In accordance with the Convention on the Rights of the Child, detention
should only be used as a measure of last resort and for the shortest appropriate period of time,
given that deprivation of liberty has long-term impacts on the child’s physical and psychological
development, and impedes education. Rather, emphasis should be placed on rehabilitation and
reintegration programmes, which not only benets the child, but also has wider benets for
addressing community grievances.
e use of screening procedures. Where screening procedures are used to assess children, they should
be carried out by civilian actors with experience in child protection, in accordance with the princi-
ples established in the Convention on the Rights of the Child of detention as a last resort and for the
shortest possible time.
Conditions of detention. Where detained, adults have oen been held together with children, and
boys together with girls, particularly exposing girls to an increased risk of sexual and gender-
based violence, exploitation and associated health risks. e special needs of girls in detention
must be borne in mind. Unless otherwise provided by specic international law provisions, chil-
dren should be separated from the adult population, and likewise, girls should be kept in
separate facilities.
> FOCUS: NEUCHÂTEL MEMORANDUM ON GOOD PRACTICES FOR JUVENILE JUSTICE
IN A COUNTERTERRORISM CONTEXT
e Neuchâtel Memorandum on Good Practices for Juvenile Justice in a Counterterrorism Context,
published in 2016 in the framework of the Global Counterterrorism Forum, provides guidance for state
responses to the increasing involvement of children in terrorism, through selected good practices in line
with international human rights standards. It addresses dierent aspects of criminal justice responses to
terrorism, including prevention, investigation, prosecution, sentencing and reintegration.
56
General Assembly resolution 70/291, para. 18.
57
A/70/836-S/2016/360, para. 16.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
FURTHER READING
• UNODC Handbook on Children Recruited and Exploited by Terrorist and Violent Extremist Groups: e
Role of the Criminal Justice System.
• For international standards on the administration of juvenile justice generally, see the United Nations
Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules). e Beijing
Rules deal with issues such as due process guarantees and alternatives to judicial proceedings, a number
of which have been incorporated into the Convention on the Rights of the Child.
• For further reference on adequate prevention and responses to violence against children who are in
contact with the justice system, see the United Nations Model Strategies and Practical Measures on the
Elimination of Violence against Children in the Field of Crime Prevention and Criminal Justice. e
Model Strategies take into account the particular vulnerabilities of children when involved in the justice
process, whether as victims or alleged oenders, and promote practical approaches to minimizing
incidents of violence.
• For further reading on criminal justice systems and children following armed conict, see Working Paper
No. 3: Children and Justice During and in the Aermath of Armed Conict, produced by the Oce of the
Special Representative of the Secretary-General for Children and Armed Conict.
SUMMARY OF KEY POINTS
• States have a positive obligation to protect those under their jurisdiction against abuses
by non-State actors, including terrorist groups.
• States parties to international human rights treaties are also required to prevent,
investigate and punish human rights violations by both State and non-State actors,
including on the basis of non-discrimination.
• Gender-based violence against women is a form of discrimination against women, and is a
violation of women’s human rights. Each State party to the Convention on the Elimination
of All Forms of Discrimination against Women is responsible not only for acts of its entities
constituting gender-based violence against women, but also has an obligation of due
diligence to prevent gender-based violence committed by non-State actors.
• The equal rights of women to access to justice and remedies for violations of their rights
are well-established in international and regional human rights law.
• Gender mainstreaming is a key strategy for promoting gender equality and women’s rights,
and eliminating sex- and gender-based discrimination. Applying a gender-mainstreaming
approach to activities related to countering terrorism and preventing violent extremism
recognizes that women and girls are involved in and aected by terrorism and violent
extremism in a spectrum of ways that is highly gendered, and which can dier substantially
to the experience of men and boys. Likewise, gender should be mainstreamed into criminal
justice responses to terrorism, considering the ways in which laws, policies and practices,
and as well as terrorist crimes, have a dierentiated impact on women and men.
• In countries aected by terrorism and armed conflict, integrating a gender-mainstreaming
approach and women’s rights into criminal justice responses to terrorism is a key measure
to advance the Women, Peace and Security Agenda. It is also important to promote
achievement of the Sustainable Development Goals, in particular, Goals 5 and 16.
• A special policy and legal framework exists for protection of children, girls and boys,
aected by or associated with terrorist groups.
bottom: Wreckage of an Al-Shabaab suicide car bomb attack in
Mogadishu, Somalia. © UN Photo/Stuart Price
centre: © unsplash.com/kaitlyn-baker
GENDER DIMENSIONS
OF TERRORISM OFFENCES
Provisions of criminal law under which terrorism-related conduct is punishable are usually
formulated in gender-neutral terms. Many types of conduct are criminalized under such
provisions, such as killing, hostage-taking and the financing of acts of terrorism, without distin-
guishing between the gender of the alleged perpetrators or the different impacts that such
criminalization has on women and men. The present chapter explores the impacts of these provi-
sions and potential criminal justice responses by employing the gender mainstreaming approach
introduced in chapter 1.
e topics addressed in the present chapter are as follows:
• Section A contains a brief overview of women’s and men’s roles in terrorist groups and the
degrees of agency and voluntariness with which women full those roles. On the one hand, it
is important to avoid stereotypes, such as those based on the assumption that women only
full auxiliary roles in terrorist groups or are associated with such groups solely as the result
of coercion. On the other hand, it must be recognized that women’s roles in terrorist groups
and in the commission of terrorist acts oen dier from those of men, and those dierences
are in many cases dictated by gender roles, norms and stereotypes of the group or of the
society the group exploits. Developing a nuanced understanding of those dierences is essen-
tial for the development of criminal justice responses to terrorism that are eective and
comply with human rights.
• In order to promote such a nuanced understanding, section B includes an examination of ways
in which the criminalization of both activities that support terrorist groups, as well as the plan-
ning and preparation of terrorist acts without direct participation in violent action, may aect
women and men in dierent ways. Issues examined include oences related to the foreign
terrorist ghter phenomenon, and the mental requirement – that is, the element of intention
(mens rea)
– of terrorism support oences, including nancing of terrorism. Section B also
contains a discussion of oences related to the sheltering of terrorism suspects and the
gendered impacts of penalties incurred as a result of providing support for the commission of
terrorist oences.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
• Section C includes an examination of potential criminal justice responses to situations in which
an individual who has been involuntarily associated with a terrorist group is alleged to have
commied a terrorism-related oence. is is an important consideration in the light of the
dierent forms of coercion, which disproportionately aect women.
• Section D contains a brief discussion of the other gendered impacts of measures designed to
suppress the nancing and support of terrorism.
A. Roles of women in terrorist groups
In the 2016 global survey on the implementation of resolution 1373 (2001), the Counter-Terrorism
Commiee Executive Directorate noted that the participation of women in acts of political violence
and terrorism was not a new phenomenon. However, a noticeable escalation in the activities of promi-
nent female members of terrorist groups and the number of female foreign terrorist ghters
necessitated further exploration of the topic.
58
> EXAMPLE: STATISTICS ON WOMEN ARRESTED FOR TERRORISM OFFENCES IN THE UNITED KINGDOM
OF GREAT BRITAIN AND NORTHERN IRELAND AND EUROPE
Between 2001/02 and 2016/17, men accounted for 91 per cent and women for 9 per cent of those arrested
in the United Kingdom for terrorism-related oences.
a
However, in the year ending 30 September 2017,
15 per cent of those arrested for terrorism-related oences were women. is is the largest proportion of
women arrested for such oences on record in the United Kingdom, and continues the trend in which an
increasing proportion of women have been arrested in recent years.
b
In the wider European context, the overall number of women arrested for terrorism-related oences almost
doubled from 2014 to 2015, with 96 women arrested in 2014 compared with 171 in 2015. In comparison,
the number of men arrested during the same period increased by roughly one third, from 678 in 2014 to
906 in 2015. An even sharper increase was noted in the number of women arrested for oences related
to jihadist terrorism, from 6 in 2013 to 52 in 2014 and 128 in 2015.
c
e proportion of women arrested
for oences related to jihadist terrorism also increased from 18 per cent of all those arrested for such
oences in 2015 to 26 per cent in 2016.
d
ese statistical trends may be due to both an increased number
of women participating in terrorism-related activities and the increased awareness of law enforcement and
criminal justice actors with respect to the role of women in terrorism.
a
United Kingdom of Great Britain and Northern Ireland, House of Commons Library, “Terrorism in Great Britain: the
statistics”, brieng paper No. CPB7613, 7 June 2018, p. 14.
b
United Kingdom, Home Oce, Operation of police powers under the Terrorism Act 2000 and subsequent legislation:
Arrests, outcomes, and stop and search, Great Britain, quarterly update to September 2017, Statistical Bulletin 24/17
(London, 2017), p. 13.
c
European Law Enforcement Agency (Europol), European Union Terrorism Situation and Trend Report 2016 (e
Hague, 2016), pp. 10–11.
d
Europol, European Union Terrorism Situation and Trend Report 2017 (e Hague, 2017), p. 22.
An important preliminary consideration concerns voluntary and forced association with terrorist
groups. Some individuals – including both women and men – become associated with terrorist groups
of their own volition and contribute to the activities of those groups of their own accord. However,
others become associated with terrorist groups as the result of coercion. Terrorist groups recruit women,
men, girls and boys against their will in a variety of ways, including by abducting them; making threats
58
S/2016/49, annex, para. 33.
CHAPTER 2. GENDER DIMENSIONS OF TERRORISM OFFENCES
against them, their families or communities; or relying on spouses or other family members to coerce
them. ere is strong evidence, however, to suggest that, in some contexts, the rate of involuntary
recruitment is much higher for women than for men. Such a contrast may be a manifestation of broader
gender inequalities, including the existence of unequal power relations between women and men.
> EXAMPLE: 2017 REPORT OF THE UNITED NATIONS DEVELOPMENT PROGRAMME – JOURNEY TO
EXTREMISM IN AFRICA: DRIVERS, INCENTIVES AND THE TIPPING POINT FOR RECRUITMENT
e report highlights the disproportionately high percentage of women who are coerced into joining
terrorist or extremist organizations, including Boko Haram, Al-Shabaab and Islamic State in Iraq and the
Levant (ISIL, also known as Da’esh). Participants were surveyed in Cameroon, Kenya, the Niger, Nigeria,
Somalia and the Sudan, and responded as follows:
• 495 respondents indicated that they had voluntarily joined a violent extremist group, with women
accounting for 12 per cent of those respondents.
• 78 respondents indicated that they had been recruited by force by a violent extremist group, with
women accounting for 53 per cent of those respondents.
Women recruited by force are at risk of being subjected to sexual and gender-based violence and
forms of exploitation, such as forced and early marriage, sexual slavery, rape or forced domestic labour,
which clearly make them victims of crime. ey may, however, also be forced to carry out duties such
as carrying ammunition or participating in military operations, thereby becoming alleged terrorist
oenders. Moreover, both women and men initially recruited against their will may subsequently be
willing to commit acts of terrorism.
As reected in some of the examples below, the distinction between voluntary and coerced recruitment
for involvement in a terrorist group is not always clear. Economic dependency, traditional gender roles and
the pressure of community expectations in many cases create a situation in which a woman’s association
with a terrorist group can neither be said to be entirely against her will, nor fully voluntary. In the context
of women’s participation in terrorist activities, the Center on Global Counterterrorism Cooperation notes
that in many instances, women can be more vulnerable than men to being drugged, raped, physically
coerced, and emotionally and socially blackmailed, especially in traditionally patriarchal societies where
they have lile recourse to alternative mechanisms of empowerment or independence.
59
. Leadership and combat roles
e terrorist entities contained in the list established and maintained pursuant to Security Council
resolutions 1267 (1999), 1989 (2011) and 2253 (2015) are dominated by men, who both hold the
ideological and military leadership positions and, where these groups are engaged in armed conicts,
constitute a vast majority of the combatants. Women have, however, played active roles in numerous
terrorist groups, acting as founders and leaders, and continue to occupy operational positions as
combatants in some groups.
59
Naureen Chowdhury Fink, Raa Barakat and Liat Shetret, “e roles of women in terrorism, conict, and violent extremism:
lessons for the United Nations and international actors”, Policy Brief (Goshen, Indiana, Center on Global Counterterrorism
Cooperation, 2013), p. 3.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
> FOCUS: WOMEN IN LEADERSHIP ROLES IN TERRORIST GROUPS
Women have previously fullled leadership functions in a number of terrorist groups:
• From around 1968 to her death in 1976, Ulrike Meinhof was the ideological leader of the Red Army
Faction, a terrorist group active in Germany.
• A number of women have assumed leadership positions in the Euskadi Ta Askatasuna (ETA) (Basque
Homeland and Liberty). A woman, Iratxe Sorzabal Diaz, was also appointed its leader in 2009.
• e Japanese Red Army was formed and led by a woman, Fusakao Shigenobu.
In a recent study, it was stated that the Liberation Tigers of Tamil Elam (LE), which fought the
Government of Sri Lanka and carried out numerous terrorist aacks from the 1980s to 2009, had a
signicant inuence on the development of modern terrorism and the role of women within it. e success
that LE had in assassinating signicant military and political gures using female suicide bombers clearly
inuenced the thinking of many groups around the world. In addition to identifying as its main objective the
right of self-determination for the Tamil people, LE, in its 1991 manifesto, also included among its pri-
mary objectives the dismantling of the caste and dowry system, equality for women and the protection of
women against rape and sexual harassment.
60
In order to avoid oending the cultural values of Tamil society
at large, the integration of women into the core of LE proceeded slowly. e women within LE were
organized into their own special section and lived in separate camps.
61
Women were invited to take part in
tactical operations long aer the group had begun its military operations, in order to supplement a lack of
manpower. By some estimates, women were incorporated as combat troops over a decade aer the group
began operations. However, LE incorporated women faster than many other groups did, and in more
thorough roles. at may have been as a result of the fact that LE was primarily an ethno-nationalist
organization. While the group did exist within the patriarchal connes of the society of Sri Lanka, without
religiously motivated patriarchy, limitations on women were likely more easily overcome.
62
Reports on contemporary terrorist groups demonstrate that their ideology substantially inuences
the extent to which women have leadership roles. Ideological and tactical considerations inuence the
extent to which women are involved in commiing violent acts. In ISIL, deviation from domestic roles
is permied only in extreme cases, such as when under aack or when an imam issues a fatwa, or where
there is a shortage of men fullling combat functions.
63
ere have been reports of women receiving
combat training. In fact, unmarried women or widows have been assigned more active, low-level
professional functions designed to support the caliphate, such as becoming a member of the all-female
Al-Khansaa security brigade.
64
Reports indicate that this brigade consists of single women between the
ages of 18 and 25, who are provided with weapons training; enforce strict sharia laws applicable to
women, including by commiing acts of severe violence against other women; enforce dress codes;
conduct stop and search activities of women; gather intelligence; and recruit female members.
65
In its manifesto, the Al-Khansaa brigade explained the ideological foundations for the roles assigned to
men and women in ISIL. e brigade argued that the blurring of women’s and men’s roles in contemporary
westernized societies and the rise in the number of emasculated men were to blame for many of the ills
60
Jessica Davis, Women in Modern Terrorism: From Liberation Wars to Global Jihad and the Islamic State (London, Rowman and
Lileeld Publishing Group, 2017), p. 72.
61
Ibid., p. 77.
62
Ibid., p. 78.
63
United States Institute for Peace, “Afghan women and violent extremism: colluding, perpetrating, or preventing?”, Special
Report No. 396, 30 November 2016, p. 4; and Amanda N. Spencer, “e hidden face of terrorism: an analysis of the women in
Islamic State”, Journal of Strategic Security, vol. 9, No. 3 (2016), p. 83.
64
Spencer, “e hidden face of terrorism”, p. 83.
65
Ibid., pp. 83–84; and Joana Cook and Gina Vale, From Daesh to “Diaspora”: Tracing the Women and Minors of Islamic State
(London, International Centre for the Study of Radicalization, 2018), p. 28.
CHAPTER 2. GENDER DIMENSIONS OF TERRORISM OFFENCES
aicting the community of Muslims (ummah). It proposed a model of society in which men would again
be “real men”, while adding that it would always be preferable for a woman to remain hidden and veiled,
and to maintain society from behind that veil. Women’s participation in defensive jihad could be permissible
in limited circumstances and when sanctioned by imams.
66
A recent study noted, however, that Islamic
State had also shied their position on the status of women in combat roles between 2014 and 2018,
allowing women to take on increasingly more active roles, including stating that it was obligatory for
women to take up arms.
67
With regard to Boko Haram, scholars have argued that ideological dierences
between various factions inuenced the extent to which they relied on women for operational roles.
68
According to the 2017 Europol report on terrorism trends in the European Union, women and
young adults, as well as children, are playing increasingly operational roles in commiing terrorist
activities in the European Union. In addition, those individuals are not only facilitating other opera-
tives, but also acting independently in the aempted execution of terrorist aacks.
69
Several aacks in
Europe have been planned by women. ree women were arrested in France in 2016 for ploing
aacks in Paris, which was the rst recorded arrest of a terrorist cell consisting solely of women. In
October 2016, authorities in Morocco dismantled another such cell, which consisted of 10 women
who were planning a series of aacks.
70
. Female suicide bombers
e use of female suicide bombers has been a marked strategy of some terrorist groups since the late
1970s. In more recent years, the incidence of women commiing suicide aacks has increased, and
suicide aacks are becoming increasingly prevalent within some groups.
71
Female suicide bombers are
used by terrorist groups for many reasons, including:
• e use of women provides strategic and tactical advantages. Traditionally, women have been
beer able to evade the suspicion of and searches by security forces owing to gendered assump-
tions that women are less likely to engage in violent functions. Such assumptions enable terrorist
groups to exploit gender stereotypes and expectations related to women’s nature – which is
alleged to be inherently non-violent and passive – certain forms of dress, or apparent pregnancy,
to avoid invasive searches by security forces.
72
• Using female suicide bombers enables terrorist groups to expand their recruitment base.
• Aacks by female suicide bombers garner media aention owing to their doubly “transgressive”
nature. In addition to the transgression of sacricial violence there is the gender-specic transgres-
sion, namely, the fact that women, who are usually seen as victims or peacemakers in times of war,
can assume the role of perpetrators of political violence.
73
Aacks by female suicide bombers in
Israel, Nigeria and the State of Palestine, as well as in Chechnya, have been the topic of high-prole
media aention.
66
Charlie Winter, “Women of the Islamic State: a manifesto on women by the Al-Khanssaa brigade”, Quilliam Foundation,
February 2015. Available at hps://therinjfoundation.les.wordpress.com/2015/01/women-of-the-islamic-state3.pdf.
67
Cook and Vale, From Daesh to “Diaspora”, p. 28.
68
Rachel Bryson and Audu Bulama Bukarti, “Boko Haram’s split on women in combat”, Tony Blair Institute for Global
Change, 17 September 2018. Available at hps://institute.global/insight/co-existence/boko-harams-split-women-combat.
69
European Union Terrorism Situation and Trend Report 2017, p. 7.
70
Tanya Mehra, “Foreign terrorist ghters: trends, dynamics and policy responses” (e Hague, International Centre for
Counter-Terrorism, 2016), pp. 11–12.
71
Jessica Davis, “Evolution of the global Jihad: female suicide bombers in Iraq”, Studies in Conict and Terrorism, vol. 36, No. 4
(2013), p. 280; according to some academics, female suicide aacks accounted for approximately 15 per cent of all suicide
aacks between 1985 and 2006.
72
Mia Bloom, “Bombshells: women and terror”, Gender Issues, vol. 28, Nos. 1–2 (2011), p. 3.
73
Pénélope Larzillière, “On suicide bombings: questioning rationalist models and logics of gender”, International Review of
Sociology, vol. 27, No. 1 (2017), p. 114.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
e spectrum of women’s involvement in such aacks, ranging from voluntary to coerced, also
varies greatly between groups. As noted above, LE played a pioneering role in using female recruits
to commit suicide bombings, including for high-prole assassinations.
74
Women have been particu-
larly active in suicide terrorism in the Chechen conict, with some studies suggesting that women
were involved in 81 per cent of all suicide aacks between 2000 and 2005,
75
resulting largely from
voluntary recruitment, although cases of coercion or deception by spouses and family members have
been noted.
76
Terrorist groups active in Iraq have also used female suicide bombers, with 28 total aempted and
achieved aacks between 2003 (when the rst aack in Iraq by a woman was recorded) and 2008.
77
Reports further indicate that the majority of female suicide bombers in Iraq are relatives of male mem-
bers of terrorist groups who were recruited by leveraging family loyalties to these groups.
78
According
to one author, the majority of Iraqi female suicide bombers have been coerced, intimidated and oen
brainwashed into carrying out suicide operations. e terrorist groups target underage women who
are living on the streets and have no men to protect them. At other times, the women are simply
tricked. ey are told that the packages they are transporting contain contraband, but their minders
detonate the improvised explosive devices using remote controls without the women ever knowing
they have volunteered for a mission.
79
Boko Haram has increasingly used female suicide bombers since 2011. Of the 434 suicide bombers
deployed by the group between April 2011 and June 2017, 244 were positively identied as female.
80
e use of girls in suicide aacks also increased over the same period. Girls accounted for 75 per cent
of all child suicide bombers between January 2014 and February 2016.
81
A total of 55 girls were used in
suicide aacks between January and August 2017 alone.
82
e level of voluntariness with which these
aacks are carried out also varies, with reports indicating that children were coerced into carrying out
suicide bombings.
83
According to a report by the International Crisis Group, the youngest female
bomb-carriers are oen victims themselves, with lile awareness, duped by relatives and possibly
drugged. However, the older bombers appear to have been volunteers who were moved by commit-
ment to jihad. ose individuals have apparently been indoctrinated over a long period, including with
the promise of direct admission to al-jinnah (paradise).
84
Al-Shabaab has mobilized women as suicide bombers, with three suicide aacks between 2007 and
2017 being carried out by women.
85
. Women as recruiters
Women are prominent in mobilizing support and recruiting for terrorist groups. According to a 2015
report on the implementation of Security Council resolution 2178 (2014), a worrying development
is the increase in female recruiters, who radicalize and recruit young women and girls to play more
74
Davis, Women in Modern Terrorism, p. 78.
75
Anne Speckhard and Khapta Ahkmedova, “e making of a martyr: Chechen suicide terrorism”, Studies in Conict and
Terrorism, vol. 29, No. 5 (2006), p. 468.
76
Ibid., pp. 471–472.
77
Anne Speckhard, “Female suicide bombers in Iraq”, Democracy and Security, vol. 5, No. 1 (2009), p. 26.
78
Mia Bloom, Oxford Research Encyclopaedia of Politics, “Women and terrorism”, January 2017, p. 11.
79
Ibid., p. 12.
80
Economist, “Why Boko Haram uses female suicide-bombers”, 23 October 2017.
81
UNICEF, “Beyond Chibok: over 1.3 million children uprooted by Boko Haram violence” (April 2016).
82
UNICEF, “Use of children as ‘human bombs’ in north-east Nigeria”, press release of 22 August 2017.
83
S/PRST/2015/4.
84
International Crisis Group, “Nigeria: women and the Boko Haram insurgency”, Africa Report No. 242 (Brussels, 2016), p. 10.
85
Davis, Women in Modern Terrorism, p. 114.
CHAPTER 2. GENDER DIMENSIONS OF TERRORISM OFFENCES
active roles as producers, disseminators and supporters of violent messages and images on social
media or as active supporters (such as ghters, recruiters, fundraisers, logisticians, messengers or
spies) of Boko Haram and ISIL.
86
Mobilizing women to take part in recruitment roles fulls a number of gender-related purposes.
Female recruiters may be used to specically encourage other women to join terrorist groups.
Alternatively, by subverting gender roles, the use of women in recruitment may incentivize male
recruitment, or mobilize male support through shaming men. e inclusion of women in its
propaganda and recruitment measures has been a key component of the ISIL strategy, reecting its
recognition of the role of women in its long-term State-building goals.
A study on women’s role in violent extremism in Kenya concludes with the assertion that women
play a major role as recruiters for Al-Shabaab, but makes the following critical observations with regard
to the way the role of women is viewed:
Respondents viewed women who played a role as recruiters through the lens of two age-old female
stereotypes: mother and temptress. ose who used their inuence in the home – as the familial
“custodians of cultural, social and religious values” – were seen in their domestic role as mothers
and wives; those who recruited in a context external to the home, such as in the refugee camps, were
seen as temptresses “luring” young men with false promises.
87
In addition to women’s active role as recruiters, the promise of wives and/or sex slaves has been
instrumental to the recruitment of men by some terrorist groups (see chap. 5, sect. A.2).
. Women in support roles
Women support terrorist groups in a number of capacities. In Nigeria, women have been sought out by
Boko Haram to full logistical tasks, such as smuggling munitions, arms and food, and acting as messen-
gers and spies for the organization, because they are perceived to be less conspicuous than male militants.
88
Women also provide domestic labour for the male members of Boko Haram, such as by cooking, cleaning
and performing general household duties. In Algeria, women in Al-Qaida in the Islamic Maghreb are
responsible for providing support materials, including clothes, food and medicine.
89
e above-mentioned study on the role of women in violent extremism in Kenya concludes that
women are far more actively involved in violent extremism in non-combative or indirect roles, and that
they provide the invisible infrastructure for Al-Shabaab by enabling, supporting and facilitating violent
extremism through a number of roles and activities.
90
Beyond its two female-only brigades, ISIL typically limits women’s participation to the “honoured
roles” as the wives and mothers of combatants,
91
pursuant to the organization’s al-Khansaa manifesto and
its reading of Islamic law. Accordingly, marriage is promised to and expected of female recruits, and this is
a key strategy in producing the next generation of ISIL combatants and entrenching its ideology.
92
86
S/2015/975, para. 24; see also Edwin Bakker and Seran de Leede, “European female jihadists in Syria: exploring an under-
researched topic”, background note for the International Centre for Counter-Terrorism, April 2015; and Marije Meines and
others, N Manual: Responses to Returnees–Foreign Terrorist Fighters and eir Families, Nicola Davenport, ed., European
Commission Radicalisation Awareness Network Issue and Policy Papers (July 2017), p. 21.
87
Irene Ndung’u, Uyo Salifu and Romi Sigsworth, Violent Extremism in Kenya: Why Women Are a Priority, Monograph
No.197 (n.p., Institute for Security Studies, 2017), pp. 30–31.
88
“Nigeria: women and the Boko Haram insurgency”, p. 10.
89
Bloom, “Women and terrorism”, p. 9.
90
Ndung’u, Salifu and Sigsworth, Violent Extremism in Kenya, p. 31.
91
“Afghan women and violent extremism”, p. 4.
92
Dallin Van Leuven, Dyan Mazurana and Rachel Gordon, “Analysing the recruitment and use of foreign men and women in
ISIL through a gender perspective” in Foreign Terrorist Fighters under International Law and Beyond, Andrea de Guy, Francesca
Capone and Christophe Paulussen, eds. (e Hague, T.M.C Asser Press, 2016), pp. 111–113.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
In their central roles as wives and mothers, women in ISIL primarily undertake domestic work and
are expected to provide support and sustenance and to ll in positions men have vacated to take part in
combat.
93
e ISIL manifesto does conditionally authorize women’s employment outside of domestic
duties in the home, including as doctors and teachers, to full administrative and law enforcement
roles and to work in hospitals and orphanages.
94
According to a 2016 report on women and violent extremism in Afghanistan, women oen support
the activities of terrorist groups as a result of the involvement of male relatives or spouses in such
groups. e report also suggests that a lack of condence, religious knowledge and social and family
pressure or expectations may impede the ability of women to question the involvement of male family
members with terrorist groups. e report further notes that the choice to support terrorist groups is
generally less well informed for women than it is for men, reducing their agency in the participation of
those acts. is includes, for example, male relatives arranging for women to transport arms without
providing them with adequate knowledge about what they are doing.
95
. The foreign terrorist ghter phenomenon
In Security Council resolution 2178 (2014), “foreign terrorist ghters” are dened as individuals who
travel to a State other than their States of residence or nationality for the purpose of the perpetration,
planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist
training, including in connection with armed conict. In its resolution 2396 (2017), the Council
emphasizes that women and children associated with foreign terrorist ghters may have served in
many dierent roles, including as supporters, facilitators or perpetrators of terrorist acts, but that they
may also be victims of terrorism.
e majority of people who travelled to Iraq and the Syrian Arab Republic to join ISIL, the Al-Nusra
Front and other terrorist groups were men. Women, however, did represent a sizeable proportion of
total travellers. According to a United Nations report from 2016, a study of 77 Member States most
aected by the foreign terrorist ghter phenomenon indicated that women constituted between
20 and 30 per cent of them.
96
In addition, an academic report compiling gures from over 80 countries
found that among the adults who travelled to Iraq and the Syrian Arab Republic to join ISIL, the
proportion of women varied signicantly from one region of origin to another. Approximately half of
the adults who travelled from China were women, while in the case of countries in the Middle East and
North Africa, fewer than one in ten people who travelled to join ISIL were women, according to the
data provided by Governments.
97
ere are some observable trends regarding the foreign terrorist ghter phenomenon that mirror
the more general points described above in relation to women’s roles in terrorist groups.
Firstly, some women travel as a result of the involvement of their male relatives or spouses in such
groups. It has been reported that many women from Western Europe who travel to Iraq and the Syrian
Arab Republic marry upon arrival or just before departure.
98
In the case of Kosovo,
99
researchers report
that none of the women who travelled to Iraq and the Syrian Arab Republic did so on her own; all of
93
“Afghan women and violent extremism”, p. 4.
94
Spencer, “e hidden face of terrorism”, pp. 86–87.
95
“Afghan women and violent extremism”, pp. 10–11.
96
Security Council, Counter-Terrorism Commiee Executive Directorate, Implementation of Security Council resolution 2178
(2014) by States Aected by Foreign Terrorist Fighters: A Compilation of ree Reports (S/2015/338; S/2015/683; S/2015/975), p. 5.
97
Cook and Vale, From Daesh to “Diaspora”, pp. 16–19.
98
Mehra, “Foreign terrorist ghters”, p. 11.
99
All references to Kosovo in the present publication should be understood to be in compliance with Security Council
resolution 1244 (1999).
CHAPTER 2. GENDER DIMENSIONS OF TERRORISM OFFENCES
them were accompanying their husbands and families.
100
Field research conducted by the United
Nations Entity for Gender Equality and the Empowerment of Women (UN-Women) between 2016
and 2017 on women from Central Asia and the Western Balkans who travelled to Iraq and the Syrian
Arab Republic further illustrates the role that gender relations play in the travel of women to conict
zones, with varying degrees of agency.
> EXAMPLE: UN-WOMEN RESEARCH ON WOMEN TRAVELLING FROM CENTRAL ASIA
AND THE WESTERN BALKANS TO IRAQ AND THE SYRIAN ARAB REPUBLIC
According to the Government of Tajikistan, most of the approximately 200 female nationals of Tajikistan
who had travelled to Iraq and the Syrian Arab Republic by the time the study was conducted had been
encouraged to do so by their husbands. In several instances, they were accompanied by their children.
Some of the wives were told that they were migrating to Turkey to work, and only realized later that they
were already in the Syrian Arab Republic. is trend can be partially explained by women’s lack of access
to information and men’s control over family resources and decision-making. According to the UN-Women
study, those women are likely to have felt pressured by a mix of economic dependency, traditional family
roles and community expectations dictating that they support and follow their husbands.
a
In Kyrgyzstan, women who travelled to the Syrian Arab Republic were depicted by police and intelligence
ocials as traditional wives who were obedient to their husbands, lacking any personal agency. Law
enforcement and intelligence ocials referred to the naiveté of the poor and rural populations of
Kyrgyzstan, particularly women, stating that many were unaware of the armed conicts in Iraq and the
Syrian Arab Republic, the actualities of life under ISIL or even the geographical location of the Syrian
Arab Republic. Pictures shared over the Internet and second-wave recruitment by trusted friends and
relatives, which portray coming to ISIL as landing in paradise, persuaded some to travel with a very naive
outlook on their journey towards the so-called caliphate.
b
e study also includes cases of women who openly acquiesced to the move, or even instigated it. ese
included women who travelled without a male partner with the clear intention of joining violent extremist
groups ghting on the ground.
c
a
Anna Matveeva and Bahrom Faizullaev, “Women and violent extremism in Europe and Central Asia: women and
violent extremism in Tajikistan” (United Nations Entity for Gender Equality and the Empowerment of Women
(UN-Women), 2017), p. 7.
b
Anne Speckhard, Ardian Shajkovci and Chinara Esengul, “Women and violent extremism in Europe and Central Asia:
the roles of women in supporting, joining, intervening in, and preventing violent extremism in Kyrgyzstan” (UN-Women,
2017), p. 10.
c
UN-Women, “Women and violent extremism in Europe and Central Asia: executive summary and recommendations”
(2017), p. 5.
It is important, however, to recognize that some women make the decision to travel and join a
terrorist group of their own volition, or may be the driving force behind a family’s decision to do so. One
such reported example was that of N.K., a 17-year-old teenager from Indonesia, who in 2015 encour-
aged 26 family members to travel to Raqqa, Syrian Arab Republic, which Islamic State had declared its
capital. e stated reasons for her and her family’s migration contradict the conventional cliché of aspir-
ing foreign “jihadi brides”. Instead, her pitch to her family centred on the ability to clear debts, the avail-
ability of employment opportunities and free health-care services, and the chance for her to train as a
health-care practitioner and for her sister to continue her education in computer science.
101
100
Rudinë Jakupi and Vesë Kelmendi, Women in Violent Extremism: Lessons Learned om Kosovo (Pristina, Kosovar Centre for
Security Studies, January 2017), p. 21.
101
Cook and Vale, From Daesh to “Diaspora”, p. 31.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
Secondly, the roles that women assume in terrorist groups as foreign terrorist ghters take on
gendered dimensions that are dictated in part by the ideology of the group. In line with the ISIL views
of women as primarily caregivers, wives and mothers, some female foreign terrorist ghters receive a
form of military training, but are not expected to actively partake in combat unless exceptionally called
to do so by a jihad leader.
102
Rather, they engage in recruitment activities, facilitate travel to conict
areas, raise funds and support the male ghters domestically, providing basic medical care and cook-
ing.
103
In its 2016 global survey on the implementation of Security Council resolution 1373 (2001),
the Counter-Terrorism Commiee Executive Directorate noted that it is not always clear whether
women travel to engage in terrorist acts, look for partners, or support their families, or whether entire
families can be implicated in the crimes commied.
104
e 2016 global survey of the Counter-Terrorism Commiee Executive Directorate drew aention to
numerous cases of foreign women who have travelled to ISIL-held territory and used social media to
promote the group and its State-formation project.
105
Some reports also indicate the existence of a
quasi-ocial female media unit within the media wing of ISIL, leading social media recruiting campaigns,
consisting primarily of Western recruits.
106
For example, one high prole female ISIL foreign terrorist ghter
from the United Kingdom fostered a strong social media presence in order to disseminate information about
ISIL ideology, employing the idea of an ISIL “sisterhood” as a recruitment strategy and giving logistical
advice to prospective recruits, including advice on how to avoid detection by security agencies.
107
. Conclusions
e information on women’s participation in terrorist groups and acts of terrorism reviewed in the
present section reects at least four broad trends relevant to a gender-based analysis of the
criminalization, prosecution and punishment of terrorism-related conduct.
• e signicant number of women involved in terrorism-related oences calls for gender-sensitive
prevention strategies. Distinct programming that specically addresses the needs of women and
girls
may be required to eectively target women and girls who may otherwise join or support
terrorist organizations.
108
• Although women are increasingly performing operational roles to directly perpetrate terrorist violence
in some groups, including as suicide bombers, they generally engage in acts of violence less frequently
than men. Women still primarily full non-violent roles in supporting the activities of terrorist groups,
including by providing logistical support, nancing and recruitment
, and as spouses of men in
operational roles. Women are therefore particularly aected by the criminalization of such conduct.
• Women oen become associated with terrorist groups as a result of being married, intending to
get married, or having a familial tie to a man associated with the group. In some cases, women
commit terrorism-related oences primarily as a result of their relationship with their spouse or
other family member. Examples include mothers transferring funds to their terrorist ghter sons,
women concealing male family members from law enforcement authorities, and women travelling
with their husbands as part of the foreign terrorist ghter phenomenon.
102
Edwin Bakker and Seran de Leede, “European female jihadists in Syria”, p. 8.
103
Mehra, “Foreign terrorist ghters”, p. 11.
104
S/2016/49, para. 407.
105
Ibid., para. 34.
106
Spencer, “e hidden face of terrorism”, p. 85.
107
Erin Marie Saltman and Melanie Smith, “Till Martyrdom Do Us Part”: Gender and the ISIS Phenomenon (London, Institute
for Strategic Dialogue 2015), p. 26.
108
Global Counterterrorism Forum, “Good practices on women and countering violent extremism” (New York, 2015), good
practice 2.
CHAPTER 2. GENDER DIMENSIONS OF TERRORISM OFFENCES
• Although both men and women can become involved with terrorist groups by means of coer-
cion, women are disproportionately more likely to be coerced into participation. Appropriately
determining the criminal responsibility for coerced involvement is therefore of particular
importance when it comes to female alleged oenders.
B. The criminalization of “support roles”
It is important to emphasize that State obligations to bring perpetrators of acts of terrorism to justice
applies equally to the conduct of women and men. Criminal justice actors should avoid perpetuating
stereotypes suggesting that women are less culpable for commiing these oences, or are incapable of
acting of their own volition.
At the same time, it is important to recognize that women may be dierently and disproportion-
ately impacted by the criminalization of certain terrorism-related oences in ways that may not have
been envisaged by legislators. is is particularly important, given that counter-terrorism laws wrien
predominantly by men respond to what has conventionally been seen as a primarily male threat. As
noted by the Special Rapporteur on the promotion and protection of human rights and fundamental
freedoms while countering terrorism, women have been marginal to the conversations in which
denitions of security are agreed and generally peripheral to the institutional seings in which security
frameworks are implemented as policy and law.
109
An important trend in counter-terrorism legislation is the expanded use of oences criminalizing
membership in terrorist groups, participation in preparatory acts, and other forms of support to terror-
ist groups that are far removed from the commission of a violent act of terrorism. is trend reects a
broad consensus that eective terrorism prevention requires a forward-looking, preventative criminal
justice strategy against terrorist violence,
110
which allows the criminal justice system to disrupt prepa-
rations and arrest individuals at the earliest possible stage before they can commit an oence, travel, or
otherwise support an act of terrorist violence.
111
> FOCUS: USE OF THE TERM “SUPPORT ROLES”
e present publication uses the broad term “support roles” to refer to dierent forms of conduct contrib-
uting to terrorist activities that do not involve direct engagement in violence. It is not intended as a legal
term. In legal terms, the criminalization of such conduct varies greatly across national jurisdictions. Some
support roles are criminalized as autonomous oences, one such example being the nancing of terrorism,
in accordance with the International Convention for the Suppression of the Financing of Terrorism (1999).
Other roles may be criminalized only as forms of complicity in the commission of a terrorist oence.
Criminalizing preparatory and support roles is also required by key international legal instruments
against terrorism, such as Security Council resolution 1373 (2001), which requires Member States to
ensure that any person who participates in the nancing, planning, preparation or perpetration of
terrorist acts or in supporting terrorist acts is brought to justice. Other such instruments include
109
A/72/495, para. 29.
110
United Nations Oce on Drugs and Crime (UNODC), Terrorism Prevention Branch, Preventing Terrorist Acts: A Criminal
Justice Strategy in Integrating Rule of Law Standards in Implementation of United Nations Anti-Terrorism Instruments – Technical
Assistance Working Paper (Vienna, 2006), para. 2.
111
Global Counterterrorism Forum, “Recommendations on the eective use of appropriate alternative measures for
terrorism-related oences”, p. 2.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
Council resolutions 2178 (2014) and 2396 (2017), the International Convention for the Suppression
of the Financing of Terrorism, and the Council of Europe Convention on the Prevention of Terrorism
and its Additional Protocol.
112
e early and broad criminalization of acts preparatory to terrorism is, on its face, a gender-neutral
criminal justice measure. However, the eects of such measures particularly impact women (see
section A.4 of the present chapter).
. Principle of legality
e criminalization of terrorist acts and the criminalization of conduct in support of the perpetration
of such acts seek to satisfy competing requirements. On the one hand, the objective is to broadly
capture all types of support for terrorism, including those not foreseen at the time that the legislation
is draed, thereby reducing the scope for loopholes. On the other hand, laws must comply with the
principle of legality.
e principle of legality (“no punishment without law”) is a fundamental principle of human rights
and the rule of law, which is enshrined as a non-derogable right in article 15 of the International
Covenant on Civil and Political Rights and other human rights treaties. at principle prohibits pros-
ecution and punishment for conduct that is not proscribed as an oence at the time of its commission,
and it requires that criminal law provisions must be wrien in a way that gives “fair notice” of what
conduct is prohibited.
113
e principle of legality therefore provides an essential safeguard against
arbitrary prosecution and punishment.
Because counter-terrorism laws have been wrien based on assumptions about the way men
participate in terrorism, they may not have the required level of clarity and predictability when applied
to forms of women’s participation that are dictated by gender stereotypes.
Both the support conduct (facilitating, preparing, nancing, providing material support) and the
conduct supported (the violent act) must be dened in a way that complies with the principle of legal-
ity. In the context of criminalizing conduct in support of terrorism, a law that prohibits, for example,
providing support or encouraging terrorism must:
• Provide sucient detail to enable a person to understand what forms of support or means of
encouragement fall within the scope of such an oence. One way of avoiding ambiguity in a law
that generally criminalizes the provision of support for terrorist oences is by listing factual
examples identifying common characteristics of the prohibited conduct.
• Clearly set out what elements of the crime make it a terrorist crime. If any oences are linked to
“terrorist acts”, there must be a clear denition of what constitutes such acts.
• Prescribe the required mental element: for example, knowledge, intent, or reasonable cause to
believe (see the discussion on mens rea tests for support oences in subsection 2 of this section).
114
If prosecuting authorities are applying or interpreting legislation in ways not envisaged by
legislators, the principle of legality also demands that such authorities provide clear guidance and “fair
notice” of the conduct that is liable to prosecution.
112
On the importance of criminalizing preparatory acts, conspiracy and criminal association oences, see Global
Counterterrorism Forum, “Rabat Memorandum on Good Practices for Eective Counterterrorism Practice in the Criminal
Justice Sector”, good practice 13.
113
e principle of legality in the criminalization of terrorism oences is discussed in depth in UNODC, Counter Terrorism Legal
Training Curriculum; Module 4 – Human Rights and Criminal Justice Responses to Terrorism, pp. 33–37 (see also E/CN.4/2006/98,
para. 46).
114
Preventing Terrorist Acts, para. 30; and E/CN.4/2006/98, para. 46.
CHAPTER 2. GENDER DIMENSIONS OF TERRORISM OFFENCES
As observed by the European Court of Human Rights, there is an inevitable element of judicial
interpretation in any system of law to adapt to changing circumstances.
115
However, legislation
criminalizing support roles in terrorist organizations should give “fair notice” of what conduct is
prohibited, cognizant of its gendered impact. In doing so, legislators should assess the implications of
planned legislation for women and men, and dra provisions in a way that makes their application
equally predictable for women and men.
> CROSS-REFERENCE: VAGUE DEFINITION OF OFFENCES AND DETENTION OF FAMILY MEMBERS
• Denitions of terrorism-related oences that are vague or overly broad can facilitate the arbitrary
detention of family members in order to exert pressure on fugitive suspects to surrender or provide
information to the authorities. (For a discussion of this issue, see chapter 4, sections D and E.)
. Mens rea tests for support oences
One means of operationalizing these principles is through an appropriately gender-sensitive application
of the mens rea tests for support oences.
Laws that initially appear to be gender-neutral, but which have been draed with male perpetrators
in mind, may make implicit assumptions about the levels of agency and autonomy with which a sus-
pect has engaged in the proscribed conduct. Contrary to that assumption, women in some contexts
have far less access to information about the full scope of behaviour of their spouse or family members,
or may not be in a position to challenge that behaviour or refuse to assist. According to a 2016 report
on women and violent extremism in Afghanistan, lack of information can also play into the reasons
and motivations for women to provide support, or simply turn a blind eye, in other ways. For some
women, their male relatives have been found to have involved them in actions that support violent
extremist groups, but given them only limited information about what they were doing. is removes
the choice of whether and how the woman wishes to express support, in essence, removing her agency
while still utilizing her.
116
e mens rea requirement of support oences must be clearly articulated so it does not encompass
support provided unwiingly by a family member, who is not (a) aware of the purpose of the support
being provided or (b) in possession of information that should have alerted her or him to that purpose.
However, it should encompass the support provided in cases in which the person was reckless in the
circumstances as to whether his or her conduct would support a terrorist organization or a terrorism-
related oence. Whether recklessness is evaluated objectively or subjectively, it will still need to be
applied with gender-sensitivity. Otherwise, it may be unrealistically assumed that women foresaw the
consequences of their support (an overly harsh application of an objective test). Alternatively, it may
be naively assumed – owing to gender stereotypes – that women did not foresee the consequences,
despite circumstances that suggest that they should have foreseen them (an overly lenient application
of a subjective test).
Mens rea requirements for nancing of terrorism
Laws criminalizing the nancing of terrorism have a demonstrated gendered impact, particularly in
connection with the foreign terrorist ghter phenomenon and the association of female spouses or
family members with male terrorist oenders.
115
European Court of Human Rights, Del Río Prada v. Spain, Application No. 42750/09, Judgment of 21 October 2013, para. 92.
116
“Afghan women and violent extremism, pp. 10–11.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
Both Security Council resolution 1373 (2001) and the International Convention for the
Suppression of the Financing of Terrorism require States to criminalize the provision of funds where
the individual intended or knew that the funds would be used in order to carry out a terrorist act. In
practice, some jurisdictions dene the mental requirements more broadly than these international
instruments, including also those who provide or collect funds when they act with reckless disregard
for the possibility, or have reasonable cause to suspect, that the funds will be used for terrorism.
117
e broadening of the mens rea element of nancing of terrorism oences enables the prosecution
and conviction of persons when it is dicult to prove that they personally knew or suspected the
terrorist purpose of the funds. Such an approach may have a gendered impact in at least two respects:
• To the extent that women have lesser access to information about terrorist groups,
118
they are
more likely than men to be aected by provisions extending the oence to persons who
should have known that their nancial support would benet a terrorist individual or organi-
zation, even if they cannot be proven to have intended or actually known that they were
s upporting terrorism.
• e broader scope of the oence favours the prosecution of persons who provide support to a
family member engaged in terrorism, even where that support is provided out of a sense of family
duty or loyalty, rather than for the purpose of supporting terrorist activities – another situation
that would appear to disproportionately concern women.
It is also important to avoid stereotyping the provision of nancial support to terrorism by women
as resulting from innocent misconceptions or subservience to male family members. In one case, a
female national of the United Kingdom was convicted for aempting to send 20,000 euros to her
husband who was ghting for a terrorist group in the Syrian Arab Republic. She was found guilty of
funding terrorism and sentenced to more than two years’ imprisonment on the basis that she knew her
husband was engaged in violence for extremist religious and ideological reasons and that she had
aempted to send the money for that purpose.
119
e judge added that he was convinced that the
initiative for the oence must have come from the accused’s husband, and that the woman commied
it because she was infatuated with him and thought he might provide for her and her two children.
. Women involved in the foreign terrorist ghter phenomenon
e challenges and ambiguities in applying criminal law to the foreign terrorist ghter phenomenon,
particularly where women have been charged, highlight the gender dimension of respecting the
principle of legality in the criminalization of support roles.
Security Council resolutions 2178 (2014) and 2396 (2017) require Member States to punish, as
serious criminal oences, not only the act of travelling abroad (or aempting to do so) for the purposes
dened in Council resolution 2178 (2014), but also those who organize, facilitate or nance the travel
of foreign terrorist ghters.
In its resolution 2396 (2017), the Security Council called upon Member States to assess and inves-
tigate suspected foreign terrorist ghters, and distinguish them from other individuals, including their
accompanying family members, who may not have been engaged in foreign terrorist ghter-related
oences. e Council emphasized that women and children associated with foreign terrorist ghters
returning or relocating to and from conict may have served in many dierent roles, including as
supporters, facilitators, or perpetrators of terrorist acts, and require special focus when developing
117
Preventing Terrorist Acts, para. 24; an example of this trend is the Criminal Code Act 1995 of Australia, sect. 102.7.
118
See the summary of ndings in Matveeva and Faizullaev, “Women and violent extremism in Europe and Central Asia”, p. 7.
119
Dominic Casciani, “Woman jailed for funding Syria jihad”, 13 November 2014. Available at www.bbc.com/.
CHAPTER 2. GENDER DIMENSIONS OF TERRORISM OFFENCES
tailored prosecution, rehabilitation and reintegration strategies. In the same paragraph, however, the
Council stressed the importance of assisting women associated with foreign terrorist ghters who may
be victims of terrorism.
National responses to foreign terrorist ghters who return home have, in many instances, been
inuenced by stereotypes about women’s and men’s respective roles in terrorist groups, and in particu-
lar in ISIL. In many countries, criminal justice practitioners’ understanding of the gender dimensions
has, however, evolved in the last ve years, as is illustrated by the examples of Belgium and France, as
well as by cases in the Netherlands, Germany and Austria (listed in order of appearance), provided in
boxes in this subsection.
> EXAMPLE: CRIMINAL JUSTICE RESPONSE TO WOMEN RETURNING FROM IRAQ AND THE SYRIAN ARAB
REPUBLIC TO BELGIUM AND FRANCE
A 2018 report about returning foreign terrorist ghters includes the following observation with regard
to Belgium:
e perception of the involvement of women in jihad has evolved considerably… During the rst wave
of returns, women were perceived as “victims” or as playing a limited logistical role and being overall
harmless. As a result, they were never prosecuted. is has now changed entirely, following a more accu-
rate, but also enlarged, understanding of the role played by women in conict, as well as the broadening
of the terrorist law to cover support activities. Since 2016, women are as likely to be prosecuted as men.
a
In France, a parliamentary commission of inquiry into the State’s response to the terrorist threat reported
that, following two failed terrorist aacks by women, the authorities had updated their assessment of the
threat emanating from women who return to France following a stay in Iraq or the Syrian Arab Republic.
Such a move justied that the policy of systematically opening a criminal case had been extended to
women, which had previously been applied only to male returnees. Since 2015, the criminal justice system’s
response to returning women was the same as in the case of men (i.e., issuing of an indictment followed
by remand imprisonment, unless there were proven elements of coercion).
b
a
omas Renard and Rik Coolsaet, eds., Returnees: Who Are ey, Why Are ey (Not) Coming Back and How Should
We Deal with em – Assessing Policies on Returning Foreign Terrorist Fighters in Belgium, Germany and the Netherlands,
Egmont Paper 101 (Brussels, Egmont Institute, 2018), p. 25.
b
Sylvie Goy-Chavent and Sénat, Rapport fait au nom de la commission d’enquête sur l’organisation et les moyens des services
de l’État pour faire face à l’évolution de la menace terroriste après la chute de l’État islamique, Les Rapports du Sénat No. 639
(4 July 2018), p. 53.
Emerging State practice in the prosecution of oences related to the foreign terrorist ghter
phenomenon shows that, in many States, open questions remain about the scope of oences criminal-
izing conduct related to the phenomenon. Such questions include whether a terrorist oence is
commied in the following cases:
• By persons travelling to the operational area of a terrorist organization in order to support the
group by fullling a civilian role (e.g., as a nurse or teacher) within the group;
• By a woman accompanying and providing domestic support to her husband. A survey conducted
by the Counter-Terrorism Commiee Executive Directorate in 2016 questioned whether all
family members commit an oence simply by travelling and whether they should be prosecuted
even if, in some cultures, a woman must follow her husband;
120
• By a woman travelling to the operational area of a terrorist organization to support the organization
by marrying a terrorist ghter and providing domestic support;
120
S/2016/49, para. 408.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
• By a person calling on women to travel to the operational area of a terrorist organization in
order to support the organization by marrying and giving birth to new generations of the
terrorist organization;
• By a person transferring funds to a close relative who meets the denition of a foreign terrorist
ghter, although no intention to support terrorist activity can be proven.
e three cases below, decided by courts in the Netherlands, Germany and Austria, illustrate the
gender dimensions of the uncertainty that can surround the criminalization of foreign terrorist ghter-
related conduct.
> EXAMPLE: CASE IN THE NETHERLANDS CONCERNING THE RECRUITMENT OF WOMEN
TO TRAVEL TO THE SYRIAN ARAB REPUBLIC
a
In a 2014 case, the female defendant had convinced a number of women over a period of several months in
2013 to travel from the Netherlands to the Syrian Arab Republic for the purpose of jihad. e court examined
whether the facts amounted to the oence of recruitment for military action with a terrorist group, which
comprised the provision of immediate support to combatants, the searching of persons and vehicles, and the
carrying out of terrorist aacks. Based on expert testimony that women travelling to the Syrian Arab Republic
to join ISIL or the Al-Nusra Front were not, at that time, active on the baleeld, but providing nancial
support and care to male ghters, the court found the oence was not proven. Notably, the court found that
“morally, ideologically or nancially supporting the ght or ghters, marrying a ghter and/or caring for the
possessions, the household and the children of a ghter” did not fall within the scope of the charged oences.
Regarding the charges relating to recruiting two men to travel to the Syrian Arab Republic to join a ter-
rorist group, the court held that, while the defendant had discussed these plans with the men, the men
had decided on their own to do so.
As a result, the court found that, while there was no doubt that the defendant supported a “radical-Islamist
ideology” and “fully identied with violent jihad”, she had not commied an oence and was acquied of
the charges against her.
In June 2018, the Supreme Court of the Netherlands upheld the judgment.
a
Netherlands, Rechtbank Den Haag (court of justice in the Hague), case No. 09/767193-13, Judgment of 1 December
2014, conrmed in last instance by Hoge Raad (supreme court), case No. 16/05491, Judgment of 12 June 2018.
> EXAMPLE: GERMAN CASE OF A WOMAN TRAVELLING TO THE SYRIAN ARAB REPUBLIC TO MARRY
AN AL-NUSRA FRONT FIGHTER
a
In 2015, a woman travelled with her two small children from Germany to the Syrian Arab Republic in
order to marry a ghter of the Al-Nusra Front, an Al-Qaida aliated organization listed as a terrorist entity
by the Security Council. She was aware of her new husband’s aliation with the organization and admied
that she sympathized with the terrorist group.
e woman received weapons training from her husband while in the Syrian Arab Republic, but ultimately
returned to Germany aer ve months. She was charged with abduction of minors (her children) and with
preparation of a serious violent oence endangering the State (there was no oence specic to travel related
to foreign terrorist ghters at the time in German law). e rst instance court convicted her on both charges.
Upon appeal, however, the German supreme court acquied her regarding the terrorism oence. e court
found that, because the accused had not taken part in combat and her rearms training was for purposes
of defence of the family (as she alleged), the intentional element of the terrorism-related oence was
lacking. e court took into account the fact that the family had repeatedly moved within the Syrian Arab
Republic to be away from combat zones and that sympathizing with the Al-Nusra Front was not an oence
under German law.
a
Germany, Bundesgerichtshof (federal court of justice), Judgment 3 StR 218/15 of 27 October 2015.
CHAPTER 2. GENDER DIMENSIONS OF TERRORISM OFFENCES
> EXAMPLE: AUSTRIAN CASES OF WOMEN PLANNING TO TRAVEL TO THE SYRIAN ARAB REPUBLIC
TO MARRY ISIL FIGHTERS
a
In two decisions of 2015 and 2016, the Austrian supreme court and an appellate court addressed the
question of whether the act of marrying an ISIL ghter constitutes a terrorism oence.
e women and underage girls in these cases had established online contact with ISIL ghters in the Syrian
Arab Republic and either already married them in a ceremony via Skype or made preparations to travel
to the Syrian Arab Republic for this purpose. One group was arrested before they aempted to leave
Austria, the other was stopped at a border crossing.
e courts in Austria found that by promising to the ISIL ghters that they would join them and full
their duties as wives, the women had provided psychological support to members of a terrorist group.
ey had thereby commied the oence of “terrorist association”.
a
Austria, Oberster Gerichtshof (supreme court), Judgment 12 Os 45/16h of 16 June 2016; and Oberlandesgericht Linz
(appellate court in Linz), decision 8 Bs 15/15k of 12 February 2015.
ese cases illustrate dierent types of judicial approaches towards women’s involvement in the
foreign terrorist ghter phenomenon and the functions that women perform as a result. Stereotypes
about women, including their roles in terrorist groups held by investigators, prosecutors or judges can
reinforce this gendered impact. As a consequence of the oences being legislated primarily to target
the violent conduct of (mainly male) terrorist operatives, the outcome of their judicial application in
the case of female alleged oenders can be dicult to predict.
. Oences concerning sheltering/harbouring terrorism suspects
Numerous counter-terrorism laws make it an oence to shelter, harbour or conceal a terrorism
oender. Under the Anti-Terrorism Law of 2005 of Iraq, a person is liable to life imprisonment for
harbouring a terrorist for the purpose of concealment.
121
Legislation in Nigeria criminalizes the act of
knowingly harbouring or concealing a person knowing that the person has commied an act of terror-
ism or is a member of a terrorist group. e oence is punishable for a term of not less than twenty
years.
122
Under the Human Security Act of the Philippines,
123
a person who has knowledge of the crime
of terrorism and harbours, conceals or assists in the escape of a principal or conspirator is liable for
ten to twelve years of imprisonment.
Spouses and other family members of terrorism suspects can nd themselves in dramatic conicts
between their loyalty to their fugitive relative and the legal sanction of acts supporting terrorism,
reinforced by the threat of prosecution and imprisonment. is conict can have strong gendered
implication. is may be the case where the fugitive is (most commonly) a male family member or
spouse, and the relative is a woman who may not be fully apprised of the information necessary to
assess the wrongfulness of the conduct of the male family member.
e criminal law of many States takes this conict of loyalties into account by providing that
close family members do not commit an oence or shall not be punished if they shelter or assist a
fugitive family member. In a number of States, the counter-terrorism legislation explicitly extends
this non-punishment principle to those concealing or assisting a close family member suspected of
t errorist oences.
121
Iraq, Anti-Terrorism Law No. 13 of 2005, art. 4.
122
Nigeria, Terrorism (Prevention) (Amendment) Act, 2013, sect. 6.
123
Philippines, Human Security Act of 2007, Republic Act No. 9372, sect. 6.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
In the Philippines, the Human Security Act provides for an exception in some cases, where that
person is a spouse or close family member of a terrorist oender. Terrorism support oences in the
Italian and Chilean Penal Codes provide for exceptions for conduct that would otherwise constitute
support to a terrorist where that support is provided to close family members.
124
In Iraq, close relatives
of a person having commied a national security oence are exempt from any punishment in the event
that they provide the oender with assistance, sustenance or shelter.
125
In other legal systems, general
provisions exempting close relatives from harbouring or supporting an oender may be applied also in
terrorism cases.
126
> EXAMPLE: NON-PUNISHMENT OF CLOSE RELATIVES PROVIDING SHELTER TO TERRORISM
SUSPECTS INIRAQ
e Penal Code of Iraq provides that close relatives (spouse, ancestor, descendant, brother or sister) of a
person having commied a national security oence are exempt from any punishment in the event that
they provide the oender with assistance, sustenance or shelter. at exemption is not, however, restated
in the counter-terrorism legislation. e Anti-Terrorism Law of 2005 (art. 4) provides that a person is
liable for up to life imprisonment for harbouring a terrorist for the purpose of concealment.
As a result, two dierent views of the applicability of the exemption in terrorism cases have emerged in
recent case law from Iraq concerning women who provided shelter to their spouses or close relatives who
were alleged terrorists. While some judges have applied the exemption to such women, others have not,
arguing that the provision was inapplicable for two reasons: (a) the exceptional gravity of terrorist oences,
and (b) the omission of such a scenario in counter-terrorism legislation. Several women are currently
serving prison sentences in Iraq on charges related to having concealed a close relative who is an alleged
terrorist oender.
Note: e information provided in this example is based on exchanges between judges in Iraq and UNODC.
. Penalties attached to support oences
In paragraph 2 (e) of its resolution 1373 (2001), the Security Council required States to ensure that
any person who participated in the nancing, planning, preparation or perpetration of terrorist acts or
in supporting terrorist acts were brought to justice. e Council also required States to ensure that
such terrorist acts were established as serious criminal oences and that the punishment duly reected
the seriousness of such terrorist acts. As the international counter-terrorism instruments do not
provide guidance on the appropriate punishment for terrorist oences, States retain the discretion to
determine the penalties for such oences.
With regard to acts of terrorism that involve killing, kidnapping, the use of explosives and other
grave acts of violence against life and physical integrity, a comparative review of legislation shows that
States consistently consider these oences to be among the most serious and make them punishable
with long terms of imprisonment, and in some cases, the death penalty.
In contrast, provisions criminalizing preparatory acts, nancing, recruitment and other support
roles are more variable. Some counter-terrorism laws make these oences punishable by penalties as
severe or only slightly less severe than those applying to acts of terrorist violence. Legislation in Nigeria,
124
Penal Code of Italy, sect. 270 ter; and the Chilean Criminal Code, art. 295 bis.
125
Penal Code of Iraq, art. 183 (2).
126
For example, art. 222 (2) of the Penal Code of Lebanon.
CHAPTER 2. GENDER DIMENSIONS OF TERRORISM OFFENCES
for example, punishes the solicitation or rendering of support to a terrorist group by imprisonment for
a term of not less than 20 years.
127
Laws in other countries provide the same range of severe penalties
(including capital punishment) for a person who incites, plans, nances or assists terrorists as for those
who carry out terrorist aacks. International law prohibits the imposition of the death penalty for
oences that do not involve intentional killing.
128
Other States make support oences punishable by penalties that are signicantly lighter than those
for acts of terrorist violence. Under the law of the United Kingdom, for instance, a person found guilty
of inviting support for a terrorist organization (other than by providing money or other property) is
liable on conviction to imprisonment for a term not exceeding 10 years, to a ne or to both.
129
Membership in a terrorist organization is punishable by imprisonment not exceeding 10 years.
130
In
New Zealand, making property, or nancial or related services available to a designated terrorist entity
is punishable by imprisonment for a term not exceeding seven years.
131
In such States, judges will have
the exibility to impose either an unconditional prison sentence or, where they consider that this
serves the interests of justice beer, a conditional sentence or an alternative to imprisonment.
On the one hand, criminal justice actors must be careful to avoid being inuenced at the sentencing
stage by stereotypes that view women involved in terrorism oences as inherently acting with less
agency and being less culpable than men. Researchers who have reviewed case les of terrorism trials in
Europe and the United States of America argue that women have been receiving more lenient sentences
than men for comparable terrorism oences, and that the evidence suggests gender has unjustly aected
formal responses to individuals involved in crimes motivated by violent extremism.
132
On the other hand, where legislation prescribes severe minimum terms of imprisonment for
oences related to support roles, judges may lack the necessary exibility to impose lesser penalties on
oenders whose culpability is minor or where mitigating circumstances apply. Prosecutors and judges
may nd themselves unable to seek or impose punishment that would adequately reect a number of
circumstances that would justify reduced prison terms or even alternatives to detention. is includes
rst-time oenders who were not directly involved in any acts of violence, those who became associ-
ated with terrorist groups under various forms of duress, and those who – in spite of having been
associated with a terrorist group – would actually pose a low risk to their communities if released. As
explained in section A of the present chapter, such circumstances are more likely to apply to women
than men. (For a more detailed discussion of alternatives to imprisonment for terrorism-related
oences, see chapter 4, section F.)
C. Oences committed by persons involuntarily associated
with a terrorist group
Women and men join terrorist groups and commit acts of terrorism with a broad range of expectations
and motivations. Some contemporary terrorist groups, particularly ISIL and Boko Haram, have
coerced large numbers of women, men, girls and boys into association with them and to carry out acts
127
Nigeria, Terrorism (Prevention) (Amendment) Act, 2013, sect. 5.
128
Article 6, para. 2, of the International Covenant on Civil and Political Rights; see UNODC, Module 4: Human Rights and
Criminal Justice Responses to Terrorism, pp. 174–179.
129
United Kingdom, Terrorism Act 2000, sect. 12.
130
Ibid., sect. 11.
131
New Zealand, Terrorism Suppression Act 2002, sect. 10.
132
Audrey Alexander and Rebecca Turkington, “Treatment of terrorists: how does gender aect justice?”, CTC Sentinel,
vol. 1, No. 8 (September 2018), p. 24; and Ester Strømmen, “Jihadi brides or female foreign ghters? Women in Da’esh – from
recruitment to sentencing”, GPS Policy Brief 01/2017 (Oslo, Peace Research Institute, 2017), p. 3.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
of terrorism. Such coercion takes many forms, including abduction, coerced recruitment in communi-
ties, and being “handed over” to the terrorist group by families. Persons forced into association with a
terrorist group through abduction, tracking in persons, or other coercive means are victims of ter-
rorism.
133
In some instances, it may be dicult to determine whether a person has been associated with
a terrorist group voluntarily or against their will, or at what point initial coercion transforms into
voluntary acts of terrorism. Although women and men may voluntarily join terrorist groups or be
coerced into them, women are more likely to become associated with a terrorist group against their
will than men (see section A.6 of the present chapter).
Accordingly, criminal justice responses to oences commied by persons who were forced to join a
terrorist group or forced to commit an act of terrorism
134
have a marked gender dimension. e present
section explores these dimensions, including considerations that may be relevant before trial (exercise
of discretion not to prosecute), at trial (the defence of duress), in sentencing (the presence of mitigat-
ing circumstances), and both before and aer a decision to prosecute has been taken (the principle of
non-punishment of victims of tracking in persons).
. Discretion not to prosecute
Criminal justice authorities may, in some circumstances, exercise discretion not to prosecute, or
to withdraw charges for terrorism-related offences committed by persons who have become
associated with a terrorist group through coercion. There are divergent practices across national
jurisdictions: in some, opening a criminal case is, in principle, mandatory whenever the criminal
justice authorities receive information that an offence has been committed; however, in others,
prosecutors enjoy broad discretion to decide in which circumstances it is in the public interest to
prosecute.
135
Developing a prosecutorial prioritization strategy – a tool to focus investigations,
prosecutorial efforts and resource allocation – is one means to effectively ensure accountability
for gross human rights violations and serious violations of international humanitarian law.
Strategies may prioritize, for example, cases involving the most responsible alleged perpetrators,
or the most serious crimes.
136
e discretion not to prosecute a person alleged to have commied a terrorism-related oence
must take into account any State obligation under international law referred to above to bring those
who support terrorist acts to justice and ensure the punishment is proportionate.
137
However, in paragraph 31 of its resolution 2396 (2017), the Security Council emphasizes that women
associated with foreign terrorist ghters may have served in many dierent roles, including as supporters,
facilitators, or perpetrators of terrorist acts, and may require special focus when developing tailored pros-
ecution, rehabilitation and reintegration strategies. e Council also stresses the importance of assisting
women associated with foreign terrorist ghters who may be victims of terrorism.
138
133
In paragraph 10 of Security Council resolution 2331 (2016), the Council armed that victims of tracking in persons,
and of sexual violence, commied by terrorist groups should be classied as victims of terrorism with the purpose of rendering
them eligible for ocial support, reparations programmes, and rehabilitation and reintegration eorts.
134
Technically, a person forced to engage in conduct constituting the actus reus elements of an oence without the required
culpability (because she is forced to engage in the conduct), may not be commiing the oence, as the required mens rea may
be missing.
135
UNODC and International Association of Prosecutors, e Status and Role of Prosecutors: A United Nations Oce on Drugs and
Crime and International Association of Prosecutors Guide, Criminal Justice Handbook Series (Vienna, 2014), pp. 8–9 and 44–47.
136
See A/HRC/27/56.
137
Security Council resolution 1373 (2001), para. 2 (e); see also, among others, article 4, para. (b) of the International
Convention for the Suppression of Terrorist Bombings.
138
See also Security Council resolutions 2178 (2014) and 2349 (2017).
CHAPTER 2. GENDER DIMENSIONS OF TERRORISM OFFENCES
e Secretary-General, in his report on women and peace and security of 2017, welcomed eorts
by Member States to initiate human rights-based and gender-sensitive approaches to the rehabilitation
and reintegration of returnees and victims, released prisoners “and suspects who qualify for alterna-
tives to prosecution”.
139
ese documents collectively acknowledge that it may be appropriate in some
cases not to prosecute persons who have been associated with a terrorist group, but rather to rehabili-
tate them and prepare them for reintegration into their communities in “alternative seings” to the
criminal justice system. (For further discussion of gender-sensitive alternative measures, including
diversion from prosecution and pretrial detention, see chapter 4, section F.)
e Counter-Terrorism Commiee Executive Directorate has recommended that States develop
and implement strategies for dealing with specic categories of foreign terrorist ghter returnees, in
particular minors, “women, family members, potentially vulnerable individuals,” providers of medi-
cal services and other humanitarian needs and disillusioned returnees who have commied less
serious oences.
140
It has also recommended utilizing administrative measures and/or rehabilitation
and reintegration programmes as preventive alternatives to prosecution in cases in which it would
not be appropriate to bring terrorism-related charges.
141
Such alternatives may be particularly
relevant in cases involving women who accompanied spouses rather than initiated travel to join a
terrorist organization (particularly from cultures requiring obedience to one’s husband), who have
been sexually assaulted or abused on the basis of their gender, whose membership was coerced, or
who aempted to leave the terrorist organization. It may also include female supporters who fall
outside the scope of criminal law because of their lack of knowledge or intention around the purpose
of the support they provided.
Where the competent authorities decide not to prosecute a person who has been associated with a
terrorist group, it may be very important to engage family and community into the rehabilitation and
reintegration process, and to engage in public outreach and awareness initiatives. Relevant authorities
must take into account that the community may have legitimate safety concerns regarding a woman or
man who was associated with a terrorist group, even if the decision not to prosecute the alleged
oender has been carefully considered and is based on the ground that her or his association with the
terrorist group was involuntary.
142
Such persons may also be at risk of reprisal and, if they are potential
witnesses, could require some form of protection (see chap. 3).
Concurrently, any public outreach and awareness campaign will have to take into account the right
to privacy of the person to be reintegrated into the community and the risk of stigmatization and
secondary victimization. is aects women in particular, as in many contexts women formerly associ-
ated with armed groups are more likely than men to be ostracized by the community. For example,
monetary support will need to be calculated in anticipation that women may take longer to obtain paid
work, may earn systematically less than men in the same position, and are more likely to have primary
care responsibilities for children, who will also need to be reintegrated.
Chapter 6 contains a more detailed discussion of the gender dimensions of the rehabilitation and
reintegration of persons formerly associated with terrorist groups.
139
S/2017/861, para. 47.
140
S/2015/975, annex, para. 155 (d).
141
Ibid., para. 155 (e).
142
Recommendations 3 and 4 of the Global Counterterrorism Forum recommendations on the eective use of appropriate
alternative measures for terrorism-related oences are also highly relevant in this context. ey are discussed primarily in
chapter 4 of the present publication.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
. Defence of duress
(i) Duress in domestic criminal law
e defence of duress exists in most domestic legal systems, and in the international criminal law
regime, where it is derived from customary international law and comparative criminal law.
143
e
defence operates to excuse a perpetrator for an act that would otherwise be criminal because of
threats of immediate or imminent death or serious personal injury so great as to overbear the ordi-
nary powers of human resistance.
144
For instance, a person accused of transporting explosives on
behalf of a terrorist group could claim that he or she would have been killed by the terrorists if he or
she had refused to do so.
e availability and applicability of the defence in each case depends on how it is dened in the
domestic legal system of each State. On a very general level, it can be said that, in civil law systems, the
defence usually acts as a complete defence for all crimes. ese legal systems consider that an accused
individual who proves that she or he was acting under duress commits no crime, or is not criminally
responsible or shall not be punished.
145
In common law systems, duress as a complete defence is
generally not available for serious crimes such as treason, murder or aempted murder but may be
relevant as a mitigating circumstance (see the discussion on mitigating circumstances in subsection 3
of the present section).
146
e defence of duress has successfully been raised in the past in the United Kingdom for terrorist
oences such as aircra hijacking. In the case of Abdul-Hussain, the Court of Appeal accepted the
defence of duress from a defendant who had hijacked a plane to travel to England to escape deporta-
tion from the Sudan to Iraq – and likely execution in Iraq – which the court found to be the imminent
cause of the defendant’s oence.
147
In the case of Sa, the defendant and others hijacked a plane in
Afghanistan to travel to England for the purpose of, according to their defence, eeing death or serious
injury from the Taliban and Afghanistan. In allowing the defence of duress, the Court of Appeal found
that there was no need for objective evidence of a threat, as long as the defendant reasonably believed
that the threat existed.
148
(ii) Duress in international criminal law
e existence of duress as a defence is recognized also at the level of international criminal law.
143
Geert-Jan Knoops, Defenses in Contemporary International Criminal Law, vol. 4, International and Comparative Criminal
Law Series (Leiden, Netherlands, Brill and Nijho, 2001), p. 46.
144
Ireland, High Court of Ireland Decisions, Aorney General v. Whelan [1934] IR 518 (20 December 1933) and David
Ormerod and Karl Laird, Smith and Hogan’s Criminal Law, 14th ed. (Oxford, Oxford University Press, 2015), p. 389. is
relates to the defence of duress by threats. In some legal systems, a person coerced to carry out an act of terrorism could also
invoke the defence of necessity. While the distinction between duress and necessity varies between jurisdictions, the defence
of necessity generally acts as a justication in circumstances in which a person responds to a non-human (or naturally
caused) threat by commiing a crime less serious than the harm that would be suered by the person as a result of the threat
(Antonio Cassese, Cassese’s International Criminal Law, 3rd ed., Paola Gaeta and others, eds. (Oxford, Oxford University
Press, 2013), p. 210). Not all legal systems, however, nd it necessary to distinguish between these two concepts. Notably,
article 31, para. 1 (d), of the Rome Statute of the International Criminal Court conates the defences of duress
and necessity.
145
International Tribunal for the Former Yugoslavia, Prosecutor v. Drazen Erdemović, Appeals Chamber, Case No. IT-96-22,
Joint Separate Opinion of Judge McDonald and Judge Vohrah, Judgment of 7 October 1997, para. 59.
146
Ben Saul, Dening Terrorism in International Law (Oxford, Oxford University Press, 2008), p. 99. A leading common
law authority on the elements of duress is Regina v. Hasan (Respondent) [2005] UKHL 22, Judgment of 17 March 2005,
para. 21.
147
United Kingdom, England and Wales Court of Appeal, Criminal Division, R v. Abdul-Hussain, Case No. [1999] Crim
LR570 (17 December 1998).
148
Ibid., R v. Sa (Ali Ahmed) and others, case No. [2003] EWCA Crim 1809 (6 June 2003).
CHAPTER 2. GENDER DIMENSIONS OF TERRORISM OFFENCES
> EXAMPLE: THE DURESS DEFENCE IN THE ERDEMOVI
´
C CASE
In the Erdemović case, the defendant admied to having taken part in a mass execution of prisoners, but
claimed that he had been coerced by threats against his life and the lives of his family members. e
Appeals Chamber of the International Tribunal for the Former Yugoslavia (in a 3-to-2 majority) found
that duress for participation in executions of civilians because of threats to the lives of the accused and
his family was not a complete defence for a crime against humanity and/or a war crime involving the
killing of innocent human beings,
a
although it may be relevant in mitigation for such crimes.
e minority found that customary international law did not exclude the applicability of the duress defence
from these types of crimes. However, as the right to life is the most fundamental human right, the rule
demands that the general requirements for duress be applied particularly strictly in the case of killing of
innocent persons.
b
Erdemović ultimately pleaded guilty and was sentenced to ve years’ imprisonment.
a
International Tribunal for the Former Yugoslavia, Appeals Chamber, Prosecutor v. Drazen Erdemović, (1997) case
No.IT-96-22-A, Judgment of 7 October 1997, para. 19.
b
Ibid., Separate and Dissenting Opinion of Judge Cassese, Judgment of 7 October 1997, para. 44.
e Rome Statute of the International Criminal Court follows the approach of the minority opinion
in the Erdemović case: duress is available as a complete defence. Article 31, paragraph 1, of the Rome
Statute states that a person shall not be criminally responsible if that person’s conduct was caused by
duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm
against that person or another person, and the person acts necessarily and reasonably to avoid this
threat, provided that the person does not intend to cause a greater harm than the one sought to be
avoided. Such a threat may either be:
(a) Made by other persons; or
(b) Constituted by other circumstances beyond that person’s control.
(iii) Issues of application
ere are a number of issues concerning the application of the duress defence to be considered in the
context of the present publication:
• Limited applicability of the defence to certain type of oences. Some legal systems exclude the defence
of duress where the defendant is charged with having killed innocent persons, in particular where
murder is charged.
• Gravity threshold of the required harm. e threatened harm must reach a threshold established by
the law, which generally includes threatened death and serious or severe bodily harm or injury.
e Court of Appeal in the United Kingdom has held that a threat of rape would be sucient to
meet the gravity threshold.
149
One gender dimension to consider is whether the gravity threshold
is similarly high when the harm is threatened against a vulnerable relative, such as a child, in order
to coerce the mother or father to comply.
• Temporal requirements for the threat of harm. Domestic law may prescribe a temporal requirement
on the threat, usually expressed through language such as an imminent or immediate threat.
• Proportionality issues. Some jurisdictions require a proportionality assessment. e Penal Code of
Italy, for example, requires that the acts commied under duress are proportionate to the threat-
ened harm.
150
It has been argued that indiscriminate violence will very rarely, if ever, be
149
United Kingdom, England and Wales Court of Appeal, Criminal Division, A v. R [2012] EWCA Crim 434, case
No.2011/04321/B2, Judgment of 13 March 2012 and [2013] Crim LR 240, para. 63, in which the Lord Chief Justice stated that
the requirement that there be a threat of death or serious injury would “no doubt” be satised by a threat to rape.
150
Penal Code of Italy (approved by Royal Decree No. 1398 of 19 October 1930), art. 54.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
proportionate, since such killings were unlikely to alleviate the peril.
151
One gender aspect of this
issue is harm threatened to others, and the perceived level of threatened harm: female relatives
are more likely to be exposed to this type of duress owing to the typical exploitation of gendered
relationships.
• Voluntary association exclusion. e defence of duress may not be available to persons who have
voluntarily associated themselves with a terrorist group, and subsequently become subject to
duress. Duress cannot be invoked as an excuse where a person freely and knowingly chooses to
become a member of a unit, organization or group institutionally intent upon actions contrary
to international humanitarian law.
152
us, in a case in England, duress was not a defence to a
robbery commied as a result of threats from a terrorist organization – the Irish Republican
Army (I) – because the defendant had freely and knowingly joined the I.
153
To the extent
that women are more oen coerced into association with a terrorist group, this exclusion factor
is gendered.
. Mitigating circumstances
Whereas complete defences justify or excuse what would otherwise constitute unlawful conduct,
mitigating circumstances acknowledge the defendant’s criminal responsibility for unlawful conduct, but
lessen their culpability for such acts. Mitigating circumstances operate at the sentencing stage to reduce
the severity of a punishment, and are therefore generally considered in the context of a formal trial.
154
Rule 145, paragraph 2, of the Rules of Procedure and Evidence of the International Criminal Court
includes mitigating circumstances that may be taken into account by the court, namely:
(a) e circumstances falling short of constituting grounds for exclusion of criminal responsibility,
such as substantially diminished mental capacity or duress;
(b) e convicted person’s conduct aer the act, including any eorts by the person to compensate
the victims and any cooperation with the Court.
Rule 61 of the United Nations Rules for the Treatment of Women Prisoners and Non-custodial
Measures for Women Oenders (the Bangkok Rules) stipulates that when sentencing women
oenders, courts shall have the power to consider mitigating factors such as lack of criminal history
and relative non-severity and nature of the criminal conduct, in the light of women’s caretaking
responsibilities and typical backgrounds.
Where complete defences are not available, mitigating circumstances enable the Court to take into
account the context in which the oence was commied, including the presence of coercive circumstances.
In the Erdemović case, the International Tribunal for the Prosecution of Persons Responsible for
Serious Violations of International Humanitarian Law Commied in the Territory of the Former
Yugoslavia found that where duress has been rejected as a ground to completely exculpate the accused, or
is not available as a defence because the requisite elements are not met, it may still be taken into account
as a mitigating circumstance entailing a more lenient sentence.
155
is may be the case where,
for example:
151
Saul, Dening Terrorism in International Law, p. 102.
152
Cassese, Cassese’s International Criminal Law, p. 216.
153
R v. Fitzpatrick [1977] NI 20.
154
Elies van Sliedregt, Individual Criminal Responsibility in International Law, Oxford Monographs in International Law Series
(Oxford, Oxford University Press, 2012), p. 216.
155
International Tribunal for the Former Yugoslavia, Trial Chamber, Prosecutor v. Drazen Erdemović, case No. IT-96-22-T,
Judgment of 29 November 1996, para. 54.
CHAPTER 2. GENDER DIMENSIONS OF TERRORISM OFFENCES
• e type of oence in question precludes the availability of the duress defence under national law.
• A suciently grave harm has been threatened to satisfy national law (such as rape), but the
temporal requirement for the threat (such as imminent harm) has not been suciently established
to satisfy national law. e coercive circumstances surrounding the threat of rape may still be
taken into account in the sentencing process. Similarly, if the oence commied is considered
disproportionately grave compared with the threat of harm so that duress is not proven, the threat
itself is a mitigating circumstance when determining a criminal sentence.
Mitigating circumstances may also be relevant to reduce the severity of punishment in situations where,
for example, a woman is compelled to harbour or shelter a relative known to have commied violent
terrorist acts out of a sense of family loyalty, or did not have the ability to refuse owing to social custom.
156
. Non-punishment of victims of tracking in persons
Resolutions adopted by the Security Council, in particular resolutions 2331 (2016) and 2388 (2017), and
documents such as the 2017 report of the Secretary-General on conict-related sexual violence,
157
have
highlighted the links between the abduction, enslavement and forced labour of women, girls and boys by
armed groups, including terrorist groups, and tracking in persons. e relationship between tracking in
persons oences and violence against women by terrorist groups is discussed in chapter 5.
In cases involving women who have commied terrorist oences, but who are themselves victims
of tracking by terrorist groups, one consideration that may be relevant for prosecuting authorities is
the principle of non-punishment of victims of tracking in persons.
is principle holds that such victims should not be punished or sanctioned for crimes commied
as a consequence of, or in close connection to, their tracking, including as a result of compulsion.
It is key to an approach to tracking that is centred on human rights and victims, in order to ensure
that victims are recognized as victims, and are aorded the corollary protection and assistance. As
recognized by the Special Rapporteur on tracking in persons, criminalization and/or detention of
victims of tracking is incompatible with a rights-based approach to tracking because it inevitably
compounds the harm already experienced by tracked persons and denies them the rights to which
they are entitled.
158
In its resolution 2388 (2017), the Security Council invokes that principle with specic reference to
the counter-terrorism context. In that resolution, the Council urged Member States thoroughly to
assess the individual situation of persons released from the captivity of armed and terrorist groups so
as to enable prompt identication of victims of tracking, their treatment as victims of crime and to
consider, in line with domestic legislation, “not prosecuting or punishing victims of tracking for
unlawful activities they commied as a direct result of having being subjected to tracking”.
(i) Basis in international standards and guidance
e United Nations Convention against Transnational Organized Crime and its Protocol to Prevent,
Suppress and Punish Tracking in Persons, especially Women and Children, do not contain an explicit
obligation requiring States Parties to refrain from prosecuting victims of tracking for crimes
156
Preventing Terrorist Acts, para. 32.
157
S/2017/249.
158
A/HRC/20/18, para. 25.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
commied during their period of victimization. However, the principle of non-punishment is well
established in international standards and guidance.
159
e principle is in line with one of the main
purposes of the Tracking in Persons Protocol, as provided in article 2, paragraph (b), which is to
protect and assist the victims of such tracking, with full respect for their human rights. Further, the
Working Group on Tracking in Persons, which is tasked with advising and assisting the Conference
of the Parties to the United Nations Convention against Transnational Organized Crime in improving
the capacity of States parties to eectively implement the Protocol, has recommended that States:
(a) Establish appropriate procedures for identifying victims of tracking in persons and for
giving such victims support;
(b) Consider, in line with their domestic legislation, not punishing or prosecuting tracked
persons for unlawful acts commied by them as a direct consequence of their situation as tracked
persons or where they were compelled to commit such unlawful acts.
160
According to the background paper prepared by the Secretariat for the Working Group on
Tracking in Persons (CTOC/COP/WG.4/2010/4, para. 9), States should not prosecute or punish
tracked persons for crimes they may have commied in the course of tracking. Similarly, the
Recommended Principles on Human Rights and Human Tracking of OHCHR (E/2002/68/
Add.1) state that tracked persons shall not be detained, charged or prosecuted for their involvement
in unlawful activities to the extent that such involvement is a direct consequence of their situation as
tracked persons.
161
is principle is also reected in regional practice. Article 26 of the Council of Europe Convention
on Action against Tracking in Human Beings provides that each Party shall, in accordance with the
basic principles of its legal system, provide for the possibility of not imposing penalties on victims for
their involvement in unlawful activities, to the extent that they have been compelled to do so. Article 4,
paragraph 7, of the ASEAN Convention against Tracking in Persons, Especially Women and
Children, requires each State party, in appropriate cases, to consider not holding victims of tracking
in persons criminally or administratively liable for unlawful acts commied by them if such acts are
directly related to the acts of tracking.
(ii) Applicability of the principle to specic conduct
e non-punishment principle contained in the OHCHR Recommended Principles is not intended to
confer blanket immunity on tracked victims who may commit other non-status-related crimes with
the requisite level of criminal intent.
162
Two dierent criteria may be used to determine the scope of conduct to which the non-punishment
principle applies, which are as follows:
• Causation criteria: refers to whether the oence is directly related or connected to the tracking,
as reected in, for example, Security Council resolution 2388 (2017) and the OHCHR
Recommended Principles. A number of States have incorporated the causation-based model into
domestic legislation.
163
159
According to the Special Rapporteur on tracking in persons, international bodies, including the Working Group on Tracking
in Persons, have conrmed non-prosecution of tracked persons as the relevant international legal standard (A/HRC/20/18,
para.27).
160
CTOC/COP/WG.4/2009/2, para. 12.
161
Oce of the United Nations High Commissioner for Human Rights, Recommended Principles on Human Rights and Human
Tracking: Commentary (HR/PUB/10/2), annex, para. 7.
162
HR/PUB/10/2, pp. 132–133.
163
See, for example, Argentina, Law No. 26.364 on the Prevention and Criminalization of Tracking in Persons and
Assistance to Victims of Tracking of 2008, art. 5 (“Victims of tracking in persons are not punishable for the commission of
any crime that is the direct result of having been tracked.”).
CHAPTER 2. GENDER DIMENSIONS OF TERRORISM OFFENCES
• Duress criteria: refers to oences that the tracked person was compelled to commit, as reected
in, for example, article 26 of the Council of Europe Convention.
a. Application of the non-punishment principle to terrorism-related oences
e applicability of the non-punishment principle is determined by its basis in domestic law, and
whether the applicable provisions contain any conditions for its applicability. e domestic law of
some States provides for non-punishment of victims for any type of oence,
164
while others impose
restrictions on the type of unlawful conduct covered by its application, such as oences relating to
unlawful migration or prostitution, or when the overall circumstances are deemed appropriate.
165
In its resolution 2331 (2016), the Security Council called upon Member States to ensure that
victims
are treated as victims of crime and, “in line with domestic legislation, not penalized or stigmatized” for
their involvement in “any unlawful activities” in which they have been compelled to engage. In a report
of the Organization for Security and Cooperation in Europe (OSCE), it is stated that the duty of
non-punishment applies to any oence so long as the necessary link with tracking is established.
166
Where there is no specic domestic legislation providing for the non-punishment principle, victims
of tracking should be able to rely on general duress provisions or mitigating circumstances in order
to avoid or limit liability.
b. The causal link between tracking and the oence
An assessment must be made on a case-by-case basis as to whether the requisite causal link between
the terrorism-related oence and tracking exists. Making such a determination may involve
examining whether the compulsion, or lack of voluntariness or autonomy, continues to exist, and
assessing the individual’s level of criminal intent.
e OSCE Special Representative and Coordinator for Combating Tracking in Human Beings
has taken the view that compulsion, for the purposes of interpreting non-punishment provisions,
should be aligned with the international denition of tracking in persons (such as that provided in
the Tracking in Persons Protocol). As a result, compulsion will include the full array of factual
circumstances in which victims of tracking lose the possibility to act with free will
167
– not only use
or threat of force, but also abduction, fraud, deception, abuse of a position of vulnerability.
(iii) Application beyond criminal justice measures
e non-punishment principle relates not only to non-aribution of criminal liability for oences, but
also to the imposition of other measures which amount to penalties. Such measures include adminis-
trative penalties (e.g., pecuniary nes) and other forms of penalization (e.g., deportation, compulsory
detention, administrative detention and incarceration).
168
Such an application is also reected in the practice of some States. Anti-tracking legislation in
Azerbaijan and the Republic of Moldova, for example, provides for exemption of criminal, administra-
tive and civil liability for victims of tracking that otherwise meet the threshold of the provisions.
169
164
See, for example, Tunisia, Law No. 2016-61 of 3 August 2016, art. 6; see also, Niger, Law No. 2010-86 of 16 December 2010
on Tracking in Persons, art. 32.
165
See, for example, the Tracking in Persons (Prohibition), Law Enforcement and Administration Act of Nigeria, art. 62.
166
Organization for Security and Cooperation in Europe (OSCE), Oce of the Special Representative and Coordinator for
Combating Tracking in Human Beings, Policy and legislative recommendations towards the eective implementation of the
non-punishment provision with regard to victims of tracking (Vienna, 2013), p. 23.
167
Ibid., pp. 11–12.
168
Ibid., p. 32.
169
Art. 17.7 of the Law of Azerbaijan on the Tracking in Persons of 2005 and Law No. 241-XVI on Preventing and
Combating Tracking in Human Beings of 20 October 2005 of the Republic of Moldova, art. 32.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
Applied to the counter-terrorism context, this means that any person who has become associated
with a terrorist group as a result of tracking should not be subjected to any administrative measures
amounting to penalties.
D. Gendered impacts of measures against terrorism
nancing
e present publication is concerned with the gender dimensions of criminal justice responses to
terrorism, and the present chapter has focused on ways in which the criminalization of terrorism
oences aect female and male alleged oenders dierently. Additionally, non-criminal justice meas-
ures aimed at suppressing support for terrorist groups also have a gendered impact. e present
section highlights three areas in which measures aimed at suppressing terrorism nancing risk may
disproportionately impact women.
First, informal remiance systems, such as hawala-type transfer systems, are considered vulnerable
to exploitation for terrorist-nancing purposes, owing to limited regulatory oversight and the absence
of customer identication systems.
170
As a result of nancial exclusion from formal banking systems,
including situations in which women are not permied to deal directly with banks or nancial agents,
women in some contexts rely heavily on informal remiance systems.
171
erefore, measures to
counter the nancing of terrorism that target remiance systems may disproportionately aect
women’s access to nancial resources, thereby exacerbating their nancial exclusion.
Second, women have been aected by wide-reaching measures applied to their spouses as a result of
asset-freezing regulations.
> EXAMPLE: CASE STUDY ON GENDERED IMPLICATIONS OF ASSET-FREEZING REGIMES
In M and Others v. HM Treasury, M’s husband was designated under Security Council resolution 1267
(1999), and his assets were frozen.
a
Some of M’s welfare and social security benets had been frozen
pursuant to the same resolution, with the authorities in the United Kingdom considering that these
payments were prohibited since they may have indirectly beneted a designated person, including through
providing communal meals. e House of Lords described the asset-freezing regime applied to M as a
“disproportionate and oppressive” measure amounting to an “extraordinary” invasion of privacy of someone
who themselves was not a listed person.
b
Upon referral by the House of Lords, the European Court of
Justice found that the Regulation did not mandate such an intrusive regime against M. e Court found
that it was hard to imagine how those funds could be turned into means that could be used to support
terrorist activities, especially because the benets at issue were xed at a level intended to meet only the
strictly vital needs of the persons concerned.
c
a
Council of the European Union Regulation (EC) No. 881/2002 prohibits making available, directly or indirectly,
funds for the benet of a person or group designated as being associated with listed individuals or terrorist groups, and
enables the freezing of funds of such persons or groups.
b
R(M) v. HM Treasury [2008] 2 All ER 1097, paras. 15 and 61.
c
European Court of Justice, M and Others v. HM Treasury, Case No. C-340/08, Judgment of the Court (FourthChamber)
of 29 April 2010, paras. 60–61.
170
See Financial Action Task Force, e Role of Hawala and Other Similar Service Providers in Money-Laundering and
Terrorist Financing (Paris, 2013), pp. 41–44.
171
Liat Shetret and others, Tracking Progress: Anti-Money-Laundering and Countering the Financing of Terrorism in East
Africa and the Greater Horn of Africa (n.p., Global Centre on Cooperative Security, 2015), p. 78.
CHAPTER 2. GENDER DIMENSIONS OF TERRORISM OFFENCES
ird, measures to counter the nancing of terrorism have resulted in restrictions on civil society
funding, particularly when paired with overly broad denitions of material support to terrorism. Such
laws have disproportionately aected the resources, funding and activities of organizations promoting
gender equality and women’s rights.
172
A number of characteristics that such organizations oen share
include the following:
• ey tend to be grass-roots organizations operating on a small scale, particularly when operating
in politically unfavourable environments and where women face specic disadvantages.
• Such organizations may operate with a lower level of formal organization.
• ey tend to be reliant on short-term funding, oen from foreign sources (if they are located in
conict and post-conict zones), rather than long-term, stable funding sources or domestic
sources. is is one eect of the particular funding landscape facing women’s rights organizations
as well as the gendered paerns of nancial exclusion in many country contexts, which point to
gender-specic aspects.
173
Organizations sharing those characteristics face particular diculties in obtaining funding,
particularly from foreign donors that adopt more risk-averse funding priorities that favour large-scale,
recognized and formally structured organizations that can comply with auditing and due diligence
requirements imposed by some terrorist-nancing regulations, driven by a fear of having their
charitable donations stigmatized as nancing of terrorism.
174
> EXAMPLE: IMPACTS OF MEASURES TO COUNTER THE FINANCING OF TERRORISM ON THE ACTIVITIES
OF WOMEN’S RIGHTS ORGANIZATIONS
In a 2017 study of the impacts of measures to counter the nancing of terrorism on gender equality and
the activities of women’s rights organizations, 48 per cent of women’s organizations surveyed responded
that counter-terrorism nancing demands had impacted their access to funds, while 41 per cent responded
that they had not applied for certain grants as a result of such demands.
a
a
Duke Law International Human Rights Clinic and Women Peacemakers Program, Tightening the Purse Strings: What
Countering Terrorism Financing Costs Gender Equality and Security (2017), p. 65.
172
A/64/211, para. 42.
173
Duke Law International Human Rights Clinic and Women Peacemakers Program, Tightening the Purse Strings: What
Countering Terrorism Financing Costs Gender Equality and Security (2017), p. 38.
174
A/HRC/33/29, para. 41, and A/64/211, para. 42.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
SUMMARY OF KEY POINTS
• While men remain the predominant organizers and perpetrators of terrorist violence, women
are involved in the activities of modern terrorist groups in a number of ways, ranging from
fullling combat, security and leadership functions, to being used as suicide bombers. More
women act as recruiters and mobilizers of support for terrorist groups, provide support
functions, or full traditional gender roles (e.g., as wives of foreign terrorist ghters).
• While some women join terrorist groups on their own volition, the association of other
women with terrorist groups is through familial relationships, in particular marriage. In other
cases, women (and men) are abducted and are forced to participate in acts of terrorism.
• The criminalization of supporting and assisting activities of terrorist groups is required by
multiple international legal instruments against terrorism. In practice, the broad
criminalization of support oences has a dierential impact on women, given that women,
compared with men, more commonly full non-violent support roles, and with varying
levels of knowledge and intent.
• The criminalization of support and preparatory conduct must always comply with the
principle of legality. For example, oences must be dened in a way that gives “fair notice”
as to what conduct is made punishable. Because counter-terrorism laws may have been
based on assumptions about the way men participate in terrorism, those laws may lack the
required level of clarity and predictability when applied to the participation of women in
terrorism, when those roles are dictated by gender stereotypes.
• The present chapter has examined the need to apply a gender mainstreaming approach to
selected terrorism-related oences related to foreign terrorist ghters, nancing of
terrorism, oences concerning the sheltering or harbouring of terrorism suspects, and
sentencing for support oences.
• It is important to beware gender stereotypes portraying women associated with terrorist
groups as generally lacking personal agency and being victims of coercion. However,
research suggests that the number of women who become involuntarily associated with
terrorist groups, and who commit oences as a result of that association, is higher than in
the case of men. There are a number of criminal justice principles available to address this
situation, including exercising the discretion not to prosecute, the defence of duress, or the
application of mitigating circumstances at sentencing to reduce the severity of a
punishment. Where the person in question is a victim of tracking in persons, application
of the principle of non-punishment of victims of tracking in persons may be relevant.
• Non-criminal justice measures aimed at suppressing support for terrorist groups, in
particular those measures aimed at the suppression of nancial support, also have
gendered impacts.
top: © UN Photo/Martine Perret
centre: © Photodisc/Getty images
INVESTIGATION AND PROSECUTION
OF TERRORISM CASES
Investigations in cases involving terrorism and other complex crime require the use of many dierent
investigation measures, including interviews with victims, witnesses and suspects, the interception of
telephone, email and social media communications, and the exploitation of records on mobile
phones and computers. ey also require the use of various types of evidence, including forensic
evidence from the crime scene and any items found there, information from public authorities and
businesses, and the results of searches of persons, vehicles, homes and business premises.
Chapter 3 contains an examination of the key gender dimensions arising during investigations into
and prosecution of terrorism oences. e topics addressed are outlined below:
• Section A: search powers, special investigative techniques and proling practices
• Section B: good practices on the gender-sensitive interviewing of victims, suspects and witnesses
• Section C: gender aspects of witness protection
• Section D: importance of strengthening women’s representation in law enforcement and the
judicial system
e principles established in sections B and C are applicable to investigations and prosecutions
concerning terrorist oences in general, and in cases in which the victims, witnesses or suspects have
experienced sexual and gender-based violence.
e issues discussed are not unique to investigations in terrorism cases, but they are of particular
relevance in the counter-terrorism context. A basic principle established in international human rights
and counter-terrorism instruments is that criminal investigations and prosecutions related to terrorism
must be conducted in accordance with international standards and the rule of law, human rights and
fundamental freedoms. By using gender-sensitive procedures, investigators will increase investigatory
compliance with human rights and are likely to be more eective than investigators who are unaware
that the way they conduct investigations aects men and women dierently.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
> FOCUS: THE RIGHTS OF VICTIMS AND WITNESSES IN THE INVESTIGATION PHASE
In addition to respecting the rights of the suspect, States are under an obligation to respect the rights of
victims and witnesses throughout the investigation and prosecution, given that their rights to life, security,
physical and mental integrity, respect for private and family life, and protection of dignity and reputation
may be at risk. Ensuring such rights requires an intersectional approach to engaging with female victims
and witnesses, because eectively respecting those rights is not solely related to gender, but also to cultural,
social, religious and economic characteristics.
In good practice 21 of its “Good practices on women and countering violent extremism”, the Global
Counterterrorism Forum recognized the importance of integrating a gender perspective into relevant
guidance materials and training, having female rst responders and developing gender-sensitive investiga-
tive and prosecution procedures for female victims and witnesses, as key measures to enhance the rights
of victims and witnesses.
A. Gender aspects of investigations
. The need for a gender-sensitive approach to the investigation
of terrorism cases
Compliance with human rights standards is essential to the eective, fair and impartial investigation of
terrorism cases. It also strengthens accountability for terrorism oences, improves the relationship
between the investigative authorities and the communities aected by terrorism, and assists in
addressing the conditions conducive to the spread of terrorism.
During the course of counter-terrorism operations, investigating authorities exercise a range of
powers which include searches of individuals and premises, special investigative techniques and prol-
ing. While exercising those powers, however, authorities must comply with fundamental human rights
standards, including the right to non-discrimination. Not every distinction in treatment is necessarily
discriminatory. However, without an objective justication, the dierential treatment of dierent
groups of people in the use of investigative powers is likely to be incompatible with the principle of
non-discrimination. While counter-terrorism investigations have given aention to discrimination on
grounds such as race, religion and nationality, it is equally important to ensure that investigators do not
discriminate on the grounds of sex or gender.
As established in chapter 1, criminal justice systems in many contexts disadvantage women at
dierent stages: women’s initial contact with the system; throughout the criminal investigations; and
before, during and aer the trial. is is evident at the investigations stage in a number of ways:
• Men account for a large proportion of personnel in law enforcement and in the judicial system,
and are generally not trained in gender-sensitive investigative and prosecution practices. is is
signicant given that the representation of women in these systems plays a key role in securing
equality before the law and equal treatment in the criminal justice system, together with gender-
sensitivity training for all women and men working in these areas.
• e dierential impacts of investigative powers on women and men may not be overt and may
arise from entrenched gender biases and stereotypes.
• Policies and procedures governing how such powers are exercised have, in most contexts, been
developed in a gender-neutral manner.
Adopting a gender-sensitive approach to investigations is a key way of operationalizing the gender
mainstreaming principles set out in chapter 1. It requires taking gender norms, roles and relations into
account in order to assess the dierent impacts of investigative policies and practices on women, men,
CHAPTER 3. INVESTIGATION AND PROSECUTION OF TERRORISM CASES
girls and boys who come into contact with the criminal justice system in the course of terrorism inves-
tigations, including as suspects, victims or witnesses, and working to mitigate negative impacts arising
in the course of investigations.
. Search powers
(i) The impact of search powers
Governments in democratic societies have a responsibility to protect individuals and institutions in
their jurisdiction from the threat posed by terrorism. A range of investigatory powers, including search
powers, may be used to discharge this responsibility. Nevertheless, searches of persons and property
by law enforcement personnel in the course of terrorism investigations may impinge upon a number of
human rights, including the following:
• e prohibition of arbitrary or unlawful interference with privacy, family and home, and the
prohibition of unlawful aacks on honour and reputation
175
• Where property is seized or trespassed, the right to peacefully enjoy property
• In the case of stop and searches, the right to freedom of movement
• In the case of the search of premises used for exercise of religion, the right to freedom of religion
• e right to freedom of expression, assembly and association – for example, when the premises of
a political movement and/or a media organization are searched
e above-mentioned are so-called “non-absolute rights” that can be limited in certain circumstances,
provided that any interference with those rights are prescribed by law, have a legitimate aim and are
necessary and proportionate to the aim pursued.
Some States confer extraordinary counter-terrorism search and seizure powers on law enforcement
personnel, in some cases without requiring a warrant and in other cases conferring power on the exec-
utive to broadly authorize search and seizure operations in designated areas without warrants. When
those search powers are used in a disproportionate way, it may raise issues about respect for the dignity
of the human person and of the prohibition of inhuman and degrading treatment. Search powers may
also have particular gendered impacts (i.e., impacts that are dierent for men and women), which can
be ameliorated only through the implementation of gender-sensitive practices.
(ii) Stop and search procedures in public spaces
Depending on the context of the search, the location where a search is conducted can have a dierent
impact on women and men. With regard to public spaces, stop and search procedures may
disproportionately aect men, among whom there is a higher incidence of public searches compared
with women. Reports indicate that terrorist groups exploit the fact that women are less likely to be
stopped and searched:
Because women were not considered a threat, female followers and forced conscripts could initially
circulate in Government-controlled areas more easily, as spies, messengers, recruiters and smugglers.
For the same reason, from mid-2014, Boko Haram turned to female suicide bombers.
176
175
e Human Rights Commiee has found that the unjustied inclusion of a person in the terrorism sanctions list of the
Security Council Commiee pursuant to resolutions 1267 (1999), 1989 (2011) and 2253 (2015) concerning Islamic State in
Iraq and the Levant (Da’esh), Al-Qaida and associated individuals, groups, undertakings and entities amounted to a violation of
article 17 of the International Covenant on Civil and Political Rights. It considered that the dissemination of personal informa-
tion about the authors constituted an aack on their honour and reputations (see communication No. 1472/2006, Sayadi and
Vinck v. Belgium, decision adopted on 22 October 2008, paras. 10.12 and 10.13).
176
“Nigeria: women and the Boko Haram Insurgency”, pp. ii and 10.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
On the other hand, in cultures where public spaces are traditionally occupied by men, the
stigmatizing eects of these procedures may be more severe for women who are stopped and searched.
Stop and search procedures that impede on individual freedom of movement, family association,
the ability to aend work or school, or the ability to obtain household resources may have a dierent
impact on women and men. Women may already be discriminated against in accessing land, water and
other natural resources, and girls may already face diculties in aending school.
177
e impact of stop
and search procedures could therefore exacerbate an already limited access to public spaces and the
freedom of movement of women and girls.
(iii) Searches of homes
A search of the home breaches the private domestic domain and may cause destruction – both of a
physical nature and a destructive atmosphere – that can lead to feelings of intimidation, vulnerabil-
ity and a lack of security. When coupled with intimidating conduct by law enforcement personnel
– sexualized verbal abuse, for example – the eect of such home searches is generally more acute
for women than for men.
178
Such an eect may be compounded by the reduced visibility and
accountability associated with home searches, as compared with counter-terrorism measures that
take place in public spaces, and further complicated by patriarchal structures and aitudes that
disempower women.
(iv) Good practices for using search powers
Stop and search procedures should not unduly limit or interfere with the following rights of the
individual: movement to and from a residence, workplace or publicly accessible location; associa-
tion with family members; access to land or water; or ability to aend full school and work days and
access social services or medical treatment, in particular as pertains to emergency cases and preg-
nant women.
179
All stops and searches must be carried out with courtesy and respect, consistent with the dignity
of the person who is being searched. Persons being subjected to a body search by State ocials or
medical personnel acting at the request of the State should be examined only by persons of the same
sex.
180
Personnel carrying out the search should be aware of cultural sensitivities, which may be par-
ticularly challenging in contexts where the vast majority of police and security personnel are male
(see section D of the present chapter).
Investigators should consider cultural and religious factors when executing search and seizure
procedures in the home, such as whether there are areas of the home in which only women may
be present.
177
Counter-Terrorism Implementation Task Force, Basic Human Rights Reference Guide: e Stopping and Searching of Persons
in the Context of Countering Terrorism, updated 2nd ed. (New York, March 2014), p. 20.
178
Fionnuala Ní Aoláin, “Close encounters of the female kind in the land of counter-terrorism” in Gender, National Security,
and Counter-Terrorism: Human Rights Perspectives, Margaret Saerthwaite and Jayne Huckerby, eds. (Abingdon, United
Kingdom, Routledge, 2013) p. 243.
179
“Basic human rights reference guide: the stopping and searching of persons in the context of countering terrorism”, 2nd ed.
(New York, March 2014), p. 20.
180
Human Rights Commiee, general comment No. 16 on article 17 of the International Covenant on Civil and Political
Rights on the right to respect of privacy, family, home and correspondence, and protection of honour and reputation (A/43/40),
annex VI, para. 8.
CHAPTER 3. INVESTIGATION AND PROSECUTION OF TERRORISM CASES
> EXAMPLE: LONDON METROPOLITAN POLICE – STOP AND SEARCH OF PEOPLE OF DIFFERENT GENDER
TO THE SEARCHING OFFICER
e London Metropolitan Police Service has made publicly available its position on stop and search
procedures of people who are of dierent gender to the searching ocer. e guidance states that:
It is legitimate for an ocer of any sex to stop and search a person of any sex providing the search is
in public and is restricted to a supercial examination of outer garments.…
All stops and searches must be carried out with courtesy, consideration and respect for the person
concerned. Every reasonable eort must be made to minimize embarrassment that a person being
searched may experience. erefore, where practicable, an ocer of the same sex as the person to be
searched should conduct these types of searches, unless an ocer of the same sex is not readily available
and waiting would unnecessarily prolong the length of time taken to conduct the encounter or frustrate
the object of the search.
Any search involving the removal of more than an outer coat, jacket, gloves, headgear or footwear, or
any other item concealing identity, may only be made by an ocer of the same sex as the person searched
and may not be made in the presence of anyone of the opposite sex unless the person being searched
specically requests it.
e cooperation of the person to be searched must be sought and, depending on the circumstances
(including ocer safety), ocers should consider asking the person to be searched if they want the
search to take place out of public view. Where there may be sensitivities (religious or other) about the
removal of a head or face covering or other clothing, the ocer should permit the item to be removed
out of public view.
> EXAMPLE: SEARCH OF HOMES UNDER THE ADMINISTRATION OF CRIMINAL JUSTICE ACT OF NIGERIA
e Administration of Criminal Justice Act 2015 of Nigeria contains a number of provisions taking into
account the gender aspects of criminal investigations. ose aspects include the practice of “purda” in parts
of Nigeria, which involves the seclusion of women from public observation by means of concealing clothing
and the use of high-walled enclosures, screens and curtains within the home.
According to section 12 (3) of the Act, when a suspect enters a house occupied by a woman who by
custom or religious practice does not appear in public, the person aempting to make the arrest shall:
(a) Give notice to the woman that she is at liberty to withdraw (before entering the house or place);
(b) Aord the woman every reasonable opportunity and facility for withdrawing.
e person aempting to make the arrest may then enter the house or place. If the person making the
arrest is a woman, giving notice shall not be necessary.
. Special investigative techniques
Detecting and disrupting the clandestine operations of terrorist organizations requires special investi-
gation methods that enable law enforcement agencies to gather information without alerting the
target. Such methods are oen referred to as special investigative techniques.
> FOCUS: SPECIAL INVESTIGATIVE TECHNIQUES
ere is no universally accepted denition or exhaustive list of special investigative techniques. e Council
of Europe adopted a recommendation in 2005 providing guidance to Member States on how to respect
privacy rights in intelligence-led policing, including in terrorism investigations, which codies principles
established in the jurisprudence of the European Court of Human Rights.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
> FOCUS: SPECIAL INVESTIGATIVE TECHNIQUES (continued)
e recommendation gives the following denition:
“Special investigation techniques” means techniques applied by the competent authorities in the context
of criminal investigations for the purpose of detecting and investigating serious crimes and suspects,
aiming at gathering information in such a way as not to alert the target persons.
a
Special investigative techniques commonly used in counter-terrorism investigations include:
• Use of undercover agents
• Use of informants
• Interception of telephone communications
• Interception of email communications
• Visual surveillance of suspects
• Audio surveillance of premises in which suspects live or meet
• Surveillance of social media accounts
• Placement of listening devices in a private residence
• Tracking of the movement of suspects with global positioning system (GPS) devices
a
Recommendation
Rec(2005)10 of the Commiee of Ministers to member States on “special investigation tech-
niques” in relation to serious crimes including acts of terrorism.
(i) Impacts of special investigative techniques
e purpose of special investigative techniques – to gather information on target persons without their
knowledge – means that such techniques have far-reaching human rights impacts, interfering with the
right to privacy and potentially with fundamental freedoms of expression, association and religion, as
well as the prohibition of discrimination, and the right to a fair trial and respect for one’s private life.
181
e gender aspects of the use of special investigative techniques may be less apparent than in the
case of search powers. However, gender stereotypes relating to the roles of men and women in terrorist
activities and organizations are likely to play a role in the deployment of surveillance measures. at
fact is illustrated by the court decision regarding dragnet investigations in Germany (see the example
in the box in subsection 4 of the present section): from the very beginning, investigators in those cases
excluded women from their prole of a member of a terrorist “sleeper cell”.
Women may be perceived as secondary actors, for example as family members, as informants or in
roles related to preventing and countering radicalization in the family environment. Even when they
are not the primary target of an investigation, women remain aected by their associations with those
who are targeted, including as family members or relatives. While counter-terrorism investigations
tend to primarily target men, women have become implicated in that process when they are leveraged
for purposes of inducing male family members to become informants, or as the result of being
ostracized in their communities when a family member agrees to cooperate with the authorities.
182
One serious concern relates to the exploitation of intimate relationships in covert human intelligence
operations, such as the use of undercover agents or informants to collect information on the activities of
terrorist groups. at exploitation includes the use of women or men to develop intimate relationships
with investigation targets as a means of inltrating an organization and obtaining information. Such
actions may have serious implications for the agents or the informants themselves and may cause trauma
to the targeted persona, causing the individual to be ostracized.
181
UNODC, Counter-Terrorism Legal Training: Module 4, pp. 88–102.
182
Center for Human Rights and Global Justice, “A decade lost: locating gender in U.S. counter-terrorism” (New York, New
York University School of Law, 2011), pp. 82 and 85.
CHAPTER 3. INVESTIGATION AND PROSECUTION OF TERRORISM CASES
> EXAMPLE: EXPLOITATION OF INTIMATE RELATIONSHIPS DURING UNDERCOVER OPERATIONS
In a 2013 case in the United Kingdom of Great Britain and Northern Ireland, the police inltrated an animal
rights group they suspected of commiing violent crimes. One of the male undercover ocers established
intimate relationships with several of the female activists in order to strengthen his cover and obtain more
information.
a
When that fact came to light in the course of the criminal proceedings against the members
of the group, it caused serious damage to the prosecution’s case and to the reputation of the law enforcement
agency. e suering caused by the undercover police ocer, both to the women and their children, was
condemned as totally unacceptable.
b
e case highlighted the importance of developing and applying
stringent professional and ethical protocols regarding the conduct of undercover agents, informants and the
agents handling them, including with regard to developing intimate relationships with suspects.
a
United
Kingdom, Her Majesty’s Inspectorate of Constabulary (United Kingdom), A Review of National Police
Units which Provide Intelligence on Criminality Associated with Protest (2012), pp. 8 and 25; and Rob Evans and
Paul Lewis, “Former lovers of undercover ocers sue police over deceit”, Guardian, 16 December 2011. Available at
www.theguardian.com/uk.
b
Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association (A/HRC/23/39/
Add.1), para. 25.
(ii) Good practices on the use of special investigative techniques
us, special investigative techniques have their own specic good practices:
• e use of special investigative techniques must be regulated and carefully supervised, including
on a judicial level, in order to ensure that professional protocols and human rights are respected.
• A gender analysis should inform the design and application of special investigative techniques in order
to assess their impact not only on the primary target but also on anyone else who could be aected.
. Non-discrimination and terrorist proling
e practice of proling is used by many States in terrorism prevention activities and investigations in
order to identify persons who are likely to have commied an oence or are preparing to commit one.
Proling can also inform the activities of law enforcement personnel with regard to identifying physical
or behavioural characteristics to help determine, for example, whether to stop and search someone.
> FOCUS: PROFILING
“Proling” is generally dened as the systematic association of sets of physical, behavioural or psychological
characteristics with particular oences and their use as a basis for making law enforcement decisions.
Proles can be either descriptive (designed to identify persons likely to have commied a particular
criminal act and thus reecting the evidence investigators have gathered concerning the act) or predictive
(designed to identify persons who may be involved in some future crime, or in a crime that has not yet
been discovered).
a
a
Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while
countering terrorism (A/HRC/4/26), para. 33.
Proling is, in principle, a permissible law enforcement activity. Detailed proles based on factors that
are statistically proven to correlate with certain criminal conduct ensure that limited law enforcement
resources are eectively allocated.
183
183
Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while
countering terrorism (A/HRC/4/26), para. 33.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
Not every dierentiation of treatment in law enforcement measures constitutes discrimination. Key
questions are whether the criteria used for dierential treatment are reasonable and objective and
whether they have a legitimate purpose.
184
Proling practices based on broad generalizations and
stereotypes, including those generalizations based on gender, run a substantial risk of violating the
principle of non-discrimination. e General Assembly has therefore called upon States, in their
eorts to counter terrorism, not to resort to proling based on stereotypes founded on grounds of
discrimination prohibited by international law, including discrimination on racial, ethnic and/or
religious grounds.
185
Likewise, the Commiee on the Elimination of Racial Discrimination has
recommended that States ensure that such proling measures do not discriminate on grounds of race,
colour, descent or national or ethnic origin in purpose or eect.
186
Dierent aspects of an individual’s identity, including gender, ethnic or national origin, and religion,
can lead to a compounding of discrimination against that person. Such a situation can increase the
chance of being the subject of proling and may arise in the following cases:
• If law enforcement ocials use broad proles employing generalizations that are based on
s tereotypical assumptions – e.g., that males of a certain race, national or ethnic origin, or
religion, are more likely to engage in terrorist activity – men belonging to such groups will be
disproportionately aected
187
• If law enforcement ocials use generalizations that are based on assumptions of gender inequality
or about the scope of the role of women within certain groups
• If women are subjected to proling on the basis of the religious aliation indicated by their aire
> EXAMPLE: GERMAN CONSTITUTIONAL COURT DECISION REGARDING DRAGNET INVESTIGATIONS
a
Following the 11 September 2001 aacks on targets in the United States, the German police authorities
launched a sweeping dragnet investigation aimed at the identication of terrorist “sleeper cells” in Germany.
e police obtained data sets about several hundred thousand individuals from universities, colleges, immi-
gration oces and other private and public entities holding such information. at information was then
screened automatically using the following criteria: male, aged 18 to 40 years, Islamic religious aliation,
and country of origin with a predominantly Islamic population. e names of all the persons fullling
those criteria were collected in a le (the so-called “sleeper” le). It is not known whether that eort
revealed any potential terrorists or resulted in any charges against members of terrorist organizations.
In a subsequent complaint led by a 28-year-old Moroccan man aending university in Germany, the Federal
Constitutional Court noted that the covert collection of information and the use of stigmatizing criteria – the
religious proling resulted in the collection of information on only persons of the Islamic faith – required a
very strong justication of a specic heightened threat of a terrorist aack. e Court found that the general
situation of heightened threat in Germany following 11 September 2001 did not meet that threshold.
While the Court was particularly critical of the use of religion as one of the criteria for the proling, it
did not comment on the investigators’ use of sex as a screening criterion (only men were entered in the
so-called “sleeper” le). e case nevertheless illustrates how gender intersects with other aspects of an
individual’s identity, such as ethnicity, nationality and religious aliation, to produce stereotypes.
a
Germany, Federal Constitutional Court, order 1 BvR 518/02 of 4 April 2006.
184
Human Rights Commiee, general comment No. 18 (1989) on non-discrimination, para. 13.
185
General Assembly resolution 63/185, para. 7.
186
Commiee on the Elimination of Racial Discrimination, general recommendation No. 30 (2004) on discrimination
against non-citizens, para. 10 (see also the reports of the Special Rapporteur on contemporary forms of racism, racial
discrimination, xenophobia and related intolerance (A/HRC/29/46), discussing the legal and policy frameworks prohibiting
racial and ethnic proling, and good practice for eliminating its use; and A/72/287, on combating racism in the context of
counter-terrorism, also discussing proling).
187
See A/HRC/4/26, paras. 34–46; and A/64/211, para. 37.
CHAPTER 3. INVESTIGATION AND PROSECUTION OF TERRORISM CASES
Discriminatory proling not only violates human rights, it may also negatively impact the prevention
and investigation of terrorism oences if it causes feelings of victimization, stigmatization and alienation
among targeted groups and aects levels of trust between communities and law enforcement authorities.
Good practices for non-discrimination in terrorist proling
In developing non-discriminatory proling practices for use as a tool in counter-terrorism investigations,
there are a number of factors that States should consider:
• Proling to prevent terrorism should be based on behavioural characteristics, not characteristics
such as gender, ethnic origin or religion. Further, those behavioural characteristics should be
implemented neutrally, so as not to act as proxies for characteristics such as ethnicity and reli-
gion.
188
Pursuant to that aim, law enforcement agencies should develop clear criteria establishing
which characteristics personnel may employ, and in what context, when carrying out proling as
a part of counter-terrorism eorts, and pursuant to the requirements established above.
• Law enforcement personnel should be trained on the lawful use of proling practices. Training
sessions should highlight which criteria can legally be used and should specically address impli-
cations for human rights and non-discrimination.
189
In particular, training should be provided on
avoiding gender-based discrimination and gender stereotyping in counter-terrorism investiga-
tions. Such training is integral to combating gender-based discrimination as it may occur as the
result of entrenched and unconscious gender bias and stereotyping. As noted by the Special
Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related
intolerance, training helps to educate relevant actors on anti-discrimination law and unconscious
biases, to raise awareness on the prevalence and consequences of discrimination and to identify
methods for increasing trust between various stakeholders.
190
• Finally, independent systems of oversight should be established in order to ensure that those who
prole on the basis of unlawful grounds are held accountable.
191
FURTHER READING
• For a broader discussion of the human rights implications of special investigative techniques, see
UNODC, Counter-Terrorism Legal Training Curriculum: Module 4 – Human Rights and Criminal Justice
Responses to Terrorism (Vienna, 2014), pp. 88–102.
On search powers:
• Human Rights Commiee, general comment No. 16 (1988) on the right to privacy (HRI/GEN/1/Rev.9
(Vol. I)), chap. II.
• Counter-Terrorism Implementation Task Force,
Basic Human Rights Reference Guide: e Stopping and
Searching of Persons in the Context of Countering Terrorism, updated 2nd ed.
(New York, March 2014)
(see, in particular, paragraph 34 on proling practices).
• OHCHR and International Bar Association, “Human rights in the administration of justice: a manual on
human rights for judges, prosecutors and lawyers”, chap. 13.
On electronic surveillance:
• Current Practices in Electronic Surveillance in the Investigation of Serious and Organized Crime (United
Nations publication, Sales No. E.09.XI.19).
On special investigative techniques and foreign ghters:
• UNODC, Foreign Terrorist Fighters: Manual for Judicial Training Institutes South-Eastern Europe (Vienna,
2017), pp. 48–50.
188
A/HRC/4/26, para. 60.
189
Ibid., paras. 56–59.
190
A/72/287, para. 82; see also European Union Agency for Fundamental Rights, Fundamental Rights Report 2017, p. 92.
191
A/HRC/4/26, para. 88.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
B. Interviewing victims, witnesses and suspects
Interviewing
192
victims, witnesses and suspects is a major part of investigations in terrorism cases, in
particular in cases in which special investigative techniques, advanced forensic capabilities and other
advanced technologies are not readily available. e questioning of suspects by law enforcement
personnel is a specialist task that requires specic training in order to be performed successfully and in
accordance with the highest standards of professionalism.
193
According to the investigative interviewing model, interviewers must seek to obtain accurate and
reliable information in the pursuit of truth; gather all available evidence pertinent to a case before
beginning interviews; prepare and plan interviews based on that evidence; maintain a professional, fair
and respectful aitude during questioning; establish and maintain a rapport with the interviewee;
allow the interviewee to give his or her free and uninterrupted account of the events; use open-ended
questions and active listening; scrutinize the interviewee’s account and analyse the information
obtained against previously available information or evidence.
194
As the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
has observed, the use of illegal interviewing tactics are in part based on the erroneous assumption that
mistreatment and coercion are necessary to obtain confessions or elicit information. e Special
Rapporteur has also noted that, in many countries, detainees are mistreated during the investigations of
common crimes as the result of pressure from politicians, supervisors, judges and prosecutors to solve
high volumes of cases and inadequate measures of police performance, which can also create perverse
incentives for arrests and mistreatment.
195
In cases that cause the greatest alarm in society, such as those
involving terrorism, such incentives can be enormous. As a result, such behaviour may manifest itself in
the treatment of witnesses or victims who are perceived by investigators to be uncooperative.
In addition to avoiding coercive interviewing methods, investigators must avoid secondary
victimization of the persons they deal with in the course of an investigation. e questioning of the
victims and witnesses of violence, including sexual violence, caused by terrorist groups brings with it a
high risk of secondary victimization.
> FOCUS: SECONDARY VICTIMIZATION
e cause of secondary victimization is not a direct result of the criminal act, but rather a result of how
institutions and individuals engage with the victim in responding to the crime.
It may occur when those responsible for criminal justice procedures act without taking into account the
perspective of the victim (e.g., as the result of intrusive or inappropriate conduct by police or other criminal
justice personnel). In fact, the whole process of a criminal investigation and trial may cause secondary
victimization: the investigation, the decision whether or not to prosecute, the trial itself and the sentencing
of the oender, and the oender’s eventual release.
a
ose risks are compounded by characteristics, includ-
ing gender, of the victim or witness. For example, in patriarchal societies, owing to power imbalances
compounded by gender inequality, male police ocers may intentionally or unwiingly intimidate and
revictimize female witnesses through aggressive questioning.
a
UNODC
, Handbook on Justice for Victims: On the Use and Application of the Declaration of Basic Principles of Justice
for Victims of Crime and Abuse of Power (1999), p. 9.
192
e terms “interviewing” and “questioning” are used synonymously here and are preferred to the term “interrogation”,
which is used in many jurisdictions to denote the questioning of suspects.
193
Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
(A/71/298), para. 56.
194
Ibid., para. 48.
195
Ibid., paras. 9–10; general human rights principles regarding the questioning of terrorism suspects, including the
presumption of innocence, the right to remain silent and not to be compelled to testify against oneself or to confess guilt are
examined in UNODC, Counter-Terrorism Legal Training Curriculum: Module 4 (sects. 3.3–3.5).
CHAPTER 3. INVESTIGATION AND PROSECUTION OF TERRORISM CASES
With regard to violence, and in particular terrorism, approaching the issue with a sensitivity to
gender can highlight a number of aspects in which the interviewing situation may dier for female and
male victims, witnesses and suspects.
In some societies, women face discrimination in accessing education, and they may lack nancial
and legal resources. In such circumstances, female interviewees may be more likely than men to be
intimidated by the interview situation, or may lack the condence to speak openly. at sense of intim-
idation and vulnerability is compounded by their reduced access to legal assistance and redress
compared with that available to men. In addition, owing to their lower economic and social status, and
lack of or reduced access to education, many women are less aware of their rights.
196
e ability to establish and maintain rapport with the interviewee, and to allow the interviewee to give
his or her free account of the events, may vary depending on the gender of interviewer and interviewee.
Male interviewers may create a greater sense of intimidation and vulnerability for female suspects
compared with male suspects, in particular in contexts in which women have limited contact with men
in public life. Such a situation may also create a perceived threat of sexual abuse for female suspects.
. Interviewing suspects
When interviewing female terrorism suspects, it is important to note that, although there is a stereotype
that women commit acts of terror for more emotional and less logical reasons than men do, women are
in fact oen driven by similar factors, including ideology, the desire to eect radical societal change,
economic drivers, sociopolitical conditions, grief, and real or perceived humiliation.
197
In some cases, however, it may be dicult to separate the involvement of women with terrorist groups
into categories of either “forced” or “voluntary” (see chap. 2). Additional considerations need to be taken
into account when interviewing female suspects who may themselves have been victims of sexual vio-
lence or of tracking in persons, making it more dicult and/or dangerous for them to cooperate with
terrorism investigations. In such circumstances, although the interviewer may be dealing with a suspect,
care must be taken to avoid revictimization. Where possible, the interviewers involved in such cases
should have undergone training on working with vulnerable witnesses. Such an approach depends in part
on the availability of eective victim identication methods, including for victims of tracking.
198
Interviewers should be aware that female suspects associated with some terrorist groups are also
more likely to face gendered social stigma arising from their links to the organization, puing them-
selves and their children at risk of being isolated and alienated.
199
at situation is likely to render
female suspects and witnesses less likely to be forthcoming in the interview and to cooperate with the
investigators, unless they can be assured of measures to protect them against stigmatization.
Women held in police custody are at a particular risk of sexual abuse and other forms of violence
used to intimidate and coerce suspects into producing information or confessions (see chap. 4, sect. B).
While both male and female suspects are vulnerable to coercive or illegal methods of questioning
and interrogation, they are vulnerable in dierent ways. Whether an interviewing style is coercive and
constitutes a violation of the prohibition of cruel, inhuman or degrading treatment depends on the
characteristics of the person being interviewed. Some of the factors mentioned above render female
interviewees more vulnerable than men; in those cases, the threshold of when an aggressive interviewing
style constitutes cruel, inhuman or degrading treatment may be lower.
196
Penal Reform International and Association for the Prevention of Torture, Women in Detention: A Guide to Gender-Sensitive
Monitoring, 2nd ed. (London, 2015), p. 9.
197
Chowdhury Fink, Barakat and Shetret, “e roles of women in terrorism, conict, and violent extremism”, p. 3.
198
UNODC, Anti-Human Tracking Manual for Criminal Justice Practitioners: Module 8 – Interviewing Victims of Tracking in
Persons Who Are Potential Witnesses (Vienna, 2009), p. 20.
199
“Nigeria: women and the Boko Haram insurgency”, p. ii.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
While it is recognized that the interviewing of female suspects by male personnel may have a dynamic
of intimidation through the implicit threat of physical and sexual violence, gender-related tactics and
gender bias have also been used against male terrorism suspects. In some countries, military and law
enforcement personnel have degraded male suspects and detainees by exploiting perceived notions of
male Muslim homophobia through the forced piling of naked male detainees and forced homosexual
acts. In addition, aempts have been made to induce feelings of emasculation by forcing detainees to be
naked or to wear women’s underwear.
200
Furthermore, the selection of male or female personnel may
also carry gendered implications. Male personnel may be used to heighten the power imbalance and the
humiliation caused by acts of sexual violence, while female personnel may use techniques to target the
suspect’s masculinity, seeking to evoke feelings of emasculation in detainees or suspected terrorists.
201
> FOCUS: ACCESS TO COUNSEL FOR TERRORISM SUSPECTS
e right to legal counsel of those suspected or accused of terrorism oences is a fundamental right in
criminal proceedings, and is an essential component of the right to a fair trial and of access to justice. e
right to counsel should be observed during all stages of criminal prosecution, including during the
preliminary investigations where evidence is taken, meaning that suspects should have the right to have a
lawyer present from the rst interview with investigators.
Measures to strengthen women’s access to counsel in contexts of imprisonment and other forms of
deprivation of liberty are discussed in chapter 4 of the present publication. Gender considerations in improv-
ing access to justice, applicable to both victims and those accused or convicted of terrorism oces, are
considered further in chapter 4.
. Interviewing victims and witnesses
Treating witnesses with consideration, respect for human rights and in a gender-sensitive manner is required
by international human rights standards. Such treatment has the added benet of encouraging witnesses to
come forward, provide information and cooperate throughout the investigative and prosecutorial process.
A fundamental principle is to do no harm. To adopt that approach means recognizing that many
witnesses in terrorism cases are testifying about events that had a signicantly negative and oen trau-
matic impact on their lives and their communities, including the loss of loved ones or seeing them
injured. Almost all witnesses suer some degree of stress during or aer their involvement in an
investigation and prosecution of a terrorism case. at stress can be caused by the formal nature and
particular demands of the proceedings, which are unfamiliar to most witnesses, and by the importance
of the process. A female witness is likely to experience greater stress when the roles of women in the
public sphere are restricted in her country, or in environments in which women are disadvantaged in
terms of education and legal and economic status.
(i) General considerations
Victims and witnesses are likely to be more condent and helpful if they are assured of their safety
prior to interviews or testimony. Failure to adequately protect victims and witnesses – or assure them
of protection prior to, during, and aer interviewing – may adversely aect the quality and quantity of
evidence that is obtained, in particular in the case of female victims and witnesses, who may be at
greater risk of reprisal (see also section C of the present chapter).
200
A/64/211, para. 44.
201
Ibid., para. 45.
CHAPTER 3. INVESTIGATION AND PROSECUTION OF TERRORISM CASES
Investigators must also ensure that they supplement all witness and victim testimony with physical
documentation of injuries or trauma, where available. At the same time, investigators should be mindful
that the lack of availability of such evidence does not mean that the account of the witness is unfounded.
A key strategy for reducing the negative psychological (and possibly social) impact of being a
witness and the risk of secondary victimization is to reduce the number of interviews a witness has to
undergo. Careful preparation, including ensuring ocer continuity, and recording of the interview will
help to reduce the likelihood that the witness will have to be interviewed a second time by the investi-
gators. For the reasons discussed above, such careful and thorough planning may be particularly
important for female witnesses and victims of sexual violence.
Because of the complexity of terrorism cases, considerable time may elapse between the rst time
the investigators and the witness meet and the day the witness is required to give evidence at trial.
A long waiting period increases the risk that the suspect and his or her associates will seek to unduly
inuence the witness. Prosecutors may explore legal means to obtain testimony from witnesses during
the investigation and pretrial stages in a form that makes subsequent appearances at trial unnecessary,
while respecting the defendant’s right to examine witnesses against him.
> EXAMPLE: EXPEDITED VICTIM AND WITNESS TESTIMONY AT THE INTERNATIONAL CRIMINAL COURT
Pursuant to article 56 of the Rome Statute, the Pretrial Chamber of the International Criminal Court,
upon request of the prosecutor, may decide to take testimony or a statement from a witness or examine,
collect or test evidence which may not be available subsequently for the purposes of a trial. In such a case,
the Chamber may take such measures as may be necessary to ensure the eciency and integrity of the
proceedings and, in particular, to protect the rights of the defence.
In the case of Prosecutor v. Dominic Ongwen, the article 56 provision was successfully used to admit the
testimony, obtained prior to the trial and played in the courtroom using a video link, of a number of victim-
witnesses who had been subjected to pressure that might have impacted both their willingness to testify
at trial and the content of the testimony. According to the charges against Ongwen, the witnesses were
victims of sexual and gender-based crimes, including forced marriage, rape, sexual slavery and enslavement,
among other crimes. e prosecution’s application for such measures included the following arguments:
• Possible witness intimidation/tampering. e prosecution adduced an incident which, as they persuasively
argued, constituted an aempt to intimidate the witnesses and might have resulted in witnesses being
unwilling or unable to testify before the Court.
• Ongoing societal pressures. Recurring, similar aempts to dissuade witnesses from testifying or persuade
them to change their testimony before the trial would increase the unwillingness of witnesses to testify.
• Avoiding secondary victimization. e prolonged delay between making a complaint of a crime
involving sexual and gender-based violence and the eventual trial might in itself cause psychological
harm or other distress to victims who are already likely to have been harmed by their abduction
and treatment, a fact which would make the testimony of such witnesses at the eventual trial less
likely to be complete and reliable.
a
Similar provisions exist in numerous national jurisdictions. In the case of victims of crimes involving sexual
and gender-based violence, section 165 of the Austrian Code of Criminal Procedure permits the use of
video testimony that has been given prior to trial, upon request of the victim or prosecutor. e Code of
Criminal Procedure of the Netherlands also provides for testimony in advance on the grounds that, inter
alia, the health or well-being of a witness will be endangered by in-court testimony.
In applying such provisions, great care must be taken not to unduly limit the right of accused individuals
to prepare their defence and examine witnesses against them.
a
See
International Criminal Court, Prosecutor v. Dominic Ongwen, public redacted version of “Prosecution applica-
tion for the Pre-Trial Chamber to preserve evidence and take measures under article 56 of the Rome Statute”,
26 June 2015, ICC-02/04-01/15-256-Conf, case No. ICC-02/04-01/15-256-Red, 27 May 2016, para. 12; and
Prosecutor v. Dominic Ongwen, “Decision on request to admit evidence preserved under article56 of the Statute”, case
No. ICC-02/04-01/15-520, 10 August 2016.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
(ii) Gender-specic considerations
Female victims and witnesses may require a greater level of physical and emotional safety before being
able to cooperate fully. In the case of witnesses who are also victims, the presence of a psychologist or
other mental health professional can be conducive to healthy and eective questioning.
Investigators should take into account the wishes of the interviewee to be interviewed by a person
of the same gender, or to have a person of the same gender present when being interviewed.
(iii) Interviewing victims and witnesses of crimes involving sexual and gender-based
violence
If not conducted correctly and in a sensitive manner, interviews of victims and witnesses of crimes involv-
ing sexual and gender-based violence may cause them to be retraumatized, place them at risk and
compromise the reliability of the information provided. In addition to the general considerations of gender-
sensitive interviewing listed above, interviewers should be sensitive to the following factors when inter-
viewing victims and witnesses, in particular of crimes involving sexual and gender-based violence:
• Location. Interviews should not be conducted in public areas where privacy cannot be guaranteed
or in the presence of others who could inuence the interviewee, including other witnesses or
victims, and other law enforcement ocials who are not required to be present for the interview.
• Individuals present at the interview. Whenever possible, the preference of the victim or witness
regarding the sex of the interviewer should be accommodated. Consider allowing the presence of
support persons or friends during the interview, when requested by the witness.
• Adopt a trauma-sensitive approach. Retrieve any prior statements given by the victim or witness so as
not to unnecessarily require the interviewee to recount traumatic experiences. Interviewers should
remain conscious of the interviewee’s emotional and physical needs by observing signs of distress
and post-traumatic stress disorder, and should be prepared to provide information on or referrals to
support services. It is also necessary to keep in mind that victims and witnesses may have diculty
responding to questioning if discussing sexual violence, if the use of certain terminology may be
taboo, or if being a victim of sexual and gender-based violence could result in stigmatization.
• Consent of the victim. Interviewers should always obtain the informed consent of the interviewees,
including consent for the interview, the use of recording devices, the taking of photographs, the
conducting of physical examinations, possible subsequent uses of the information obtained and
evidence collected, and the transfer of information to third parties if relevant, including other
investigating agencies and the courts.
202
It is also required that victims and witnesses (but not
suspects) be informed that they can withdraw consent and request to suspend the interview.
• Content of questioning. It is important to ask questions to obtain information that may be relevant
in establishing the elements of crimes involving sexual and gender-based violence (see chap. 5,
sect. B).
• Use of interpreters. Ensure that interpreters used in interviews are: (a) appropriately trained in
working with victims and witnesses of sexual and gender-based violence; (b) sensitive to the cul-
tural, religious and social context; and (c) comfortable with using the terminology of sexual and
gender-based violence, in order to ensure that their personal views or discomfort do not aect
interpretation.
203
Whenever possible, both male and female interpreters should be available.
202
United Kingdom, Foreign and Commonwealth Oce, International Protocol on the Documentation and Investigation of
Sexual Violence in Conict: Best Practices on the Documentation of Sexual Violence as a Crime or Violation of International Law,
2nded. (London, 2017), annex 2.
203
Ibid., p. 135.
CHAPTER 3. INVESTIGATION AND PROSECUTION OF TERRORISM CASES
e following measures can improve the integration of a gender perspective into the interviewing
of suspects, witnesses and victims:
• Training all law enforcement ocers and counter-terrorism practitioners on gender-sensitive
interviewing techniques is necessary to raise awareness of the dierent needs and experiences of
male and female interviewees. In addition, the recruitment, retention and training of female law
enforcement ocers and counter-terrorism practitioners is vital to ensuring that gender-sensitive
interviewing practices can be implemented for female interviewees who request a female
interviewer. In any case, the assessment of suitable interviewers should take into account cultural
norms, gender roles and the sensitivity of disclosure for female and male survivors.
• Trained personnel should be present across the spectrum of national bodies involved in counter-
terrorism investigations and not only in, for example, the sexual crimes division of law
enforcement agencies.
• Expertise on gender-sensitive interviewing practices should be shared within and between
authorities addressing terrorism crimes and also gender-based crimes.
• Training sessions could also be provided to sensitize personnel to intersecting issues – including
the interaction of gender with social, cultural and religious factors – and discrimination, such as
on the basis of race, ethnicity, religion and nationality.
• e presence of a psychologist or other mental health professional may be required during the
interview process if the interviewee has experienced trauma. Interviewing authorities should also
be prepared to refer to such professionals for follow-up care, if needed.
FURTHER READING
• e UNODC Handbook on Eective Prosecution Responses to Violence against Women and Girls provides
advice on interviewing female victims, protecting and supporting them throughout the criminal justice
process and preparing them for trial.
• UNODC, Anti-Human Tracking Manual for Criminal Justice Practitioners: Module 8 – Interviewing
Victims of Tracking in Persons Who are Potential Witnesses (Vienna, 2009).
• Chapter 11 of the International Protocol on the Documentation and Investigation of Sexual Violence in
Conict (2nd edition, 2017) provides comprehensive guidance on many aspects of interviewing victims
of crime involving sexual and gender-based violence, including the location and structure of the
interview, the use of interpreters and questioning techniques.
C. Witness protection
It is essential that victims and witnesses who interact with the justice process regarding terrorism crimes
have condence that their safety and security will be assured. It is likewise vital to support them and protect
them from the intimidation and harm that others may seek to cause in order to discourage them from
testifying, silence them or prevent them from otherwise contributing to the collection of evidence.
e State maintains the primary responsibility to protect the rights of all persons within its
jurisdiction and ensure that victims and witnesses who engage in accountability processes for serious
crimes and gross violations of human rights receive adequate support and protective measures. e
Human Rights Council stated that the right to an eective remedy, as outlined in article 2 of the
International Covenant on Civil and Political Rights, required the eective investigation and
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
punishment of the perpetrators, which provided a strong basis for the State to eectively protect
witnesses.
204
In addition, the Council noted that the protection of the life, physical and psychological
integrity, privacy and reputation of those who agree to testify before courts was essential under the
relevant provisions in the Covenant.
205
In order to achieve those goals, a gender-sensitive assessment of
the vulnerability and protection needs of victims and witnesses is fundamental and should be com-
pleted at the very beginning of criminal investigations in terrorism cases. Such an assessment should
take into account the age, disabilities, and socioeconomic and cultural background of the individual.
> FOCUS: VICTIM AND WITNESS PROTECTION MEASURES IN INTERNATIONAL INSTRUMENTS
e obligation to protect victims and witnesses in the criminal justice system is also enshrined in other
international human rights instruments, including the following:
• Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power
a
• Principles on the Eective Investigation and Documentation of Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment
b
• Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross
Violations of International Human Rights Law and Serious Violations of International Humanitarian
Law
c
(also a key component of the ght against impunity)
d
e United Nations Convention against Transnational Organized Crime also contains a number of obligations
concerning the protection of witnesses (art. 24) and victims (art. 25). ose articles include measures for
the physical protection of witnesses and their relatives and for alternative means of giving testimony, including
video links, to ensure the safety of witnesses. In the case of victims, the Convention includes measures to
protect against threats of retaliation or intimidation. e Protocol to Prevent, Suppress and Punish Tracking
in Persons, Especially Women and Children, supplementing the United Nations Convention against
Transnational Organized Crime, requires States to consider the gender and special needs of victims of
tracking in persons when implementing their victim protection obligations under the Protocol.
e
A number of documents of the Global Counterterrorism Forum include specic recognition of the importance
of witness and victim protection within the context of counter-terrorism, including the Rabat Memorandum
on Good Practices for Eective Counterterrorism Practice in the Criminal Justice Sector (good practice 1),
the Hague Memorandum on Good Practices for the Judiciary in Adjudicating Terrorism Oenses (good
practice 4), and the Good Practices on Women and Countering Violent Extremism (good practice 21).
a
General
Assembly resolution 40/34, annex, para. 6 (d).
b
General
Assembly resolution 55/89, annex, para. 3 (b).
c
General
Assembly resolution 60/147, annex, para. 5.
d
See
E/CN.4/Sub.2/1997/20/Rev.1, annex II.
e
Article
6 of the Tracking in Persons Protocol. e UNODC Toolkit to Combat Tracking in Persons provides
information and guidance on the support and protection of victims of tracking, including victims of gender-based
violence.
e term “protection” in this context refers both to measures taken to prevent placing a cooperating
person at risk (preventive) and to measures taken when such a person faces a threat or is subjected to
reprisals (response).
206
Such measures are aimed at:
• Minimizing the security risks facing victims and witnesses, while acknowledging that it may be
impossible to eliminate those risks;
204
A/HRC/12/19, para. 34.
205
Ibid.
206
OHCHR, Manual on Human Rights Monitoring: Chapter 14 – Protection of Victims, Witnesses and Other Cooperating Persons
(HR/P/PT/7/Rev.1), p. 5.
CHAPTER 3. INVESTIGATION AND PROSECUTION OF TERRORISM CASES
• Reducing the trauma that may arise in the process of giving testimony and ensuring psychological
well-being;
• Ensuring respect for the dignity and privacy of victims and witnesses.
207
An important caveat to make, with specic regard to terrorist oences, is that “witness protection”
and “victim protection” should not be confused with one another. Witnesses are not always necessarily
victims. Not all victims can contribute to the production of incriminating evidence.
208
While much of what is said in the subsections that follow can be applied to both victims and
witnesses (and victim-witnesses), the specic focus is on witness protection. Chapter 4 deals with the
provision of support to victims.
. Fundamental principles for gender-sensitive witness protection
measures
e increasing number of ways in which women are associated with and aected by the activities of
terrorist groups, including as victims of crimes that specically target women, demand that
counter-terrorism investigators, prosecutors and judges pay aention to the rights and specic needs
of female witnesses, in particular in assessing the threats faced by witnesses and in responding to
those threats.
ere are a number of important principles that need to be adhered to in order to ensure the ecacy
of gender-sensitive witness protection programmes.
(i) Early determination of vulnerability and follow-up throughout involvement
An early determination of the levels of vulnerability and the capacities of female witnesses is critical to
providing adequate support and protection throughout their involvement with the justice process.
Eective protection of witnesses in many cases requires that measures be taken from the start of the
investigation, when a witness rst enters into contact with the investigators, and throughout the
pretrial process. at approach is vital in the case of female witnesses who become involved in criminal
investigations as a result of their relationships with suspects or suspect organizations, since they are at
particular risk of being identied as assisting the authorities. e Oce of the United Nations High
Commissioner for Human Rights noted the following:
Measures taken during the rst stages of investigation play a crucial role for the protection of wit-
nesses. Failure to adopt eective measures to protect witnesses at the investigative stage and in
prosecutorial arrangements, and thereby give them reason to trust that their safety will be ensured
during the process, may result in many cases against perpetrators of human rights never reaching trial
stage … e eectiveness of witness protection methods should be ensured through the provision of
adequate nancial, technical and political support for programmes at the national level.
209
Introducing protection measures at the investigation stage, including safeguarding against the
disclosure of identities when investigative authorities are identifying potential witnesses, can increase
both the likelihood of obtaining testimony at trial without requiring formal witness protection
programmes and the willingness of witnesses to testify.
210
207
See, for example, General Assembly resolution 40/34, annex, para. 6 (d).
208
UNODC, e Criminal Justice Response to Support Victims of Acts of Terrorism, revised edition (2012), para. 228.
209
See A/HRC/15/33, paras. 66 and 71.
210
Ibid., para. 20.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
In addition to assessing the vulnerability of female witnesses, counter-terrorism investigators,
prosecutors and judges should also consider the protection needs of the spouses and family members
of male witnesses, who may face threats of reprisals. e absence of eective protection measures at an
early stage, at which time the risk to family members is high, may deter witnesses from testifying in
criminal proceedings.
Witness protection eorts during investigations may include:
• Consideration of how the investigators will initially approach the witness, taking into account
that public association with authorities may put their security at risk and increase the risk of
ostracism. Making contact may be particularly challenging in societies in which: (a) the presence
of women in the public sphere, or the freedom of movement of women, is limited; (b) the
interaction of women with men or public ocials would come under heightened scrutiny; and
(c) investigators are easily identied;
• Ensuring that witnesses are contacted in secure and condential ways;
211
• Undertaking an early vulnerability assessment, taking into consideration the physical and
psychological state of the witness and their individual circumstances, such as age, gender, the
nature of the crimes they witnessed or were a victim of, and their family circumstances;
• Undertaking a gender-sensitive risk assessment to determine the likelihood of the witness being
put in physical danger, and implementing measures to reduce such a risk;
• Assessing whether psychosocial support is needed at an early stage (before interviews commence),
which will be particularly relevant in many terrorism cases, in which victims and witnesses have
suered severe trauma or sexual and gender-based violence.
(ii) Condentiality
Condentiality is among the rst and most critical tools for witness protection; aside from its impor-
tance in minimizing the physical risk to witnesses, it is also a key condition in ensuring the psychological
protection of vulnerable witnesses. It covers the identity of the cooperating individual, the information
provided, and the protection measures that have been applied.
In some contexts, women associated with terrorist groups face greater stigma and discrimination in
their communities than men do, even if they were coerced into the group. at stigma may make them
more reluctant to act as witnesses, and as a result, additional measures to protect their privacy and
reputation are required for them to agree to cooperate with the justice system and testify.
(iii) Protection and support at the pretrial and trial stages
Protection measures by way of procedural orders at the pretrial and trial stages are generally subject to a
formal application to the court justifying the basis for and nature of the measures sought. When considering
the application of procedural measures, courts generally take into account the following factors:
• Nature of the crime (organized crime, sexual crime, family crime, etc.)
• Type of witness (victim of sexual assault, co-defendant, etc.)
• Relationship with the defendant (relative, defendant’s subordinate in a criminal organization, etc.)
• Degree of fear and stress of the witness
• Importance of the testimony
212
211
OSCE, Investigation Manual for War Crimes, Crimes against Humanity and Genocide in Bosnia and Herzegovina (2013), p. 287.
212
UNODC, Good Practices for the Protection of Witnesses in Criminal Proceedings Involving Organized Crime (Vienna, 2008), p. 32.
CHAPTER 3. INVESTIGATION AND PROSECUTION OF TERRORISM CASES
Many witnesses require some level of support to assist them in testifying. For some, providing
information on how the process works is sucient, while others require extensive assistance and sup-
port throughout their involvement in the judicial process. Compared with men, women in some socie-
ties are rarely in contact with the justice system. In such cases, the need for information and support
for female witnesses may be greater. A gender-sensitive approach to witness support should also take
into account childcare responsibilities, obstacles to access to transport, and gendered repercussions
for leaving paid work or family responsibilities and the home. Cooperation with the witness, including
the provision of support and protection, should not be started if the required follow-up cannot
be provided.
> FOCUS: FORMS OF PROCEDURAL PROTECTION MEASURES
e UNODC handbook entitled e Criminal Justice Response to Support Victims of Acts of Terrorism
provides three general categories of procedural protection measures for victims and witnesses, noting that
those measures vary to a great extent, and can be applied cumulatively:
(a) Measures to reduce fear by avoiding face-to-face confrontation with the defendant, including the
following measures:
(i) Use of pretrial statements (either wrien or recorded audio or audiovisual statements) as an
alternative to in-court testimony;
(ii) Removal of the defendant from the courtroom;
(iii) Testimony via closed-circuit television or audiovisual links, such as videoconferencing;
(b) Measures to make it dicult or impossible for the defendant to trace the identity of the witness,
including the following measures:
(i) Shielded testimony through the use of a screen, curtain or two-way mirror;
(ii) Anonymous testimony;
(c) Measures to limit the witness’ exposure to the public and to psychological stress:
(i) Change of the trial venue or hearing date;
(ii) Removal of the public from the courtroom (in camera session);
(iii) Presence of an accompanying person as support for the witness.
(iv) Post-trial phase
While it may be the case that protective measures are no longer required following conclusion of the
trial, it should not be assumed. reat and risk assessments should be conducted to establish whether
long-term support is needed, in particular if female witnesses have children who may be at risk without
ongoing support and protection.
(v) Stang requirements and training
As with interviewing procedures, all sta dealing with support and protection of vulnerable witnesses
need to understand the concept of vulnerability and should be trained to be sensitive to the needs of
witnesses, including needs that are gender-specic, and to respond to them.
Despite those observations, experience has shown that national authorities must pay due regard to
the needs expressed by the witness, keeping in mind that instituting protective measures against the
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
will of the witness may be ineective.
213
Moreover, it is stressed in the updated Model Strategies and
Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention
and Criminal Justice that where the safety of the victim cannot be guaranteed, refusing to testify
should not constitute a criminal or other oence.
214
. Witness protection programmes
Formal witness protection programmes safeguard both the personal security of the witness and those
close to them, as well as the integrity of the criminal investigation and trial. Programmes may include
witness relocation, the provision of new identity documents, and limitations on disclosure of informa-
tion about the witness. e form and duration of programmes is dictated by the resources available
and the requirements of the investigation and the court proceedings. In some cases, such a programme
may begin during the investigation phase and continue even aer the trial, based on a continuing
assessment of the threat to the witness.
UNODC published the Guidance Note for UNODC Sta: Gender Mainstreaming in the Work of
UNODC, in which it made the following observation with regard to witness protection programmes in
the context of organized crime proceedings (although they are equally applicable to proceedings
concerning terrorism oences):
Appreciating how gender dierences play out in obtaining the cooperation and compliance of
protected witnesses can contribute to an eective investigation and prosecution of organized crime.
A successful formal witness protection programme is designed to provide a full range of physical
protection and psychological support to both male and female witnesses. Understanding the gender
dierences in populations of justice collaborators, victim-witnesses or other types of witnesses
(innocent bystanders or expert witnesses), the gendered nature of the crime involved, how women
and men experience the administrative process, whether there are gender dierences in applying
the requirements for admissibility into the programme, and whether the assessment considers the
witness’ family situation and the dierent roles men and women have in families are important
factors when designing your programme. In some countries, women have a subordinate role in fam-
ily decision-making processes. ere might be situations where a female witness’ decision to enter
into a witness protection programme will require the agreement of her husband or father and be
seen as a household decision rather than an individual decision.
215
Women may also face additional diculties if their eective protection requires them to be (at least
temporarily) removed from home and community, either by being hosted in a safe house or relocated
to a dierent town or region. A woman’s role as the primary caregiver in the family may limit her ability
or willingness to leave the home, especially if there are vulnerable dependants. As already stated, in
some societies, women may require the consent of male relatives or extended family before entering a
protection programme.
216
In addition, fewer opportunities to nd employment may limit a woman’s
ability and willingness to relocate as part of such a programme. In some jurisdictions, women not only
struggle with increased vulnerability but their testimony is given lesser weight than the testimony of
men. Given the reduced value to the prosecution of the testimony of women, their ability to participate
in witness protection programmes may be limited.
213
UNODC, e Criminal Justice Response to Support Victims of Acts of Terrorism, para. 228.
214
General Assembly resolution 65/228, annex, para. 15 (c).
215
UNODC, Guidance Note for UNODC Sta: Gender Mainstreaming in the Work of UNODC (Vienna, 2013), p. 48.
216
Ibid., p. 28.
CHAPTER 3. INVESTIGATION AND PROSECUTION OF TERRORISM CASES
. Witness protection in cases involving sexual and gender-based
violence
Eective witness protection measures are particularly important in investigating and prosecuting
gender-based crimes, which are oen associated with a societal pressure to remain silent or a risk of
stigmatization and ostracism. us, in addition to considerations regarding exposure to serious
danger, witness protection measures should also address low-level threats and community-wide
forms of intimidation.
It is important to keep in mind that the ability of women to testify in relation to crimes involving
sexual and gender-based violence might be impaired. ey may face spousal, family or societal pressure
not to testify, especially if they are victims of sexual violence, owing to related stigma and “honour”
crimes. As highlighted in the report of the Secretary-General on conict-related sexual violence, the
stigma surrounding sexual violence has led to lethal retaliation, honour crimes against the victim and
even economic exclusion and indigence.
217
Measures protecting the identities of witnesses may be particularly useful in mitigating the risk of
being retraumatized or ostracized at a community level, and may increase the willingness of witnesses
to cooperate throughout the investigation and prosecution process.
e provision of specialized support and protection services is integral to witness participation
in criminal accountability processes and, therefore, to the successful prosecution of perpetrators.
Survivors who are prevented from disclosing their abuses owing to safety concerns and a lack of
available services have been found to suer higher rates of post-traumatic stress and depression.
218
For those reasons, it is imperative that witnesses are treated with dignity and in a gender-sensitive
manner, and that their safety is prioritized at all stages of the investigation as well as before, during
and aer the trial.
e national legal framework should also provide for special measures to be applied to victims and
witnesses of crimes involving sexual and gender-based violence, which may mandate the witness
protection agency to engage specialized personnel and establish specic procedural measures for
vulnerable witnesses.
219
When conducting risk or threat assessments for victims and witnesses of crimes involving sexual
and gender-based violence, the following questions may be relevant to consider:
• What are the historical paerns and current levels of sexual and gender-based violence in the
country and/or community, and has the individual previously been a victim of such violence?
• Are there other conditions that could aggravate the vulnerability of the individual?
• Is the status of the individual as a victim or witness of sexual and gender-based violence a maer
of public knowledge?
• Are there concerns about the safety of the individual in their family seing?
• Have there been previous occurrences of retaliatory aacks against victims and witnesses of
crimes involving sexual and gender-based violence in the country and/or community?
• What is the level of inuence of suspected perpetrators on the witnesses or their families?
220
217
S/2017/249, para. 10.
218
S/2017/249, para. 10.
219
A/HRC/15/33, para. 62.
220
International Protocol on the Documentation and Investigation of Sexual Violence in Conict, annex 2, p. xiii.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
In addition to the general procedural protection measures discussed above, States may also consider
the following in-court measures for witness testimony:
221
• Procedural measures. Prohibiting or limiting questions about the prior or subsequent sexual
conduct of the witness; requiring corroboration of witness testimony only if required by domestic
law; allowing the inference of non-consent when coercive circumstances have been established.
• Witness support measures. Limiting the frequency, manner and length of questioning; conducting the
examination of the witness through an intermediary; and ensuring the availability of psychological
and medical treatment and counselling.
• Victim and witness unit expertise. e Special Rapporteur on violence against women, its causes
and consequences has called upon States to address the specic needs of victims of rape and
other forms of sexual violence through the provision of a victim and witness unit that possesses
expertise in handling trauma related to sexual violence.
222
> EXAMPLE: THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA AND PROTECTION AND CARE F
OR VICTIMS AND WITNESSES OF SEXUAL VIOLENCE
rough its Witness and Victim Support Section, the International Criminal Tribunal for Rwanda provides
the following:
• Specialized counselling and medical care to victims of sexual and gender-based violence through
partnerships with national authorities and referrals for treatment;
• Impartial assistance and support to all witnesses for both the prosecution and the defence, including
psychological counselling and access to medical care.
e Tribunal’s Trust Fund made further resources available to hire a trained psychologist, gynaecologist
and nurse-psychologist.
Potential witnesses for the prosecution received additional support from the Witness Management Team,
located in the Oce of the Prosecutor, which included licensed nurses trained in the treatment of victims
of sexual violence.
Psychological care and counselling services were also made available to spouses or partners of sexual
violence victims in order to enable them to provide more support to the victim and to assist in coping
with secondary trauma.
a
a
International
Criminal Tribunal for Rwanda, Best Practices Manual for the Investigation and Prosecution of Sexual
Violence Crimes in Post-Conict Regions: Lessons Learned om the Oce of the Prosecutor for the International Criminal
Tribunal for Rwanda (2014)
.
FURTHER READING
• UNODC produced a guide entitled Good Practices for the Protection of Witnesses in Criminal Proceedings
involving Organized Crime, which is focused on investigations and prosecutions related to organized
crime. e practices contained in that guide are also relevant to witnesses (and victim-witnesses) in
criminal investigations and prosecutions related to terrorism.
• UNODC, Counter-Terrorism Legal Training Curriculum: Module 4 – Human Rights and Criminal Justice
Responses to Terrorism (Vienna, 2014), pp. 157 – 160, includes a discussion on the relationship between
witness protection measures and the accused person’s right to a fair trial.
221
UNODC, Handbook on Eective Prosecution Responses to Violence against Women and Girls, Criminal Justice Handbook
Series (Vienna, 2014), p. 119.
222
E/CN.4/2002/83/Add.2 and E/CN.4/2005/72/Add.3.
CHAPTER 3. INVESTIGATION AND PROSECUTION OF TERRORISM CASES
• Updated Model Strategies and Practical Measures on the Elimination of Violence against Women in the
Field of Crime Prevention (General Assembly resolution 65/228, annex).
• OHCHR, Manual on Human Rights Monitoring: Chapter 14 – Protection of Victims, Witnesses and Other
Cooperating Persons (HR/P/PT/7/Rev.1).
• Information on the extensive witness protection arrangements available at the International Criminal Court
is discussed in the following report: International Bar Association, “Witnesses before the International
Criminal Court: an International Bar Association International Criminal Court programme report on the
ICC’s eorts and challenges to protect, support and ensure the rights of witnesses” (London, 2013).
• International Criminal Tribunal for Rwanda, Best Practices Manual for the Investigation and Prosecution of
Sexual Violence Crimes in Post-Conict Regions: Lessons Learned om the Oce of the Prosecutor for the
International Criminal Tribunal for Rwanda (2014).
• Recommendations No. R(97)13 concerning intimidation of witnesses and the rights of the defence and
Rec(2005)9 on the protection of witnesses and collaborators of justice, adopted by the Commiee of
Ministers of the Council of Europe, provide useful guidance for the protection of the physical and
psychological integrity of the victims.
• United Kingdom, Foreign and Commonwealth Oce, International Protocol on the Documentation and
Investigation of Sexual Violence in Conict: Best Practice on the Documentation of Sexual Violence as a Crime
or Violation of International Law, 2nd ed. (London, 2017), annex 2.
D. Strengthening women’s representation in
law enforcement and the judicial system
In order to put into practice the principles considered in the present chapter, law enforcement agencies
and judicial systems must provide training on techniques for gender-sensitive investigations and
prosecutions to all personnel, both women and men.
223
Operationalizing these principles and mainstreaming gender in law enforcement activities in terror-
ism cases also requires the eective representation of women, which should include those from
underrepresented and minority ethnic, racial and religious groups; in law enforcement institutions;
and in the judicial system.
224
Such representation is reected in recruitment, retention and advancement
of women at all levels.
. Women’s representation in law enforcement
(i) The rationale behind strengthening women’s participation in law enforcement
e increased participation of women is integral to achieving law enforcement bodies that are
non-discriminatory, representative of the population and capable of eectively responding to the
specic security needs of diverse groups.
225
An improved gender balance has the following benets:
• It capitalizes on the expertise, skill sets and perspectives of both male and female personnel in
order to maximize operational eectiveness. Women tend to bring certain strengths to law
enforcement work, such as the ability to defuse potentially violent situations, minimize the use of
force and employ good communication skills.
226
223
Beijing Declaration and Platform for Action (Report of the Fourth World Conference on Women, Beijing, 4–15 September
1995 (United Nations publication, Sales No. E.96.IV.13), chap. I, resolution 1, annexes I and II), para. 124 (g).
224
See general recommendation No. 23 (1997) on women in political and public life (HRI/GEN/1/Rev.9 (Vol. II)),
paras.17 and 43.
225
A/62/659–S/2008/39, para. 37.
226
OSCE, “Gender and security sector reform toolkit: practice note 2”, 13 February 2008.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
• It increases access by all members of the community to law enforcement services and ensures that
women are also engaged at the community level.
227
• It enhances the ability of law enforcement services to build trust at the community level and address
security concerns that emerge in counter-terrorism contexts. Such eorts include responding to the
needs of women who may be particularly aected by terrorist and counter-terrorism activities.
• It reduces discriminatory aitudes in law enforcement agencies that may prevent individuals
from reporting certain crimes, such as those involving sexual and gender-based violence.
228
Women’s participation in law enforcement is also operationally necessary, as they may be beer
suited to carry out certain tasks as compared with their male counterparts. In some contexts, as
identied earlier in the chapter, women may in fact be required to conduct certain tasks, including
the following:
• Screening female terrorism suspects
• Executing certain intelligence-gathering functions
• Performing stop and searches of women, or search and seizures of dwellings where gender
segregation is observed
• Investigating oences related to sexual and gender-based violence: women may be more
comfortable reporting incidents of sexual and gender-based violence to a female police ocer
and, as highlighted above, it is a good practice for female law enforcement personnel to be present
during investigations into such oences
• Interviewing female witnesses who express discomfort speaking to male personnel or a preference
for speaking with a woman
It is therefore both benecial and necessary to pursue a greater integration of women in law enforce-
ment work generally, and in units which deal with crimes that particularly aect women (e.g., sex crime
units). Strengthening the participation of women in law enforcement units that deal with the most
serious forms of crime is especially important as a means of bringing unique strengths and a gender
perspective to the investigation of terrorist crimes which, as discussed, aect men and women dier-
ently. e strengthening of the participation of women is therefore aimed at maximizing operational
eectiveness and ensuring shared expertise and skill sets.
> EXAMPLE: PROJECT OF THE ORGANIZATION FOR SECURITY AND COOPERATION IN EUROPE TO SUPPORT
THE ROLE OF FEMALE POLICE OFFICERS IN KOSOVO
a
In the light of the number of men and women who have travelled from Kosovo to join the ranks of ISIL,
in particularly during the period 2012
–2015, there has been growing recognition in Kosovo of the necessity
to establish gender-based initiatives aimed at addressing the dierentiated needs, motivations and functions
among women and men, in order to prevent terrorism and violent extremism and the radicalization that
leads to terrorism.
e OSCE Mission in Kosovo has been working with the Kosovo Police and the Association of Women
in Kosovo Police to strengthen the role of women in eorts to prevent terrorism and violent extremism
and the radicalization that leads to terrorism. Based on the understanding of the role women play in
family and community structures to access youth at risk of radicalization, their project is aimed at
enhancing the ability of female police ocers to understand, detect and address signs of radicalization
towards violent extremism.
227
Department of Peacekeeping Operations and Department of Field Support, “Guidelines for integrating gender perspectives
into the work of United Nations police in peacekeeping missions” (2008), p. 8.
228
OSCE, “Practice note 2: police reform and gender”, p. 2.
CHAPTER 3. INVESTIGATION AND PROSECUTION OF TERRORISM CASES
A series of training workshops for female police ocers were delivered by personnel from the security
sector and from gender studies and religious scholars, with a focus on:
• Adopting a gender perspective in police work in order to beer understand the dierent experiences
of women and men, girls and boys with radicalization and extremism, and to reect those experiences
in strategies to prevent terrorism and violent extremism and the radicalization that leads to terrorism;
• Building skills of police ocers in psychology and conict management, in order to improve
communications with individuals, including youth at risk of radicalization and victims of violence
and abuse;
• Enhancing capacities to address individual cases of radicalization, including alternative online and
oine messaging.
e training workshops for police ocers were complemented by workshops aimed at empowering women
and mothers in the community in their eorts to eectively interact with and inuence individuals at risk of
radicalization, and to improve communication between parents, elders and religious leaders to promote
tolerance within and across communities, with a view to avoiding polarization, prejudice and discrimination.
e female police ocers who participated in the training engaged frequently with religious leaders to
consult on preventative interventions in individual cases, as well as relevant institutions. As a result, the
Department of Women in the Islamic Community made a number of visits to oer assistance and to draw
on good practices for future prevention strategies.
a
All references to Kosovo in the present publication should be understood to be in compliance with Security
Council resolution 1244 (1999).
(ii) Challenges
A range of challenges may prevent the representation of women in national law enforcement bodies,
including the following:
• Women may be disadvantaged in accessing opportunities for employment with law enforcement
owing to certain educational or physical requirements that disproportionately disadvantage women.
• Female recruitment may be dicult in contexts where there is a low level of trust in law enforce-
ment, including where the police have been dismissive towards certain types of gender-based
crimes, or where police ocers have been the perpetrators of sexual and gender-based violence.
• Pervasive discrimination against and harassment of female personnel may dissuade other women
from applying for those roles, and decrease rates of retention and promotion of female ocers.
• In cases in which women’s participation has conventionally been limited, gender stereotypes
may mean that women face barriers to career advancement and are conned to undertaking
administrative or low-ranking positions. Training systems necessary for advancement may discrimi-
nate against women, particularly in contexts where women are only represented in token numbers.
(iii) Good practices
Specic measures are generally necessary in order to overcome those challenges and improve the
participation of women in law enforcement roles. Such measures include overall policies and measures
related to recruitment, retention and advancement.
e overall policies are as follows:
• Ensuring that an overarching gender or equal opportunity policy aimed at achieving gender
balance is in place.
• Conducting assessments, evaluations and consultations that focus on sex-disaggregated information,
including female recruitment, retention and advancement in law enforcement roles, in addition to
data on harassment and discrimination, in order to identify priority areas for reform.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
• If appropriate, establishing targets for female recruitment and representation in leadership positions.
• Instituting workplace policies that accommodate exible working hours, maternity and pater-
nity leave.
• Ensuring that there is a gender discrimination, violence and sexual harassment policy; a
corresponding complaints mechanism; and an appropriate sanctions system in place, with
penalties for lack of enforcement.
• Adopting gender-sensitivity as a criterion for promotion.
Measures for recruitment, retention and advancement are as follows:
• Ensuring that all laws and personnel policies are merit-based, not gender-biased, and do not
disproportionately disadvantage women, in particular with regard to recruitment criteria,
promotional opportunities and access to training.
• Taking into consideration the use of alternative programmes that enable women to apply for law
enforcement roles, in environments in which women are disadvantaged in accessing educational
opportunities or face higher rates of illiteracy.
• Ensuring that both women and men are represented on selection and promotion boards.
• Providing support for career advancement, such as a women’s mentor programme.
229
> EXAMPLE: GENDER-SENSITIVE LAW ENFORCEMENT REFORM IN LIBERIA
Following the civil conict, the Liberian National Police embarked on a process of internal reform with
the assistance of the United Nations Mission in Liberia that included the following:
• Adopting a gender policy in 2005 aimed at addressing the gender imbalance in the Liberian National
Police, promoting gender mainstreaming, increasing women’s involvement in decision-making, and
developing policies responsive to sexual and gender-based violence;
• Establishing the Women and Children Protection Section and the Gender Aairs Section to
implement the policy;
• Integrating gender-sensitive training modules.
a
Two core objectives of those initiatives were to increase female representation in the Liberian National
Police and to improve responsiveness to oences related to sexual and gender-based violence.
As a result of those eorts, the percentage of female ocers in the Liberian National Police rose from
2 to 17 per cent between 2003 and 2013. An educational support programme for female candidates was
developed by the United Nations Mission in Liberia and the United Nations Police in order to support
female applicants between the ages of 18 and 35, who had completed a certain level of schooling but who
had not obtained a high school degree, providing educational support to enable them to apply for positions
with the Liberian National Police.
b
a
Cecil
Griths, Mapping Study on Gender and Security Sector Reform Actors and Activities in Liberia, Anike Doherty
and Aiko Holvikivi, eds. (2011), p. 8.
b
Laura
Bacon, “Liberia’s gender-sensitive police reform: improving representation and responsiveness in a post-
conict seing”, International Peacekeeping, vol. 22, No. 4 (2015), pp. 372 and 377.
229
Tara Denham, “Police reform and gender” in Gender and Security Sector Reform Toolkit, Megan Bastick and Kristin Valasek,
eds. (Geneva, OSCE/Oce for Democratic Institutions and Human Rights, Geneva Centre for the Democratic Control of
Armed Forces and International Research and Training Institute for the Advancement of Women, 2008), p. 6; and “Guidelines
for integrating gender perspectives into the work of United Nations police in peacekeeping missions”.
CHAPTER 3. INVESTIGATION AND PROSECUTION OF TERRORISM CASES
. Women’s representation in the judicial system
(i) The rationale behind strengthening women’s participation in the judicial system
In the report of the Secretary-General on women and peace and security, a gender-responsive legal and
judicial system is highlighted as one of the key building blocks of a resilient society and in delivering
equal justice and equality before the law.
230
A key component of gender-responsiveness is the increased
participation of women. In addition:
• Higher numbers and greater visibility of female judicial ocers can increase the willingness of
women to seek justice and enforce their rights through the courts.
• Female judicial appointments, in particular at senior levels, can shi gender stereotypes,
thereby changing aitudes and perceptions as to what are seen to be the conventional roles of
men and women.
231
• More generally, women’s visibility as judicial ocers can pave the way for women’s greater
representation in other decision-making positions, such as in legislative and executive branches
of government.
Of course, training for all judicial actors – both male and female – remains the second, equally
important, aspect of ensuring that judicial proceedings are gender-sensitive.
(ii) Challenges
A number of obstacles continue to hinder the participation of women in the judicial system, including
the following:
• Lack of transparency in the appointment processes of judges, prosecutors and lawyers, including
informal consultation processes. Female legal professionals are oen not informed about such
openings, nor are they properly consulted during the selection process.
• In societies in which the option of a legal career for women is relatively new or restricted, the use
of a limited number of criteria that favour years of experience or professional accolades will
disadvantage women, unless alternative criteria are provided.
• Women are oen restricted to working on “low-prole” cases or in lower courts, or to areas of the
law traditionally associated with women, such as family law.
232
• Appointment systems in which the power of judicial appointment is concentrated in a single
person tend to have a negative impact on the inclusion of women.
• Prevailing gender stereotypes, roles and discriminatory paerns of power relations oen play a
signicant role in preventing the full and equal participation of women in the judiciary, and
restrict decision-making in public forums.
(iii) Good practices
e following measures can help address and overcome the above-mentioned challenges:
• Implementation of quota systems or armative action measures.
• Training programmes on gender discrimination and on gender, racial and cultural sensitivity.
230
S/2017/861, para. 61.
231
See International Commission of Jurists, Women and the Judiciary, Geneva Forum Series No. 1 (Geneva, 2014), pp. 2–8;
general recommendation No. 23 (1997) on women in political and public life (HRI/GEN/1/Rev.9 (Vol. II)); and Canadian
Bar Association, Touchstones for Change: Equality, Diversity and Accountability (Oawa, 1993).
232
Note by the Secretary-General transmiing the interim report of the Special Rapporteur on the independence of judges
and lawyers (A/66/289), paras. 23–24.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
• Prioritization by Governments and the legal profession of full and equal representation of women
within the judiciary.
• Improving the representation of women at senior levels and across dierent areas of law requires
particular scrutiny and oversight of internal systems of judicial assignment and promotion, and is
crucial to ensuring that that representation does not fall at more senior levels.
e representation of women does not in itself guarantee the mainstreaming of gender considerations
at the law enforcement level or within the judicial system. It does, however, provide an opportunity for
greater integration of gender perspectives and for the identication of the dierent impacts of law
enforcement work on men and women. Such measures should complement a range of initiatives,
including the following:
• Developing gender-sensitive law enforcement policies and procedures, including specic policies
on the investigation, prosecution and support for victims of specic types of crime with gendered
dimensions (e.g., tracking in persons and oences involving sexual and gender-based violence)
(see chap. 5).
• Providing training on the integration of gender-sensitive practices for all personnel, including on
promoting and respecting women’s rights, and interviewing female victims, suspects and
witnesses.
• Oversight of law enforcement agencies to ensure compliance with gender-sensitive principles.
FURTHER READING
• United Nations Development Fund for Women (UNIFEM) and United Nations Development
Programme (UNDP), “Policy brief paper: gender sensitive police reform in post conict societies”
(New York, 2007).
• e United Nations Department of Peacekeeping Operations and the Department of Field Support of
the Secretariat have developed several resources on gender mainstreaming in police operations. e
“Guidelines for integrating gender perspectives into the work of United Nations police in peacekeeping
missions” provide practical guidance and checklists on issues such as achieving a more equitable
composition of the police force, gender training courses and investigations concerning sexual and
gender-based violence.
• e Organization for Security and Cooperation in Europe (OSCE) has developed Understanding Gender
and Preventing and Countering Violent Extremism and Radicalization Leading to Terrorism: Good Practices
for the Security Sector (forthcoming), which contains guidance on gender mainstreaming in security
sector governance and reform.
• OSCE has also developed the Gender and Security Sector Reform toolkit, which contains best practices
and recommendations for strengthening gender perspectives in security sector institutions, ranging from
the police, military and judiciary.
• e Geneva Centre for the Democratic Control of Armed Forces has developed a range of materials on
best practices in gender-sensitive security sector reform, including the Gender Self-Assessment Guide for
the Police, Armed Forces and Justice Sector, and Integrating Gender in Security Sector Reform and Governance
(Tool 8 of the Toolkit for Security Sector Reform and Governance in West Aica).
SUMMARY OF KEY POINTS
• Compliance with human rights standards throughout terrorism investigations and respect
for the rights of suspects is essential to the eective investigation and prosecution of
terrorism cases. Ensuring that investigators do not discriminate on the grounds of gender
in the course of investigations is essential.
• Law enforcement personnel should adopt a gender-sensitive approach to terrorism
investigations. Such an approach requires taking into account the ways in which aspects of
investigations may aect women and men dierently, or may be discriminatory. Vital issues
to consider in that respect include search powers, special investigative techniques and
proling practices.
• Investigators should consider how to apply gender-sensitive practices when interviewing
victims, witnesses and suspects, taking into account gender-specic vulnerabilities.
Particular care should be taken when interviewing victims and witnesses of certain types of
crime that disproportionately aect women, including oences involving sexual and
gender-based violence, which requires particular expertise.
• States have the primary responsibility for ensuring that protective measures are in place for
victims and witnesses who engage with justice and accountability processes for serious
crimes and gross violations of human rights. Gender-sensitive witness protection measures
and programmes should take into account a range of considerations, such as specic
family obligations, the gendered nature of the crimes, and gender-based stigma that may
be linked to associating with terrorist groups. Specic measures should be in place for
victims of crimes involving sexual and gender-based violence.
• Increasing the representation of women, including those from underrepresented and minority
ethnic, racial and religious groups, in law enforcement and judicial institutions, is a key way
of implementing a gender perspective throughout all aspects of the investigation and
prosecution of terrorist crimes, and in delivering equal justice and equality before the law.
CHAPTER 3. INVESTIGATION AND PROSECUTION OF TERRORISM CASES
• Prioritization by Governments and the legal profession of full and equal representation of women
within the judiciary.
• Improving the representation of women at senior levels and across dierent areas of law requires
particular scrutiny and oversight of internal systems of judicial assignment and promotion, and is
crucial to ensuring that that representation does not fall at more senior levels.
e representation of women does not in itself guarantee the mainstreaming of gender considerations
at the law enforcement level or within the judicial system. It does, however, provide an opportunity for
greater integration of gender perspectives and for the identication of the dierent impacts of law
enforcement work on men and women. Such measures should complement a range of initiatives,
including the following:
• Developing gender-sensitive law enforcement policies and procedures, including specic policies
on the investigation, prosecution and support for victims of specic types of crime with gendered
dimensions (e.g., tracking in persons and oences involving sexual and gender-based violence)
(see chap. 5).
• Providing training on the integration of gender-sensitive practices for all personnel, including on
promoting and respecting women’s rights, and interviewing female victims, suspects and
witnesses.
• Oversight of law enforcement agencies to ensure compliance with gender-sensitive principles.
FURTHER READING
• United Nations Development Fund for Women (UNIFEM) and United Nations Development
Programme (UNDP), “Policy brief paper: gender sensitive police reform in post conict societies”
(New York, 2007).
• e United Nations Department of Peacekeeping Operations and the Department of Field Support of
the Secretariat have developed several resources on gender mainstreaming in police operations. e
“Guidelines for integrating gender perspectives into the work of United Nations police in peacekeeping
missions” provide practical guidance and checklists on issues such as achieving a more equitable
composition of the police force, gender training courses and investigations concerning sexual and
gender-based violence.
• e Organization for Security and Cooperation in Europe (OSCE) has developed Understanding Gender
and Preventing and Countering Violent Extremism and Radicalization Leading to Terrorism: Good Practices
for the Security Sector (forthcoming), which contains guidance on gender mainstreaming in security
sector governance and reform.
• OSCE has also developed the Gender and Security Sector Reform toolkit, which contains best practices
and recommendations for strengthening gender perspectives in security sector institutions, ranging from
the police, military and judiciary.
• e Geneva Centre for the Democratic Control of Armed Forces has developed a range of materials on
best practices in gender-sensitive security sector reform, including the Gender Self-Assessment Guide for
the Police, Armed Forces and Justice Sector, and Integrating Gender in Security Sector Reform and Governance
(Tool 8 of the Toolkit for Security Sector Reform and Governance in West Aica).
SUMMARY OF KEY POINTS
• Compliance with human rights standards throughout terrorism investigations and respect
for the rights of suspects is essential to the eective investigation and prosecution of
terrorism cases. Ensuring that investigators do not discriminate on the grounds of gender
in the course of investigations is essential.
• Law enforcement personnel should adopt a gender-sensitive approach to terrorism
investigations. Such an approach requires taking into account the ways in which aspects of
investigations may aect women and men dierently, or may be discriminatory. Vital issues
to consider in that respect include search powers, special investigative techniques and
proling practices.
• Investigators should consider how to apply gender-sensitive practices when interviewing
victims, witnesses and suspects, taking into account gender-specic vulnerabilities.
Particular care should be taken when interviewing victims and witnesses of certain types of
crime that disproportionately aect women, including oences involving sexual and
gender-based violence, which requires particular expertise.
• States have the primary responsibility for ensuring that protective measures are in place for
victims and witnesses who engage with justice and accountability processes for serious
crimes and gross violations of human rights. Gender-sensitive witness protection measures
and programmes should take into account a range of considerations, such as specic
family obligations, the gendered nature of the crimes, and gender-based stigma that may
be linked to associating with terrorist groups. Specic measures should be in place for
victims of crimes involving sexual and gender-based violence.
• Increasing the representation of women, including those from underrepresented and minority
ethnic, racial and religious groups, in law enforcement and judicial institutions, is a key way
of implementing a gender perspective throughout all aspects of the investigation and
prosecution of terrorist crimes, and in delivering equal justice and equality before the law.
III
bottom: Entrance to a Detention, Rehabilitation and Reintegration Center
for Women and Girls in Bamako, Mali. © MINUSMA/Harandane Dicko
centre: © OHCHR/Alejandro Bolivar
IMPRISONMENT AND OTHER FORMS
OF DEPRIVATION OF LIBERTY
e deprivation of liberty of persons who are suspected, accused or convicted of having commied
terrorism-related oences is one of the key pillars of State criminal justice responses to terrorism.
International law prohibits the arbitrary deprivation of liberty and dictates that all persons deprived of
their liberty must in all circumstances – including in cases related to preventing and countering
terrorism – be treated with due respect for their dignity and human rights. At the same time, there has
been increasing recognition of the need to address the gender-specic needs and vulnerabilities of
persons deprived of their liberty, particularly women.
e present chapter examines these gender-based vulnerabilities and provides guidance, in
accordance with international standards, on developing and implementing gender-sensitive policies
and practices concerning deprivation of liberty both within and beyond the criminal justice system.
Section A provides an overview of the relevant international legal framework and standards for
deprivation of liberty in relation to terrorism oences. Section B contains an examination of gender-
sensitive conditions of imprisonment and prison management, including gender-sensitive management
of violent extremist prisoners. With respect to violent extremist prisoners in particular, section C
includes a discussion of prison-based disengagement, rehabilitation and social reintegration measures
that are central to broader eorts to prevent and counter violent extremism.
Section D contains an examination of gender-sensitive considerations that are particularly
important for preventing torture and other cruel, inhuman or degrading treatment, including in
relation to security and disciplinary measures, health care and hygiene, prison personnel and training,
as well as complaints, investigations and oversight mechanisms in relation to allegations of torture and
ill-treatment. Section E includes a discussion on the detention of close family members in place of
terrorism suspects, which is a practice with clear gender implications that has emerged in the context
of counter-terrorism measures in some States. Section F provides a gender perspective on the
availability and design of non-custodial measures in terrorism cases, and issues of “protective” custody.
Section G contains an examination of the gender dimensions of deprivation of liberty outside the
criminal justice system, looking at administrative detention in terrorism cases.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
> FOCUS: SCOPE OF THE TERM “DEPRIVATION OF LIBERTY”
Chapter 4 of this publication provides guidance on ensuring gender-sensitive management of those deprived
of liberty in connection with terrorism-related oences. e term “deprivation of liberty” encompasses situ-
ations in which persons are in police custody, in prison or in administrative detention.
Police custody
is term refers to the initial time that a person is held by the police or other law enforcement institutions,
before the person is remanded into custody by court order.
Imprisonment
is term encompasses situations in which persons are in pretrial detention, detained throughout the
course of a trial, and imprisoned as the result of a conviction and sentence. e terms “imprisonment”
and “prisoner” are used in chapter 4 to refer to all of those situations. e term “detainee” is used when
the legal status of a prisoner, who has not yet been convicted and sentenced, needs to be underlined.
Administrative detention
e Working Group on Arbitrary Detention has dened administrative detention as detention of
individuals by State authorities outside the criminal law context: for example, for reasons of security,
including terrorism, and as a form of preventive detention.
a
a
A/HRC/13/30, para. 77.
A. International legal framework and standards
International and regional human rights treaties, as well as customary international law, oblige all States
not to resort to unlawful or arbitrary deprivation of liberty, and prescribe procedural rights and safe-
guards to prevent unlawful and arbitrary arrest or detention. International law also prohibits torture,
inhuman and degrading treatment under all circumstances. Articles 7, 9 and 10 of the International
Covenant on Civil and Political Rights are key provisions in this regard. International treaties against
terrorism, as well as resolutions of the Security Council and the General Assembly, emphatically
establish that these rights also apply to persons deprived of their liberty in relation to terrorism.
233
e international human rights treaty provisions are supplemented by a substantial body of
international standards, including:
234
• e United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson
Mandela Rules), adopted by the General Assembly in its resolution 70/175, updating the Rules
rst adopted in 1955
• e United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures
for Women Oenders (the Bangkok Rules), adopted by the Assembly in its resolution 65/229
• e Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment, adopted by the Assembly in its resolution 43/173
233
For example, article 14 of the International Convention for the Suppression of Terrorist Bombings provides that: Any
person who is taken into custody … pursuant to this Convention shall be guaranteed fair treatment, including of all rights and
guarantees in conformity with the law of the State in the territory of which that person is present and applicable provisions of
international law, including international law of human rights. On human rights aspects of the detention of terrorist oenders,
see UNODC, Counter-Terrorism Legal Training Curriculum: Module 4, chap. 4.
234
Relevant regional standards also exist, including the Principles and Best Practices on the Protection of Persons Deprived of
Liberty in the Americas, approved by the Inter-American Commission on Human Rights in 2008; the revised European Prison
Rules, Recommendation Rec (2006) 2, adopted by the Commiee of Ministers of the Council of Europe on 11 January 2006;
and the Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa (Luanda Guidelines), adopted
by the African Commission on Human and Peoples’ Rights during its y-h ordinary session, held in Luanda from 28 April
to 12 May 2014.
CHAPTER 4. IMPRISONMENT AND OTHER FORMS OF DEPRIVATION OF LIBERTY
e Bangkok Rules were adopted in recognition of the need to respond to the particular needs of
women prisoners and ensure the principle of non-discrimination. e Rules complement the general
international instruments identied above in connection with the treatment of women prisoners, and
recognize the need to implement a gender-sensitive approach to the management of women’s prisons
and the conditions of imprisonment.
Measures for the police custody or imprisonment of violent extremist prisoners – persons alleged
as, accused of, or recognized as having commied violent extremist oences – must be implemented in
line with these international standards and norms, as applicable.
In addition, where a situation of violence reaches the threshold of “armed conict” in international
law, international humanitarian law becomes applicable in conjunction with international human
rights law to govern certain situations of detention of persons suspected of being engaged in terrorist
activities. Relevant rules are contained in common article 3 to the Geneva Conventions and ProtocolII,
as well as customary international humanitarian law.
B. Gender-sensitive prison management, management
of violent extremist prisoners and conditions
of imprisonment
. Foundational principles of non-discrimination and gender-sensitive
prison management
Women are impacted by prison systems that are designed for men, who comprise the majority of the
prison population. e fact that prisons are built for men is evident in their design, security
procedures, health-care facilities, training and rehabilitation opportunities, and the arrangements for
family contact. e Special Rapporteur on violence against women, its causes and consequences has
remarked that
e prevalence of dire prison conditions with a lack of a gender focus is a global problem, and
female prisoners oen face conditions that are worse than those experienced by their male
counterparts. It is argued that prisons were made with men in mind, and gender-neutral policies can
have serious negative consequences for women prisoners.
235
As identied in the UNODC Handbook on Women and Imprisonment and its accompanying Training
Curriculum, there are a number of common factors leading to a heightened vulnerability of women
prisoners.
236
ese may stem from structural factors or discrimination in a wider context, such as:
• e challenges they face in accessing justice on an equal basis with men in many countries
• e existence of oences, based on harmful stereotypes and discriminatory practices against
women, and that are applied only or disproportionately to women, including “moral crimes” such
as adultery, sexual misconduct, or “running away”
• Poverty and dependence on male family members for money and support
• e disproportionate victimization of women from sexual or physical abuse prior to imprisonment
235
A/68/340, para. 33.
236
Handbook on Women and Imprisonment, Criminal Justice Handbook Series, 2nd ed. (United Nations publication, Sales
No.E.14.IV.3), p. 7; Training Curriculum on Women and Imprisonment: Version 1.0, Criminal Justice Handbook Series (Vienna,
2015), pp. 7–8.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
• A high level of mental health-care needs, oen as a result of domestic violence and sexual abuse
• A low level of education and a high rate of illiteracy
• e high likelihood of having caring responsibilities for their children, families and others
Other factors stem from the conditions of imprisonment themselves, such as:
• e extreme distress imprisonment causes to women, which oen leads to mental health problems
or exacerbates existing mental disabilities
• Sexual abuse and violence against women in prison
• Gender-specic hygiene and health-care needs that are not adequately met
• Lack of gender-appropriate vocational and rehabilitation programmes in prison
• Post-release stigmatization, victimization and abandonment by their families
While conditions of imprisonment may not outwardly discriminate against women prisoners,
failing to take into account women’s particular needs in a system designed principally for male prisoners
results in imprisonment having a discriminatory impact on women. Rule 1 of the Bangkok Rules
therefore requires the following:
In order for the principle of non-discrimination embodied in rule 6 of the Standard Minimum
Rules for the Treatment of Prisoners to be put into practice, account shall be taken of the distinctive
needs of women prisoners in the application of the Rules. Providing for such needs in order to
accomplish substantial gender equality shall not be regarded as discriminatory.
Adhering to that rule requires that armative action is taken by prison administrators to ensure
that women prisoners have equal access to all services and rights that male prisoners enjoy, as well as
being accorded additional rights and given access to other services and facilities, which respond to
their gender-specic needs.
237
Gender-sensitive prison management
In order to eectively integrate the principles of non-discrimination in practice, the recognition of the
dierent requirements of female and male prisoners must be reected in the management of women’s
prisons. is entails adapting, inter alia, management practices, the treatment of pregnant women and
women with children, the programmes oered, and the delivery of health-care services. As identied
in the UNODC Handbook on Women and Imprisonment, the components of gender-sensitive prison
management should include:
• Taking armative action to counter-balance discrimination encountered by women prisoners,
owing to their small numbers, and taking into consideration intersecting discrimination on the
basis of sex and ethnicity, race, nationality, sexual orientation, age or other “minority” status;
• Adopting gender-sensitive management practices, including the capacity and willingness of sta
to communicate openly and in a less authoritarian manner with prisoners, and awareness of
emotional dynamics;
• Recognizing the dierent needs of female prisoners, including those from dierent cultural
backgrounds, and providing programmes and services that address those needs.
238
237
Handbook on Women and Imprisonment, pp. 24–25.
238
Ibid., pp. 26–27.
CHAPTER 4. IMPRISONMENT AND OTHER FORMS OF DEPRIVATION OF LIBERTY
Gender-sensitive policies should be employed at all stages, including police custody; pretrial
detention; allocation and admission to prison; and arrangements for release and post-release
support.
239
Gender-sensitive policies are equally important and can have added layers of complexity in
cases involving the management of violent extremist prisoners.
> EXAMPLE: MANAGING FEMALE VIOLENT EXTREMIST PRISONERS IN THE KENYA PRISONS SERVICE
Although female violent extremist prisoners account for a small number of prisoners in prisons in Kenya,
the Kenya Prisons Service has implemented a number of gender-sensitive measures to respond to the their
specic needs, while ensuring their safe and secure custody.
Classication and separation of female violent extremist prisoners
e Kenya Prisons Service has faced challenges in classifying female violent extremist prisoners and separating
them from the general prison population. e female incarceration facilities are not as large as some of the
maximum-security prisons for male prisoners, fewer resources are available, and there is generally a smaller
number of female prisoners and of female violent extremist prisoners. is means that in female incarceration
facilities, it can be dicult to separate violent extremist prisoners from other prisoners, because there are
oen insucient cells or blocks. Further, given that there are generally small numbers of female violent
extremist prisoners in the same prison, separating them from other prisoners could result in de facto isolation.
Given the shortage of facilities, juvenile and adult female violent extremist prisoners are sometimes kept
together in order to prevent them from radicalizing other young prisoners at juvenile centres.
In one case, the Kenya Prisons Service decided to keep a convicted violent extremist prisoner with other
prisoners to avoid isolation, but ensured careful monitoring of her actions to prevent her from radicalizing
other prisoners. In a second case, the Service separated two sibling female violent extremist prisoners from
the rest of the general prison population, as they were aempting to radicalize other prisoners. e sisters
were kept together but separate from other prisoners.
Female violent extremist prisoners have access to imams
Female violent extremist prisoners have access to an imam to provide religious counselling. Despite the
small number of such prisoners in prisons in Kenya, the Kenya Prisons Service ensures that their need for
religious counselling is also met.
Female violent extremist prisoners have access to female hygiene and health care
As with other female prisoners, the Kenya Prisons Service ensures that female violent extremist prisoners
are provided with soap and sanitary towels for their everyday hygiene in the prison. Additionally,
non-governmental organizations in Kenya visit the prison on a regular basis to educate the women on the
importance of hygiene and family planning, and oer Pap tests. Female violent extremist prisoners take
part in all services provided by external partners and non-governmental organizations as well as the
initiatives and services provided by the Kenya Prisons Service.
. Admission and registration
(i) Admission
All prisoners feel vulnerable upon admission to prison. Women prisoners may feel particularly vulnerable
owing to, for example: the trauma of separation from children and families; past victimization and fears
for their safety, especially where they have been victims of sexual and gender-based violence; social
stigma; and low educational and economic status.
240
239
Training Curriculum on Women and Imprisonment, p. 12.
240
Handbook on Women and Imprisonment, p. 32.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
All prisoners should be provided with facilities to contact their relatives. ey should have access to
legal advice and information about prison rules and regulations. Prisoners should be made of where to
seek help in a language they understand, and they should have access to consular assistance (in the case
of imprisonment of foreign nationals).
241
Women with children should be allowed to make
arrangements for the care of those children, including the possibility of reasonable suspension of
detention.
242
It is a good practice to provide prison sta with special training on how to deal with newly
admied women and their children.
(ii) Registration
Prison authorities should maintain an updated condential register containing information about
prisoner identity (which respects the self-perceived gender of the prisoner) and the details of their
admission.
243
In addition, authorities should condentially record details of the children of each woman
admied to prison, including their names, ages and – if not accompanying the mother – their location
and custody or guardianship status.
244
ese measures are integral to guarding against disappearances
and ensuring that the needs of children in prison are met.
. Allocation, separation and classication
(i) Allocation
Women prisoners should be allocated, to the extent possible, to prisons located close to their homes or
their places of social rehabilitation, taking into account their caretaking responsibilities, the woman’s
preference, and the availability of appropriate programmes and services.
245
Such considerations are important in maintaining family and community links necessary for social
reintegration upon release. However, owing to the small proportion of women prisoners and limited
number of women’s prison facilities in most countries, women are oen allocated far away from their
homes, which limits contact with their families and their ability to maintain family relations, and can
lead to feelings of social isolation.
> EXAMPLE: GENDER IMPACTS OF ALLOCATION SYSTEMS
Penal Reform International conducted a survey in 2013 of women prisoners held in a prison in a country
in Central Asia. e facility was a one and a half hour drive from the closest town, with inadequate public
transportation facilities. As a result, many women prisoners were located far from family and community
networks, with only 20 per cent receiving regular visitors. e isolation also aected the ability of women
prisoners to be supplied with warm clothing, medicine and toiletries, as prisoners oen relied on family
members to provide those items.
a
a
Frances Sheahan, “Who are women prisoners? Survey results from Kazakhstan and Kyrgyzstan” (London, Penal
Reform International, 2014), pp. 21–22.
241
e Bangkok Rules, rule 2, para. 1.
242
Ibid., rule 2, para. 2; see chapter 4, section F, on alternatives to imprisonment in terrorism cases.
243
e Nelson Mandela Rules, rule 7, and the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment, principle 12.
244
e Bangkok Rules, rule 3.
245
e Bangkok Rules, rule 4; with respect to all prisoners, see the Nelson Mandela Rules, rule 59, and the Body of Principles
for the Protection of All Persons under Any Form of Detention or Imprisonment, principle 20.
CHAPTER 4. IMPRISONMENT AND OTHER FORMS OF DEPRIVATION OF LIBERTY
If prison authorities decide to allocate female violent extremist prisoners to a high security facility,
or to separate them from the general prison population and concentrate them in one facility, allocation
to prisons located close to their homes or places of social rehabilitation may become particularly
challenging. In such cases, measures to ensure contact with the outside world, including family
members, should be implemented (see subsection 5 of the present section).
States may consider establishing smaller facilities in a larger number of locations, allowing women
to be located closer to their families.
246
If this is not possible, a potential alternative would be to increase
the number of women’s sections in men’s prisons, ensuring that these facilities comply with the other
provisions of the Bangkok Rules.
247
(ii) Separation
One measure that is integral to respecting the rights of women prisoners and minimizing the risk of
violence is ensuring that women prisoners are appropriately separated according to their gender, legal
status, and age. Women are particularly vulnerable to sexual violence and other forms of abuse in
detention, which requires specic safety measures in response. Women also have diering physical and
mental health needs compared with men. Research in some countries has found that mental disabilities
among female prisoners are more common compared with male prisoners, and that women are much
more likely than men to harm themselves or to aempt suicide.
248
Male and female prisoners should be kept in separate institutions whenever possible; however, if a
facility does house both men and women, women must be allocated to specic, separate premises.
249
Prisoners who have not been tried must be kept separate from convicted prisoners.
250
Where dormitory
accommodation is provided, dierentiation by age is likely to be benecial in minimizing risks of older
women abusing younger women housed in adult facilities, and vice versa.
251
Further, conditions of imprisonment and treatment of children must respect the special needs of
the child. As such, juveniles should be separated from adult prisoners
252
and placed in appropriate
facilities, excepting placements on the basis of the type of oence. Girls should also be separated from
boys within juvenile facilities in order to ensure their needs are met and safety is ensured.
253
Prison authorities dealing with violent extremist prisoners balance a number of factors in making
decisions about whether these prisoners should be separated from the general prison population,
dispersed across a small number of prisons, or integrated with the general prison population. Such
factors include the size of the violent extremist prison population, prison infrastructure, sta capacity,
and the risk posed by violent extremist prisoners of radicalizing others. e suitability of dierent
approaches, such as separation, dispersal or integration, will depend on factors such as the availability
of facilities and sta with requisite skills and training, as well as the size of the violent extremist
prisoner population.
254
246
Handbook on Women and Imprisonment, p. 30.
247
Ibid.
248
Handbook for Prison Managers and Policymakers on Women and Imprisonment, Criminal Justice Handbook Series (United
Nations publication, Sales No. E.08.IV.4), pp. 8 and 10–11.
249
e Nelson Mandela Rules, rule 11, para. (a).
250
International Covenant on Civil and Political Rights, art. 10, para. 2 (a), and the Nelson Mandela Rules, rule 11, para. (b).
251
Handbook on Women and Imprisonment, p. 38.
252
International Covenant on Civil and Political Rights, art. 10, para. 2 (b), and the Nelson Mandela Rules, rule 11, para. (d).
253
Juvenile female prisoners are one of the most vulnerable groups in prison seings, due to their age, gender, and the fact that
they comprise a small proportion of the prison population. ey are also at high risk of abuse, including sexual violence (Penal
Reform International and ailand Institute of Justice, Guidance Document on the United Nations Rules on the Treatment of
Women Prisoners and Non-custodial Measures for Women Oenders (the Bangkok Rules) (London, 2013)), p. 96; see also United
Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules).
254
UNODC, Handbook on the Management of Violent Extremist Prisoners and the Prevention of Radicalization to Violence in
Prisons, Criminal Justice Handbook Series (Vienna, 2016), p. 137.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
Prison authorities should integrate gender perspectives into decisions on whether to separate
violent extremist prisoners. Where there is a small number of female violent extremist prisoners,
special consideration must be given to whether or not to separate these prisoners, and how to do so in
order to avoid placing them into de facto isolation. Pursuant to rule 37 of the Nelson Mandela Rules,
any form of involuntary separation from the general prison population, such as isolation or segrega-
tion, including for the maintenance of order and security, should be subject to authorization by law or
by the regulation of the competent administrative authority.
255
> EXAMPLE: ALLOCATION AND SEPARATION OF FEMALE VIOLENT EXTREMIST OFFENDERS BY
THE FRENCH PRISON SERVICE
In France, the Tribunal de grande instance de Paris (High Court of Paris) has jurisdiction over terrorism
cases originating in all parts of the country. As such, during the pretrial and trial phases, female violent
extremist prisoners are held in one of three women’s prisons in the Paris region (Fleury-Mérogis, Fresnes
or Versailles). Following the trial, if convicted, they may be transferred to facilities outside the region in
order to be closer to their families.
Women who are accused or convicted of terrorism oences are not separated from the general prison
population unless the assessment conducted during admission indicates a risk of violence against other
prisoners and the institution, and/or a risk of radicalizing other inmates.
(iii) Classication
A further key consideration is that prisoners are appropriately classied. Pursuant to rule 93 of the
Nelson Mandela Rules, the purposes of classication must be to separate from others those prisoners
who, by reason of their criminal records or characters, are likely to exercise a bad inuence, and to
divide the prisoners into classes in order to facilitate their treatment with a view to their social
rehabilitation. As much as possible, separate prisons or separate sections of a prison must be used for
the treatment of dierent classes of prisoners.
Key tools for the classication of prisoners are risk assessment tools. Risk assessment tools are most
oen developed for male oenders, without taking into account the gender-specic needs of women –
an omission which frequently results in women being placed in higher security seings than appropriate
to the level of risk they represent.
256
In the case of violent extremist prisoners, given the complexity of
women’s involvement in violent extremism, risk assessments should fully explore the role that the
female prisoner played in the violent extremist activity.
257
In some countries, those convicted of violent
extremist oences are automatically held in maximum or high security facilities on the basis of the
nature of their conviction or sentence length, and not on the basis of an individualized assessment. Such
a system may disproportionately disadvantage female violent extremist prisoners, who, for example, are
more frequently convicted of support oences, which may still carry long prison sentences.
258
Eective and gender-sensitive risk and needs assessments are central to ensuring that violent extremist
prisoners are appropriately classied and categorized, and to identify those prisoners who are genuinely
high risk. Individualized risk assessments usually indicate that women present a low risk. Very few women
may be justiably required to be held in high-security seings.
259
Violent extremist prisoners, like other
prisoners, should be held in the least restrictive seing necessary for their safe and secure custody.
260
255
On solitary connement of violent extremist prisoners, see Counter-Terrorism Legal Training Curriculum: Module 4, chap. 4.
256
UNODC, Handbook on the Management of High-Risk Prisoners, Criminal Justice Series Handbook (Vienna, 2016), p. 41.
257
Handbook on the Management of Violent Extremist Prisoners, p. 64.
258
See also the Bangkok Rules, rule 41, para. (a).
259
Handbook on the Management of High-Risk Prisoners, p. 41.
260
Handbook on the Management of Violent Extremist Prisoners, p. 137.
CHAPTER 4. IMPRISONMENT AND OTHER FORMS OF DEPRIVATION OF LIBERTY
In accordance with the Bangkok Rules, prison authorities should develop classication methods
addressing the gender-specic needs and circumstances of women prisoners to ensure appropriate
planning for their early rehabilitation, treatment and reintegration into society.
261
Gender-sensitive risk
assessments and classication of prisoners should:
• Be undertaken by specially trained sta upon admission and on an ongoing and regular basis
• Account for the generally lower risk that women pose to others, and the eects of high-security
measures and increased levels of isolation on women
• Take into account women’s backgrounds and caretaking responsibilities
• Ensure that sentence plans include gender-sensitive rehabilitative programmes (see section C of
the present chapter)
• Ensure that those with mental health problems are not placed in higher security facilities solely
on that basis
262
> FOCUS: ROME MEMORANDUM ON GOOD PRACTICES FOR REHABILITATION AND REINTEGRATION
OF VIOLENT EXTREMIST OFFENDERS, ADOPTED BY THE GLOBAL COUNTERTERRORISM FORUM
e Rome Memorandum on Good Practices for Rehabilitation and Reintegration of Violent Extremist
Oenders emphasizes that an eective intake, assessment and classication system for violent extremist
prisoners that takes into account their personal background, criminal history, personality traits, ideology
and behaviour in prison is important for making sound classication decisions and in designing eective
individual rehabilitation programmes.
. Health care
e right to health of all prisoners is a fundamental right, and prison health policies should be aimed
at the protection of their physical and mental health and well-being.
263
e Special Rapporteur on
violence against women, its causes and consequences has noted, however, that many prisons do not
oer adequate mental or physical health care to women inmates and may actually provide less health
care to female p risoners than to male prisoners. Women in prison are more prone to illness from
infectious disease, digestive issues, respiratory ailments, injuries and other medical problems.
264
Prison authorities should ensure that female violent extremist prisoners are not disadvantaged in
medical accessing facilities and services.
Rules 24–35 of the Nelson Mandela Rules canvass health-care services to be provided for all
prisoners, free of charge, and in close coordination with general public health administration to ensure
continuity of care. ey also govern prisoner access to urgent medical treatment and surgery, the
provision of treatment, and monitoring of health-related aspects of prison conditions.
e Bangkok Rules provide additional guidance on providing gender-sensitive health-care services,
including gender-specic needs:
• Health screening on admission (rules 6–9)
• Gender-specic health care (rules 10, 11 and 18)
261
e Bangkok Rules, rule 40.
262
Ibid., rule 41.
263
See article 12 of the International Covenant on Civil and Political Rights, article 12 of the Convention on the Elimination
of All Forms of Discrimination against Women, and the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment, principle 9.
264
A/68/340, paras. 44 and 46.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
• Mental health care (rules 12, 13 and 16)
• HIV prevention, treatment, care and support (rule 14)
• Hygiene (rule 5)
e Bangkok Rules further recommend providing basic training to sta working in women’s prisons
on issues relating to:
• Women’s health and children’s development (in prisons where children are allowed to stay with
their mothers) (rule 33)
• HIV prevention, treatment, care and support (rule 34)
• e detection of mental health-care needs, self-harm and suicide risks (rule 35)
. Contact with the outside world, including family visits
All prisoners should be allowed, under necessary supervision, to communicate regularly with their
family and friends, including by correspondence and in person.
265
However, the imperatives of the
ght against terrorism may nevertheless require that a person deprived of his or her liberty for terrorist
activities be submied to more severe restrictions than those applied to other prisoners.
266
e contact of women prisoners with their families and children should be encouraged and
facilitated by all reasonable means, and steps should be taken to counter-balance disadvantages faced
by women detained in facilities far from their homes.
267
Further, disciplinary sanctions should not
entail prohibitions on family contact.
268
Visits involving children should take place in an environment
that is conducive to a positive visiting experience, and should allow open contact between mother and
child. Visits involving extended contact with children should be encouraged, where possible.
269
Adequate contact with the outside world, including with family members, is particularly important
for ameliorating the harmful eects of imprisonment and assisting with social reintegration.
270
Women,
a large proportion of whom in the prison population are mothers, and who may be sole caregivers, are
oen disadvantaged in maintaining family links, given that they are oen located far from their homes
as the result of the limited number of female prisons.
Good practices in enabling women prisoners to maintain family links include assisting with
transportation of family members; extending the length of visits where women are located more
remotely; providing free overnight accommodation for families travelling long distances; and granting
prison leave to the greatest extent possible on medical, educational, occupational and family grounds.
271
Where physical visits are limited owing to large distances between the woman’s home and the prison,
women prisoners should be granted more phone calls to facilitate communication.
272
Where conjugal visits are allowed, women prisoners should be able to exercise this right on an
equal basis with men.
273
is can be an important means of maintaining close emotional bonds
between partners and spouses, and the maintenance of family links.
265
e Nelson Mandela Rules, rule 58.
266
Council of Europe Guidelines on Human Rights and the Fight against Terrorism, adopted by the Commiee of Ministers
on 11 July 2002 at its 804th meeting, guideline XI, para. 2.
267
e Bangkok Rules, rule 26.
268
Ibid., rule 23.
269
Ibid., rule 28.
270
Handbook on the Management of High-Risk Prisoners, p. 74.
271
Ibid., p. 75.
272
Ibid.
273
e Bangkok Rules, rule 27, and the Nelson Mandela Rules, rule 58, para. 2.
CHAPTER 4. IMPRISONMENT AND OTHER FORMS OF DEPRIVATION OF LIBERTY
. Access to legal counsel
e right of access to legal counsel is enshrined in all major international and regional human rights
treaties
274
and is integral to the principle of equality of arms and the right to a fair trial. Article 14,
paragraph 3 (d), of the International Covenant on Civil and Political Rights provides that every person
charged with an oence is entitled to defend themselves in person or through legal assistance of their
own choosing and to be informed of the right to legal assistance. e right of access to a lawyer from
the initial stage of custody is a fundamental safeguard against ill-treatment and is key to ensuring
fundamental fairness and public trust in the criminal justice process.
e contact of women prisoners with legal representatives should be encouraged and facilitated by
all reasonable means.
275
As noted in the UNODC Handbook on Women and Imprisonment:
Prison authorities have a crucial role to play in reducing female prisoners’ vulnerability in the crimi-
nal justice system by providing them with information about their legal rights, by enabling their
access to lawyers or paralegal services, providing facilities for meetings with lawyers, and, if required,
interpretation services.
ese requirements apply both in pretrial detention and once women have been convicted, in order
to assist them in lodging appeals or in gaining early conditional release.
In practice, women face a number of barriers in accessing justice and legal assistance, including legal
aid, as the result of socioeconomic disadvantages, lack of awareness of their rights, and discriminatory
laws and practices. Special measures should therefore be taken to ensure meaningful access for women,
including by introducing an active policy of incorporating a gender perspective into all policies and
laws relating to legal aid and gender equality.
276
> FOCUS: ACCESS TO LEGAL AID
International law
a
requires that:
• States must ensure that anyone who is arrested, detained, suspected of or charged with a criminal
oence punishable by a term of imprisonment or the death penalty is entitled to legal aid at all
stages of the criminal justice process.
• Legal aid should also be provided, regardless of the person’s means, if the interests of justice so require
(e.g., given the urgency or complexity of the case or the severity of the potential penalty). Considering
the gravity of the charges, in terrorism cases the interests of justice will as a rule require that legal aid
is provided.
• Availability of legal aid is essential to ensure access to justice for those suspected, accused or
convicted of terrorism-related oences, including as a protection against arbitrary detention.
274
See the International Covenant on Civil and Political Rights, art. 14, para. 3 (d); the African Charter on Human and
Peoples’ Rights, art. 7, para. 1 (c); the European Convention for the Protection of Human Rights and Fundamental Freedoms,
art. 6, para. 3 (c); and the American Convention on Human Rights, art. 8, para. 2 (d).
275
e Bangkok Rules, rule 26.
276
United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems (General Assembly
resolution 67/187, annex), principle 10 and guideline 9.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
> FOCUS: ACCESS TO LEGAL AID (continued)
e United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems recognize
that certain groups are entitled to additional protection when involved with the criminal justice system,
and include, among others, specic provisions for women. Guideline 9 concerns the implementation of
the right of women to access legal aid. It provides that
States should take applicable and appropriate measures to ensure the right of women to access legal
aid, including:
(a) Introducing an active policy of incorporating a gender perspective into all policies, laws, proce-
dures, programmes and practices relating to legal aid to ensure gender equality and equal and fair access
to justice;
(b) Taking active steps to ensure that, where possible, female lawyers are available to represent female
defendants, accused and victims;
(c) Providing legal aid, advice and court support services in all legal proceedings to female victims of
violence in order to ensure access to justice and avoid secondary victimization and other such services,
which may include the translation of legal documents where requested or required.
a
International Covenant on Civil and Political Rights, art. 14, para. 3 (d); United Nations Principles and Guidelines on
Access to Legal Aid in Criminal Justice Systems, principles 3 and 7; and the Nelson Mandela Rules, rule 61, para. 3,
rule119, para. 2, and rule 120.
. Pregnant women and mothers with children in prison
Every eort should be made to ensure that pregnant women and women with children are not impris-
oned unless absolutely necessary, taking into account the gravity of the oence, the risk posed by the
oender and the best interests of the child.
277
National legislation and sentencing guidelines should
reect this principle.
In cases where pregnant women and women with children are imprisoned, the Nelson Mandela
Rules and the Bangkok Rules provide guidance on the type of support and facilities that should be
made available for these categories of prisoners.
278
(i) Pregnant women
• ere should be special accommodation for necessary prenatal and postnatal care, and
arrangements should be made for children to be born in a hospital outside prison, where
practicable (the Nelson Mandela Rules, rule 28).
• Arrangements should be made to respond to the needs of pregnant women, nursing mothers and
women with children, including with respect to their health-care needs and childcare facilities
(the Bangkok Rules, rules 42 and 48).
277
Handbook on Women and Imprisonment, p. 119; rule 64 of the Bangkok Rules provides that non-custodial sentences for
pregnant women and women with dependent children should be preferred where possible and appropriate(see also the African
Charter on the Rights and Welfare of the Child, art. 30).
278
A number of other international standards are also relevant (see, for example, International Covenant on Economic, Social
and Cultural Rights, art. 10; Convention on the Elimination of All Forms of Discrimination against Women, art. 12; Convention
on the Rights of the Child, arts. 3 (para. 1), 6 (para. 2), 7 (para. 1) and 9 (para. 3); and Body of Principles for the Protection of
All Persons under Any Form of Detention or Imprisonment, principle 5 (para. 2)).
CHAPTER 4. IMPRISONMENT AND OTHER FORMS OF DEPRIVATION OF LIBERTY
(ii) Mothers with children in prison
• A decision to allow the child to stay with his or her parent in prison should be based on the best
interests of the child. Provisions should be made for internal or external childcare facilities,
child-specic health-care services, and screening. Children are not to be treated as prisoners (the
Nelson Mandela Rules, rule 29; and the Bangkok Rules, rules 49 and 51).
• Women prisoners should be provided with the maximum possible opportunities to spend time
with their children (the Bangkok Rules, rule 50).
• e Bangkok Rules, rule 52, provides guidance on the removal of a child from prison.
. Personnel and training
e recruitment, retention and promotion of women in prison administrations are important means
of ensuring gender-sensitive prison management and preventing ill-treatment of female prisoners.
Prison authorities should work towards mitigating gender imbalances in the recruitment of prison
sta who possess the skills, experience and aributes required to work with all prisoners – including
the dicult, dangerous and manipulative – in an even-handed, humane, just and gender-sensitive
manner.
279
While this may be less challenging in jurisdictions where violent extremist prisoners are
held within the general prison population, specic eorts may be required to ensure the placement of
female sta if such prisoners are held in separate facilities, or are dispersed within high-risk prisons.
Prison authorities should ensure that female sta members are provided with equal opportunities
for training and development that would enable them to work with violent extremist prisoners and
deliver gender-sensitive interventions. Such opportunities include providing equal access to training
that allows sta to deal with the challenges of working with violent extremist providers. Appropriate
topics include recognizing signs of radicalization to violence, anti-conditioning or manipulation
training, assessment of intelligence and other information about violent extremist prisoners, and
where oered by the prison, the delivery of disengagement programmes.
280
In addition to prison sta, female religious leaders, teachers and community elders can play
important roles in facilitating reintegration into mainstream society and by providing counselling, and
education and training opportunities for women violent extremist prisoners.
281
Ways to provide access
to such leaders should be considered even where women violent extremist prisoners only comprise a
small proportion of the prison population.
FURTHER READING
UNODC has developed a number of publications providing guidance on adopting a gender-sensitive approach
to prison management:
• Handbook on Women and Imprisonment (2nd ed.) (2014)
• Handbook for Prison Managers and Policymakers on Women and Imprisonment (2008)
• Training Curriculum on Women and Imprisonment (2015)
• UNODC and World Health Organization (WHO), Women’s Health in Prisons: Correcting Gender
Inequality in Prison Health (2009)
279
Handbook on the Management of Violent Extremist Prisoners, p. 27.
280
Ibid., p. 30.
281
Ibid., p. 28.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
FURTHER READING (continued)
• e Handbook on the Management of Violent Extremist Prisoners and the Prevention of Radicalization to
Violence in Prisons provides comprehensive guidance on the management of violent extremist prisoners
generally, including assessment and classication systems, security procedures, sta training, human
treatment, disengagement interventions and social reintegration and post-release support
• UNODC, Handbook on the Management of High-Risk Prisoners (2016), provides further guidance on
conducting individualized risk assessments
See also:
• UN-Women, Security Sector Reform (SSR): Rights and Needs of Women in Prisons e-course
• OHCHR, Manual on Human Rights Training for Prison Ocials
• Counter-Terrorism Implementation Task Force, Basic Human Rights Reference Guide: Detention in the
Context of Countering Terrorism (2014)
• Report of the Special Rapporteur on violence against women, its causes and consequences, transmied
by the note by the Secretary-General on the pathways to, conditions and consequences of incarceration
for women (A/68/340)
• Global Counterterrorism Forum, Good Practices on Women and Countering Violent Extremism
Penal Reform International and ailand Institute of Justice:
• Guidance document on the Bangkok Rules (2013)
• Toolbox on the Bangkok Rules, including an index of implementation to assist States in assessing the
extent to which the Bangkok Rules are reected in their criminal justice systems, and to provide a basis
for developing policies, strategies and action plans to improve implementation
• Women in detention: puing the Bangkok Rules into practice: e-course
C. Prison-based disengagement, rehabilitation and social
reintegration measures for violent extremist prisoners
Appropriate prison-based interventions to assist violent extremist prisoners to disengage from violent
extremism,
282
as well as rehabilitation and social reintegration measures to prepare prisoners for their
release and re-entry into the community, are key elements in a strategy related to preventing and
countering violent extremism.
Eective disengagement, rehabilitation and reintegration interventions should be targeted to
address the specic needs of each such prisoner, the nature of the violent extremist group involved,
and the environment into which the former violent extremist prisoner will be released.
283
Disengagement, rehabilitation and reintegration programmes should therefore take into account
gender-specic needs and experiences of violent extremist prisoners:
• An eective intake, assessment and classication system for new inmates is highly benecial in
designing disengagement, rehabilitation and reintegration measures. e form and aims of these
measures will likely dier signicantly based on whether the prisoner has been assessed as low-risk,
which is more common for female violent extremist prisoners, and which may be more suited for
engagement with external partners and fellow inmates, as opposed to for high-risk violent extremist
prisoners, which demand a more controlled programme with less contact with third parties.
284
282
Generally, disengagement interventions include a variety of activities such as psychological counselling and support;
cognitive-behavioural programmes; social work interventions; faith-based debate and dialogue; education; vocational training;
creative therapies; physical therapies (e.g., yoga, sport, exercise); family activity; and social, cultural and recreation (Handbook
on the Management of Violent Extremist Prisoners, p. 75).
283
Handbook on the Management of Violent Extremist Prisoners, p. 70.
284
Global Counterterrorism Forum’s Rome Memorandum on Good Practices for Rehabilitation and Reintegration of Violent
Extremist Oenders, good practice 3.
CHAPTER 4. IMPRISONMENT AND OTHER FORMS OF DEPRIVATION OF LIBERTY
• Specic challenges exist with reintegrating women convicted of violent extremist oences, owing
to, for example, the stigma surrounding this association, an assumption that women have been
subjected to sexual violence, and the fear of potential retaliation.
285
• Vocational training opportunities should take into account a diverse range of interests and skills
of violent extremist prisoners, and not only those tailored to the majority male population of
such prisoners. is is an important means of enabling former violent extremist prisoners to
restore their livelihoods upon release, and is particularly important for women who have been
rejected by their families and may have to become economically independent.
• Women, together with individuals with gender expertise, should participate in the design of
interventions for female violent extremist prisoners in order to develop a gender-sensitive lens
for programme development.
286
> FOCUS: THE GLOBAL COUNTERTERRORISM FORUM AND GOOD PRACTICES ON WOMEN AND COUNTERING
VIOLENT EXTREMISM
e need to develop gender-sensitive disengagement, rehabilitation and reintegration programmes that address
the specic needs of women and girls on a path to terrorist radicalization or involved in violent extremism is
underscored in good practice 10 of the Good Practices on Women and Countering Violent Extremism.
is recommendation is based on the understanding that:
• Women and girls within violent extremist and terrorist groups have dierent motivations, roles and
experiences, both to one another and to men.
• e factors leading to the association of women and girls with terrorist groups, the levels of agency
with which such association takes place, and their functions within these groups also dier.
• Violent extremist prisoners may have suered forms of violence by terrorist groups, including sexual
and gender-based violence.
To be eective, programmes for disengagement, rehabilitation and reintegration should be gender-sensitive and
address those varying experiences, as well as the specic obstacles and challenges women and girls may face.
> EXAMPLE: DISENGAGEMENT AND REHABILITATION PROGRAMMES FOR FEMALE VIOLENT EXTREMIST
PRISONERS IN THE FRENCH PENAL SYSTEM
French prison authorities are implementing a number of gender-sensitive counter-radicalization initiatives
aimed at female violent extremist prisoners. Between September 2017 and May 2018, the women’s prison in
Fresnes implemented a programme for female prisoners aimed at encouraging disengagement from violence.
e programme took into account risk and protection factors relevant to female violent extremist oenders,
and covered issues such as memory and identity; social networks; gender-based violence; relationships
between men and women and interculturalism; and law and justice. A religious mediation workshop was
also implemented for several weeks. Some workshops consisted solely of female violent extremist oenders,
while others also included women convicted of general criminal oences.
e programme complemented the individual supervision received in prison, which is the responsibility
of two supporting professionals (an educator and a psychologist), an integration and probation ocer, and
prison sta. is supervision is conducted through regular individual meetings. Other professionals, such
as psychiatrists, chaplains and prison visitors, can also take part in the process.
Similar initiatives are planned for the other prisons accommodating female violent extremist prisoners in France.
285
Handbook on the Management of Violent Extremist Prisoners, pp. 65, 125 and 126.
286
Ibid., p. 64.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
While this section focuses on the need for gender-sensitive disengagement, rehabilitation and
social reintegration measures for female violent extremist prisoners, it is also necessary to consider
gender dimensions concerning the imprisonment of male violent extremist oenders. One example
could be to address in programmes for male violent extremist oenders those elements of masculinity,
male identity, male bonding and male status that are implicated in radicalization, extremism and
engagement in political violence.
287
A further example is taking into account the impact gender roles may have on the wives and families
of male violent extremist prisoners, and the specic vulnerability of their wives as a result of such gen-
der roles, including the imprisoned husband’s role as the family’s breadwinner. Taking the impact of
gender roles into account can be an important factor in supporting disengagement from and preventing
re-engagement with terrorist groups of both the male prisoner and his wife and family.
> EXAMPLE: CREATING OPPORTUNITIES FOR WIVES OF VIOLENT EXTREMIST OFFENDERS IN INDONESIA
Between 2015 and 2017, the Police Research Centre at the University of Indonesia implemented a project
aimed at supporting the wives of incarcerated violent extremist oenders. As part of the Entrepreneurship
and Proselytization Empowerment Programme, eligible women are engaged as soon as possible following
the arrest of their husbands and provided with counselling and business training to enable them to launch
or enhance existing independent ventures while their husbands are serving prison sentences. e project
seeks to reduce the risk that the women may see themselves forced to engage with the violent extremist
network for nancial assistance and support, and to empower women to start their own businesses, which
in turn provide potential employment opportunities for the husband upon his release.
a
a
Christina Nemr and others, It Takes a Village: An Action Agenda on the Role of Civil Society in the Rehabilitation and
Reintegration of ose Associated With and Aected by Violent Extremism (Washington, D.C., Global Center on Cooperative
Security, 2018), p. 15.
D. Gender-specic aspects of preventing torture,
inhuman and degrading treatment of people
deprived of their liberty
. Prohibition of torture, inhuman and degrading treatment
e prohibition of torture, inhuman and degrading treatment is reected in all major international and
regional human rights systems
288
and is an absolute prohibition from which no derogation is permit-
ted, including in times of public emergency.
289
287
Fionnuala Ní Aoláin, “e complexity and challenges of addressing conditions conducive to terrorism” in Using Human
Rights to Counter Terrorism, Manfred Nowak and Anne Charbord, eds. (Cheltenham, United Kingdom, Edward Elgar Publishing
Limited, 2018).
288
e Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment currently has
165 States parties. Torture is also prohibited in general human rights treaties, including the International Covenant on Civil and
Political Rights (art. 7), the European Convention for the Protection of Human Rights and Fundamental Freedoms (art. 3), the
American Convention on Human Rights (art. 5, para. 2), the African Charter on Human and Peoples’ Rights (art. 5) and the
Arab Charter (art. 8, para. 1).
289
See, for example, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
art.2, para. 2: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or
any other public emergency, may be invoked as a justication of torture”.
CHAPTER 4. IMPRISONMENT AND OTHER FORMS OF DEPRIVATION OF LIBERTY
While contexts of imprisonment and deprivation of liberty expose all individuals to a higher risk of
mistreatment and abuse, gender plays a key factor in vulnerability to torture in such contexts. e
Commiee against Torture has stated that gender intersects with other identifying characteristics or status
of the person, such as race, nationality, religion, sexual orientation, age and immigrant status, to determine
the ways that women and girls are subject to or at risk of torture or ill-treatment.
290
Women are at a
particular risk of torture and ill-treatment when deprived of liberty, both within criminal justice systems
and other, non-penal seings.
291
In addition, for women, the risk of torture and ill-treatment is generally
higher immediately aer arrest and in police custody than during the period of imprisonment.
292
Torture and ill-treatment may arise in contexts of police custody or imprisonment not only directly
from the conduct of police or prison sta, but also from other inmates. It is established that inter-pris-
oner violence can amount to torture or ill-treatment for which the authorities are responsible if the
State fails to act with due diligence to prevent it.
293
One of the gravest forms of violence to which persons deprived of their liberty are subject is sexual
and gender-based violence. It is widely recognized, including in the jurisprudence of human rights
bodies, that rape amounts to torture when public ocials carry out, instigate, consent or acquiesce to
such acts.
294
e European Court of Human Rights held, in connection with a case concerning
custodial rape of a female terrorism suspect, that rape of a detainee by an ocial of the State had to be
considered to be an especially grave and abhorrent form of ill-treatment given the ease with which the
oender could exploit the vulnerability and weakened resistance of the victim. e accumulation of
acts of physical and mental violence inicted on the applicant and the especially cruel act of rape to
which she was subjected amounted to torture.
295
Rape and other forms of gender-based violence are used as a form of torture against terrorism
suspects of both sexes.
296
In some countries, military and law enforcement personnel have degraded
male prisoners by exploiting perceived notions of male Muslim homophobia and inducing feelings of
emasculation in detainees, such as forced piling of naked male detainees, forced homosexual acts with
other detainees, enforced nudity and forced wearing of women’s underwear.
297
e international human rights instruments do not dene cruel, inhuman and degrading treatment.
Ill-treatment must aain a minimum level of severity if it is to fall within the prohibition of cruel, inhuman
and degrading treatment. e European Court of Human Rights has found that the assessment of that
minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical
or mental eects and, in some cases, the “sex, age and state of health of the victim”.
298
Cruel, inhuman and degrading treatment need not be inicted deliberately or intentionally.
Intimidation with threats of further violence, a restrictive visiting schedule,
299
a lack of adequate
bedding and insucient sanitary conditions in the cell
300
can amount to cruel, inhuman and degrading
treatment. Whether prison conditions amount to degrading treatment will depend also on whether
the object of establishing such conditions is to humiliate and debase the person deprived of liberty and
290
CAT/C/GC/2, para. 22.
291
A/HRC/31/57, para. 13.
292
Commentary to rule 6, para. (e), of the Bangkok Rules.
293
A/HRC/13/39/Add.3, para. 28.
294
A/HRC/7/3, para. 34.
295
European Court of Human Rights, Aydin v. Turkey, Case No. 57/1996/676/866, Judgment of 25 September 1997,
paras.83–86.
296
A/64/211, para. 44; see also Human Rights Watch, Collective Punishment: War Crimes and Crimes against Humanity in the
Ogaden area of Ethiopia’s Somali Region (June 2008).
297
A/64/211, para. 44.
298
European Court of Human Rights, Ireland v. United Kingdom, Application No. 5310/71, Judgment of 18 January 1978,
para. 162. is denition was followed by the African Commission on Human and Peoples’ Rights in Huri-Laws v. Nigeria,
decision No. 225/98 of 6 November 2000, para. 41.
299
Inter-American Court of Human Rights, Loayza-Tamayo v. Peru, Judgment of 17 September 1997 (Merits), para. 58.
300
European Court of Human Rights, Istratii and Others v. Moldova, Application Nos. 8721/05, 8705/05 and 8742/05,
Judgment of 27 March 2007, para. 71.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
whether those conditions adversely aect his or her personality in a manner incompatible with the
prohibition of cruel, inhuman and degrading treatment.
301
In some circumstances, lack of aention to
women’s gender-specic needs can amount to inhuman or degrading treatment or punishment.
302
. State obligations with respect to torture and other cruel, inhuman
or degrading treatment or punishment
States have a number of obligations in connection with the prohibition on torture and other cruel,
inhuman or degrading treatment or punishment. Under the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, States parties are required to:
• Prevent torture, inhuman and degrading treatment, including through legislative, judicial and
other measures (art. 2, para. 1). is requires a range of measures including the training of public
ocials, safeguards in detention, criminalization of torture and the prompt investigation of
allegations of torture or inhuman and degrading treatment.
• Criminalize torture in domestic legislation and render it punishable by appropriate penalties
(art.4). e criminalization of torture has to encompass sexual and gender-based violence in
places of detention. e criminalization of sexual and gender-based violence is discussed further
in chapter 5 of the present publication.
• Investigate alleged acts of torture in a prompt and impartial manner (art. 12), and ensure that
persons who have been subject to torture have the right to complain to competent authorities.
• Prosecute or extradite those responsible for perpetrating torture (art. 7).
• Establish an enforceable right to fair and adequate compensation and rehabilitation for victims of
torture or their dependents (art. 14).
e Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
has underscored that States must apply the Convention against Torture in a gender-sensitive manner,
which is integral to ensuring that violations entrenched in discriminatory norms around gender and
sexuality are recognized and remedied.
303
. Gender-based risks of torture and inhuman and degrading treatment,
and related safeguards
Adopting a gender-sensitive approach, which takes into account the special protection needs of women
deprived of their liberty, is key to safeguarding against torture and ill-treatment. is involves assessing
key risk factors for prisoner safety in places of imprisonment, examining prison policies and management,
implementing and maintaining oversight and monitoring mechanisms, and ensuring that an eective
complaint and investigation system for allegations of mistreatment is in place. e subsection that follows
contains an examination of the key areas in which the risk of torture or ill-treatment may arise and of
gender-sensitive safeguards for mitigating this risk.
301
European Court of Human Rights, Öcalan v. Turkey, Application No. 46221/99, Judgment of 12 May 2005, para. 181.
302
Penal Reform International and Association for the Prevention of Torture, Women in Detention: A Guide to Gender-sensitive
Monitoring (London, 2013), p. 4.
303
A/HRC/31/57, para. 6.
CHAPTER 4. IMPRISONMENT AND OTHER FORMS OF DEPRIVATION OF LIBERTY
(i) Security and disciplinary measures
a. Separation
Female prisoners face higher risks of violence and ill-treatment when they are held in facilities with male
inmates.
304
Even where they are held in separate facilities, abuses can occur when women’s access to such
basic necessities as fresh water is circumscribed by their exclusive availability in male quarters.
305
Separating prisoners according to legal status, gender and age, in line with international standards
(discussed in section A of the present chapter), is a key safeguard against abuse.
b. Supervision
e risk of sexual and gender-based violence is also higher where women are supervised by male
personnel, including during transportation.
306
Male sta working in positions that enable contact with
women prisoners sometimes abuse their authority, inappropriately touching the prisoner during frisks or
body searches, engaging in threats of rape, or watching female prisoners in intimate moments (e.g., while
they are dressing or showering).
307
As underscored by the Special Rapporteur on torture and other cruel,
inhuman or degrading treatment or punishment:
• Physical violence can entail rapes of women detainees, but the abuse of women by male sta can
also be more subtly disguised. For instance, they may oer women special privileges or goods
otherwise hard to obtain. Equally, they may threaten to deny them access to their entitlements. It
is crucial to bear in mind that under such circumstances it can never be argued that a woman has
“consented” to a sexual relationship.
308
• Following international standards on stang and supervision of female prisoners is integral to
preventing these forms of abuse. Rule 81 of the Nelson Mandela Rules requires that:
– In a prison for both men and women, the part of the prison set aside for women shall be under
the authority of a responsible woman sta member, who shall have custody of the keys for that
part of the prison;
– Male sta should not enter the women’s part of a prison unless accompanied by a female
sta member;
– Women prisoners should be supervised only by women sta, without precluding male sta
members, particularly doctors and teachers, from carrying out their duties in the women’s part
of a prison.
• Adequate safeguards should also be in place to protect prisoners during transit, for example, by
ensuring that female prisoners are escorted by female sta and by ensuring eective surveillance
of transit.
309
c. Personal searches
Personal searches, including invasive body and strip searches, present a risk of ill-treatment for all
prisoners, especially when conducted on an arbitrary or routine basis, or where the dignity and
privacy of the prisoner is not respected. Such searches can have a disproportionately humiliating or
traumatizing eect on women, even more so when searches are conducted by the opposite sex. at
eect may be compounded further if such a search takes place in contexts where contact between
men and women is ordinarily restricted. Strip and invasive body searches that lead to severe pain or
304
A/HRC/31/57, para. 20.
305
Ibid., para. 19.
306
Ibid., para. 20.
307
A/HRC/31/57, para. 19, and A/HRC/7/3, para. 42.
308
A/HRC/7/3, para. 42.
309
Handbook on Women and Imprisonment, 2014, p. 40.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
suering – and that are conducted for a prohibited purpose or on a discriminatory basis – constitute
a form of torture.
310
e European Court of Human Rights held in one case that strip-searching of a
male prisoner in the presence of a female prison ocer amounted to degrading treatment.
311
e Nelson Mandela Rules (rule 52) and the Bangkok Rules (rules 19 and 20) provide guidance on
strip and body cavity searches.
d. Disciplinary segregation and connement
e harmful psychological and physical eects of segregation and connement are well-documented.
For juveniles or persons with mental disabilities, the use of solitary connement can amount to torture
or cruel, inhuman or degrading treatment or punishment where used as a punishment, during pretrial
detention, or indenitely or for a prolonged period.
312
As noted by the Special Rapporteur on torture
and other cruel, inhuman or degrading treatment or punishment, female prisoners subjected to soli-
tary connement suer particularly grave consequences as it tends to retraumatize victims of abuse
and women suering from mental health problems. It places women at greater risk of physical and
sexual abuse by prison sta and severely limits family visits.
313
It also carries serious risks for pregnant
women and their children, and women who have recently given birth.
314
• e Nelson Mandela Rules (rules 43–45) establish general principles with regard to the use of
solitary connement.
• Punishment by close connement or disciplinary segregation should not be applied to pregnant
women, women with infants and breastfeeding mothers in prison.
315
e. Use of restraints
e use of restraints is humiliating to all prisoners. To mitigate their use, the Nelson Mandela
Rules place a number of limitations on the types of and circumstances in which instruments of
restraint can be used.
316
e use of restraints on pregnant women during transfers to hospitals,
gynaecological examinations, labour and immediately aer childbirth, can amount to inhuman or
degrading treatment.
317
• Instruments of restraint should never be used on women during labour, during birth and immediately
aer birth.
318
(ii) Health care and hygiene
a. Medical examinations
Health screening on admission to prison (discussed in section A of the present chapter) is an impor-
tant factor in detecting ill-treatment and torture that has occurred while in custody. It is also necessary
in assessing gender-specic health-care needs. Female prisoners have been subject to virginity testing
during this process. is is a prohibited, gross form of discrimination against women and is
310
A/HRC/31/57, para. 23.
311
European Court of Human Rights, Valašinas v. Lithuania, Application No. 44558/98, Judgment of 24 July 2001,
paras.114–118.
312
A/66/268, para. 81.
313
A/HRC/31/57, para. 22.
314
Women in Detention: A Guide to Gender-sensitive Monitoring, p. 14.
315
e Bangkok Rules, rule 22.
316
e Nelson Mandela Rules, rules 47–49.
317
A/HRC/31/57, para. 21; see also the Commentary to the Bangkok Rules, rule 24, and Council of Europe, European
Commiee for the Prevention of Torture and Inhuman or Degrading Punishment, CPT Standards: “Substantive” Sections of the
CPT’s General Reports (CPT/Inf/E (2002) 1 (Rev. 2006)), chap. VII, para. 27.
318
e Bangkok Rules, rule 24, and the Nelson Mandela Rules, rule 48, para. 2.
CHAPTER 4. IMPRISONMENT AND OTHER FORMS OF DEPRIVATION OF LIBERTY
considered to be a form of custodial violence against women.
319
e Inter-American Court of Human
Rights has also held that a nger vaginal “examination” constituted sexual rape that, owing to its
eects, constituted torture.
320
b. Gender-specic health care and hygiene
As discussed in section B of the present chapter, many prison health services and facilities are not
designed to meet women’s physical and psychological health-care needs, such as a lack of specialist
care, including access to gynaecologists and obstetric health-care professionals; discriminatory access
to services like harm-reduction programmes, and a lack of private spaces for medical examinations and
condentiality.
321
Conducting medical examinations and providing tailored physical and mental health
services in line with international standards is essential to meeting the gender-specic needs of prison-
ers and preventing mistreatment. Training should be provided to sta on identifying and addressing
women’s health-care and hygiene needs.
322
According to the Special Rapporteur on torture, the
absence of gender-specic health care in detention can amount to ill-treatment or, when imposed
intentionally and for a prohibited purpose, to torture. e failure of States to ensure adequate hygiene
and sanitation and to provide appropriate facilities and materials can also amount to ill- treatment or
even torture.
323
(iii) Personnel and training
Prison sta full integral roles in establishing and maintaining a secure, safe, well ordered and humane
prison, with a regime conducive to the rehabilitation of prisoners.
324
In many prison systems, however,
the particular needs of women as explored in the present chapter are not reected in sta composition
and training.
Providing capacity-building to sta employed in female prisons, and in particular female sta, is
necessary to enable sta to meet the gender-specic needs of female prisoners. As established in the
Bangkok Rules, the following points are of particular importance:
• Capacity-building measures for sta employed in female prisons should improve their ability to
manage safe and rehabilitative facilities, and address the special social integration requirements
for women. is includes improving access for women to senior positions with responsibility for
developing gender-sensitive policies (rule 29).
• Clear sta policies and regulations should be in place to protect women prisoners from abuse and
gender-based physical, verbal and sexual harassment (rule 31).
• Training activities on the gender-specic needs and human rights of women prisoners should be
provided on an equal basis to all sta (rules 32 and 33). Management sta should be trained on
sensitivity and prohibition of discrimination and sexual harassment (rule 32).
(iv) Complaint and oversight mechanisms
e existence of eective and independent complaint and oversight mechanisms for all places of
deprivation of liberty is a key requirement to respect and full the non-derogable obligation to prevent
319
A/HRC/7/3, para. 34.
320
Inter-American Court of Human Rights, Miguel Castro-Castro Prison v. Peru, Judgment of 25 November 2006, para. 312.
321
A/HRC/31/57, para. 26.
322
Ibid.
323
Ibid.
324
Handbook on Women and Imprisonment, p. 28.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
torture and inhuman and degrading treatment. ere must therefore be no exception to eective and
independent oversight of places of deprivation of liberty on grounds of national security, or of the
persons held being suspected, accused or convicted of terrorism-related oences.
325
a. Complaint systems and investigations
Access to prompt and impartial complaint and oversight systems is integral for the protection of
prisoners who are at risk of, or subject to, torture and ill-treatment. In practice, complaint and over-
sight systems are oen lacking in independence. In addition, the fear of reprisals prevents prisoners
from reporting abuse, and barriers to legal assistance prevent access to redress.
326
In many cases, the
vulnerability and isolation of women and girls is compounded by limited access to legal advice, legal
representation and legal aid; inability to pay fees or bail as a result of poverty; dependence on male
relatives for nancial support; and fewer family visits, compared with men.
e stigma associated with reporting sexual violence and other humiliating practices discourages
victims, not only women and girls, but also men and boys, as well as lesbian, gay, bisexual and transgen-
der persons from reporting. Compliance with international standards regarding the condentiality and
independence of complaint and oversight mechanisms is therefore particularly important for the
prevention of and accountability for sexual and gender-based violence in places of custody.
> FOCUS: GENDER-SENSITIVE COMPLAINT AND INVESTIGATION MECHANISMS FOR ALLEGATIONS
OF ILL-TREATMENT IN CUSTODY
Rules 56 and 57 of the Nelson Mandela Rules establish basic principles regarding mechanisms through
which prisoners should be entitled to make complaints about their treatment to the prison administration
and to the judicial and other competent authorities.
e Manual on Eective Investigation and Documentation of Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, commonly known as the Istanbul Protocol, establishes a number of
gender-sensitive principles for investigations:
• e investigative team should preferably contain male and female specialists. In selecting a person
as the primary investigator, special consideration should be given to, inter alia, the victim’s preference
for a person of the same gender (paras. 90 and 154). Where there is a male victim of sexual abuse,
the situation may be complex because he too will have been sexually abused mostly or entirely by
men. Some men would, therefore, prefer to describe their experiences to women because their fear
of other men is so great; however, others would not want to discuss such personal maers in front
of a woman (para. 155).
• In evaluating oral testimony and credibility of witnesses, the commission of inquiry should take into
account cultural and gender issues that aect demeanour (para. 117).
• e victim should, wherever possible, be able to choose the gender of the physician involved in
physical examinations and, where used, of the interpreter (para. 173). If the victim is being examined
aer a recent assault, and the physician is of a dierent gender from the victim, he or she should
be oered the opportunity of having a chaperone of the same gender in the room (para. 220).
• For specic considerations regarding physical examinations of the genital region, see paragraphs 227–232;
for the genito-urinary system, see paragraph 185.
325
Counter-Terrorism Implementation Task Force, Basic Human Rights Reference Guide: Detention in the Context of Countering
Terrorism (New York, 2014), paras. 45–50.
326
A/HRC/31/57, para. 38.
CHAPTER 4. IMPRISONMENT AND OTHER FORMS OF DEPRIVATION OF LIBERTY
b. Oversight
An eective monitoring and oversight mechanism is essential to ensure that a well-functioning complaints
system is in place, that allegations of ill-treatment and torture are investigated, and that perpetrators are
brought to justice. Monitoring and oversight mechanisms should be gender-sensitive, too:
• Inspectors should have the authority to receive and investigate the complaints of prisoners and to
visit the premises in order to monitor, among other things, all forms of violence in custody,
including sexual violence against both men and women, and all forms of inter-prisoner violence,
including proxy violence that occurs with the acquiescence of ocials within the prison system.
327
is includes the authority to access information relevant to the treatment of prisoners and the
conditions of detention, and to conduct private interviews with prisoners.
328
• Such mechanisms should include women members.
329
• Forensic doctors and female inspectors trained in detecting torture and ill-treatment should be
present during such inspections.
330
• Independent inspection bodies should implement gender-sensitive measures to protect
at-risk prisoners, such as units of ocers trained in handling complaints involving sexual and
gender-based violence, and inspections by non-governmental organizations or national
p reventive mechanisms.
331
FURTHER READING
• Manual on Eective Investigation and Documentation of Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (Istanbul Protocol).
E. Detention of close family members of suspects
e Special Rapporteur on the promotion and protection of human rights and fundamental freedoms
while countering terrorism has observed that women (and children) not suspected of terrorism-related
oences are unlawfully detained and ill-treated to either gain information about male family members
or to compel male terrorism suspects to provide information or confessions.
332
Although the arbitrary arrest and detention of close family members of terrorism suspects to exert
pressure on the suspect does not exclusively involve the arrest of women to exert pressure on male fam-
ily members, gender stereotypes oen play a role in this context. e authorities in the two cases below
appear to have relied on ideas of female vulnerability and male honour, as well as the role of the
husband as protector of his wife, as a means of obtaining the surrender of the suspect.
327
CAT/C/51/4, para. 57.
328
Ibid., para. 60.
329
e Bangkok Rules, rule 25, para. 3.
330
CAT/C/51/4, para. 58.
331
Ibid., para. 59.
332
A/64/211, para. 31.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
> EXAMPLE: TWO CASES OF DETENTION OF A WOMAN IN LIEU OF HER HUSBAND
Case of Ms. A.A.S. and Mr. Al-Gh.
a
In 2003, Mr. Al-Gh.’s name appeared on a list of fugitive terrorism suspects. In reaction to these allegations,
Mr. Al-Gh. issued a statement asserting his innocence, but did not surrender. ereaer, the authorities
arrested Ms. A.A.S., Mr. Al-Gh.’s wife, and eight other family members, without charging them with any
oence. Mr. Al-Gh. was informed that his family members would be released if he were to turn himself in.
Fearing for the fate of his relatives, Mr. Al-Gh. decided to surrender and solicited the help of a respected
cleric to negotiate the terms. Mr. Al-Gh. subsequently turned himself in having received a promise that he
would be subject to legal proceedings and receive a fair trial, that all his family members would be released,
and that he would not be tortured following his arrest.
Case of A.M.
b
A.M., who was pregnant, was travelling with her two children, aged seven and 10 years, through an area
where a terrorist group was very active. She was stopped at a military checkpoint for what appeared to be
a routine check. e soldiers enquired about the purpose of her travel and she informed them that she
was moving to join her husband in a dierent part of the country. e soldiers used A.M.’s mobile phone
to place a call to her husband. ey told him that unless he came to the checkpoint to pick up his wife
and children, he would be deemed a member of the terrorist group. A.M.’s husband did not go to the
checkpoint or make further contact.
A.M. and her children were detained and held in military barracks for several months on suspicion that
she was married to a member of a terrorist group. During that time she gave birth to her third child. She
was then transferred to the custody of the prisons service where she was held for approximately two years.
However, the prisons service refused to accept her older children, who were taken to a children’s home.
e local chapter of the International Federation of Women Lawyers (FIDA) led an application to court
on behalf of A.M. and her children for the enforcement of their fundamental rights. e court declared
the detention unlawful, ordered the release of A.M. and her youngest child from prison and of the two
older children from the children’s home, and awarded compensation for the unlawful detention.
a
A/HRC/WGAD/2011/18, paras. 4–5.
b
Adama Mustapha and 3 others v. Nigerian Army and Nigerian Prisons Service and 2 others, FHC/YL/CS/22/2016.
As stated by the Human Rights Commiee, detaining family members of an alleged criminal
who are not themselves accused of any wrongdoing is an egregious example of arbitrary deten-
tion.
333
It is a fundamental principle of international human rights law that only persons who have
commied a crime may be held criminally responsible for that crime, a principle that is also reected
in regional human rights treaties. Article 7, paragraph 2, of the African Charter on Human and
Peoples’ Rights provides for the personal scope of punishment for oences for which an individual
has been convicted, which can be imposed only on the oender. Article 5, paragraph 3, of the
American Convention on Human Rights states that punishment shall not be extended to any other
person other than the criminal.
In the two cases above, the wives of terrorism suspects were arrested and detained to apply pressure
on their husbands without being personally charged with an oence. In other cases, close family mem-
bers have been charged with oences, including supporting terrorist activities, failing to report
information related to a terrorism oence, or concealing a terrorism suspect. In such cases, which are
closely related to the gender dimensions of oences criminalizing support roles in terrorist groups, the
boundary between genuine charges for a form of complicity in terrorist activity and the arbitrary
detention of an innocent person to exert pressure on a suspect may be dicult to draw.
333
Human Rights Commiee, general comment No. 35 (2014) on liberty and security of person (CCPR/C/GC/35), para. 16.
CHAPTER 4. IMPRISONMENT AND OTHER FORMS OF DEPRIVATION OF LIBERTY
e United Nations Working Group on Arbitrary Detention, in its opinion on the case of Ms.A.A.S.
and Mr. Al-Gh. summarized above, drew aention to the link between the vague and overly broad
denition of terrorism oences, which is in violation of the principle of legality discussed in chapter 2,
and the misuse of such provisions to justify the arbitrary detention of the relatives of terrorism suspects
as a means of inducing the arrest of the suspect. e Working Group made the following observation:
Such laws, both per se or in their application, by using an extremely vague and broad denition of
terrorism, bring within their fold the innocent and the suspect alike, and thereby increase the risk of
arbitrary detention, disproportionately reducing the level of guarantees enjoyed by ordinary per-
sons in normal circumstances.
334
A related dimension of this issue is the detention and ill-treatment of female family members of
disappeared persons. Women are most oen at the forefront of the struggle to resolve the disappear-
ances of members of their family, making them susceptible to intimidation, persecution and repris-
als.
335
Such practices have emerged where female relatives have called for the release of male family
members held in custody on terrorism charges. Fear of reprisals and deprivation of liberty may also
prevent victims’ families from pursuing remedies.
F. Alternatives to imprisonment in terrorism cases
. International standards on alternatives to imprisonment
With regard to pretrial detention, article 9, paragraph 3, of the International Covenant on Civil and Political
Rights arms that it shall not be the general rule that persons awaiting trial shall be detained in custody.
Alternatives to imprisonment, however, can be applied, not only at the pretrial stage or during trial,
but also in place of a custodial sentence.
e United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules),
adopted by the General Assembly in its resolution 45/110, contain the basic principles relating to the
use of non-custodial measures and minimum safeguards for persons subject to alternatives to
imprisonment. e Bangkok Rules complement the Tokyo Rules with regard to the alternatives to
imprisonment for women oenders. Rules 57–66 of the Bangkok Rules relate to non-custodial meas-
ures for women oenders which are applicable to the pretrial, sentencing and post-sentencing stages.
Principle 39 of the Body of Principles for the Protection of All Persons under Any Form of Detention
or Imprisonment, and the basic principles on the use of restorative justice programmes in criminal
maers, adopted by the Economic and Social Council in its resolution 2002/12, are also relevant.
. The scope for alternative measures in terrorism cases
States have conventionally given limited or no consideration to alternatives to imprisonment for
those accused or convicted of terrorism oences. is is understandable, considering the threat
posed by terrorism to societies; the alarm raised by acts of terrorism; the long sentences available for
terrorism oences upon conviction; and the perception that terrorist oenders are always dangerous
and fanatical.
334
A/HRC/WGAD/2011/18, para. 20.
335
A/HRC/10/9, para. 455.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
ere is, however, growing recognition of the need to also consider, in appropriate cases,
alternatives to imprisonment for those accused or convicted of having commied terrorism-related
oences. at recognition is the result of both practical considerations – including the overcrowding
of prisons, the negative impact on human rights and social cohesion, and the expense involved in
incarceration – and the realization that alternatives are oen more eective than imprisonment in
reducing recidivism.
336
In 2015, the Global Counterterrorism Forum adopted a set of recommendations on the eective
use of appropriate alternative measures for terrorism-related oences to provide guidance on a
range of measures for alternatives to imprisonment, including post-conviction incarceration for
individuals charged with, or convicted of, terrorism-related oences. As such, the recommendations
are in line with and build upon the Tokyo Rules and the other international standards and norms
referenced above.
As identied in the recommendations of the Global Counterterrorism Forum, there could be a
need to consider such measures in appropriate cases because of the broadening of some Government
counter-terrorism strategies to include eorts to prevent and counter violent extremism.
337
Alternatives
should be considered, in particular, in the light of:
• Laws enabling the arrest of individuals at the earliest possible stage before they can travel, commit
or otherwise directly support an act of violence, through the expanded use of inchoate oences
and oences criminalizing preparatory acts (see chap. 2)
• An increased presence of rst-time oenders among those radicalized to violence
• Concern about individuals becoming radicalized, or radicalizing others, to violence while in
detention centres or prisons
338
e availability of alternatives to imprisonment in terrorism cases vary greatly between States. In
some States, procedural mechanisms exist which enable criminal justice authorities not to pursue
charges against a person suspected of having commied a terrorism-related oence. In other States,
there is no scope in domestic law to allow prosecutors and judges to discontinue prosecution or
impose alternatives to pretrial detention where an individual is suspected of commiing a terrorist
oence. In sentencing, judges may be restricted in their ability to impose lesser sentences owing to
long-term, minimum terms of imprisonment. Such an approach can lead to disproportionate sentences,
in particular for:
• Oenders with reduced culpability
• Certain categories of oenders, such as rst-time oenders who were not directly involved in any
acts of violence
• Individuals who became associated with terrorist groups under various forms of coercion
• Individuals who would pose a low risk to their communities if released
Recommendation 8 of the recommendations of the Global Counterterrorism Forum recognizes
that more emphasis should be placed on ensuring that vulnerable individuals are not victimized by
imprisonment if viable alternatives are available and appropriate.
339
Such an approach is in line with the
general rule that States shall develop the legal basis for non-custodial measures and provide them to
336
See, for example, UNODC, Handbook on Strategies to Reduce Overcrowding in Prisons, Criminal Justice Handbook Series
(Vienna, 2013), p. 109; and Handbook of Basic Principles and Promising Practices on Alternatives to Imprisonment (United Nations
publication, Sales No. E.07.XI.2), pp. 3–7.
337
Global Counterterrorism Forum, “Recommendations on the eective use of appropriate alternative measures for
terrorism-related oences”, p. 2.
338
Ibid.
339
Ibid., recommendation 8.
CHAPTER 4. IMPRISONMENT AND OTHER FORMS OF DEPRIVATION OF LIBERTY
avoid unnecessary use of imprisonment, rationalize criminal justice policies and provide greater
exibility consistent with the nature and gravity of the oence, with the personality and background of
the oender and with the protection of society, taking into account the observance of human rights,
the requirements of social justice and the rehabilitation needs of the oender.
340
Alternatives to imprisonment may be particularly appropriate for certain categories of oenders
including juveniles, rst-time oenders and people suering from diminished mental capacity.
341
Alternative measures are also particularly appropriate for women oenders, in certain circumstances,
as they are oen more likely than men to be rst-time, low-risk oenders who acted in non-violent
support roles (see chap. 2). Further, the disproportionately severe eects of women’s imprisonment
require additional eorts in nding alternatives to imprisonment at all stages of the criminal
justice process.
342
. General principles for alternative measures
e criminal justice system should provide for a wide range of non-custodial sentences ranging from
pretrial to post-sentencing dispositions, while taking into account the need for consistent sentencing,
in order to provide greater exibility consistent with the individual circumstances of the oender and
the case.
343
Additionally, the Tokyo Rules further provide for a range of legal safeguards to be implemented in
connection with alternative measures:
344
• e dignity of the oender should be protected at all times, as should his or her privacy and
condentiality, and the privacy of his or her family.
• Alternative measures should not inict physical or psychological harm on the oender.
• e introduction, denition and application of non-custodial measures should be prescribed by
law, and discretion by judicial or other authorities should be exercised in accordance with the
rule of law.
• e consent of the oender should be sought where alternative measures impose an obligation
on that individual, especially at the pretrial stage, when the presumption of innocence applies.
• Alternative measures should not restrict the oender’s rights further than what was authorized by
the competent authority that issued the original decision.
• Decisions on alternative measures should be subject to review, upon application of the oender.
• Mechanisms should be in place to enable the oender to make a complaint if alternative measures
aect his or her rights.
Further, the selection of alternative measures should be based on an assessment according to
criteria relating to the nature and gravity of the oence, the personality and background of the oender,
the purposes of sentencing and the rights of victims.
345
340
e Tokyo Rules, rules 1.5 and 2.3.
341
Global Counterterrorism Forum, “Recommendations on the eective use of appropriate alternative measures for
terrorism-related oences”, recommendation 8.
342
Handbook of Basic Principles and Promising Practices, p. 70.
343
e Tokyo Rules, rule 2.3.
344
Ibid., rule 3.
345
Ibid., rule 3.2.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
Potential criteria to be taken into account for assessing alternative measures for those charged with
or convicted of having commied terrorism-related oences, as suggested in the Recommendations
on Alternative Measures,
346
include:
• e severity of the oence charged
• e level of radicalization to violence and commitment to violent extremism
• e oender’s receptiveness to intervention and treatment
• e likelihood of the person re-oending
. Gender-sensitive alternative measures at dierent stages
of the criminal justice system
Women may be disadvantaged, however, in accessing such alternatives in a number of ways. Most
States do not oer gender-specic alternatives to imprisonment that are tailored to meet the specic
requirements of women oenders, in order to reduce the gender-specic risks of recidivism.
347
Designed and implemented with the majority of male suspects and oenders in mind, these alternatives
may not be equally accessible to women oenders.
States should therefore consider developing and implementing a range of gender-sensitive
alternatives for women oenders applicable at dierent stages of the criminal justice system, taking into
account the history of victimization of many women oenders and their caretaking responsibilities.
348
(i) Diversion from prosecution
Diversionary measures should be implemented by the police, prosecution service or other agencies
dealing with criminal cases for women oenders wherever appropriate and possible, in accordance
with criteria developed within each legal system.
349
Such a decision should take into account the
protection of society, crime prevention, the promotion of respect for the law and the rights of the
victim.
350
Decisions on diversionary measures should take into account that depriving women with
caretaking responsibilities of their liberty also has a harmful impact on children and other family
members within their care.
351
(ii) Avoidance of pretrial detention
Alternatives to pretrial detention should be employed as early as possible,
352
and may include
measures such as bail, house arrest, electronic monitoring, conditional release that may require
checking in with law enforcement or other criminal justice authorities, and diversion.
353
It has been
observed that decisions on alternatives, both pretrial and at the sentencing stage, oen overlook the
typical background of women oenders, their caring responsibilities and the typically lower risk they
pose to society.
354
e availability of alternatives should, therefore, take into account the implications
346
Global Counterterrorism Forum, “Recommendations on the eective use of appropriate alternative measures for
te rrorism-related oences”, recommendation 6.
347
UNODC, “Information note for criminal justice practitioners” on non-custodial measures for women oenders” (n.p.), p. 2.
348
e Bangkok Rules, rule 57.
349
e Tokyo Rules, rule 5.1, and the Bangkok Rules, rule 58.
350
e Tokyo Rules, rule 5.1.
351
UNODC, “Information note for criminal justice practitioners”, p. 6; see also the Bangkok Rules, rule 58.
352
e Tokyo Rules, rule 6.2.
353
“Recommendations on the eective use of appropriate alternative measures for terrorism-related oences”, footnote 2.
354
Helmut Kury, Sławomir Redo and Evelyn Shea, eds., Women and Children as Victims and Oenders: Background, Prevention,
Reintegration – Suggestions for Succeeding Generations, vol. 2 (n.p., Springer, 2016), p. 41.
CHAPTER 4. IMPRISONMENT AND OTHER FORMS OF DEPRIVATION OF LIBERTY
for employment, accommodation and child custody that may disproportionally aect women,
especially in a female-headed household, and also the fact that women may be less aware of their legal
rights and their entitlement to free legal aid, if applicable, as discussed above and in chapter 6.
355
e forms and conditions of alternative measures to pretrial detention, as with all other forms of
alternatives, must be gender-sensitive. Mechanisms determining nes and bail amounts may fail to
account for the economic disadvantage and lack of nancial autonomy that women face in many con-
texts. Further, women may be disadvantaged by gender-neutral conditions set by authorities, such as
bail conditions requiring regular reporting to authorities. Women may be at a particular disadvantage
in situations where women cannot leave home without being accompanied by male relatives, because
transport to the respective police station is not aordable, or feasible, or because reporting times would
jeopardize caretaking responsibilities.
356
In determining the conditions to be observed by the oender in connection with the alternative
measures, the Tokyo Rules provide that the competent authority should take into account both the
needs of society and the needs and rights of the oender and the victim. e conditions to be observed
shall be practical, precise and as few as possible, and be aimed at reducing the likelihood of an oender
relapsing into criminal behaviour and of increasing the oender’s chances of social integration, taking
into account the needs of the victim.
357
(iii) Trial and sentencing stage
A number of alternatives to imprisonment exist at the sentencing stage, including warnings, conditional
discharges, status penalties, pecuniary nes, compensation orders, suspended sentences, probation and
judicial supervision, community service, house arrest or non-institutional treatment.
358
In considering
the alternative measures to imprisonment at the trial and sentencing stages, the judicial authority should
take into account the rehabilitative needs of the oender, the protection of society and the interests of
the victim.
359
Social inquiry reports on the oender’s paern of oending and current oences should
also be taken into account, if they exist.
360
Women oenders may face similar barriers in accessing alternatives to imprisonment at the trial and
sentencing stages to those dened above with regards to diversionary measures and pretrial detention,
including an inability to pay nes, which are frequently used as an alternative to imprisonment for
non-violent crimes.
361
Rule 61 of the Bangkok Rules provides that when sentencing women oenders, courts shall have
the power to consider mitigating factors such as lack of criminal history and relative non-severity and
nature of the criminal conduct, in the light of women’s caretaking responsibilities and typical
background. Further, gender-specic options for sentencing alternatives should take into account the
history of victimization of many women oenders and their caretaking responsibilities.
362
Mandatory
minimum sentences for oences, however, as discussed above, impede the exercise of judicial
discretion, even in cases of non-violent, rst-time oenders in which mitigating circumstances could
otherwise apply.
355
UNODC, “Information note for criminal justice practitioners”, p. 8.
356
Kury, Redo and Shea, eds., Women and Children as Victims and Oenders, p. 41.
357
e Tokyo Rules, rules 12.1–12.2.
358
Ibid., rule 8.2.
359
Ibid., rule 8.1.
360
Ibid., rule 7.1.
361
Kury, Redo and Shea, eds., Women and Children as Victims and Oenders, p. 41.
362
e Bangkok Rules, rule 57.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
Further, non-custodial sentences for pregnant women and women with dependent children should
be preferred where possible and appropriate.
363
Pursuant to the Bangkok Rules, custodial oences for
women in these positions should only be considered in the case of violent oences or where the
woman represents a continuing danger, taking into account the best interests of the child.
364
(iv) Post-sentencing stage
e Tokyo Rules envisage a number of post-sentencing dispositions to assist reintegration of oenders
into society, which should be considered at the earliest possible stage, and should be subject to judicial
review.
365
Such dispositions include work or education release, parole, remission and pardon.
366
Decisions regarding early conditional release (parole) shall favourably take into account the caretaking
responsibilities of women prisoners, as well as their specic social reintegration needs.
367
. “Protective” custody
Authorities have detained individuals who have been associated with terrorist groups for “protec-
tive purposes”. Authorities may perceive such individuals to be at a particular risk of retaliation by
the terrorist group they have or are thought to have been associated with, or by community
members, owing to the stigma aached to such an association, even when the person may be a vic-
tim. Persons have also been detained under the guise of “protection” for the purpose of eliciting
information on their presumed associates. In other contexts, women suspected of being victims of
tracking or sexual violence are taken into “protective” custody, oen against their will, to protect
them from further harm.
368
Such “protective” detention can amount to unlawful deprivation of liberty and violate the
prohibition of arbitrary detention. Further, prolonged detention for the purposes of “protection” can
in some circumstances constitute inhuman treatment.
369
Human rights treaty bodies have called upon States to cease the practice of protective custody for
women at risk of violence. e Commiee against Torture has urged States to transfer all women cur-
rently held in “protective custody” to other safe and rehabilitative shelters.
370
e Commiee on the
Elimination of Discrimination against Women has called on States to repeal all legal provisions that
discriminate against women, including procedures allowing for women’s deprivation of liberty to pro-
tect them from violence, as well as all laws that prevent or deter women from reporting gender-based
violence, and the practice of “protective custody”.
371
363
e Bangkok Rules, rule 64.
364
Ibid.
365
e Tokyo Rules, rules 9.1, 9.3 and 9.4.
366
Ibid., rule 9.2.
367
e Bangkok Rules, rule 63.
368
An academic expert on tracking in human beings highlights, in this respect, that the practice of tracking victim
detention is oen highly gendered in a way that negatively aects both women and men. For example, the overwhelming
majority of tracked persons detained in welfare shelters are female. Women and girls are more likely to be identied
through ocial channels. Female victims of tracking are widely considered to need this protection much more than their
male counterparts (AnneT. Gallagher, e International Law of Human Tracking (Cambridge, Cambridge University Press,
2010), pp. 293–294).
369
A/HRC/7/3, para. 42, and A/HRC/4/33/Add.3, para. 39.
370
A/65/44, p. 106.
371
Commiee on the Elimination of Discrimination against Women, general recommendation No. 35 (2017) on gender-
based violence against women, updating general recommendation No. 19 (CEDAW/C/GC/35), para. 31 (b)–(c).
CHAPTER 4. IMPRISONMENT AND OTHER FORMS OF DEPRIVATION OF LIBERTY
While temporary forms of custody may be justied on an exceptional basis where no appropriate
alternative exists, non-custodial forms of protection must be developed to avoid resorting to such a
practice.
372
Suggested measures in that regard include the following:
• Forms of custody to “protect” a woman should only be used when they are necessary and
expressly requested by the woman concerned. ey must be temporary measures and not
imposed against her will. Such measures should also be supervised by judicial and other
competent authorities.
373
Women detained should have access to legal counsel in the process of
making such decisions.
• Where, in exceptional circumstances, detention facilities are used to protect women at risk of
violence, such women should not be treated as prisoners and should be free to leave the detention
facility when they wish.
374
• Women held in custody for such reasons should be transferred, as soon as possible and where
necessary, to more appropriate facilities, such as shelters, safe houses and other community
services.
375
FURTHER READING
UNODC has developed a number of publications on alternatives to imprisonment for women oenders,
including:
• Handbook of Basic Principles and Promising Practices on Alternatives to Imprisonment (2007)
• Information note for criminal justice practitioners on non-custodial measures for women oenders,
available at www.unodc.org
• Criminal Justice Assessment Toolkit: Alternatives to Incarceration (2006)
• E-learning course on alternatives to imprisonment for women oenders
G. Administrative detention of persons associated
with terrorist groups
. Administrative detention outside the criminal justice context
e Working Group on Arbitrary Detention has dened administrative detention as the arrest and
detention of individuals by State authorities outside the criminal law context (e.g., for reasons of secu-
rity, including terrorism) and as a form of preventive detention.
376
Administrative detention therefore
occurs where it is not imposed in connection with, or with a view to proceedings within the criminal
justice system for, a particular crime.
In some States, persons suspected of being associated with a terrorist group are deprived of their
liberty for prolonged periods of time by military or other security authorities outside the criminal
justice system for security purposes. Such events occur where, for example, military authorities
“screen” large groups of people apprehended in the course of counter-terrorism operations, or who
have surrendered to the authorities, in order to determine whether they can be released back into the
community on the ground that they present a low risk.
372
e Bangkok Rules, rule 59.
373
International Covenant on Civil and Political Rights, art. 9, para. 4, and the Bangkok Rules, rule 59.
374
Penal Reform International and ailand Institute of Justice, Guidance Document on the United Nations Rules on the
Treatment of Women Prisoners, p. 18.
375
e Bangkok Rules, rule 59.
376
A/HRC/13/30, para. 77.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
Administrative detention also occurs where persons associated with a terrorist group are not charged
with an oence, but are held by the authorities for the purpose of being subjected to de-radicalization
programmes. Irrespective of the way the authorities designate such programmes, such detention will
amount to deprivation of liberty where participation in such programmes is compulsory and participants
are not free to leave. Deprivation of liberty will also occur where participation is in itially voluntary, but
participants are subsequently prevented from leaving.
In addition, persons may nd themselves de facto deprived of freedom of movement in camps for
internally displaced persons. Women and children in such camps have faced severe restrictions on
their freedom of movement by camp authorities on the basis of their family members’ purported
involvement in the activities of terrorist groups, while themselves having not been accused of such
involvement. In some cases, camp authorities have prevented them from leaving, have conscated
their identity cards (which are required to pass checkpoints beyond those camps), or required special
approval in order to travel outside of the camp to nearby hospitals. ese restrictions have been applied
to camp residents by governmental security forces, and also by Government-aligned militias in charge
of camps. While it is important to distinguish between deprivation of freedom of movement and
deprivation of liberty, the boundary is not always clear, and deprivation of freedom of movement may
be so severe as to amount to a de-facto administrative deprivation of liberty.
Deprivation of liberty outside the context of criminal proceedings is permissible under i nternational
human rights law under certain conditions, to be applied restrictively. However, the Human Rights
Commiee has warned that forms of administrative detention present severe risks of arbitrary depriva-
tion of liberty.
377
Where individuals are deprived of their liberty through administrative detention on
national security grounds, including for the purposes of screening or de-radicalization, States must
comply with strict guarantees enshrined in article 9 of the International Covenant on Civil and Political
Rights.
378
is means that:
• Such detention must be based on grounds and procedures clearly established in domestic law.
• e detainee must have access to an eective means to challenge the lawfulness of his or her
detention, including access to a lawyer.
• A judicial or other independent and impartial body must decide without delay on challenges
to the lawfulness of detention and periodically review the continuing lawfulness and necessity
of detention.
• A person who has been unlawfully detained should have an enforceable right to compensation.
Situations of detention outside the criminal justice system are oen governed by less detailed rules
and surrounded by lesser safeguards. Separation between men and women, adults and children may be
enforced less strictly. Oversight and access to legal assistance and to complaint mechanisms are oen
weaker than in seings governed by well-established rules, such as the corrections system, a fact that is
likely to have a particular impact on women and girls. e Commiee on the Elimination of
Discrimination against Women has highlighted the need for States to ensure that all appropriate meas-
ures, “including eective legal aid and procedures,” are in place to enable women to challenge the legality
of their detention; ensure regular reviews of such detention in the presence of the detainee; and ensure
that the “conditions of administrative detention comply with relevant international standards for the
protection of the rights of women deprived of their liberty”.
379
377
CCPR/C/GC/35, para. 15.
378
Except for part of article 9, paragraph 2, and all of article 9, paragraph 3, which concern only persons charged with an oence.
379
CEDAW/C/GC/33, para. 53 (c).
CHAPTER 4. IMPRISONMENT AND OTHER FORMS OF DEPRIVATION OF LIBERTY
Authorities in charge of screening or de-radicalization programmes must also be particularly careful to
avoid making decisions based on gender stereotypes. On the one hand, in some countries there is a ten-
dency to consider women’s association with terrorist groups as generally involuntary or innocent, and to
therefore allow them to return to civilian life without undergoing thorough screening procedures. As a
result, it is primarily, if not exclusively, men who are subject to prolonged administrative detention for the
purposes of determining their “prole”, and in order to make a rst determination as to the likelihood of
their involvement in acts of terrorism and whether they pose a signicant security risk. On the other
hand, while women are oen not considered for prosecution owing to gender stereotypes, they are oen
deemed to have been indoctrinated or brainwashed, therefore requiring de-radicalization, even when the
coercive nature of their association with the terrorist group is undisputed. In its resolution 2396 (2017),
the Security Council called upon Member States to employ – for both terrorism suspects and their
accompanying family members – evidence-based risk assessments, screening procedures, in accordance
with domestic and international law, without resorting to proling based on any discriminatory ground
prohibited by international law.
. Detention in the context of armed conflicts
Where persons associated with a non-State armed group (including those designated as terrorist
groups) are detained in the context of an armed conict, the international humanitarian law rules
regarding deprivation of liberty become applicable and complement the rules of international human
rights law. In non-international armed conicts and as regards deprivation of liberty, international
humanitarian law aords women and men the same protection – be they civilians or ghters – but also
requires that the specic protection, health and assistance needs of women aected by armed conict
must be respected.
> FOCUS: NON-INTERNATIONAL ARMED CONFLICTS
Most armed conicts today are non-international in nature. Non-international armed conicts denote
armed conicts between Governments and organized armed groups, or conicts that take place among
such groups themselves. e intervention of a foreign State in a non-international armed conict on the
side of the Government, such as the intervention of other States in support of Iraq in the conict against
ISIL, does not change the classication of that conict.
Assessed on a case-by-case basis, such hostilities must reach a minimum level of intensity, and the
non-governmental armed forces must be organized such that there is a command structure and the capacity
to sustain military operations.
a
For instance, the United Nations High Commissioner for Human Rights, the International Commiee of
the Red Cross and the International Criminal Court conrmed the existence of a non-international armed
conict in northern Nigeria between the security forces of Nigeria and Boko Haram. Key factors in that
determination were the nature and intensity of the armed violence, its protracted nature, and the level of
organization of Boko Haram as an armed group.
b
a
See the International Commiee of the Red Cross casebook on non-international armed conict. Available at
hps://casebook.icrc.org/glossary/non-international-armed-conict.
b
A/HRC/30/67, para. 19; International Commiee of the Red Cross, Annual Report 2013, vol. I (Geneva, 2014),
p.183; and International Criminal Court, Oce of the Prosecutor, “Report on preliminary examination activities 2013”
(November 2013), para. 218.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
While international humanitarian law is understood to provide an inherent power to detain
individuals during armed conicts, the treaty rules of international humanitarian law applicable to
non-international armed conicts do not dene grounds and procedures for internment
(administrative detention). Such grounds and procedures need to be dened elsewhere, normally in
national law. International humanitarian law provides important rules about the conditions of
detention and treatment of detainees.
Common article 3 to the Geneva Conventions provides protections for persons not participating or
no longer participating in hostilities, including as the result of detention in non-international armed
conict. is applies to any form of detention related to armed conict and requires humane treatment
without any adverse distinction. Examples of prohibited behaviour are violence to life and person,
cruel treatment and torture, and outrages upon personal dignity.
Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims of Non-International Armed Conicts (Protocol II) also contains protections for persons
detained in the context of non-international armed conicts (see arts. 4–6). Its protections cover both
persons being detained in connection with criminal proceedings, and those detained for security
reasons outside criminal prosecution (internment); however, the deprivation of liberty must be for
reasons related to the armed conict.
380
Protocol II only applies where it has been ratied by the State
and its scope is narrower than that of common article 3.
Customary international humanitarian law applicable in non-international armed conicts
supplements the treaty provisions in common article 3 and Protocol II. Customary international
humanitarian law contains a number of elementary rules on the treatment of detainees, conditions of
detention and judicial guarantees.
381
Regarding the protection of family life, women and children,
customary international humanitarian law requires the following:
• e family life of detained persons must be respected as far as possible. is requires, to the
degree possible, the maintenance of family unity, contact between family members and the
provision of information on the whereabouts of family members.
382
• Except when men and women of the same family are accommodated together, women shall be held
in quarters that are separate from those of men and under the immediate supervision of women.
383
• e specic protection, health and assistance needs of women aected by armed conict must be
respected.
384
is applies also in contexts of detention.
380
Claude Pilloud and others, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August
1949, Yves Sandoz, Christophe Swinarski and Bruno Zimmermann, eds. (Geneva, International Commiee of the Red Cross,
1987), para. 4568.
381
See Jean-Marie Henckaerts, “Study on customary international humanitarian law: a contribution to the understanding and
respect for the rule of law in armed conict”, International Review of the Red Cross, vol. 87, No. 857 (March 2005), in particular
rules 87–105 and 118–128.
382
See Henckaerts, “Study on customary international humanitarian law”, rules 105, 125 and 126.
383
Ibid., rule 119; and Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims of Non-International Armed Conicts (Protocol II), art. 5, paras. 2 (a) and (d).
384
Henckaerts, “Study on customary international humanitarian law”, rule 134.
SUMMARY OF KEY POINTS
• International law prohibits arbitrary deprivation of liberty and dictates that all persons
deprived of their liberty must in all circumstances be treated with due respect for their
human dignity and human rights. This includes deprivation of liberty related to preventing
and countering terrorism.
• Those suspected, accused or convicted of terrorism-related oences have a range of
gender-specic needs and vulnerabilities in contexts where they are imprisoned or deprived
of their liberty. Women in particular are impacted by prison systems that are designed for
men, who comprise the majority of the prison population.
• Women have particular needs in contexts of imprisonment. As such, gender considerations
should inform admission and registration procedures; decisions on allocation, separation
and classication; access to health care; measures for contact with the outside world,
including family visits; access to legal counsel; measures to accommodate pregnant women
and women with children; and selection and training of prison sta.
• Disengagement, rehabilitation and reintegration programmes should take into account
gender-specic needs and experiences of violent extremist prisoners.
• While contexts of imprisonment and deprivation of liberty expose all individuals to a higher
risk of mistreatment and abuse, gender plays a key factor in vulnerability to torture in
these contexts. Taking into account the special protection needs of women deprived of their
liberty is key to safeguarding against torture and ill-treatment. This is particularly important
with respect to: security and disciplinary measures; access to health care and hygiene;
personnel and training; and the availability of complaint and oversight mechanisms.
• In some contexts, women are arrested and deprived of their liberty within the criminal
justice system solely as the result of their familial relationship to terrorism suspects in
order to compel suspects to surrender or confess. Such deprivation of liberty may amount
to arbitrary detention, which is a violation of the principle enshrined in international and
regional human rights law that only persons who have committed a crime may be held
criminally responsible for that crime.
• Women are often disadvantaged in accessing alternative measures to imprisonment, which
are generally not designed to meet the specic requirements of women oenders. States
should consider developing and implementing a range of gender-sensitive alternatives for
women oenders applicable at dierent stages of the criminal justice system.
• In some cases, persons associated with terrorist groups are administratively detained
outside the criminal justice system, including for the purposes of “screening” or mandatory
participation in de-radicalization programmes. In other cases, family members of persons
with a perceived association to terrorist groups may be held in camps for internally
displaced persons and subject to limitations on their freedom of movement. Deprivation of
liberty outside the context of criminal proceedings is only permissible under international
human rights law under certain restrictive conditions.
• Where persons associated with a non-State armed group (including those designated as
terrorist groups) are detained in the context of an armed conflict, the international
humanitarian law rules regarding deprivation of liberty become applicable and complement
the rules of international human rights law.
CHAPTER 4. IMPRISONMENT AND OTHER FORMS OF DEPRIVATION OF LIBERTY
While international humanitarian law is understood to provide an inherent power to detain
individuals during armed conicts, the treaty rules of international humanitarian law applicable to
non-international armed conicts do not dene grounds and procedures for internment
(administrative detention). Such grounds and procedures need to be dened elsewhere, normally in
national law. International humanitarian law provides important rules about the conditions of
detention and treatment of detainees.
Common article 3 to the Geneva Conventions provides protections for persons not participating or
no longer participating in hostilities, including as the result of detention in non-international armed
conict. is applies to any form of detention related to armed conict and requires humane treatment
without any adverse distinction. Examples of prohibited behaviour are violence to life and person,
cruel treatment and torture, and outrages upon personal dignity.
Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims of Non-International Armed Conicts (Protocol II) also contains protections for persons
detained in the context of non-international armed conicts (see arts. 4–6). Its protections cover both
persons being detained in connection with criminal proceedings, and those detained for security
reasons outside criminal prosecution (internment); however, the deprivation of liberty must be for
reasons related to the armed conict.
380
Protocol II only applies where it has been ratied by the State
and its scope is narrower than that of common article 3.
Customary international humanitarian law applicable in non-international armed conicts
supplements the treaty provisions in common article 3 and Protocol II. Customary international
humanitarian law contains a number of elementary rules on the treatment of detainees, conditions of
detention and judicial guarantees.
381
Regarding the protection of family life, women and children,
customary international humanitarian law requires the following:
• e family life of detained persons must be respected as far as possible. is requires, to the
degree possible, the maintenance of family unity, contact between family members and the
provision of information on the whereabouts of family members.
382
• Except when men and women of the same family are accommodated together, women shall be held
in quarters that are separate from those of men and under the immediate supervision of women.
383
• e specic protection, health and assistance needs of women aected by armed conict must be
respected.
384
is applies also in contexts of detention.
380
Claude Pilloud and others, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August
1949, Yves Sandoz, Christophe Swinarski and Bruno Zimmermann, eds. (Geneva, International Commiee of the Red Cross,
1987), para. 4568.
381
See Jean-Marie Henckaerts, “Study on customary international humanitarian law: a contribution to the understanding and
respect for the rule of law in armed conict”, International Review of the Red Cross, vol. 87, No. 857 (March 2005), in particular
rules 87–105 and 118–128.
382
See Henckaerts, “Study on customary international humanitarian law”, rules 105, 125 and 126.
383
Ibid., rule 119; and Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims of Non-International Armed Conicts (Protocol II), art. 5, paras. 2 (a) and (d).
384
Henckaerts, “Study on customary international humanitarian law”, rule 134.
SUMMARY OF KEY POINTS
• International law prohibits arbitrary deprivation of liberty and dictates that all persons
deprived of their liberty must in all circumstances be treated with due respect for their
human dignity and human rights. This includes deprivation of liberty related to preventing
and countering terrorism.
• Those suspected, accused or convicted of terrorism-related oences have a range of
gender-specic needs and vulnerabilities in contexts where they are imprisoned or deprived
of their liberty. Women in particular are impacted by prison systems that are designed for
men, who comprise the majority of the prison population.
• Women have particular needs in contexts of imprisonment. As such, gender considerations
should inform admission and registration procedures; decisions on allocation, separation
and classication; access to health care; measures for contact with the outside world,
including family visits; access to legal counsel; measures to accommodate pregnant women
and women with children; and selection and training of prison sta.
• Disengagement, rehabilitation and reintegration programmes should take into account
gender-specic needs and experiences of violent extremist prisoners.
• While contexts of imprisonment and deprivation of liberty expose all individuals to a higher
risk of mistreatment and abuse, gender plays a key factor in vulnerability to torture in
these contexts. Taking into account the special protection needs of women deprived of their
liberty is key to safeguarding against torture and ill-treatment. This is particularly important
with respect to: security and disciplinary measures; access to health care and hygiene;
personnel and training; and the availability of complaint and oversight mechanisms.
• In some contexts, women are arrested and deprived of their liberty within the criminal
justice system solely as the result of their familial relationship to terrorism suspects in
order to compel suspects to surrender or confess. Such deprivation of liberty may amount
to arbitrary detention, which is a violation of the principle enshrined in international and
regional human rights law that only persons who have committed a crime may be held
criminally responsible for that crime.
• Women are often disadvantaged in accessing alternative measures to imprisonment, which
are generally not designed to meet the specic requirements of women oenders. States
should consider developing and implementing a range of gender-sensitive alternatives for
women oenders applicable at dierent stages of the criminal justice system.
• In some cases, persons associated with terrorist groups are administratively detained
outside the criminal justice system, including for the purposes of “screening” or mandatory
participation in de-radicalization programmes. In other cases, family members of persons
with a perceived association to terrorist groups may be held in camps for internally
displaced persons and subject to limitations on their freedom of movement. Deprivation of
liberty outside the context of criminal proceedings is only permissible under international
human rights law under certain restrictive conditions.
• Where persons associated with a non-State armed group (including those designated as
terrorist groups) are detained in the context of an armed conflict, the international
humanitarian law rules regarding deprivation of liberty become applicable and complement
the rules of international human rights law.
top: A Yazidi woman who was kidnapped by ISIL and later released
sits in the abandoned building where she lives in Bozan, northen Iraq.
© UNHCR/Andrew McConnell
centre: © AAP/Darren England
CRIMINAL INVESTIGATIONS AND
PROSECUTIONS OF SEXUAL AND
GENDER-BASED VIOLENCE PERPETRATED
BY TERRORIST GROUPS
Terrorist groups engage in many forms of sexual and gender-based violence. e tactical use of this
type of violence by terrorist groups such as ISIL, Boko Haram, Al-Shabaab, Ansar Eddine, the Taliban
and Al-Qaida is documented by reports of the United Nations.
385
e use of sexual and gender-based
violence by terrorist groups includes rape and other forms of sexual assault, forced marriage and forced
abortion. Gender-based violence also includes the iniction of violence against women who do not
conform to rules regarding gender roles that terrorist groups seek to enforce, as well as the use of
violence against men and women accused of homosexuality.
Section A contains an examination of the forms and drivers of sexual and gender-based violence
perpetrated by terrorist groups and the nexus between these forms of violence and tracking in
persons. Section A also highlights States obligations to ensure accountability for sexual and gender-
based violence commied by terrorist groups. Section B includes an examination of the various legal
frameworks through which individual criminal accountability for sexual and gender-based violence
commied by terrorist groups may be achieved, while section C is focused on forms of this type of
violence that can be prosecuted as international crimes under the Rome Statute.
e gender aspects of investigating and prosecuting terrorism cases discussed in chapter 3 apply
across all criminal cases, including those involving sexual and gender-based violence that are
discussed in the present chapter. Section D builds upon the gender-based principles concerning
interviewing and victim and witness protection established in chapter 3, in order to look at issues
specic to the investigation and prosecution of cases involving sexual and gender-based violence. e
chapter concludes with section E, which contains an exploration of the various frameworks for inter-
national cooperation that may be used to more eectively investigate and prosecute sexual crimes
commied by terrorist groups.
385
S/2016/361/Rev.1, para. 21.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
A. Sexual and gender-based violence perpetrated by
terrorist groups
As established in chapter 1, signicant aention in conict and protection responses has been
directed at understanding the drivers of sexual and gender-based violence, including through the
framework of the Women, Peace and Security Agenda. However, international recognition of the
use of sexual and gender-based violence as a tactic of terrorism in many regions of the world is a
more recent development. e reports of the Secretary-General on conict-related sexual violence
arm that:
• Sexual violence is not incidental, but integrally linked with the strategic objectives, ideology and
funding of extremist groups.
• Sexual violence is used to achieve tactical objectives. ose objectives include increasing
recruitment; terrorizing populations into compliance; forcibly displacing persons from strate-
gic areas; generating revenue through human tracking, the slave trade, ransoms and the
control of natural resources; generating intelligence by means of torture; achieving conversion
through forced marriage; and altering the composition of targeted communities. Women and
girls, abducted for sexual slavery purposes, are used as human shields and suicide bombers by
terrorist organizations.
• e use of sexual violence entrenches an ideology based on suppressing women’s rights and
controlling their sexuality and reproduction. In some contexts, women and girls are seen as the
“wages of war”, or as a form of compensation or salary to armed elements.
• Eorts to prevent and address sexual violence are closely aligned with eorts to prevent violent
extremism.
386
In its resolution 2242 (2015), the Security Council urged Member States to strengthen access to
justice for women in conict and post-conict situations, including through the prompt investiga-
tion, prosecution and punishment of perpetrators of sexual and gender-based violence, as well as
reparation for victims as appropriate. e Secretary-General, in his 2016 report on conict-related
sexual violence, underscored the importance of integrating the protection and empowerment of
women into counter-terrorism strategies and formally recognizing victims of sexual violence as
victims of terrorism in order to build counter-narratives and counter-strategies and pave the way for
reparations and redress.
387
> EXAMPLE: THE GOVERNMENT OF IRAQ – UNITED NATIONS JOINT COMMUNIQUÉ ON THE PREVENTION
OF AND RESPONSE TO CONFLICT-RELATED SEXUAL VIOLENCE
In its resolution 1888 (2009), the Security Council established the Oce of the Special Representative
of the Secretary-General on Sexual Violence in Conict. e Oce has a mandate that encompasses
conict-related sexual and gender-based violence commied by terrorists and supports the capacity of
national criminal justice actors to ensure accountability for conict-related sexual violence.
In September 2016, the United Nations – through the Oce of the Special Representative of the Secretary-
General on Sexual Violence in Conict – signed a joint communiqué with the Government of Iraq on the
prevention of and response to conict-related sexual violence, covering six priority areas: legislative and
policy reform; accountability; services and reparations; engaging religious and tribal leaders, civil society
386
S/2015/203 and S/2017/249.
387
S/2016/361/Rev.1, paras. 19 and 21.
CHAPTER 5. CRIMINAL INVESTIGATIONS AND PROSECUTIONS OF SEXUAL AND GENDER-BASED VIOLENCE
and women’s groups; integrating gender considerations into counter-terrorism measures; and awareness-
raising. In particular, the joint communiqué highlighted future areas of cooperation between the United
Nations and the Government of Iraq to:
• Support legislative and policy reform to strengthen protection from and service response for sexual
violence crimes;
• Ensure accountability for sexual violence through strengthening the capacity of national and regional
authorities, including the Kurdistan Genocide Commiee, to document, investigate and prosecute
such crimes, according to applicable national laws.
> FOCUS: GENDER-BASED VIOLENCE
Gender-based violence is a broad concept referring to any harmful act directed against, or which
disproportionately aects, individuals or groups of individuals on the basis of their gender (see the glossary
of the present publication).
a
e Commiee on the Elimination of Discrimination against Women denes gender-based violence
against women as “violence directed against a woman because she is a woman or that aects women
disproportionately”.
b
Examples of gender-based violence include:
• Acts or omissions intended or likely to cause or result in death or physical, sexual, psychological
or economic harm or suering to women, threats of such acts, harassment, coercion and arbitrary
deprivation of liberty;
c
• Violence inicted against women as punishment for transgressing gender norms (including acid
aacks and honour killings);
• e use of women as human shields;
• Violence commied against lesbian, gay, bisexual, transgender and intersex (LGBTI) persons on
the basis of their sexual orientation and gender identity. Such violence falls within the scope of this
term because it targets those seen as defying gender norms;
• Sexual violence, as dened in the glossary, including sexual violence in the form of forced or coerced
sexual exploitation.
Accordingly, while sexual violence is a form of gender-based violence, gender-based violence is a broader
category of crime and may be perpetrated through non-sexual acts, including physical, psychological or
economic harm.
a
OHCHR, “Sexual and gender-based violence in the context of transitional justice” (October 2014).
b
Commiee on the Elimination of Discrimination against Women, general recommendation No. 19 (1992) on
violence against women, para. 6.
c
Commiee on the Elimination of Discrimination against Women, general recommendation No. 35 (2017) on
violence against women, updating general recommendation No. 19, para. 14.
. The nexus between sexual and gender-based violence, terrorism
and tracking
e nexus between tracking and sexual and gender-based violence in the context of the activities of
terrorist groups was recognized in Security Council resolution 2195 (2014), in which the Council
expressed concern that terrorist groups in some regions engage in tracking in persons as a form of
transnational organized crime. In 2015, the rst statement by the President of the Security Council on
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
the subject of tracking in persons armed this nexus, acknowledging that groups such as ISIL and
Boko Haram engage in human tracking, for the purpose of sexual slavery, sexual exploitation and
forced labour, which may contribute to the funding and sustainment of such groups.
388
In its resolution 2331 (2016), the Security Council recognized the connection between tracking
in persons, sexual and gender-based violence, and terrorism, and underscored that tracking of
women and girls by certain terrorist groups constitutes a signicant driver of revenue and recruit-
ment. It also stated that victims of all forms of tracking in persons and of sexual violence commied
by terrorist groups should be classied as victims of terrorism. Pursuant to that nding, the Council
urged all States to ensure that their domestic laws and regulations establish serious criminal oences
sucient to provide the ability to prosecute and penalize in a manner duly reecting the seriousness
of the oence of tracking in persons commied with the purpose of supporting terrorist organiza-
tions or individual terrorists, including through the nancing of and recruitment for the commission
of terrorist acts.
In its resolutions 2331 (2016) and 2388 (2017), the Security Council further condemned acts
of tracking undertaken by ISIL, particularly the sale or trade of persons including the Yazidis and
other minorities, and of other tracking oences and abuses commied by Boko Haram,
Al-Shabaab and the Lord’s Resistance Army for the purposes of sexual slavery, sexual exploitation
and forced labour.
e nexus has likewise been recognized within the global framework combating tracking in
persons. e political declaration on the implementation of the United Nations Global Plan of Action
to Combat Tracking in Persons, adopted in 2017 by the General Assembly in its resolution 72/1,
reinforced the concern of Member States about the practice of tracking in persons by terrorist
groups, involving the coercion of women and girls into marriage or sexual slavery, and men and boys
into forced labour or to act as combatants.
389
. Forms and drivers of sexual and gender-based violence perpetrated
by terrorist groups, and the gendered implications
ere are a multitude of United Nations resolutions and reports documenting the forms of sexual and
gender-based violence that have been observed in particular regions, and by specic terrorist and
violent extremist groups. ese reports have rmly established the use of sexual and gender-based
violence as a tactic of terrorist and violent extremist groups such as ISIL, Boko Haram, Al-Shabaab,
Ansar Eddine, the Taliban, Al-Qaida, Al Qaida in the Islamic Maghreb, and Hay’at Tahrir al-Sham (for-
merly Nusra Front).
390
Documented egregious forms of sexual and gender-based violence include rape
and other forms of sexual assault of women and girls, as well as men and boys; forced marriage, includ-
ing forced child marriage; sexual slavery; forced pregnancy; and forced abortion. Women have also
been victims of gender-based killings, subjected to violence for failing to conform to discriminatory
gender roles, and used as human shields or suicide bombers. Many practices with respect to women
and girls are linked to kidnapping, abductions and tracking of persons for the purpose of sexual slav-
ery, forced marriages and forced labour.
388
S/PRST/2015/25.
389
General Assembly resolution 72/1, para. 21.
390
See, for example, Security Council resolutions 2331 (2016), 2349 (2017), 2379 (2017) and 2388 (2017); see also
S/2016/361/Rev.1, S/2017/249, S/2018/250and A/HRC/28/18.
CHAPTER 5. CRIMINAL INVESTIGATIONS AND PROSECUTIONS OF SEXUAL AND GENDER-BASED VIOLENCE
e drivers behind the use of sexual and gender-based violence are likewise varied. As identied by
the Oce of the Special Representative of the Secretary-General on Sexual Violence in Conict,
prolic drivers include:
• Economic drivers. e use of sexual and gender-based violence comprises a key part of the “political
economy of terrorism”. Such violence is used to generate revenue through the tracking in and
ransoming of women and girls – for example, the use of women and girls in sexual slavery and
enforced prostitution. Women and girls have also been “gied” to ghters in lieu of compensation.
391
• Recruitment drivers. e promise of wives and/or sex slaves has been instrumental to the recruitment
eorts of terror groups, providing incentives for the recruitment of combatants, including younger,
economically marginalized men in conservative societies and foreign terrorist ghters.
392
• Ideological drivers. Sexual slavery is closely linked to the ideology of ISIL.
393
Forced pregnancies of
women in forced marriages have been used to perpetuate the extremist ideology across
generations. ey have also been used to displace certain targeted minorities and to bring about
their physical destruction, including by preventing births.
394
Forced marriages have preceded
forced religious conversions, which are used to spread group ideology.
395
• Strategic drivers. Linked to the ideological drivers, sexual and gender-based violence has been threatened
and used in order to extend territorial control and to vacate strategically important territory.
396
(i) Gendered dimension of sexual and gender-based violence perpetrated by terrorist
groups against women and girls
e use of sexual and gender-based violence is deeply entrenched in gendered norms and stereotypes,
as well as the conception of gendered roles held by the terrorist or violent extremist group. It is a
manifestation of systemic gender-based discrimination against women and other forms of subordina-
tion, as well as of the unequal power relations between women and men reected in public and private
life.
397
It is also oen intrinsically linked to the strategic objectives of terrorist groups and should not be
viewed in isolation, but rather in the broader context of gender inequality, and its political, social and
economic dimensions.
398
is requires specic sensitivity to the heightened vulnerabilities of women
and girls in contexts where gender discrimination is pervasive, and to the obstacles they experience in
accessing justice. For example:
• Sexual and gender-based violence disproportionately aects women and girls, who are oen
targeted as the repositories of cultural identity, the relatives of perceived ghters or the bearers of
future generations who will populate disputed territories.
399
• Sexual and gender-based violence are oen justied by the terrorist group’s conception of the
role of women and girls in society.
400
Such forms of violence are used to inict an ideology
predicated on the suppression of women’s rights, removal of autonomy and control of their
sexuality and reproduction.
391
S/2017/249, para. 8, and S/2016/1090, p. 7.
392
Nelly Lahoud, Empowerment or Subjugation: A Gendered Analysis of ISIL Messaging (UN-Women, 2018), p. 3.
393
S/2016/1090, p. 5; see also Lahoud, Empowerment or Subjugation, pp. 14–16.
394
S/2016/1090, annex, and S/2016/49, para. 27.
395
A/HRC/30/67, paras. 29 and 38.
396
S/2016/1090, p. 5.
397
A/61/122/Add.1, para. 65; see also the Beijing Declaration and Platform for Action.
398
As recognized in general recommendation 35 (2017) of the Commiee on the Elimination of Discrimination against
Women, gender-based violence against women, in particular, “is aected and oen exacerbated by cultural, economic, ideologi-
cal, technological, political, religious, social and environmental factors, as evidenced, among other things, in the contexts of …
violent extremism and terrorism”.
399
S/2016/361/Rev.1, para. 21.
400
A/HRC/30/67, para. 38.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
• Sexual and gender-based violence is oen used to exploit gendered vulnerabilities exacerbated by
the destruction of socioeconomic, family and community structures that oen characterize
conict. For example, displacement spurred by conict also increases the vulnerability of women
and girls to tracking.
• Female sexuality is instrumentalized by terrorist groups, who provide women and girls as wives
and slaves to combatants as “spoils of conict”.
• On the basis of their gender, women and girls are targeted by groups who take them as hostages,
for purposes of ransom and for use in exchanges.
401
• e abduction of women and girls for purposes of sexual slavery or forced domestic labour and
the abduction of men and boys for use as combatants reinforce gender stereotypes.
• e use of dierent forms of sexual and gender-based violence as part of retaliation or punishment
strategies by terrorist groups against communities.
A gender-sensitive approach acknowledges that women and men may be specically targeted in
acts of sexual and gender-based violence for the purposes identied above. Additionally, there are
gender dimensions of outwardly gender-neutral crimes. One example is the use of civilians as human
shields by armed groups, including terrorist groups: as a gender-neutral crime, both men and women
civilians may be used as human shields. However, the use by ISIL of Alawite women as human shields
highlights how gender and religion intersect in the targeting of certain individuals in perpetrating
certain crimes.
While women and girls are disproportionately aected by sexual and gender-based violence
perpetrated by terrorist groups, they are not the sole targets. Sexual and gender-based violence has also
been inicted by terrorist groups against men and boys, and against individuals on the basis of gender
identity and sexual orientation.
(ii) Sexual and gender-based violence against men and boys
In its resolution 2106 (2013), the Security Council noted that sexual violence in armed conict and post-
conict situations disproportionately aects women and girls, while also aecting men and boys. Several
United Nations reports have documented geographically diverse perpetration of premeditated, planned
and systematic conict-related sexual violence against men and boys,
402
and the threat of sexual violence
as a form of torture. Reports indicate that men and boys have been abducted, forcibly recruited for the
purposes of fullling combat roles, and subsequently subjected to sexual and gender-based violence.
403
is type of violence has also been inicted against men and boys from targeted populations.
404
Sexual and gender-based violence targeting men and boys also carries gendered implications,
although these generally dier from those aecting women. In men, it is oen used as a tool of
subjugation, for the purposes of evoking feelings of emasculation, and to reinforce gender norms of
masculinity and femininity. Likewise, sexual and gender-based violence commied against men and
boys may result in gender-specic consequences for victims, such as torture and killings on the basis of
accused homosexuality.
405
e main challenges to determining the scale and scope include: deep stigma,
401
A/HRC/27/60, para. 79, and Amnesty International, Our Job Is to Shoot, Slaughter and Kill: Boko Haram’s Reign of Terror
in North-East Nigeria (2015), pp. 5 and 63.
402
See Oce of the Special Representative of the Secretary-General on Sexual Violence in Conict, “Report of workshop on
conict-related sexual violence against men and boys in conict situations, 25–26 July 2013: report and recommendations”; and
Sarah Chynoweth, “We Keep It in Our Heart”: Sexual Violence against Men and Boys in the Syria Crisis (Geneva, Oce of the
United Nations High Commissioner for Refugees, 2017).
403
S/2016/361, para. 43, and S/2017/249, para. 16.
404
Reports indicate that ISIL has used sexual violence against teenage Yazidi boys, and new recruits (Chynoweth, “We Keep It
in Our Heart”, pp. 14–15).
405
Human Rights Watch, World Report 2017, Events of 2016 (New York, 2017), p. 575.
CHAPTER 5. CRIMINAL INVESTIGATIONS AND PROSECUTIONS OF SEXUAL AND GENDER-BASED VIOLENCE
the failure of national legislation in many instances to recognize sexual violence against men and boys as
a crime, the inadequacy of services specically for male victims based on the lack of experience and
awareness of some service-providers, and the lack of access to legal services.
406
Further, when national
laws criminalize homosexuality, male victims of sexual crimes are less likely to report their experiences
to the authorities because of the risk they will be prosecuted and punished for homosexuality.
407
(iii) Forms of gender-based violence perpetrated on the basis of gender identity
and sexual orientation
Terrorists have targeted persons on the basis of their actual or perceived sexual orientation and gender
identity for punishment, including killings.
408
Individuals singled out for such abuse include those
accused of homosexual acts, and those who are victims of so-called “honour” killings, carried out
against individuals seen by family or community members as having brought shame on a family, oen
for transgressing gender norms or for sexual behaviour, including actual or assumed homosexual
conduct.
409
e ideology of ISIL, for example, is grounded on a systematic discrimination against
persons on the basis of gender and gender expression, which has included torturing and killing those
they deem not in conformity with their understanding of gender roles.
410
(iv) Sexual and gender-based violence perpetrated by authorities
Sexual and gender-based violence is also frequently commied by government authorities, State
armed forces and Government-aligned armed groups in counter-terrorism and counter-insurgency
operations. Documented examples include subjecting the wives and female relatives of alleged
members of terrorist groups to collective punishments, including sexual violence, in order to induce
the surrender of actual or perceived suspects, and subjecting women and men to sexual and gender-
based violence during arrest and detention, and at checkpoints.
411
Some reports have established the
systematic sexual torture of men in detention centres. In some cases, female relatives were also arrested
and forced to witness the torture.
412
As mentioned in chapter 4, authorities have also subjected the
relatives and wives of suspected terrorists to collective punishment, arbitrary detention and sexual
violence, including in an eort to coerce male spouses or relatives to surrender to authorities.
413
. Obligation to ensure accountability for sexual and gender-based
violence committed by terrorist groups
States have rm obligations under international law to ensure that individuals belonging to terrorist
groups who commit sexual and gender-based oences are held criminally responsible for those crimes.
ose obligations require States to protect individuals from sexual violence, punish the perpetrators of
such crimes, and provide remedies to victims, as enshrined in Security Council resolutions, and
international human rights and humanitarian law.
414
406
S/2014/181, para. 7, and S/2016/361/Rev.1, para. 7.
407
See also “Report of workshop on sexual violence against men and boys in conict situations”, and Institute for International
Criminal Investigations, “Guidelines for investigating conict-related sexual and gender-based violence against men and boys”
(e Hague, 2016).
408
A/HRC/29/23, para. 29, and CRC/C/IRQ/CO/2-4, paras. 27–28.
409
A/HRC/29/23, paras. 29–30.
410
A/HRC/35/23, para. 47.
411
S/2017/249, paras. 9, 12, 56 and 62.
412
S/2016/361, para. 68.
413
S/2017/249, para. 56.
414
See also S/2009/362, para. 5.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
One challenge in meeting those obligations is that domestic counter-terrorism legislation oen fails
to recognize deliberate acts of sexual and gender-based violence used by terrorist organizations as a
method and means of terrorism. As highlighted by the Special Rapporteur on the promotion and
protection of human rights and fundamental freedoms while countering terrorism, this means in
practice that those victims of terrorism are ignored, stigmatized and marginalized, excluding them
from the redress and support recognized as vital for victims of terrorism.
415
Sexual and gender-based crimes commied by terrorist groups should not be seen as ancillary or
incidental to terrorism crimes, but in the context of the overall criminality of terrorist groups.
Accordingly, in his 2017 report on women and peace and security, the Secretary-General called upon
national justice systems to investigate and prosecute such crimes consistent with international
standards and in compliance with the principles of non-discrimination. Moreover, in the prosecution
of members of terrorist and violent extremist groups, “consideration must be given to the gender-
related nature of crimes” and indeed the full body of international criminal law, including crimes
against humanity and genocide, and “not be limited to only the terrorist crimes themselves ”.
416
> FOCUS: SECURITY COUNCIL RESOLUTIONS CALLING FOR STATES TO ENSURE ACCOUNTABILITY
FOR ACTS OF SEXUAL AND GENDER-BASED VIOLENCE
rough the Women, Peace and Security Agenda:
• In its resolution 1325 (2000), the Security Council called on States to fully implement international
humanitarian and human rights law to protect the rights of women and girls during and aer
c onicts, and to take special measures to protect women and girls from gender-based violence.
• In its resolutions 1820 (2008), 1888 (2009), 1889 (2009) and 2122 (2013), as well as in its
re solution 1325 (2000), the Council emphasized that it is the responsibility of all States to end
impunity for sexual and gender-based violence and to investigate and prosecute those responsible
for violence against women in armed conict, including sexual violence and including those
responsible for genocide, crimes against humanity and war crimes.
Sexual and gender-based violence connected to the activities of terrorist groups:
• In its resolution 2242 (2015), the Security Council recognized the use of sexual and gender-based
violence as a tactic of terrorism and urged States to strengthen access to justice for women, including
through the prompt investigation, prosecution and punishment of perpetrators of such violence.
• In its resolution 2331 (2016), the Council rearmed the responsibility of States to end impunity and
to prosecute those responsible for genocide, crimes against humanity, war crimes and other crimes.
e Council urged States to ensure that domestic legal frameworks enabled the prosecution and
penalization of those responsible for tracking in persons commied with the purpose of supporting
terrorist groups.
• In its resolution 2349 (2017), the Council reiterated the primary responsibility of States under
international law to protect their civilian population, and called for those responsible for sexual and
gender-based violence commied by Boko Haram and ISIL in the Lake Chad Basin region to be
held accountable.
• In its resolution 2379 (2017), the Council condemned the commission of acts by ISIL including
forced marriage, tracking in persons, rape, sexual slavery and other forms of sexual violence, and
established an investigative team to support Iraqi eorts to hold ISIL accountable by collecting
evidence of acts amounting to war crimes, crimes against humanity and genocide.
• In its resolution 2388 (2017), the Council called on States to hold perpetrators of tracking in
persons in armed conict, sexual violence and abductions accountable and emphasized the impor-
tance of collecting and preserving evidence for doing so.
415
A/72/495, para. 29.
416
S/2017/861, para. 61.
CHAPTER 5. CRIMINAL INVESTIGATIONS AND PROSECUTIONS OF SEXUAL AND GENDER-BASED VIOLENCE
(i) Obligation to ensure accountability for sexual and gender-based violence under
international human rights law
As established in chapter 1 of the present publication, States are required under international law to
prevent, investigate, punish and provide reparation for human rights violations by both State and
non-State actors, including terrorist groups.
ose requirements includes the obligations under the Convention on the Elimination of All Forms
of Discrimination against Women to take all appropriate measures to prevent and investigate, prose-
cute, punish and provide reparation for acts or omissions by State and non-State actors, which result in
gender-based violence against women.
417
In addition, specic human rights that may be violated in the
context of the present publication include rights to the following: life, security of the person; health;
non-discrimination, as established in chapter 1, including on the grounds of gender
418
and race;
419
and
equal protection of the law. Forms of sexual and gender-based violence, including rape, may also con-
stitute torture,
420
while other forms of sexual and gender-based violence may also amount to cruel,
inhuman and degrading treatment.
Two key State duties arise in relation to gross violations of international human rights law, namely
the following:
• e duty to investigate human rights violations, which arises from the State duty to protect
human rights and provide an eective remedy for violations. e duty to investigate human rights
violations is also contained in a number of human rights treaties, such as the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (article 12).
421
• e duty to prosecute, which arises from human rights violations constituting crimes under
national or international criminal law. e duty to prosecute is also referred to in the Genocide
Convention (arts. I and IV) and the Convention against Torture (arts. 4 and 7); and the Human
Rights Commiee (general comment No. 31).
> FOCUS: THE UPDATED MODEL STRATEGIES AND PRACTICAL MEASURES ON THE ELIMINATION
OF VIOLENCE AGAINST WOMEN IN THE FIELD OF CRIME PREVENTION AND CRIMINAL JUSTICE
A
e updated Model Strategies and Practical Measures on the Elimination of Violence against Women in
the Field of Crime Prevention and Criminal Justice are underpinned by the notion of State responsibility
to act with due diligence in the prevention, protection and prosecution of all forms of violence against
women in a criminal justice system. According to the Model Strategies, States are responsible for creating
a legal and policy framework in which everyone’s human rights can be enjoyed and exercised, including
protecting women from such violence and treating them with dignity and respect throughout the criminal
justice process as well as ensuring a defendant’s right to a fair trial.
b
417
General recommendation No. 19 (1992) on violence against women, para. 9, and general recommendation No. 35 (2017)
on violence against women, para. 24 (see also article 4, para. (c), of the Declaration on the Elimination of Violence against
Women, which acknowledges a similar obligation).
418
General recommendation No. 35 (2017) on violence against women, para. 1, rearming the relevance of general
recommendation No. 19 (1992) on violence against women, para. 9.
419
Commiee on the Elimination of Racial Discrimination, general recommendation No. 25 (2000) on gender-related
dimensions of racial discrimination, para. 2.
420
See, for example, A/HRC/7/3, para. 34, and E/CN.4/1995/34, para. 19; both the Inter-American Commission of Human
Rights and the European Court of Human Rights have found that rape constitutes torture (see Inter-American Commission of Human
Rights, Raquel Martín de Mejía v. Peru, Case No. 10.970, Report No. 5/96, 1 March 1996, Inter-American Yearbook on Human Rights
1996, pp. 1174–1178, and European Court of Human Rights, Aydin v. Turkey, Judgment of 25 September 1997, sects. 82 and 86).
421
States have the responsibility to exercise due diligence to prevent, investigate, prosecute and punish non-State and private actors, in
line with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, where the State knows or
has reasonable grounds to believe that acts of torture or ill-treatment are being commied by such persons (see, for example, Commiee
against Torture, general comment No. 2 (2007) on the implementation of article 2, para. 18; and A/HRC/7/3, paras. 31–32).
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
Accordingly, Member States are urged to be guided by the overall principle that eective crime prevention
and criminal justice responses to violence against women are human rights-based, manage risk and promote
victim safety and empowerment while ensuring oender accountability.
c
a
General Assembly resolution 65/228, annex.
b
United Nations Oce on Drugs and Crime (UNODC), “Blueprint for action: an implementation plan for criminal
justice systems to prevent and respond to violence against women” in Strengthening Crime Prevention and Criminal Justice
Responses to Violence against Women, part two, sect. A (2014), p. 34.
c
General Assembly resolution 65/228, annex, para. 13 (a).
(ii) Obligation to ensure accountability for sexual and gender-based violence
under international humanitarian law
States also have obligations to ensure accountability for sexual and gender-based violence under
international humanitarian law. In non-international armed conict, the obligations to ensure
accountability for sexual and gender-based violence encompass breaches of common article 3 of the
Geneva Conventions and acts recognized as serious violations of international humanitarian law in
non-international armed conict under customary international law. ose violations are now
typically prosecuted as war crimes. e conduct that States are legally obliged to investigate, prose-
cute and punish varies depending on whether the conict constitutes an international or non-
international armed conict.
As discussed in chapter 4, section G, the present publication addresses only legal norms concerning
non-international armed conicts, given that international armed conicts exclusively concern con-
icts between two or more States (or States and national liberation movements) and generally exclude
situations in which terrorist groups meet the threshold required to be considered a “party” to the
conict.
Acts prosecutable as war crimes in non-international armed conict include violence to life and
person, cruel treatment and torture, and outrages upon personal dignity (common art. 3), as well as
sexual violence, in particular, rape, sexual slavery, enforced prostitution, enforced sterilization and
enforced pregnancy (customary international humanitarian law).
422
Under customary international
humanitarian law, States must investigate war crimes allegedly commied in the course of non-interna-
tional armed conicts by their nationals or armed forces, on their territory (or on territory over which
they have jurisdiction) and, if appropriate, prosecute the suspects.
423
ird-party States may also
prosecute grave violations of international humanitarian law.
424
422
Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, vol. I, Rules (Cambridge,
Cambridge University Press, 2009), rule 156.
423
Ibid., rule 158.
424
Xavier Philippe, “Sanctions for violations of international humanitarian law: the problem of the division of competences
between national authorities and between national and international authorities”, International Review of the Red Cross, vol. 90,
No. 870 (2008), p. 360. “Grave violations” include those specied as grave breaches under the four Geneva Conventions of 1949
(arts. 50, 51, 130 and 147 of Conventions I, II, III and IV, respectively), applicable in international armed conicts, as well as
those specied in the rst Additional Protocol of 1977 (arts. 11 and 85), applicable in non-international armed conicts. ese
denitions of grave breaches are also reected in customary international humanitarian law. e grave breaches specied in
these instruments are reected in the Rome Statute (art. 8, para. 2 (a)) as war crimes in international armed conicts over which
the International Criminal Court has jurisdiction.
> FOCUS: THE UPDATED MODEL STRATEGIES AND PRACTICAL MEASURES ON THE ELIMINATION
OF VIOLENCE AGAINST WOMEN IN THE FIELD OF CRIME PREVENTION AND CRIMINAL JUSTICE
A
(continued)
CHAPTER 5. CRIMINAL INVESTIGATIONS AND PROSECUTIONS OF SEXUAL AND GENDER-BASED VIOLENCE
B. Legal accountability frameworks for sexual and
gender-based crimes and associated tracking
in persons oences committed by terrorist groups
ere is a range of legal frameworks through which, by means of criminal prosecution, States can full
their obligations to ensure accountability for sexual and gender-based crimes commied by terrorist
groups. is section examines prosecuting sexual and gender-based crimes as terrorism oences, as
violations of the domestic general criminal law, as tracking oences, and as international crimes.
. Sexual and gender-based crimes as terrorism oences
In most countries, terrorism-related oences – whether contained in special counter-terrorism
legislation or incorporated into the criminal code – constitute the main avenue to bring terrorists to
justice. Very few domestic counter-terrorism laws, however, explicitly criminalize oences relating to
sexual and gender-based violence. One rare example is the 2015 counter-terrorism law of Tunisia,
which makes it a separate serious oence to commit rape or indecent assault in the course of the
commission of a terrorist oence.
425
Many domestic counter-terrorism laws criminalize aacks on the physical integrity of persons as a
terrorist oence when commied with a terrorist purpose. e French criminal code, for instance,
states that wilful aacks on the physical integrity of the person, abduction and kidnapping shall
constitute acts of terrorism if they are connected with an individual or collective enterprise aimed at
seriously disrupting law and order through intimidation and terror.
426
Similarly, the Prevention of
Terrorism Act of Kenya denes “terrorist act” to include “an act or threat of action which involves the
use of violence against a person” when it is carried out with the aim of causing fear among members of
the public, intimidating or compelling the Government or an international organization to do, or
refrain from any act, destabilizing the institutions of a country.
427
Such provisions, though not specic
to sexual and gender-based violence, could be used to prosecute as terrorist oences some forms of
sexual and gender-based violence that are commied by terrorist groups.
e international conventions and protocols against terrorism dene terrorism-related oences
and oblige States parties to incorporate those oences into domestic criminal law. None of the
19 international treaties against terrorism requires States to criminalize oences related to sexual and
gender-based violence. e International Convention against the Taking of Hostages may be relevant
to some forms of sexual and gender-based violence commied by terrorist groups. It requires State
parties to criminalize hostage-taking and sets out what constitutes such an oence in article 1:
Any person who seizes or detains and threatens to kill, to injure or to continue to detain another
person (hereinaer referred to as the “hostage”) in order to compel a third party, namely, a State, an
international intergovernmental organization, a natural or juridical person, or a group of persons, to
do or abstain from doing any act as an explicit or implicit condition for the release of the hostage
commits the oence of taking of hostages (“hostage-taking”) within the meaning of this Convention.
425
Tunisia, Loi organique No. 2015-26 du 7 août 2015, relative à la lue contre le terrorisme et à la répression du blanchiment
d’argent, art. 29.
426
French Penal Code, article 421-1, as modied by Law No. 2011-266 of 14 March 2011.
427
Kenya, Prevention of Terrorism Act No. 30 of 2012, sect. 2.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
e Secretary-General has noted that sexual violence is integrally linked with the funding of
extremist groups and is used to advance such tactical imperatives as generating revenue through sex
tracking, the slave trade and ransoms.
428
Where the link between sexual and gender-based violence
and the funding of terrorism can be proven, nancing of terrorism oences may provide a tool to bring
those responsible to justice.
According to article 2, paragraph 1, of the International Convention for the Suppression of the
Financing of Terrorism, “any person commits an oence within the meaning of this Convention if that
person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the
intention that they should be used or in the knowledge that they are to be used, in full or in part, in
order to carry out” an act of terrorism, as dened in subparagraphs (a) and (b) of this paragraph.
As stated in article 2, paragraph 3, of the Convention, the funds need not actually be used to carry
out such an oence.
Members of terrorist groups who engage in sexual and gender-based violence (e.g., tracking or
abduction for the purpose of being sold into sexual slavery) as a way of generating revenue in order to
carry out acts as dened in article 2, paragraph 1, may in some circumstances be prosecuted for
oences under the Convention. In cases where terrorist groups nance their activities through prots
from tracking in persons (e.g., through tracking for the purpose of collecting ransoms or selling
them into sexual or other forms of exploitation), the tracking oence may also amount to a
terrorism-related oence under the Convention.
An important provision under the Convention, as under other counter-terrorism treaties and
Security Council resolutions, is that States are required to also make it an oence to:
• Participate as an accomplice
• Organize or direct others to commit such an oence
• Contribute to such an oence commied by a group acting either with a common purpose
aiming to further the criminal purpose of the group, or with the knowledge of the intention of the
group to commit the oence
429
• Incite the commission of an act of terrorism
430
States are therefore required to bring to justice those who, in a leadership position within a terrorist
group, organize or direct the generation of revenue for the group through sexual and gender-based
violence. As discussed below in the present chapter, the obligation to hold criminally responsible
military or civilian superiors who order or fail to prevent oences related to sexual and gender-based
oences commied by their subordinates is a key requirement of international criminal law.
. Sexual and gender-based crimes as violations of general domestic
criminal law
Where sexual and gender-based crimes are not explicitly recognized in domestic counter-terrorism
laws, and are dicult to prosecute under other terrorism oences, States may prosecute these crimes
commied by terrorist groups as an oence under their general domestic criminal law. Relevant
domestic laws may include:
• ose penalizing forms of sexual violence such as rape, sexual assault and grievous bodily harm;
428
S/2015/203, para. 83.
429
See article 2, paragraphs 4–5, of the International Convention for the Suppression of the Financing of Terrorism.
430
Security Council resolution 1624 (2005).
CHAPTER 5. CRIMINAL INVESTIGATIONS AND PROSECUTIONS OF SEXUAL AND GENDER-BASED VIOLENCE
• ose penalizing oences that are more general and which capture gender-based violence or
targeting, such as domestic violence, kidnapping or abduction, or forced labour. In some
jurisdictions, gender-related killings of women and girls are a specic oence, or gender-related
elements are included in the denition of aggravated homicide.
On the one hand, prosecuting sexual and gender-based crimes commied by terrorist groups
through general domestic criminal law may have a number of advantages, including:
• Familiarity of investigators, prosecutors and judges with the elements of the oence and the
means to prove them, and well-established case law reducing legal uncertainty surrounding
the oences;
• No need to prove contextual elements of the oence, such as the sexual and gender-based violence
having been commied for a terrorist purpose or in the context of the actions of a terrorist group,
or the existence of an armed conict (as in the case of war crimes), or of a widespread aack against
a civilian population (as in the case of crimes against humanity);
• Lesser factual and legal complexity may favour more expeditious justice. Prosecuting these
crimes under the general criminal law may be preferable when prosecutions under other serious
crimes (such as tracking) are too complex (e.g., where the constituent elements of tracking
are dicult to prove).
On the other hand, prosecuting sexual and gender-based crimes commied by terrorist groups
through general domestic criminal law may involve a number of challenges:
• Denition and scope of oences under domestic law. In many countries, oences involving sexual
and gender-based violence are dened in more restrictive terms than under international law.
Oences such as rape and indecent assault may be dened narrowly. e denition of rape, in the
statutory law or in the practice of the courts, may fail to take into account the existence of coercive
circumstances in which there has been no freely given consent to sexual intercourse.
431
Other
conduct, such as gender-related killing, may not be fully covered by existing criminal oences.
Some domestic criminal laws focus on rape as the main form of sexual and gender-based violence,
and fail to account for the full scope of sexual violations experienced by victims.
• Criminal procedure. Evidentiary rules in some jurisdictions make successful prosecutions for
these crimes exceedingly dicult. Such rules may also subject victims of sexual and gender-based
violence to further harm (e.g., by permiing examination of prior sexual conduct). Further
obstacles are provisions that exculpate a perpetrator of violence if he subsequently marries the
victim, and a lack of measures to guarantee the privacy, dignity and safety of victims and avoid
secondary victimization when testifying or at other stages of criminal proceedings.
• Recognition of the gravity of the crime. Sexual and gender-based violence may be dened under
general domestic criminal law in a manner that does not capture the gravity of the organized,
sustained and/or tactical acts of such violence commied for terrorist purposes (identied in
section A of the present chapter).
• Limited modes of liability. As reected in the respective international treaties, responsibility for
terrorism and tracking oences and international crimes has been extended to include not only
those who directly participate in or commit the oence, but also those who assist, plan, instigate or
431
States parties to the Convention on the Elimination of All Forms of Discrimination against Women are under an obligation
to harmonize domestic legislation with Convention standards, including the criminalization of all forms of gender-based
violence against women which amount to a violation of their physical, sexual or psychological integrity, and to ensure that the
denition of sexual crimes, including marital and acquaintance or date rape, is based on lack of freely given consent, and takes
account of coercive circumstances (Commiee on the Elimination of Discrimination against Women, general recommendation
No. 35 (2017) on violence against women, para. 29 (e)).
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
order the crime. Liability has also been extended to include those who could have prevented the
crime or punished oenders. However, general domestic criminal law in some jurisdictions restricts
criminal liability to those who physically perpetrate acts of sexual and gender-based violence, so that
those responsible for instigating or ordering large-scale abuses cannot be prosecuted.
• Competence among investigation and prosecution bodies. In legal systems where specialized investi-
gating and prosecuting bodies have exclusive competence for terrorism-related oences, there
may be reluctance on the part of investigators, prosecutors and judges not belonging to these
specialized bodies to take up these cases, even under the general domestic criminal law. Where
these bodies do proceed with such cases, they may lack the capacity to adopt gender-sensitive
approaches to investigations and prosecutions (see section D of the present chapter).
• Limited recognition as victims of terrorism or tracking. Prosecuting acts of sexual and gender-based
violence commied by terrorist groups as a general domestic crime also limits victim access to
the full range of remedies and support available to victims of terrorism or tracking, as the case
may be (see chap. 6).
• International cooperation. Proceedings under the general domestic criminal law may not benet
from the comprehensive frameworks for extradition and mutual legal assistance established by
the international conventions against terrorism and the United Nations Convention against
Transnational Organized Crime (see section E, subsection 2 (ii), of the present chapter). is
may be an important li mitation in contexts where a State is prosecuting cases of sexual and
gender-based violence where the suspects, evidence, victims or witnesses are not located
within the prosecuting State’s jurisdiction. Moreover, the denitions and scope of oences
involving sexual and gender-based violence in domestic general criminal law may dier
substantially between jurisdictions.
> EXAMPLE: DEFINITIONS OF RAPE IN DOMESTIC LAW IN NIGERIA
Denitions of rape under many domestic laws are limited in scope, focusing on proof of penetration,
requiring use of force or violence, or a lack of consent, or excluding marital rape.
a
For example, prior to 2015, the scope of existing laws criminalizing rape in Nigeria were restricted to
protect only females in relation to vaginal penetration without consent or in circumstances that preclude
meaningful consent.
b
Further, both the Penal Code (which applies in northern Nigeria, including the
north-eastern states where Boko Haram has been the most active) and the Criminal Code (applicable
to the southern states) preclude the application of this oence to sexual intercourse between a man and
his wife.
c
e Violence against Persons (Prohibition) Act, 2015 (applicable in the Federal Capital Territory, Abuja)
expands this denition, bringing it more into line with international standards. It broadens the denition
and expands the scope of the oence of rape to protect male victims and to include anal and oral penetra-
tion with any part of the body or with an object.
d
It also contains provisions to protect the identity of
rape victims, grant protection orders and compensation for victims of violence (sects. 28 and 30 of the
Act). Notably, section 1(3) extends liability to those who incite, aid, abet or counsel another person to
commit rape.
a
See also Handbook for Legislation on Violence against Women (United Nations publication, Sales No. E.10.IV.2),
pp. 24–25.
b
See Nigeria, Criminal Code Act (Chapter C38), chap. 30, sect. 357, and Penal Code (Northern States) Federal
Provisions Act (No. 25 of 1960), chap. XVIII, sect. 282.
c
Nigeria, Criminal Code Act (Chapter C38), chap. 1, sect. 6, and Penal Code (Northern States) Federal Provisions Act
(No. 25 of 1960), chap. XVIII, sect. 282 (2). Under the Penal Code, sexual intercourse between a man and his wife does
not amount to rape if she has aained the age of puberty.
d
Nigeria, Violence against Persons (Prohibition) Act, 2015, sect. 1.
CHAPTER 5. CRIMINAL INVESTIGATIONS AND PROSECUTIONS OF SEXUAL AND GENDER-BASED VIOLENCE
. Sexual and gender-based crimes as tracking oences
Sexual and gender-based crimes may also be prosecuted as tracking oences in cases where the
nexus between these crimes and tracking exists, and where States parties to the Protocol to Prevent,
Suppress and Punish Tracking in Persons, Especially Women and Children, supplementing the
United Nations Convention against Transnational Organized Crime, have adopted legislation
criminalizing tracking in persons in line with their treaty obligations.
e Tracking in Persons Protocol establishes State obligations to prevent, investigate and
prosecute tracking in persons oences, and to ensure victim protection and assistance. e Protocol
pr ovides an internationally agreed denition of “tracking in persons”, which includes all three of the
following elements (in art. 3):
• An action (recruitment, transportation, transfer, harbouring or receipt of persons)
• e use of certain means (the threat or use of force or other forms of coercion, of abduction, of
fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or
r eceiving of payments or benets to achieve the consent of a person having control over
another person)
• An exploitative purpose
States parties to the Tracking in Persons Protocol are required to criminalize tracking in their
domestic legal systems. Pursuant to its parent instrument, the Organized Crime Convention, incorpo-
ration of tracking as a domestic oence is to be independent of its transnational nature or the
in volvement of an organized criminal group.
432
e Tracking in Persons Protocol requires States parties to criminalize conduct beyond direct
participation in tracking in persons. Notably, article 5 requires States parties to adopt such legislative
and other measures as may be necessary to establish as criminal oences:
• e conduct established in article 3 (including the recruitment, transportation, transfer, har-
bouring or receipt of persons for the means and exploitative purpose dened in article 3) (art. 5,
para. 1)
• Aempts to commit such oences as established in article 5, paragraph 1
• Participating as an accomplice in an offence established in accordance with article 5,
paragraph 1
• Organizing or directing other persons to commit an oence established in accordance with
a rticle 5, paragraph 1
States parties are further required to adopt or strengthen legislative or other measures to discourage
the demand that fosters all forms of exploitation of persons, especially women and children, that leads
to tracking (art. 9).
e activities of terrorist groups may, in some contexts, have strong links to tracking in persons,
and some dimensions of exploitative acts commied by terrorist groups may amount to exploitation
under the Tracking in Persons Protocol.
432
See article 34, paragraph 2, of the Organized Crime Convention, in conjunction with article 1,paragraph 3, of the Protocol
to Prevent, Suppress and Punish Tracking in Persons, Especially Women and Children.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
> EXAMPLE: THE STORY OF AMINA (NOT HER REAL NAME)
a
e following experience of a woman from Kenya, as told to researchers of women and violent extremism
in Kenya, provides an example of the links between the association of women with terrorist groups, sexual
and gender-based violence, and tracking in persons:
“One day, my husband suddenly le for Somalia and I have never seen him again. Aer he le, some
of his friends tried to convince me to join him, saying I would get a job if I went. So I decided to go
to Somalia to join him and work. I le my six children behind with my family. Unfortunately, I did
not meet up with him. When I got to Somalia, I was held as a prisoner in a dark room and repeatedly
s exually abused by up to six masked men. We were all forced to use drugs by Al-Shabaab.
“My job at the Al-Shabaab camp was to cook, wash clothes and have sexual intercourse with the
ghters. I was beaten whenever the ghters did not like something I cooked. e ghters would
threaten to kill you if you ever refused to have sex with them. Sometimes the men who sexually
abused me used condoms and other times they did not. I never became pregnant while there because
I was given contraceptives. But other women who became pregnant were given something to cause
an abortion.
“Some other women were taught to use weapons but this was dependent on your physique. ere were
a few women in the camp who were leaders. ese women were brutal. ey would beat us and give
orders. Most of the women in my camp were Somali but I do not know how many. Women who were
captives were very rarely allowed to interact with one another. I used leaves for sanitary towels. I secretly
escaped one day and hid in the forest for nine days until I found a boat to Lamu and then a li home.
When I arrived home, my family was very happy to see me because they thought I had died. I was very
ill as I had contracted HIV while in the camp and had several bruises from the beatings I had endured.
I had to be taken to the hospital.
“I have not communicated with any of the people from my camp since then. The militants do
not know where I am. Life after being in Somalia has not been easy. I take treatment for HIV
and tuberculosis, and have serious problems with my memory. I try to work doing odd jobs, like
washing people’s clothes, when I can but because I am often ill, I cannot always work, and rely
on my brothers. Nowadays, I live with my children and my sister’s three children in a rented place.
I cry constantly and live in fear that Al-Shabaab will come looking for me. I would never consider
recruiting people to join the group. I instead like to join groups to help educate people about
Al-Shabaab. I have not seen any government initiatives in the community but I rely on good
Samaritans and non-governmental organizations for assistance and counselling but these have
been too short-term to help. I think the Government should not use force in dealing with violent
extremism. A softer approach is preferable. I am not aware of the government amnesty programme.
I think there is also no point in the Government pursuing the returnees, as it puts them in a
difficult position.
“Returnee women need to be heard. More should be done to raise awareness in communities to prevent
people from joining Al-Shabaab and the Government should also help people returning from Somalia
to set up businesses.”
a
Irene Ndung’u, Uyo Salifu and Romi Sigsworth, Violent Extremism in Kenya: Why Women Are a Priority, Monograph
No. 197 (n.p., Institute for Security Studies, 2017), pp. 42–43.
Where States have adopted legislation criminalizing tracking in persons in line with their obliga-
tions under the Tracking in Persons Protocol, forms of exploitation reected in domestic denitions
of tracking, such as exploitation to commit criminal activities, could be used to prosecute terrorist
groups that engage in tracking in persons. Whether tracking oences can be applied to the activi-
ties of terrorist groups will depend on if and how the State in question has incorporated the Protocol
provisions in its domestic laws, and the activities of the terrorist group in question. For example, the
CHAPTER 5. CRIMINAL INVESTIGATIONS AND PROSECUTIONS OF SEXUAL AND GENDER-BASED VIOLENCE
legislation of some States may apply only to certain categories of victim (such as women and children)
or to specic types of exploitation. Some jurisdictions have adopted more restrictive or expansive
approaches compared with the Protocol.
433
In its resolution 2388 (2017), the Security Council called upon Member States to review, amend
and implement anti-tracking and related legislation to ensure that all forms of tracking in persons,
including when it is commied in situations of armed conict or by armed and terrorist groups are
addressed, and to consider establishing jurisdiction to end the impunity of oenders in line with
article15 of the Organized Crime Convention.
> EXAMPLE: RECOGNIZING THE NEXUS BETWEEN TRAFFICKING IN PERSONS AND TERRORIST ACTIVITY
IN NATIONAL LEGISLATION
Under Law No. 164 of Lebanon, on the Punishment for the Crime of Tracking in Persons of 2011,
forcing or compelling a person’s involvement in terrorist acts, sexual exploitation, and slavery (or practices
that resemble slavery), among others, are considered to be a form of exploitation for the purposes of
tracking (art. 586.1).
In Tajikistan, under its 2004 Law on the Fight Against Human Tracking, the Ministry of the Interior is
tasked, in cooperation with its territorial oces, with examining the connection between human tracking,
terrorist organizations and organized criminal groups as means through which to prevent and suppress
tracking crimes (art. 8(2)).
. Sexual and gender-based crimes as oences under international
criminal law
Sexual and gender-based violence by terrorist groups may give rise to individual criminal r esponsibility
as war crimes, crimes against humanity or acts of genocide. State obligations to guarantee accountabil-
ity for these crimes derives from several sources of international law. e Rome Statute of the
International Criminal Court is the most recent and progressive instrument dening international
crimes, and many forms of sexual and gender-based violence fall within the scope of the Rome Statute
oences of war crimes, crimes against humanity and genocide. Section C of the present chapter pro-
vides a discussion of dierent ways in which jurisdiction over crimes contained in the Rome Statute
can be exercised and of the components of those crimes. e present subsection provides an overview
of sources of international criminal law relevant to crimes involving sexual and gender-based violence
other than the Rome Statute.
(i) Sexual and gender-based violence as a war crime
Rape and other forms of sexual violence commied in the context of international and non-
international armed conict constitute violations of international humanitarian law, provided that
such acts have a requisite nexus to an armed conict. e Geneva Conventions of 1949 do not contain
any s pecic reference to sexual violence. However, the Protocol additional to the Geneva Conventions
of 12 August 1949 (Protocol II), which applies exclusively to non-international armed conicts,
proscribes outrages upon personal dignity, in particular, humiliating and degrading treatment, rape,
433
Where sexual and gender-based crimes are prosecuted as tracking oences, factors such as the gender of the victim,
pregnancy and the use of sexual violence may be taken into account as aggravating circumstances in the determination of penal-
ties (see, for example, directive 2011/36/EU of the European Parliament and of the Council of the European Union on prevent-
ing and combating tracking in human beings and protecting its victims, para. 12).
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
enforced prostitution and any form of indecent assault for those persons who are no longer participat-
ing in hostilities, by choice or circumstance (persons hors de combat, or “outside the ght”), without
distinction between women and men.
434
Accordingly, the reference in common article 3 of the Geneva
Conventions to outrages upon personal dignity, in particular, humiliating and degrading treatment has
been interpreted to include sexual crimes. e conduct constituting sexual crimes has largely been
developed through statutes and jurisprudence of international criminal tribunals, and international
human rights law.
435
Sexual violence against civilians and persons hors de combat is also prohibited under customary
international humanitarian law in both international and non-international armed conicts. is
prohibition applies to women, girls, boys and men, and includes torture and cruel, inhuman or
degrading treatment, rape and other forms of sexual violence, and slavery and slave trade.
436
As discussed in chapter 1, international humanitarian law binds all parties to an armed conict, and
therefore binds non-State actors that meet the threshold denition of parties to an armed conict.
International humanitarian law also provides that persons can be held individually criminally
re sponsible for grave breaches of the Geneva Conventions, and for serious violations of international
humanitarian law, both in international and non-international armed conicts.
437
(ii) Sexual and gender-based violence as an act of genocide
e Genocide Convention obliges States parties to enact legislation to provide eective penalties for
persons guilty of genocide,
438
and to try individuals charged with acts of genocide before a competent
tribunal of the State in the territory where the acts were commied, or ensure that it is done by an
international tribunal.
439
However, that obligation is now recognized to extend beyond the States
pa rties to the Convention, as a specic obligation towards the international community as a whole
(aso-called erga omnes obligation on all States).
440
e denition of genocide in article II of the Genocide Convention includes imposing measures
intended to prevent births within a group, which has been interpreted by the International Criminal
Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of
International Humanitarian Law Commied in the Territory of Rwanda and Rwandan Citizens
Responsible for Genocide and Other Such Violations Commied in the Territory of Neighbouring
States between 1 January and 31 December 1994 to encompass sexual mutilation, sterilization,
forced birth control, separation of the sexes and prohibition of marriage.
441
To prove genocide, the
acts must be commied with the intent to destroy, in whole or in part, a national, ethnic, racial or
religious group, as such.
434
Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
Non-International Armed Conicts (Protocol II), art. 4, para. 2.
435
Gloria Gaggioli, “Sexual violence in armed conicts: a violation of international humanitarian law and human rights law”,
International Review of the Red Cross, vol. 96, No. 894 (2014), pp. 505–510.
436
Henckaerts and Doswald-Beck, Customary International Humanitarian Law, rules 90, 93 and 94.
437
International Commiee of the Red Cross, e Domestic Implementation of International Humanitarian Law: A Manual
(Geneva, 2015), p. 16.
438
Convention on the Prevention and Punishment of the Crime of Genocide, art. V.
439
Ibid., art. VI.
440
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro), Judgment, I.C.J. Reports 2007, para. 162; and Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 1996, para. 31.
441
Prosecutor v. Jean-Paul Akayesu, case No. ICTR-96-4-T, Judgment, International Criminal Tribunal for Rwanda, 2September
1998, para. 507.
CHAPTER 5. CRIMINAL INVESTIGATIONS AND PROSECUTIONS OF SEXUAL AND GENDER-BASED VIOLENCE
> EXAMPLE: VIOLATIONS OF INTERNATIONAL CRIMINAL LAW COMMITTED BY ISIL AGAINST THE YAZIDIS
e Independent International Commission of Inquiry on the Syrian Arab Republic submied a report
to the Human Rights Council in June 2016 on the violations of international criminal law commied by
ISIL against the Yazidis, which established a number of ndings relevant to the present publication.
Elements constituting genocide
• e Yazidis are considered a protected group for the purposes of the Genocide Convention.
• ISIL has commied prohibited acts against the members of the Yazidi group constituting all forms
of genocide specied in the Rome Statute, all of which were found to have a sexual or gender-based
element.
°
e forms of genocide include killing; causing serious bodily or mental harm to members of the
group (including rape and sexual violence, sexual slavery, enslavement, torture and inhuman and
degrading treatment, and forcible transfer); deliberately inicting conditions designed to bring
physical destruction upon the group; imposing measures intended to prevent births; and forcibly
transferring children of the group to another group.
• ese acts were commied with the intent to destroy, in whole or in part, the Yazidis:
°
e serious physical and mental harm caused by the sexual violence commied by ISIL against
the Yazidis is a clear step in the process of destruction of the group: destruction of the spirit, of
the will to live, and of life itself.
a
°
Rape and sexual violence, when commied against women and girls as part of a genocide, is a
crime against a wider protected group, but it is equally a crime commied against a female, as
an individual, on the basis of her sex.
b
Findings in relation to deliberately inicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part
• Yazidi women and girls, captured by ISIL and registered and sold in Iraq and the Syrian Arab
Republic, are subjected to organized sexual violence on a massive scale occurring in the context of
their sexual enslavement. ISIL and its ghters deliberately impose these conditions in a calculated
awareness that such conditions, particularly when inicted continuously over a long period of time,
would cause the deaths of Yazidi women and children.
Findings in relation to measures imposed to prevent births within the group
• Measures intended to prevent births within the group include rape; sexual mutilation; the practice
of sterilization; forced birth control; separation of the sexes; prohibition of marriages; impregnation
of a woman to deprive group identity; and mental trauma resulting in a reluctance to procreate.
c
Crimes against humanity
• In its killing of Yazidi men, women and children, ISIL has commied the crime against humanity
of murder and extermination. In its sexual enslavement, enslavement and beating of Yazidi women
and girls, ISIL has commied the crimes against humanity of sexual slavery, rape, sexual violence,
enslavement, torture, other inhumane acts and severe deprivation of liberty.
d
• ese crimes were commied against the Yazidis on discriminatory grounds on the basis of their
religion, and as such they can be considered to amount to the crime against humanity of persecution.
e
a
See, for example, Prosecutor v. Jean-Paul Akayesu, case No. ICTR-96-4-T, Judgment, International Criminal Tribunal
for Rwanda, 2 September 1998, para. 732; see also Catharine A. MacKinnon, “Rape, genocide, and women’s human
rights”, Harvard Women’s Law Journal, No. 17 (1994), pp.11–12, which reads, in part, “It is a rape to drive a wedge through
a community, to shaer a society, to destroy a people. It is rape as genocide.”
b
See, for example, Beth Van Schaak, “Engendering genocide: the Akayesu case before the International Criminal
Tribunal for Rwanda”, Legal Studies Research Paper Series, Working Paper No. 08-55 (Santa Clara, California, Santa Clara
University School of Law, July 2008); and Sherrie L. Russell-Brown, “Rape as an act of genocide”, Berkeley Journal of
International Law, vol. 21, No. 2 (2003).
c
See, for example, Prosecutor v. Jean-Paul Akayesu, paras. 507–508; see also Prosecutor v. George Rutaganda, case
No. ICTR-96-3, Judgment and Sentence, International Criminal Tribunal for Rwanda, 6 December 1999, para. 53.
d
See, for example, Prosecutor v. Duško Tadić, case No. IT-94-1-T, Opinion and Judgment of the International Tribunal
for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Commied in the
Territory of the Former Yugoslavia since 1991, 7 May 1997, paras. 704–710; and Prosecutor v. Kupreškić, case No. IT-95-
16-T, Judgment, 14 January 2000, para. 594.
e
See, for example, Prosecutor v. Duško Tadić, paras. 704–710; and Prosecutor v. Kupreškić, para. 594.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
(iii) Sexual and gender-based violence as a crime against humanity
ere is no comparable treaty listing conduct constituting a crime against humanity. e
International Law Commission completed a set of dra treaty articles on crimes against humanity
in June 2017.
442
C. Sexual and gender-based violence as international
crimes under the Rome Statute
. Exercising jurisdiction over sexual and gender-based crimes under
the Rome Statute
e obligations deriving from the Rome Statute of the International Criminal Court regarding the
criminalization, investigation and prosecution of sexual and gender-based violence as war crimes,
crimes against humanity and acts of genocide explained in this section, bind the States parties to the
Rome Statute (which currently number 123) in two ways. First, the denitions of international crimes
contained in the Rome Statute are considered to represent current international criminal law. Second,
a situation that involves a State that is not party to the Rome Statute may be referred by the Security
Council to the International Criminal Court.
e Rome Statute does not create the State obligations to investigate and, where sucient evidence
exists, to prosecute the person allegedly responsible for crimes under international law. As stated in the
Preamble of the Rome Statute, there is a pre-existing primary duty of every State to exercise its criminal
jurisdiction over those responsible for international crimes.
443
Accordingly:
• States parties to the Rome Statute must ensure that they have in place domestic legislation to
enable domestic courts to exercise jurisdiction over war crimes, crimes against humanity and
acts of genocide, in accordance with their international obligations. In addition to subordinate
documents, such as Elements of Crimes, that further dene the oences, the Rome Statute
provides important guidance on the scope and elements of international crimes under current
in ternational law.
• In addition to enacting legislation criminalizing the conduct proscribed as war crimes, crimes
against humanity and acts of genocide under the Rome Statute, it is important that States parties
incorporate other general legal principles established by the Statute, such as excluding the avail-
ability of certain defences (e.g., as superior orders) and enabling courts to hold military
commanders and non-military superiors accountable under appropriate circumstances (see
s ection D, subsection 2 (iii), of the present chapter).
• States parties should also adopt or amend internal legislation to enable their courts to exercise
universal jurisdiction over serious crimes under international law, including extraterritorially,
where required by international law, and comply with any obligations to institute criminal
proceedings where persons present on their territory are suspected of having commied such
crimes (see also section E of the present chapter).
e subject-maer jurisdiction of the International Criminal Court is currently restricted to war
crimes, crimes against humanity and genocide (art. 5 of the Rome Statute) commied aer 1 July 2002
or aer the State with jurisdiction has ratied the Rome Statute (art. 11). us, acts of sexual and
442
A/CN.4/L.892 and A/CN.4/L.892/Add.1
443
Rome Statute, sixth preambular paragraph.
CHAPTER 5. CRIMINAL INVESTIGATIONS AND PROSECUTIONS OF SEXUAL AND GENDER-BASED VIOLENCE
gender-based violence commied by terrorist groups may be prosecuted by the International Criminal
Court if they constitute a war crime, crime against humanity, or an act of genocide as dened by the
Rome Statute, and if other preconditions for admissibility are met, including the complementarity
principle discussed in the next paragraph. e Rome Statute articulates three avenues – State party
referral, Security Council referral, or Prosecutor-initiated investigation – by which the International
Criminal Court may have jurisdiction over an international crime (art. 13).
e Rome Statute, however, establishes the International Criminal Court as a court of last resort
in order to enforce State obligations to achieve individual criminal accountability for international
crimes. us, the International Criminal Court is complementary to national criminal jurisdictions
(art. 1), and may exercise jurisdiction only under certain circumstances. States continue to have a
duty under international law to establish and exercise their criminal jurisdiction over acts that consti-
tute a war crime, crime against humanity or genocide. e International Criminal Court is only com-
petent when the State with jurisdiction over the subject conduct is inactive, unwilling or unable to
investigate and/or prosecute it (art. 17, paras. 1 (a)–(b), of the Rome Statute). If the State is willing
and able to investigate and/or prosecute the case, it would be inadmissible before the International
Criminal Court.
Note that the Rome Statute does not require the State with jurisdiction to prosecute the conduct as
a war crime, a crime against humanity or an act of genocide. Investigation and prosecution as a
d omestic oence is sucient, as long as none of the factors suggesting a lack of genuine intent to bring
the person to justice is present (art. 17, para. 2).
. Prosecuting sexual and gender-based violence under the Rome Statute
ree constituent components of each crime must be proved in order to successfully prosecute an
individual for sexual and gender-based violence commied as a war crime, crime against humanity or
genocide, which will be addressed in this section:
• Specic elements of the crime (acts constituting crimes include rape, sexual slavery and forced
pregnancy). is section will consider both specic sexual and gender-based crimes, and other
crimes which are prima facie gender-neutral, but can be commied through acts of sexual and
gender-based violence.
• Common elements of the category of crime. Such elements may include contextual elements that
demonstrate that the crime constitutes a war crime, crime against humanity or genocide.
• Modes of liability that demonstrate how an individual took part in the conduct and is criminally
responsible for a crime under international law. For example, direct perpetration, the ordering of
the commission of the crime, or the failure to prevent the crime as a supervisor.
444
(i) Relevant sexual and gender-based crimes
a. Sexual and gender-based crimes
e Rome Statute designates a number of sexual and gender-based crimes as underlying acts of war
crimes, crimes against humanity or genocide (see table 4).
444
International Protocol on the Documentation and Investigation of Sexual Violence in Conict, p. 43.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
Table 4. Sexual and gender-based oences constituting underlying acts of war crimes, crimes against
humanity or genocide
WAR CRIMES (APPLICABLE TO
NON-INTERNATIONAL ARMED
CONFLICTS)
CRIMES AGAINST HUMANITY GENOCIDE
Relevant criminal
conduct
Acts committed in the context of
and associated with an armed
conflict (art. 8)
Acts committed as part of a
widespread or systematic
attack directed against any
civilian population, with
knowledge of the attack (art. 7)
Acts committed with the
intent to destroy, in whole
or in part, a national,
ethnic, racial or religious
group (art.6)
Is a nexus to an armed
conflict required?
Yes No No
Charges within the
scope of the crime that
involve acts of sexual
and gender-based
violence
Rape, sexual slavery, enforced
prostitution, forced pregnancy,
enforced sterilization, other
forms of sexual violence
constituting a serious violation
of common article 3 of the four
Geneva Conventions (art. 8,
para. 2 (e) (vi))
Rape, sexual slavery, enforced
prostitution, forced pregnancy,
enforced sterilization, any
other form of sexual violence of
comparable gravity (art. 7,
para. 1 (g))
Imposing measures to
prevent births within the
group (art. 6, para. (d))
• e Rome Statute employs gender-neutral denitions of rape and other forms of sexual
violence,
445
meaning that – with the exception of forced pregnancy – women, men, girls and boys
may be considered equally as possible victims and perpetrators of these crimes.
• e Rome Statute does not explicitly include forced marriage as a crime within the jurisdiction of
the International Criminal Court. While earlier pretrial chamber jurisprudence of the
International Criminal Court suggested that forced marriage may be subsumed by the charge of
sexual slavery, more recently it has found that forcing another person to serve as a conjugal part-
ner may be considered as a crime against humanity under the category of “other inhumane acts”
(art. 7, para. 1 (k)) of a character similar to the acts established in article 7, paragraph 1,
intentionally causing great suering or serious injury to body or to mental or physical health.
446
b. Other crimes that may be perpetrated with a sexual and/or gender element
Crimes that are not explicitly sexual and gender-based crimes may also be perpetrated using sexual
violence or perpetrated on the basis of gender (see table 5).
Table 5. Other forms of war crimes, crimes against humanity, or genocide that may be perpetrated using
sexual violence or on the basis of gender
WAR CRIMES (APPLICABLE TO
NON-INTERNATIONAL ARMED
CONFLICTS)
CRIMES AGAINST HUMANITY GENOCIDE
• Violence to life and person,
including murder, cruel treatment
and torture (art. 8, para. 2 (c)(i))
• Murder (art. 7, para. 1 (a)) • Killing members of the group
(art. 6, para. (a))
445
See, for example, International Criminal Court, Trial Chamber III, Prosecutor v. Jean-Pierre Bemba Gombo, case No. ICC-
01/05-01/08-3343, Judgment pursuant to article 74 of the Statute, 21 March 2016, para. 100; and International Criminal Court,
Elements of Crimes (e Hague, 2011), p. 28, footnote 50.
446
International Criminal Court, Pre-Trial Chamber II, Prosecutor v. Dominic Ongwen, case No. ICC-02/04-01/15-422-Red,
decision on the conrmation of charges against Dominic Ongwen, 23 March 2016, para. 91.
CHAPTER 5. CRIMINAL INVESTIGATIONS AND PROSECUTIONS OF SEXUAL AND GENDER-BASED VIOLENCE
WAR CRIMES (APPLICABLE TO
NON-INTERNATIONAL ARMED
CONFLICTS)
CRIMES AGAINST HUMANITY GENOCIDE
• Outrages on personal dignity,
including humiliating or degrading
treatment (art. 8, para. 2 (c)(ii))
• Torture (art. 7, para. 1 (f)) • Causing serious bodily or mental
harm (art. 6, para. (b))
a
• Taking of hostages (art. 8,
para. 2 (c)(iii))
• Persecution (art. 7, para. 1 (h)) • Deliberately inflicting on the
group conditions of life calculated
to bring about its physical
destruction in whole or in part
(art. 6, para. (c))
• Intentionally directing attacks
against the civilian population
(art. 8, para. 2 (e)(i))
• Other inhumane acts (art. 7,
para. 1 (k))
• Enslavement (art. 7, para. 1 (c))
• Imprisonment (art. 7, para. 1 (e))
a
Conduct constituting “serious bodily or mental harm” for the purpose of article 6, para. (b), may include, but is not
necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment (Elements of Crimes), footnote 3.
• Rape may amount to a form of torture.
447
• Abductions of women and men (which may, for example, fall within the scope of enslavement,
sexual slavery, imprisonment or hostage-taking) may be commied with gendered dimensions
where one sex is being targeted for a specic purpose. is may be the case where women are
abducted in order to provide forced domestic labour, for the purposes of sexual slavery, to be used
as human shields, or when boys and men are abducted for use as combatants in terrorist groups.
• Sex-selective killings may also be construed as gender-based violence, for example, when men of
ghting age are targeted.
• e acts discussed above may also constitute the crime against humanity of persecution when car-
ried out in a manner that targets persons on political, racial, national, ethnic, cultural, religious, gen-
der or other grounds. For example, the International Tribunal for the Former Yugoslavia found that
cruel or inhumane treatment, including rape
448
and sexual violence (e.g., forced assaults by family
members against each other)
449
constituted persecution. e International Tribunal also found that
the following acts infringe upon fundamental rights and all fall within the scope of persecution: the
right to life, liberty and security of person, as well as the right to not be held in slavery or servitude,
or subjected to torture, or to cruel, inhuman or degrading
treatment or punishment.
450
e crime against humanity of persecution on the grounds of gender may be particularly important for
achieving accountability where persons are targeted on the basis of their gender. As armed by the
International Criminal Court in the Oce of the Prosecutor’s 2014 policy paper on sexual and gender-based
crimes, the crime against humanity of persecution will help confront the issue of impunity for systematic
persecutions on the basis of gender or “other grounds” that are universally recognized as impermissible
under international law. Investigations into sexual and gender-based crimes undertaken by the Oce of the
Prosecutor will take into consideration various indicia, “including discriminatory policies, violent acts selec-
tively targeting a particular gender, gender-related propaganda, relevant uerances issued by the direct per-
petrators, elements of an individual suspect’s background, and prior conduct that are indicative of relevant
intent and adverse gender biases” in the response of suspected groups or authorities to the crimes.
451
447
Prosecutor v. Jean-Paul Akayesu, para. 687; and International Tribunal for the Former Yugoslavia, Prosecutor v. Dragoljub
Kunarac, Radomir Kovač and Zoran Vuković, case No. IT-96-23 and IT-96-23/1-A, 12 June 2002, para. 151.
448
International Tribunal for the Former Yugoslavia, Prosecutor v. Krstić, case No. IT-98-33-T, 2 August 2001, paras. 45–46.
449
Ibid., Prosecutor v. Biljana Plavšić, case No. IT-00-39 and 40/1-S, 27 February 2003, para. 29.
450
Ibid., Prosecutor v. omir Blaškić, case No. IT-95-14-T, 3 March 2000, para. 220.
451
International Criminal Court, Oce of the Prosecutor, “Policy paper on sexual and gender-based crimes” (e Hague,
2014), paras. 33 and 67.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
> EXAMPLE: PERSECUTION ON THE GROUNDS OF GENDER BY THE TALIBAN IN AFGHANISTAN
e Oce of the Prosecutor of the International Criminal Court made the following ndings in its
preliminary examination of the situation in Afghanistan:
a
• ere is a reasonable basis to believe that the Taliban and their aliates have commied the crime
against humanity of persecution against any identiable group or collectively on gender grounds.
• In particular, women and girls have been deliberately aacked by the Taliban and their aliates to
prevent them from studying, teaching, working or participating in public aairs, through intimidation,
death threats, abductions and killings.
• e alleged violent acts amounting to the crime against humanity of persecution on gender grounds
have had a particularly broad and severe impact on the lives of women and girls. Girls’ education
has come under sustained aack, thereby depriving thousands of girls of their right of access to
education. Women who were le as sole income providers for their households aer the death or
injury of their husbands experienced long-lasting social and economic consequences, with poverty
forcing many women to give their daughters in marriage in exchange for debts to be forgiven or to
take their children out of school oen to work. Widowed women were oen particularly vulnerable
to other forms of violence and abuse from family and community members.
a
International Criminal Court, Report on Preliminary Examination Activities 2016, paras. 206 and 227, and Report on
Preliminary Examination Activities 2017, para. 248.
(ii) Common elements of the category of crime
To prosecute a sexual or gender-based crime as a war crime, crime against humanity or genocide,
certain contextual elements below also must be proven (see table 6). ese contextual elements are set
forth in the Elements of Crimes.
Table 6. Common elements that must be proved when prosecuting war crimes, crimes against humanity
or genocide
WAR CRIMES The conduct took place in the context of and was associated with an international or
non-international armed conflict
The perpetrator was aware of factual circumstances that established the existence of an
armed conflict
CRIMES AGAINST HUMANITY The crimes were committed as part of a widespread or systematic attack directed against a
civilian population
Acts of sexual and gender-based violence themselves do not have to be widespread or
systematic if committed as part of a widespread or systematic attack
“Attack directed against any civilian population” means a course of conduct involving the
multiple commission of acts referred to in article 7, paragraph 1, of the Rome Statute against
any civilian population, pursuant to or in furtherance of a State or organizational policy to
commit such attack
The perpetrator knew that the conduct was part of or intended the conduct to be part of a
widespread or systematic attack directed against a civilian population
GENOCIDE Commission of an underlying act contained in article 6, with the intent to destroy, in whole
or in part, a national, ethnic, racial or religious group as such
The conduct took place in the context of a manifest pattern of similar conduct directed
against that group or was conduct that could itself eect such destruction
CHAPTER 5. CRIMINAL INVESTIGATIONS AND PROSECUTIONS OF SEXUAL AND GENDER-BASED VIOLENCE
> EXAMPLE: THE INTERNATIONAL CRIMINAL COURT AND PRELIMINARY EXAMINATION OF SEXUAL
AND GENDER-BASED CRIMES IN NIGERIA
Since 2010, the Oce of the Prosecutor of the International Criminal Court has been conducting a
preliminary examination of alleged crimes against humanity and war crimes commied in the context of
the conict between Boko Haram and the Nigerian security forces, principally in north-eastern Nigeria.
In its Report on Preliminary Examination Activities 2015, the Oce of the Prosecutor analysed Boko Haram’s
aacks against women and girls, including (a) abductions, (b) forced marriages, rapes, sexual slavery and
sexual violence, (c) use of women and girls for operational tasks such as suicide aacks, and (d) murders,
in order to assess whether such conduct targeted females because of their sex and/or socially constructed
gender roles, so as to qualify as gender-based crimes.
e situation in Nigeria remains at the preliminary examination stage at the time of publication. e Oce
of the Prosecutor is continuing to assess admissibility on the basis of the ability and willingness of the
State to investigate and prosecute international crimes commied within its jurisdiction.
(iii) Modes of liability
e third component is establishing the so-called “mode of liability”: in other words, the conduct
through which individual criminal responsibility for the crimes above can be aributed to a suspect. In
addition to directly having perpetrated an act of sexual and gender-based violence, this includes having
ordered or solicited the commission of the act of sexual and gender-based violence, or having failed to
prevent the commission of the oence by one’s subordinates. International criminal law places great
emphasis on ensuring accountability not only for the (oen low-level) direct perpetrators of sexual
violence as a war crime or crime against humanity, but also on those who solicit, order or fail to prevent
and punish the commission of these oences by their subordinates. It is worth noting that the interna-
tional conventions and protocols against terrorism also require States to bring to justice not only direct
perpetrators, but also those who participate as accomplices, order or direct the commission of oences,
or contribute to the commission of the oence by a group of persons.
452
e law regarding modes of liability diers across customary international law, the ad hoc interna-
tional criminal courts and tribunals, the International Criminal Court and domestic law. Oen States
may have incorporated international crimes as listed in the Rome Statute into their national legislation,
but not the Rome Statute provisions on modes of liability. Accordingly, national laws on modes of
criminal responsibility generally determine which terrorists may be prosecuted for sexual and gender-
based violence commied as an international crime: these laws vary widely, including dierences
between national laws compared with military laws and practices.
is section provides an overview of the two forms of criminal responsibility recognized by the
Rome Statute: direct individual responsibility, and command or superior responsibility.
453
a. Direct individual responsibility (art. 25)
“Commiing” an act under article 25, paragraph 3 (a), amounts to principal liability, while acts under
article 25, paragraph 3 (b)–(d), amount to accessorial liability.
454
452
International Convention for the Suppression of the Financing of Terrorism (1999), art. 5.
453
See also Women’s Initiatives for Gender Justice, Modes of Liability: A Review of the International Criminal Court’s
Current Jurisprudence and Practice, Expert paper No. 1 (November 2013); and Centre for International Law Research and
Policy, Case Matrix Network, Knowledge Hub, Commentary on the Law of the International Criminal Court, Part 3. Available
at www.casematrixnetwork.org/.
454
International Criminal Court, Pre-Trial Chamber I, e Prosecutor v. omas Lubanga Dyilo, case No. ICC-01/04-01/06,
29 January 2007, paras. 320 and 332; and Barbara Goy, “Individual criminal responsibility before the International Criminal
Court: a comparison with the Ad Hoc Tribunals”, International Criminal Law Review, vol. 12, No. 1 (2012), p. 40.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
A person may be principally liable under article 25, paragraph 3 (a), where they commit a crime
directly (“as an individual”), as a co-perpetrator (“jointly with another”), or indirectly (“through
another person”), regardless of whether that other person is criminally responsible. is form of liabil-
ity may therefore be aributed not only to those who physically carry out an oence as an individual or
jointly with another, but also to those who are involved in controlling whether and how the oence is
carried out, despite not physically being involved in its commission.
Accessorial liability may be aributed to those who order, solicit or induce the commission or
aempted commission of a crime (art. 25, para. 3 (b)); those who facilitate, aid, abet or otherwise
assist with the commission or aempted commission of a crime (art. 25, para. 3 (c)); and those who
intentionally contribute in any other way to the commission or aempted commission of a crime by a
group of persons acting with a common purpose (art. 25, para. 3 (d)). is contribution must be made
with the aim of furthering the criminal activity or criminal purpose of the group or with the knowledge
of the intention of the group to commit the crime.
b. Command and superior responsibility (art. 28)
Military or civilian superiors can also be held criminally responsible for failing to prevent or punish
oences commied by their subordinates through the doctrine of command or superior responsi-
bility. Article 28 of the Rome Statute distinguishes between the responsibility of (a) military com-
manders, or those eectively acting as military commanders, and (b) superiors who do not fall
within the scope of (a). Contrary to direct individual responsibility, command or superior responsi-
bility derives from the responsibility held by superiors given the powers of control they exercise
over their subordinates.
455
e doctrine of command or superior responsibility is particularly important in prosecuting sexual
and gender-based crimes, which are oen physically commied by those who are at lower levels within
the organizational chain of command. It enables recognition that sexual and gender-based violence
may be perpetrated as a strategic tool of terrorist violence and not merely incidentally to terrorist activ-
ity. It seeks to ensure accountability and end impunity for higher-level superiors who mandate, encour-
age and/or accept such violence commied by others.
456
In its resolution 2379 (2017), therefore, the
Security Council called on Member States to hold ISIL members accountable, particularly those who
bear the greatest responsibility, including in terms of leadership, which can include regional or mid-
level commanders, and the ordering and commission of crimes for acts which may amount to war
crimes, crimes against humanity, or genocide, including forms of sexual and gender-based violence
perpetrated as a tactic of terrorism.
457
c. Applicability of the doctrine to terrorist groups
e applicability of the doctrine of command responsibility to terrorist groups is based on the specic
facts of the case. It will depend on whether the group has a chain of command through which its
leaders are able to exercise over its members the sort of authority that is relevant to that doctrine.
458
It
is also relevant to note that while the chain of command may be either formal or informal, the
455
Prosecutor v. Jean-Pierre Bemba Gombo, para. 172. Note that the doctrine exists in international humanitarian law (through
which it imposes penal responsibility and disciplinary action) for war crimes, and in customary international law (Guénaël
Meraux, e Law of Command Responsibility (Oxford, Oxford University Press, 2009), p. 21).
456
Alexa Koenig, Ryan Lincoln and Lauren Groth, “e jurisprudence of sexual violence”, Sexual Violence and Accountability
Project Working Paper Series (Berkeley, California, University of California, Human Rights Center, 2011).
457
See also Security Council resolution 1820 (2008), paragraphs 3–4, in which the Council demanded that all parties to
armed conict immediately take appropriate measures to protect women and girls from all forms of sexual violence, including by
upholding the principle of command responsibility, and that Member States comply with their obligations for prosecuting
persons responsible for such acts.
458
Meraux, e Law of Command Responsibility, pp. 114–115.
CHAPTER 5. CRIMINAL INVESTIGATIONS AND PROSECUTIONS OF SEXUAL AND GENDER-BASED VIOLENCE
International Tribunal for the Former Yugoslavia has held that only those superiors with the actual
power to control or punish the acts of subordinates may incur criminal responsibility.
459
Command or superior responsibility links that leader to crimes commied by members of that group
without the need to prove the leader’s direct or personal involvement in or planning of these crimes.
460
It may also provide a means to target multiple levels of culpability within a single chain of authority or
command.
461
ese advantages are particularly relevant to crimes involving sexual and gender-based
violence, which have typically been characterized by a culture of acceptance or tolerance among leaders.
One of the challenges in establishing this mode of liability in this context, however, is that it may be
dicult to link the activities of subordinates to the overall authority or control of a superior where a
terrorist organization lacks a formal command and control structure, or where there is a decentralized
decision-making system.
462
is raises further questions as to proof of the mens rea element – there
may be diculties in proving knowledge of the crimes where there are disrupted information ows or
where the organization’s activities are compartmentalized to preserve secrecy.
463
> EXAMPLE: COMMAND RESPONSIBILITY FOR SEXUAL CRIMES IN COURTS IN GUATEMALA
Sepur Zarco case
a
In 2016, a tribunal in Guatemala convicted two senior military leaders, through the mode of command
responsibility, of crimes against humanity (including rape, and sexual and domestic enslavement) that were
commied by soldiers under their command during Guatemala’s 36-year civil war.
b
e tribunal found a
former commander of a military base and a military commissioner responsible for the area in which the
base was located, criminally responsible for acts of sexual violence perpetrated by soldiers on the basis of
support, awareness and failure to prevent the oences (in the case of the base commander). In rejecting
the defendants’ claims of ignorance, the tribunal found that the frequency of the acts over a period of time
made such behaviour impossible to ignore by those responsible for the base. e tribunal further held that
in any case, the defendants would still remain responsible for those acts due to their negligence and failure
to exercise necessary control over their subordinates. is judgment was upheld on appeal.
a
Guatemala, High Risk Tribunal, Guatemala v. Esteelmer Francisco Reyes Girón and Heriberto Valdez Asig, Case
No. C-01076-2012-00021, 26 February 2016.
b
Guatemala has incorporated crimes against humanity as a domestic oence in its Penal Code.
> EXAMPLE: MODES OF LIABILITY IN THE ONGWEN CASE BEFORE THE INTERNATIONAL CRIMINAL COURT
Dominic Ongwen was a commander in the Lord’s Resistance Army, an armed group active in Uganda and
neighbouring countries. In Prosecutor v. Dominic Ongwen (currently being tried before the Trial Chamber
of the International Criminal Court), the Prosecutor of the International Criminal Court brought approxi-
mately 70 charges of war crimes and crimes against humanity against Ongwen, covering aacks against
camps of internally displaced persons, including murder, torture, sexual violence and the conscription of
child soldiers.
Regarding the alleged sexual and gender-based crimes, the prosecution charged Ongwen as “direct perpetrator”,
as “indirect perpetrator”, and as military commander responsible for the conduct of his subordinates:
• e “direct perpetration” charges concern crimes Ongwen allegedly commied against seven girls
and women allocated to him as “forced wives”, including forced marriage, rape, sexual slavery, torture
and forced pregnancy.
459
International Criminal Court, Prosecutor v. Dario Kordić and Mario Čerkez, case No. IT-95-14/2-T, Judgment of
26 February 2001, para. 416.
460
Meraux, e Law of Command Responsibility, p. 117.
461
Ibid., p. 122.
462
Ibid., p. 118.
463
Ibid., p. 120.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
• e prosecution also charged Ongwen as an “indirect co-perpetrator” for crimes against women
abducted and assigned as sexual partners to ocers in his brigade. e prosecution argued that the
Lord’s Resistance Army adhered to a system of abducting and enslaving women and girls, both to
build its ranks and to provide sexual partners for its ocers, which amounted to a “common plan”
to commit sexual and gender-based violence. e prosecution alleged that Ongwen was an essential
contributor to the common plan, because he supervised and ordered the abduction and distribution
of women; further, his own abuse of his direct victims served as an endorsement that his subordinates
were allowed to perpetrate sexual and gender-based crimes.
• Finally, the prosecution alleged that Ongwen, as a military commander, was liable for the sexual
and gender-based violence crimes commied by his subordinates, because he knew or should have
known about them, and failed to exercise control properly.
FURTHER READING
• For further discussion of the crime against humanity of persecution on gender grounds, and of charging
strategies in connection with these types of crime, see the policy paper of the Oce of the Prosecutor of
the International Criminal Court on sexual and gender-based crimes (2014).
D. Enhancing investigations and prosecutions of sexual
and gender-based crimes committed by terrorist groups
. Key approaches to investigating and prosecuting cases involving
sexual and gender-based violence
e stigma faced by victims of sexual and gender-based violence, owing to societal, religious or cultural
reasons, both at the family and community level, as well as from national authorities, is a major factor
leading to the underreporting or non-reporting of these crimes, and may lead to a sense of mistrust in
the criminal justice system. According to the Secretary-General’s 2017 report on conict-related
sexual violence:
Shame and stigma are integral to the logic of sexual violence being employed as a tactic of war or
terrorism: aggressors understand that this type of crime can turn victims into outcasts, thus unrav-
elling the family and kinship ties that hold communities together... Just as there are many manifesta-
tions of conict-related sexual violence, there are multiple and intersecting stigmas that follow in its
wake. ese include the stigma of “guilt by association” with the perpetrator and their group; fear of
suspected sexually transmied infections such as HIV; the perceived dishonour of lost chastity or
virginity; the stigma of maternity out of wedlock, especially where children conceived through rape
are considered “children of the enemy”; homosexuality taboos, in the case of male rape; and the
shame of being unable to defend oneself and loved ones.
464
464
S/2017/249, para. 10.
> EXAMPLE: MODES OF LIABILITY IN THE ONGWEN CASE BEFORE THE INTERNATIONAL CRIMINAL COURT
(continued)
CHAPTER 5. CRIMINAL INVESTIGATIONS AND PROSECUTIONS OF SEXUAL AND GENDER-BASED VIOLENCE
e risk of stigmatization aects both women and men who are victims of sexual and gender-based
violence. e risk of underreporting or non-reporting may be higher for men in some contexts,
particularly where same-sex acts are criminalized, owing to taboos aached to homosexuality, and dis-
crimination inicted by authorities and service providers. In addition, insecurity and fear of retaliation
impede reporting of sexual and gender-based violence by victims and witnesses.
To minimize the risk of stigma, or exclusion from family and community networks, and to ensure
the physical safety of the victims, it is necessary to employ human rights-based and victim-centred
approaches to sexual and gender-based violence investigations and prosecutions. e updated Model
Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime
Prevention and Criminal Justice, together with other key United Nations resources,
465
provides guid-
ance relevant to the investigation and prosecutions of crimes involving sexual and gender-based
violence, including those commied by terrorist groups.
(i) Adopt a human rights-based and victim-centred approach
466
A human rights-based approach recognizes sexual and gender-based violence as a manifestation of gender
inequality and discrimination against women. It also reects the obligation of States to exercise due dili-
gence in preventing, protecting against and prosecuting all forms of violence against women in a criminal
justice system, and treating victims with dignity and respect throughout the criminal justice process.
467
A victim-centred approach is key to respecting the principle of “doing no harm” which, together with
victim well-being, empowerment and safety, are the key objectives of criminal justice responses to sexual
and gender-based violence. e criminal justice system should seek to restore the sense of control,
autonomy, self-respect and personal privacy that are eroded by acts of sexual and gender-based violence.
468
A victim-centred approach also benets operational eectiveness, given that victims and witnesses are also
more likely to cooperate if they feel secure and that their needs are being eectively addressed.
Investigators and prosecutors should take account of the dierent experiences and needs of victims
of sexual and gender-based violence, dierent forms of intersecting discrimination that victims may
face, and the diverse forms of such types of violence.
469
A victim-centred approach should be guided by
the general principles of:
• Respect for the rights of the victim, including access to justice and legal advice (considered in
chapter 6), right to information and privacy
• Voluntary and informed consent at all stages of an investigation
• Condentiality, including about the identity of the victim and nature of the investigation
• Ensuring the physical safety and welfare of the victim, including through the provision of medical
assistance to meet immediate health-care needs by rst responders
• Non-discrimination, by treating all victims of sexual and gender-based violence on an equal basis
is principle requires authorities to assess and minimize the potential negative impacts of cooperation
of the victim with investigative and prosecutorial authorities, and the risk of secondary victimization
during criminal investigations, prosecutions and trials. One of the key means of minimizing this risk is
by implementing the interviewing and protection measures discussed in chapter 3.
470
465
See, in particular, UNODC, “Recommendations for action against gender-related killing of women and girls” (2015);
UNODC, Handbook on Eective Prosecution Responses to Violence against Women and Girls; UNODC, Good Practices in Supporting
Victims of Terrorism within the Criminal Justice Framework (2015); and United Nations Police, United Nations Police Gender
Toolkit: Standardized Best Practices on Gender Mainstreaming in Peacekeeping (2015), module 3, lesson 4.
466
See General Assembly resolution 65/228, annex, principles 13 (a), 15 and 16.
467
UNODC, Strengthening Crime Prevention and Criminal Justice Responses to Violence against Women (Vienna, 2014), p. 34.
468
Handbook on Eective Prosecution Responses to Violence against Women and Girls, p. 25.
469
General recommendation No. 35 (2017) on violence against women, para. 38 (b).
470
International Protocol on the Documentation and Investigation of Sexual Violence in Conict, p. 85.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
(ii) Use a multidisciplinary, coordinated and gender-sensitive approach
471
Coherence, coordination and consistency in approaches between investigative and prosecutorial
authorities are imperative for the eective prosecution of crimes involving sexual and gender-based
violence, particularly when terrorist groups are involved in their commission.
e use of a multidisciplinary and coordinated approach to the investigation and prosecution of
oences involving sexual and gender-based violence requires the promotion and institutionalization of
cooperation and information-sharing among authorities involved in the investigation and prosecution
of terrorist crimes and crimes involving sexual and gender-based violence.
A coordinated and cooperative approach is particularly important in identifying and investigating
the links between dierent types of crime. For example, coordination with those agencies with exper-
tise in tracking in persons is critical for tracking cases. Early identication of tracking is central to
fullling State obligations to provide adequate protection and assistance to victims of tracking. It is
also important in cases where a victim may have also commied oences in the course of tracking
(discussed in chapter 2). e involvement of broader Government and civil society should also be
considered in ensuring a comprehensive response to the needs of victims, including agencies providing
legal, medical and psychosocial support.
A gender-sensitive approach among all criminal justice actors requires an understanding of the
impact of gender bias and stereotypes that contribute to sexual and gender-based violence, and the
basis of gender inequalities between men and women that lead to specic vulnerabilities that impact
on the willingness of victims to cooperate with criminal justice systems.
472
Investigators should ensure an integrated approach to the investigation of terrorism oences and
oences involving sexual and gender-based violence. It is important that oences involving sexual and
gender-based violence be considered at each stage of the investigative process, in order to ensure that
they are not perceived as merely incidental to the terrorism investigation. is requires close coordina-
tion between charging and investigative strategies in order to clarify an integrated, common approach
to the oences being pursued, and the evidence required to support the charges. e forms of evidence
relevant to sexual and gender-based violence and terrorism may dier substantially, which will in turn
inuence the investigative approaches adopted. States may also wish to develop and implement
specic policies for the prosecution of crimes involving sexual and gender-based violence to achieve a
uniform approach.
> EXAMPLE: THE INTERNATIONAL CRIMINAL COURT AND ITS APPROACH TO THE INVESTIGATION
OF SEXUAL AND GENDER-BASED CRIMES
In its policy paper on sexual and gender-based crimes, the Oce of the Prosecutor of the International
Criminal Court outlines its approach for developing a comprehensive, coordinated investigative and
prosecutorial strategy for sexual and gender-based crimes. Notably, this involves:
• Integrating a gender perspective in all aspects of its work, including through comprehensive evidence
collection
• Applying a gender analysis to all of the crimes within its jurisdiction, taking into account structural
dierences and inequalities between women and men, girls and boys which shape gender roles and
give rise to gender stereotypes
• Ensuring that sta have the skills, knowledge and sensitivity necessary to full their functions in
relation to sexual and gender-based crimes
471
See General Assembly resolution 65/228, annex, principle 16 (b) and (d).
472
General recommendation No. 35 (2017) on violence against women, para. 30 (e)(i).
CHAPTER 5. CRIMINAL INVESTIGATIONS AND PROSECUTIONS OF SEXUAL AND GENDER-BASED VIOLENCE
. Operational techniques for eective investigations of sexual
and gender-based crimes
(i) Develop expertise and build capacity
473
A number of challenges may derive from the lack of legislative recognition of sexual and gender-based
violence as a terrorist oence. Even where parts of the criminal law cover sexual and gender-based
crimes commied by terrorist groups, the prevalent or exclusive competence of specialized counter-
terrorism investigators and prosecutors to deal with oences by terrorist groups can result in failure to
address these oences where they are not criminalized in anti-terrorism laws.
As a consequence, a major challenge in investigating the use of sexual and gender-based violence as
a tactic of terrorist groups is that members of counter-terrorism investigation teams may not have
specialized training in investigating oences involving this type of violence, or the legal expertise in
investigating and prosecuting crimes of that nature. Personnel may thus not be sensitized to issues
specic to these oences. Eective investigations and prosecutions of oences involving sexual and
gender-based violence require specialized expertise in interviewing victims and witnesses and in
victim and witness protection measures (discussed in chapter 3) and with handling dierent forms of
evidence from sites of violations, and ensuring that such evidence is not overlooked in wider counter-
terrorism investigations (discussed further below). ese challenges may be overcome by:
• Provision of training. Personnel involved in the investigation and prosecution of oences involving
sexual and gender-based violence that have been commied by terrorist groups should be
appropriately trained to both eectively investigate and prosecute these crimes (e.g., through an
awareness of the evidentiary considerations and legal elements of international crimes); and to
respond to the specic vulnerabilities and needs of victims of sexual and gender-based violence
(applicable to both criminal justice personnel, as well as, for example, support sta and interpret-
ers). Eective training may require the development and delivery of specialized training, manuals
and policies to ensure an awareness of the gendered nature of violence and standardized practices.
– Providing training to law enforcement personnel (and also those in detention facilities) in
identifying victims or potential victims of tracking is also necessary.
– In addition to training those responsible for terrorism investigations, exchanging expertise with
other State agencies involved in the investigation and prosecution of terrorism and sexual and
gender-based crimes is a key component in building capacity to hold perpetrators accountable.
• Creation of specialized units. States may wish to consider establishing, where appropriate, specialized
police and prosecutorial units with specic experience and resources, and encourage judicial actors
to develop special expertise in the adjudication of these crimes. Owing to the specic nature of both
crimes involving sexual and gender-based violence and terrorist crimes, specialized units may lead to:
– Increased condence of victims in reporting such crime
– Improved service delivery, and reduced revictimization
– A coordinated approach to ensuring accountability
474
• Coordination between dierent service providers. Coordinate across the criminal justice, health and
social service sectors to ensure that victims have timely access to essential services, while protect-
ing the privacy of victims. is includes victim advocacy and support services, material and
nancial aid, safe accommodation, and physical and mental health services (see also chap.6).
475
473
See General Assembly resolution 65/228, annex, para. 16 (c).
474
United Nations Police Gender Toolkit, module 3, lesson 5, p. 11.
475
See also UN-Women and others, “Module 5: coordination and governance coordination” in Essential Services Package for
Women and Girls Subject to Violence: Core Elements and Quality Guidelines (2015).
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
(ii) Strategic and comprehensive evidence collection
e absence of an interdisciplinary and strategic approach to evidence collection may result in
missed opportunities to collect evidence owing to the use of an inappropriate methodology, failure
to identify relevant elements of the crime for which evidence is required, mistakes that result in
charges being dropped, or failure to charge crimes for which there is evidence. is includes failing
to collect evidence necessary to establish the contextual elements of a war crime, crime against
humanity or a genocidal act (discussed in section C.2 of the present chapter), or evidence necessary
to establish modes of liability.
While testimonial evidence is an integral form of evidence for the prosecution of sexual and gender-
based crimes, adopting a strategy encompassing collection of dierent types of evidence – some of
which may not normally be employed in investigations of other criminal oences – strengthens pros-
ecution cases, and improves the likelihood of convictions. Table 7 includes forms of evidence that
may be relevant, as identied in the International Protocol on the Documentation and Investigation of
Sexual Violence in Conict: Best Practices on the Documentation of Sexual Violence as a Crime or Violation
of International Law.
Table 7. Forms of potentially relevant evidence
DOCUMENTARY
EVIDENCE
Physical material recording information in a written or documentary format
This can include ocial evidence (e.g., military reports, medical certicates, prisoner lists,
identity and registration documents), and unocial evidence (e.g., psychological reports,
reports of international organizations, newspaper articles and evidence-based surveys)
Can be highly useful in assisting to establish the pattern, frequency and intensity of reported
sexual violence, the identity of perpetrators and superiors, and the existence of a plan or
strategy and modes of liability
DIGITAL EVIDENCE Any probative information or data that are stored on, received or transmitted by an electronic device.
Relevant types of digital evidence for proving guilt in crimes involving sexual and gender-based
violence may include electronic health records, photos and videos, location data, emails, text
messages and metadata.
Digital evidence may assist in establishing the perpetrators’ intent, location, and relationship
with other suspects, patterns of movement of the alleged perpetrator, and corroboration of
witness testimony.
There are risks in handling digital evidence, which often requires forensic digital experts to
ensure proper collection, storage and interpretation.
PHYSICAL EVIDENCE Any physical objects or matter that can provide relevant information to help establish that
sexual and gender-based violence took place, or provide a link between a crime and its victim or
between a crime and its perpetrator.
Relevant physical evidence for investigations of sexual and gender-based violence may include,
physical material (such as clothing), weapons, biological or forensic material, physical injuries,
impressions, sites of violations and documents for analysis.
Transfer and associative evidence may provide information about contact between the victim
and the suspect, the victim and the crime scene, and the suspect and the crime scene, as well
as the nature of the contact. Identication evidence can provide data about the source of a piece
of evidence, including the physical injuries sustained.
a
Where there are indications that drugs may have been used to facilitate sexual violence,
evidence of exposure to drugs should be collected from the victim and crime scene as soon
as possible.
Source: Adapted from United Kingdom, Foreign and Commonwealth Oce, International Protocol on the Documentation and
Investigation of Sexual Violence in Conict: Best Practice on the Documentation of Sexual Violence as a Crime or Violation of
International Law, 2nd ed. (London, 2017).
a
Handbook on Eective Prosecution Responses to Violence against Women and Girls, p. 104.
CHAPTER 5. CRIMINAL INVESTIGATIONS AND PROSECUTIONS OF SEXUAL AND GENDER-BASED VIOLENCE
While it is important to consider the relevance of a wide range of evidence for the prosecution of
crimes involving sexual and gender-based violence, a number of challenges may arise in its collection.
• ere may be limited or no evidence to collect owing to elapsed time between commission of the
oence and the investigation, or because of evidence deterioration or tampering.
• ere may be signicant diculties in accessing forensic examinations owing to the scarcity of
medical facilities capable of collecting such evidence, or the complexity of the system for order-
ing such examinations. Where delays occur, forensic evidence is likely to be compromised.
• Forensic evidence relevant to other oences commied by terrorist groups, such as sexual and
gender-based violence, may be overlooked or contaminated in the scheme of the broader terror-
ism investigation. is risk is magnied where there is limited expertise in crimes involving sexual
and gender-based violence within investigating teams, or limited coordination between agencies
with expertise.
Investigators should consider the value of dierent types of evidence to prove sexual and gender-
based crimes commied by terrorist groups; the importance of contextual elements to establish inter-
national crimes; and the full range of crimes that evidence should be collected in relation to (not
restricted to sexual violence), as well as other crimes that may be commied through sexual and
gender-based violence, such as torture and persecution. Evidence indicating other types of non-sexual
and gender-based crimes may be necessary to establish, for example, that the aack was part of a wide-
spread or systematic aack against a civilian population.
Evidence regarding perpetrators should encompass not only the role of the direct, physical
perpetrator alleged to have carried out the act of sexual and gender-based violence, but also evidence
concerning hierarchies, chains of command or levels of oversight that may assist in establishing
command responsibility for an act or omission by one or more alleged perpetrators.
476
is could
include information indicating a chain of command or hierarchy, reporting procedures or commu-
nications. Such evidence is critical in establishing criminal responsibility for higher-level leaders
responsible for ordering, tolerating and/or failing to prevent sexual and gender-based violence
commied by their subordinates.
Service providers interacting with victims, such as health-care and mental health professionals,
may also require training in the collection of criminal evidence for cases involving sexual and gender-
based crimes.
FURTHER READING
UNODC has produced a number of publications on the topic of investigating and prosecuting sexual and
gender-based violence:
• Handbook on Eective Prosecution Responses to Violence against Women and Girls
• Handbook on Eective Police Responses to Violence against Women
• e joint UNODC, World Health Organization and United Nations Action against Sexual Violence in
Conict, Toolkit on Strengthening the Medico-Legal Response to Sexual Violence
• For more information on the investigation of drug-facilitated sexual crimes, see Forensic Analysis of Drugs
Facilitating Sexual Assault and Other Criminal Acts
• e joint UNODC, World Health Organization, United Nations Development Programme, UN-Women
and United Nations Population Fund publication entitled Essential Services Package for Women and Girls
Subject to Violence provides guidance on improving multisectoral services for all women and girls who
have experienced sexual and gender-based violence
476
Ibid., pp. 53–55.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
FURTHER READING (continued)
Other resources:
• e International Protocol on the Documentation and Investigation of Sexual Violence in Conict provides
specic guidance and training tools for the investigation of sexual and gender-based violence
• International Criminal Court, Oce of the Prosecutor, “Policy paper on sexual and gender-based crimes”
(e Hague, 2014)
• International Criminal Tribunal for Rwanda, Best Practices Manual for the Investigation and Prosecution of
Sexual Violence Crimes in Post-Conict Regions
• UN-Women, Handbook for Legislation on Violence against Women
E. Extraterritorial jurisdiction and international cooperation
regarding sexual and gender-based crimes committed
by terrorist groups
States have obligations to aord one another the greatest measure of assistance in connection with
criminal proceedings in relation to terrorism cases,
477
including by providing assistance in obtaining
evidence in their possession that is necessary for the proceedings, and, in accordance with their
obligations under international law, to bring to justice, extradite or prosecute any person who sup-
ports, facilitates, participates or aempts to participate in acts of terrorism. ese obligations also
apply in relation to acts of sexual and gender-based violence commied by terrorist groups. Further,
States have the obligation to deny a safe haven to those who are alleged to have commied such acts.
is requires domestic laws that enable the criminal justice authorities to assert jurisdiction and to
cooperate eectively with other countries.
. Grounds for the assertion of jurisdiction by national courts
Bases of jurisdiction
e base form of jurisdiction is territorial jurisdiction, which is invoked to try persons for crimes
commied in the territory of the State or on board vessels ying the ag or aircra registered in the State.
In addition, there are a number of means through which extraterritorial jurisdiction may be estab-
lished, enabling national courts to try persons for oences that were not commied on its territory.
e most relevant forms of extraterritorial jurisdiction in this context include:
• Active personality jurisdiction extends jurisdiction to crimes commied by a State’s nationals,
irrespective of where the relevant acts occurred. In some States, this includes both nationals and
aliens resident in their territory.
478
is ground of jurisdiction would, for instance, allow a State to
exercise jurisdiction over oences commied abroad by a suspected foreign terrorist ghter who
is a national of that State.
• Passive personality jurisdiction extends jurisdiction to crimes commied against a State’s nationals,
irrespective of the location of the national, the crime, and the nationality of the suspect.
477
See, for example, Security Council resolution 2322 (2016), para. 8, and the Terrorism Financing Convention, art. 12.
478
See, for example, United Kingdom, International Criminal Court Act 2001.
CHAPTER 5. CRIMINAL INVESTIGATIONS AND PROSECUTIONS OF SEXUAL AND GENDER-BASED VIOLENCE
e international conventions and protocols against terrorism and the Organized Crime Convention
(which governs the bases of jurisdiction applicable to oences under the Tracking in Persons
Protocol) also require or permit States parties to establish particular modes of extraterritorial jurisdiction
over the oences contained therein. Recourse must always be had to domestic implementing legislation,
which may prescribe or limit the forms of jurisdiction applicable in that State.
In addition to the grounds discussed above, these international treaties require States to take measures
necessary to establish jurisdiction where the suspect is present in its territory and the State does not
extradite him or her.
479
is is known as the “extradite or prosecute” principle (aut dedere aut judicare).
> FOCUS: EXTRADITE OR PROSECUTE
Under the “extradite or prosecute” principle, States must exercise jurisdiction over certain oences if
they refuse to extradite a suspect. e principle is stated in the following terms in the International
Convention for the Suppression of the Financing of Terrorism (art. 10): “e State Party in the
territory of which the alleged oender is present shall, in cases to which article 7 applies, if it does
not extradite that person, be obliged, without exception whatsoever and whether or not the oence
was commied in its territory, to submit the case without undue delay to its competent authorities
for the purpose of prosecution…”.
e principle is reected in a number of international treaties, and with respect to specic violations of
international law, including:
• e International Convention Against the Taking of Hostages (arts. 5 and 8) and the International
Convention for the Suppression of the Financing of Terrorism (arts. 7 and 10)
• Torture under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment
a
• e Organized Crime Convention requires States parties to prosecute those suspected of having
commied tracking oences under the Protocol where States parties have declined to extradite
such persons to requesting States.
b
In practice, discharging the obligation to extradite or prosecute requires eective mechanisms for international
cooperation in cases which are not based on territorial or personality jurisdiction.
a
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, arts. 5–7; note
that the International Court of Justice held in the case of Belgium v. Senegal that the obligation to prosecute under article 7,
paragraph 1, of the Convention is independent from extradition, which becomes an alternative option if requested
(Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 422).
b
Organized Crime Convention, art. 15, para. 3, and art. 16, para. 10.
e Rome Statute rearms that States hold the primary responsibility for bringing perpetrators of
crimes under the Rome Statute to justice on the bases of territorial, active or passive personality
jurisdiction, as described above.
A State’s domestic law may also enable its courts to exercise jurisdiction over international crimes, such
as genocide, crimes against humanity, war crimes, torture and slavery on the ground of universal jurisdiction
(where there is no link between the State and the perpetrator, victim or location of the crime).
is principle is not applied in a uniform manner. In some cases, domestic law may circumscribe the
application of universal jurisdiction (conditional universal jurisdiction), by requiring, for example, that
the suspect be present on the territory of the State in order to initiate prosecution, or that there was no
extradition request or a request had been denied, or according to the principle of double criminality.
480
479
See, for instance, International Convention for the Suppression of the Financing of Terrorism, art. 7, para. 4; and United
Nations Convention against Transnational Organized Crime, art. 15, paras. 3–4.
480
A/65/181, paras. 74–86.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
States may also enable their courts to exercise universal jurisdiction over general domestic crimes,
allowing these courts to try persons based on elements of conduct under general criminal law, such as
rape or abduction, which could amount to crimes under international law. is is mostly relevant
where States have not domesticated international crimes.
481
> EXAMPLE: EXERCISING UNIVERSAL JURISDICTION TO SEEK ACCOUNTABILITY FOR SEXUAL
AND GENDER-BASED CRIMES PERPETRATED BY TERRORIST GROUPS
Since 2011, Germany has accepted more asylum seekers from the Syrian Arab Republic than any other
country in Europe. Counted among the large number of individuals currently present in Germany are
numerous victims (as well as potential perpetrators) of crimes commied in the context of the armed
conict in the Syrian Arab Republic.
e German Federal Police and the Federal Prosecutor’s Oce have initiated investigations into crimes
allegedly commied by multiple parties to the conict in the Syrian Arab Republic. With regard to crimes
under international law (war crimes, crimes against humanity and genocide), German law enshrines the
principle of universal jurisdiction, whereby an investigation can be opened even if there is no link between
the alleged criminal conduct and Germany. Authorities of Germany, however, are asserting competence
for oences commied in the Syrian Arab Republic and Iraq based on the presence of victims and of
potential perpetrators in Germany.
Depending on the nature of the crime itself as well as the context in which it was commied, atrocities
commied by individuals linked to ISIL and other terrorist groups can be prosecuted as terrorism-related
oences or as international law crimes. While the majority of cases against members of ISIL are brought
on charges of terrorism, the War Crimes Unit of the Federal Public Prosecutor of Germany is investigating
oences commied by ISIL against Yazidi women and girls as international law crimes. e counter-
terrorism unit of the Federal Public Prosecutor’s oce is cooperating closely in the investigation. Regular
meetings and processes for sharing information between the two units have been institutionalized. e
War Crimes Unit has also recruited additional female prosecutors to strengthen its ability to deal with the
investigation and prosecution of sexual violence cases.
. International cooperation
(i) International cooperation under the international legal instruments against terrorism
International cooperation is a central element of eective investigations and prosecutions of crimes
against members of terrorist groups suspected of perpetrating sexual and gender-based violence where
the suspects, evidence, victims or witnesses are not located within the prosecuting State’s jurisdiction.
International cooperation is integral to preventing impunity for terrorist acts and is a key part of the
criminal justice approach to combating terrorism. As a means of securing accountability for terrorist
acts, violations of international humanitarian law and human rights abuses, in its resolution 2322
(2016), the Security Council emphasized the importance of strengthening international cooperation,
including by investigators, prosecutors and judges, in order to prevent, investigate and prosecute ter-
rorist acts. It called upon States to take a number of steps to strengthen international cooperation
through extradition and mutual legal assistance arrangements. In its resolution 70/291, the General
Assembly recalled that all States needed to cooperate fully in the ght against terrorism on the basis of
mutual legal assistance and the principle of extradite or prosecute.
481
See Amnesty International, “Universal jurisdiction: a preliminary survey of legislation around the world–2012 update”,
9October 2012.
CHAPTER 5. CRIMINAL INVESTIGATIONS AND PROSECUTIONS OF SEXUAL AND GENDER-BASED VIOLENCE
Extradition and mutual legal assistance arrangements may be contained in specic bilateral or
multilateral extradition or mutual legal assistance treaties. In addition, there are frameworks for inter-
national cooperation created by the international conventions against terrorism. ose frameworks
commit States parties to aord the greatest measure of assistance in connection with criminal
investigations or criminal or extradition proceedings.
(ii) Cooperation frameworks established by the Organized Crime Convention
and the Tracking in Persons Protocol
e Organized Crime Convention, as the parent instrument of the Tracking in Persons Protocol,
provides a comprehensive framework for international cooperation through extradition and mutual
legal assistance, law enforcement cooperation and information-sharing in relation to transnational traf-
cking oences. For this framework to apply, the tracking oences must involve an organized criminal
group.
482
In addition, with the exception of those provisions on extradition, the Organized Crime
Convention requires that the crime must be transnational in nature.
483
ese cooperation frameworks
may apply to cases in which terrorist groups commit crimes covered by the Organized Crime Convention
or Tracking in Persons Protocol that meet this denition, in order to obtain direct or indirect nancial
or other material benets.
484
Security Council resolution 2331 (2016) contains a reference to the
importance of collecting evidence relating to tracking in persons in armed conict, including as
commied by terrorist groups, for the investigation and prosecution of these crimes.
A detailed legal framework for the facilitation of extradition for oences under the Tracking in
Persons Protocol is established under article 16 of the Organized Crime Convention. Ratication of
the Convention and the Tracking in Persons Protocol results in the inclusion of tracking in persons
oences in extant extradition treaties, requires States parties to include these as extraditable oences in
future extradition treaties, and provides a basis to enable extradition where the parties in question do
not have an extradition treaty. It further provides that extradition proceedings should be expedited.
Article 18 of the Organized Crime Convention contains a detailed legal and procedural framework
for mutual legal assistance, and requires States parties to aord one another the widest measure of
mutual legal assistance in investigations, prosecutions and judicial proceedings. Article 18, paragraph
3, prescribes a number of purposes for which mutual legal assistance can be requested, including for
the purposes of taking evidence or statements, executing searches and seizures, and facilitating the
voluntary appearance of persons in the requesting State party.
(iii) War crimes, crimes against humanity and genocide
e Rome Statute establishes a general duty of States parties to cooperate fully with the International
Criminal Court in its investigation and prosecution of crimes, and sets out a number of specic areas of
cooperation in articles 87–102. However, these provisions relate only to cooperation between States
and the Court. International cooperation for the domestic investigation and prosecution of crimes
against humanity, war crimes and genocide is not regulated in the Rome Statute.
482
“Organized criminal group” is dened in article 2 of the Organized Crime Convention as a “structured group of three or
more persons, existing for a period of time and acting in concert with the aim of commiing one or more serious crimes or
oences established in accordance with this Convention, in order to obtain, directly or indirectly, a nancial or other material
benet”. A “transnational” crime is dened in article 3, paragraph 2, of the Convention.
483
A “transnational” crime is dened in article 3, paragraph 2, of the Convention. According to article 16, the obligation to
extradite also applies in cases in which the oences involve an organized criminal group and the person whose extradition is
requested is simply located in the territory of the requested State, without a need for the transnational nature of the criminal
conduct to be established (UNODC, Manual on Mutual Legal Assistance and Extradition, para. 59).
484
As discussed earlier in the present chapter, the Security Council has repeatedly recognized the link between transnational
organized criminal activities (including tracking in persons) and acts of terrorism (see, for example, Council resolutions 2395
(2017), 2388 (2017), 2331 (2016) and 2242 (2015), as well as General Assembly resolution 55/25).
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
> FOCUS: INITIATIVES TO STRENGTHEN INTERNATIONAL COOPERATION FOR THE PROSECUTION
OF ATROCITY CRIMES
e General Assembly has adopted two sets of principles relevant to promoting international cooperation
regarding bringing individuals accused of war crimes and crimes against humanity to justice, and in relation
to remedy and reparation for serious violations of international humanitarian law.
Rule 161 of the rules of customary international humanitarian law of the International Commiee of the
Red Cross establishes that States must make every eort to cooperate, to the extent possible, with each
other in order to facilitate the investigation of war crimes and the prosecution of the suspects.
e International Law Commission developed – and in May 2017, provisionally adopted – a set of
15 dra articles on crimes against humanity, containing principles on the prevention and punishment of
that crime. Dra articles 7 [6], para. 2, and 10 [9] provide for the obligation to prosecute or extradite,
while dra articles 13 and 14 establish a comprehensive framework for extradition and mutual legal assis-
tance to facilitate the investigation and prosecution of crimes against humanity.
a
Principles of international cooperation in the detection, arrest, extradition and punishment of persons guilty of war
crimes and crimes against humanity (General Assembly resolution 3074 (XXVIII)), principles 3–6; and Basic Principles
and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights
Law and Serious Violations of International Humanitarian Law (Assembly resolution 60/147, annex), principle 5.
(iv) International cooperation in cases concerning crimes involving sexual
and gender-based violence committed by terrorist groups
ere are a number of issues which should be considered by ocials making a request for international
cooperation through extradition or mutual legal assistance in connection with domestic prosecutions
of crimes involving sexual and gender-based violence that are commied by terrorist groups.
• Dual criminality requirement. Where an oence is not criminalized in a comparable way in the
requesting and receiving States, the request for extradition or mutual legal assistance may be
unsuccessful. Given the diversity of oences under which charges can be brought for acts of
sexual and gender-based violence commied by terrorist groups, ocials dealing with mutual
legal assistance and extradition requests should pay particular aention to the implications the
dual criminality requirement may have for the request.
• Identication of treaties through which to facilitate international cooperation. As established in the
present chapter, there are a range of dierent treaties under which international cooperation
regarding crimes involving sexual and gender-based violence that are commied by terrorist
groups can be sought. e treaty framework through which a cooperation request is made has
particular implications. For example, conventions and protocols against terrorism establish that
none of the oences covered by them may be deemed to be a political oence or an oence with
political motives for the purposes of rejecting a mutual legal assistance or extradition request.
e Terrorism Financing Convention further provides that mutual legal assistance requests can-
not be refused on the grounds of bank secrecy.
• Diculties in obtaining evidence through mutual legal assistance owing to the nature of the oence.
Similar challenges to those discussed above may arise in aempting to obtain evidence for crimes
involving sexual and gender-based violence, owing to victim fear of stigma arising from societal,
religious or cultural factors, or from physical insecurity.
CHAPTER 5. CRIMINAL INVESTIGATIONS AND PROSECUTIONS OF SEXUAL AND GENDER-BASED VIOLENCE
> FOCUS: INTERNATIONAL COOPERATION TO COMBAT VIOLENCE AGAINST WOMEN
e need for States to cooperate in the investigation and prosecution of violence against women is
emphasized in the updated Model Strategies and Practical Measures on the Elimination of Violence against
Women in the Field of Crime Prevention and Criminal Justice, annexed to General Assembly resolution
65/228. In paragraph 25 (b) of the Model Strategies and Practical Measures, Member States are urged to
“cooperate and collaborate at the bilateral, regional and international levels with relevant entities to prevent
violence against women…and to promote measures to eectively bring perpetrators to justice, through
strengthened mechanisms of international cooperation and mutual legal assistance.”
FURTHER READING
• UNODC, Manual on Mutual Legal Assistance and Extradition
• UNODC, Counter-terrorism Legal Training Curriculum Module 3 – International Cooperation in Criminal
Maers: Counter-terrorism
• UNODC, Manual on International Cooperation in Criminal Maers related to Terrorism
• UNODC, Criminal justice assessment toolkit: International Cooperation
SUMMARY OF KEY POINTS
• Sexual and gender-based violence has been widely recognized as part of the strategic
objectives and ideology of some terrorist groups. It is used as an incentive for
recruitment, as a strategic driver, and as a means through which some terrorist groups
fund their activities.
• Sexual and gender-based violence disproportionately aects women and girls, but it is
also perpetrated against men and boys, as well as on the basis of gender identity and
sexual orientation.
• Victims of tracking in persons and of sexual violence committed by terrorist groups
should be recognized as victims of terrorism.
• States have obligations under international law to ensure accountability for sexual and
gender-based violence perpetrated by terrorist groups; fully implement international
humanitarian and human rights law to protect the rights of women and girls; and protect
them from sexual and gender-based violence.
• There are a number of legal frameworks through which States can secure legal
accountability for such crimes, depending on their legal system. It may be possible to
prosecute such acts as terrorism oences, as violations of the general domestic criminal
law, or as tracking in persons oences. Additionally, such acts may be prosecuted as
international crimes (war crimes, crimes against humanity or genocide) in national courts,
pursuant to national laws that incorporate the Rome Statute.
• When investigating and prosecuting sexual and gender-based crimes committed by terrorist
groups, investigative and prosecutorial teams should adopt a human rights-based and
victim-centred approach; use a multidisciplinary, coordinated and gender-sensitive
approach; and focus on oender accountability. Operationally, these teams should aim to
develop expertise and build capacity in the investigation and prosecution of sexual and
gender-based violence as a tactic in terrorist activities, and focus on strategic and
comprehensive evidence collection.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
SUMMARY OF KEY POINTS (continued)
• National courts may assert jurisdiction over national criminal oences in line with domestic
legislation that enables the extraterritorial application of domestic criminal law, or through
treaty-based extraterritorial jurisdiction. It may also be possible for a State to exercise jurisdiction
over international crimes, based on their gravity, on the ground of universal jurisdiction.
• International cooperation is a central element of eective investigations and prosecutions
of crimes where the suspects, evidence, victims or witnesses are not located within the
prosecuting State’s jurisdiction. Extradition and mutual legal assistance – two main forms
of international cooperation in the investigation and prosecution of crimes – may be
carried out on the basis of bilateral or multilateral treaties, or may be governed by specic
frameworks of cooperation through international treaties (particularly the international
conventions and protocols against terrorism and the Organized Crime Convention).
top: Mother displaced by Boko Haram in Northern Cameroon
with her child. © OCHA/Ivo Brandau
centre: Federal High Court of Nigeria, Abuja Division © Stefanie Tholand
ACCESS TO JUSTICE AND REMEDIES
FOR VICTIMS
Facilitating equal and eective access to justice through fair and impartial mechanisms is an essential
part of a robust criminal justice response to terrorism. Access to justice is a means to providing redress
for victims for violations of their rights, and it plays an important role in preventing future violations.
Access to justice also encompasses the availability and accessibility of legal counsel for those s uspected,
accused or convicted of terrorism-related oences, and the ability of justice mechanisms to adjudicate
cases in a fair and impartial manner and to enforce decisions. In addition, recognition of the suering
of victims of terrorist acts and their right to seek remedy is an integral part of a comprehensive strategy
for combating terrorism, and is key to strengthening the eectiveness of the criminal justice systems in
responding to the needs of victims of terrorism as a whole. e importance of such recognition is
reected in the plan of action of the United Nations Global Counter-Terrorism Strategy (annexed to
General Assembly resolution 60/288), which, under section IV, entitled “Measures to ensure respect
for human rights for all and the rule of law as the fundamental basis of the ght against terrorism”,
underscores the need to promote and protect the rights of victims of terrorism.
485
A gender mainstreaming approach is applied in the present chapter to consider the way in which
gender considerations aect the ability of victims and those suspected, accused or convicted of
terrorism-related oences to access justice, as well as remedies for victims. Section A contains an exam-
ination of the gender dimensions of barriers impeding access to justice through the judicial system and
good practice in supporting such access, while section B includes a discussion on the right to eective
remedies for victims of terrorism. In the context of this general framework, section C contains an
examination of gender considerations in remedies and reparations. Section D includes an exploration
of specic considerations for victims of sexual and gender-based violence and tracking in persons
perpetrated by terrorist groups. Finally, section E contains a discussion on the role of gender-sensitive
transitional and traditional justice mechanisms as an alternate means of accessing justice.
485
In the plan of action annexed to General Assembly resolution 60/288, the dehumanization of victims of terrorism in all its
forms and manifestations is identied as one of the conditions conducive to the spread of terrorism. e United Nations Global
Counter-Terrorism Strategy Review also emphasizes the importance of developing and implementing programmes of assistance
and support for victims of terrorism (Assembly resolution 70/291, para. 23).
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
While measures to strengthen assistance to victims and access to justice must be tailored to the
structures of the legal and social system of the relevant State, the present chapter oers international
good practice to provide guidance on ensuring that these mechanisms are gender-sensitive.
A. Gender dimensions of access to justice through
the judicial system
. Gender dimensions of access to justice
Access to justice is based on the right to equality before the law, the right to non-discriminatory
protection of the law, and the right to eective access to remedies. ese are fundamental rights recog-
nized in international and regional human rights instruments, as established in chapter 1. Access to
justice is also integral to the realization and protection of all other rights, including those contained in
the Convention on the Elimination of All Forms of Discrimination against Women, and is inextricably
linked to the rule of law. It is important for holding the perpetrator accountable, while respecting the
rights of persons detained, arrested or imprisoned, suspected or accused of, or charged with a criminal
oence, as well as for meeting the victim’s needs, including access to remedies and reparations.
Access to justice refers to the ability of all people to seek and obtain redress for harms suered,
through formal or informal justice mechanisms, in compliance with human rights standards. It extends
across a spectrum, from when the harm occurs until such redress is provided. As such, it involves a
number of elements, ranging from:
• Recognition of the grievance in the domestic justice and legal systems (requiring a legal framework
that acknowledges the grievances experienced)
• Awareness of the existence of remedies and the way in which to obtain them
• Availability of legal assistance and representation for both those suspected, accused or convicted,
and for victims
• Adjudication through formal or informal justice systems that are accessible, timely, objective and
aordable, and which are empowered to dispense remedies, and are in conformity with i nternational
human rights standards
• Eective delivery and enforcement of remedies
486
> FOCUS: DETERMINING VICTIM STATUS
Determining victim status is a prerequisite for the purpose of determining participation in trial p roceedings,
providing protection and determining the availability of remedies.
e Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power extends to situations
in which people are victimized as the result of criminal oences commied by terrorist groups. e
Declaration, in its denition of the term “victims”, includes the following:
• Persons who, individually or collectively, have suered harm, including physical or mental injury,
emotional suering, economic loss or substantial impairment of their fundamental rights, through
acts or omissions that are in violation of criminal laws operative within Member States, including
those laws proscribing criminal abuse of power;
486
See, for example, United Nations Development Programme (UNDP), Programming for Justice: Access for All –
A Practitioners Guide to a Human Rights-Based Approach to Access to Justice (Bangkok, 2005), p. 6.
CHAPTER 6. ACCESS TO JUSTICE AND REMEDIES FOR VICTIMS
• Where appropriate, the immediate family or dependants of the direct victim, as well as persons who
have suered harm in intervening to assist victims in distress or to prevent victimization. is
c ategory of victims is oen referred to as “indirect victims”;
• All persons falling within the above categories regardless of whether the perpetrator is identied,
apprehended, prosecuted or convicted and regardless of the familial relationship between the
p erpetrator and the victim.
a
e issues explored in the Declaration are further developed, within more specic contexts, in the Basic
Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of
International Human Rights Law and Serious Violations of International Humanitarian Law.
b
It is noted in paragraph 4 of the Nairobi Declaration on Women’s and Girls’ Right to a Remedy and
Reparation that, in order to eectively incorporate the perspectives of victims and their advocates in repara-
tions processes, the notion of “victim” must be broadly dened within the context of women’s and girls’
expe riences and their right to reparation.
a
General Assembly resolution 40/34, annex, paras. 1–2.
b
General Assembly resolution 60/147, annex.
Women may face several, oen interconnected, barriers in accessing justice that are the result of
social, economic and cultural practices that entrench structural gender inequality. Barriers can be
institutional and legal in nature, deriving from a legal framework that either fails to adequately protect
women’s rights or that contains laws and judicial procedures that discriminate against women. Social
and economic conditions may prevent women from accessing justice: for example, where women are
unable to aord legal representation and an eective legal aid system is not in place.
Some of these barriers are not gender-specic – for example, a lack of awareness of one’s rights,
s ocioeconomic disadvantages or illiteracy can aect both genders – but they disproportionately aect
women. is is especially true when these factors intersect with gender-specic factors, such as gender
ste reotyping or discrimination by criminal justice practitioners, discriminatory laws or stigma surr-
ounding certain types of oences. Further, as the result of gender norms, women may be aected by
barriers to education and access to information, a lack of autonomy over decision-making and economic
resources, and a fear of stigma for seeking redress for certain crimes. Whether women are victims or
witnesses to, or suspects of, terrorism-related or other oences – or have been convicted of such a crime
– a host of measures are necessary to counter the barriers that they may face, many of which necessitate
deep social change or institutional reform, depending on the context.
In its general recommendation No. 33 on women’s access to justice, the Commiee on the
Elimination of Discrimination against Women, identied a number of elements necessary to
ensure access to justice, particularly with respect to women – justiciability, availability, accessibility,
good quality, accountability and the provision of remedies
487
– which will be examined in fu rther
detail below.
(i) Justiciability
Justiciability requires that women have unhindered access to justice, and also requires the ability and
empowerment of women to claim their rights as legal entitlements, including under the Convention
for the Elimination of All Forms of Discrimination against Women as well as other instruments.
487
Commiee on the Elimination of Discrimination against Women, general recommendation No. 33 (2015) on women’s
access to justice, para. 14.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
As noted by OHCHR, justice systems reect society’s power imbalances, including those that
disadvantage women.
488
Harms that disproportionately aect women, such as forms of sexual and
g ender-based violence, may not be reected in national legislation and may therefore not be justiciable.
Evidentiary rules may disadvantage women by demanding a higher burden of proof in order to establish
gender-based oences. Women may also face gender stereotyping and gender discrimination in the
criminal justice and judicial systems, which may pervade decision-making.
489
Accordingly, achieving
justiciability requires incorporating women’s rights and protections into national legislation; training
justice system professionals, including members of law enforcement, judges and lawyers, to handle cases
in a gender-sensitive manner; and ensuring women are well represented in justice institutions.
An integral part of ensuring that women are empowered to seek justice is that they have access to
information on their rights as victims (and how to access those rights), their role in the criminal justice
process and the remedies they can seek. Information should also be shared about the availability of
services to which victims are entitled or from which they can benet, including legal, administrative,
social, psychological and medical services. e responsibility of disseminating that information should
be shared across criminal justice practitioners who interface with victims, including law enforcement
personnel, prosecutors, legal counsel and judges.
ose measures should be directed towards the public as a whole, and to victims, in particular.
As conrmed by the Commiee on the Elimination of Discrimination against Women, States parties
to the Convention on the Elimination of All Forms of Discrimination against Women have treaty-
based obligations to ensure that all women have access to education and information about their rights,
available remedies and the means to accessing them.
490
e provision of information on rights,
remedies and victim support services available to victims of violence against women is also a treaty-
based obligation on States parties to the Convention on the Elimination of All Forms of Discrimination
against Women,
491
the Istanbul Convention
492
and the Maputo Protocol.
493
Gender considerations should inform the way in which those measures are delivered, keeping in
mind that the Commiee on the Elimination of Discrimination against Women observed, especially
during consideration of periodic reports submied by States parties, that such measures oen fail to
guarantee that women have equal access to education, information and legal literacy programmes.
494
Measures to consider include:
• Developing outreach activities that are targeted at women, and which provide information about
judicial mechanisms, remedies and support units
• Considering, where appropriate, the creation of women-specic assistance services, in consultation
with relevant women’s organizations
• Providing information in a range of formats, in a manner that is easy to understand and in relevant
community languages, taking into account ethnic and social diversity
488
Women’s Rights Are Human Rights (United Nations publication, Sales No. E.14.XIV.5), p. 110.
489
In paragraph 8 of its general recommendation No. 33 (2015) on access to justice, the Commiee on the Elimination of
Discrimination against Women notes that discrimination against women, based on gender stereotypes, stigma, harmful and
patriarchal cultural norms – which particularly aect women – have an adverse impact on the ability of women to gain access to
justice on an equal basis with men. In addition, discrimination against women is compounded by intersecting factors that aect
some women to a dierent degree or in dierent ways than men and other women. e Commiee also notes that grounds for
intersectional or compounded discrimination may include ethnicity or race, indigenous or minority status, colour, religion or
belief, political opinion, national origin, and urban or rural location.
490
General recommendation No. 33 (2015) on women’s access to justice, para. 11.
491
General recommendation No. 35 (2017) on gender-based violence against women, updating general recommendation
No. 19, paras. 30 (b)(ii) and 31 (d).
492
Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Council
of Europe Treaty Series, No. 120), art. 56, para. 1.
493
Art. 4, para. 2 (f), of the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa,
adopted in Maputo on 11 July 2003; see also the updated Model Strategies and Practical Measures on the Elimination of Violence
against Women in the Field of Crime Prevention and Criminal Justice (General Assembly resolution 65/228, annex), para. 18 (a).
494
General recommendation No. 33 (2015) on women’s access to justice, para. 32.
CHAPTER 6. ACCESS TO JUSTICE AND REMEDIES FOR VICTIMS
In addition, the Commiee on the Elimination of Discrimination against Women has re commended
establishing justice access centres such as one-stop centres, which include a range of legal and social
services, in order to reduce the number of steps that a woman has to take to gain access to justice.
495
It is particularly important to make such centres accessible to women living in poverty and/or in rural
and remote areas.
(ii) Availability and accessibility
Availability refers to the availability, maintenance and funding of courts and other bodies in urban, rural
and remote areas, and accessibility is the aordability and physical accessibility of justice systems.
Women are oen notably aected by the non-availability of judicial and quasi-judicial institu-
tions, particularly in rural and remote locations. is lack of access may be aributable to socioeco-
nomic gendered inequalities – including the inability to travel long distances to aend court
hearings, owing to primary carer responsibilities or the cost of transport – and is more likely to be an
issue in systems where only a very restricted number of courts have competence to hear terrorism-
related cases.
In some cases, it may be necessary to develop interim approaches to justice delivery. Such
approaches could include the development of mobile courts, mobile legal aid clinics and remote help
desks, as well as the use of information and communication technology to improve access for women
living in remote or rural areas. One-stop centres that oer a range of services, including access to police
investigators and legal assistance, as well as medical and psychological care, are also benecial to
improving availability and accessibility.
In a report on gender, the judiciary, and access to justice, the Special Rapporteur on the
independence of judges and lawyers noted that deep economic inequalities were a common obstacle
to women’s access to justice. Socioeconomic conditions and sometimes stereotyping are obstacles
faced by the great majority of women around the globe when aempting to enforce their rights.
496
Such inequalities are oen reected in a lack of awareness among women of their legal rights. In addi-
tion, women may lack the resources to learn about those rights – owing to high rates of illiteracy among
women in many contexts – and the resources to cover the costs involved with formal judicial processes,
including those associated with legal representation. ese factors are discussed elsewhere in this sec-
tion. A lack of economic independence and a reliance on male relatives for resources and assistance
may lead to a denial of autonomy to make decisions regarding legal processes. Women may also be
unable to participate in justice processes as the result of household duties, particularly if women have
the added responsibility of being the head of the household.
Availability is also critically important for women in conict with the law because as rights-holders,
they must be protected and respected throughout the justice chain. eir rights and needs include
legal services (e.g., access to legal counsel, legal aid and representation in court); access to education;
reproductive and other health services; training and rehabilitation programmes; counselling, includ-
ing for situations where women have had prior experience of violence and abuse; and prison facilities
that are suitable for housing women together with their children. Lack of services may result in the
violation of the due process rights of women and the severe underreporting of ill-treatment while in
detention or in prison.
497
Key measures to overcoming economic barriers include providing free or low-charge interpretative
assistance, reducing the costs associated with court ling for women with low incomes,
498
and ensuring
495
General recommendation No. 33 (2015) on women’s access to justice, para. 17 (f).
496
A/HRC/17/30, paras. 20–36.
497
See UN-Women and others, A Practitioner’s Toolkit on Women’s Access to Justice Programming (2018), pp. 285–286.
498
General recommendation No. 33 (2015) on women’s access to justice, para. 17 (a).
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
eective access to legal assistance and representation. e Human Rights Commiee has underscored
that the availability or absence of legal assistance oen determines whether or not a person can access
the relevant proceedings or participate in them in a meaningful way,
499
thereby directly aecting access
to justice.
Legal assistance and representation is particularly important to helping women to overcome the
structural and cultural barriers they face in accessing justice in many contexts, which may be accompa-
nied by a lack of awareness of their legal rights, as identied above. States parties to the Convention on
the Elimination of All Forms of Discrimination against Women have an obligation to ensure that
women have recourse to aordable, accessible and timely remedies, with legal aid and assistance as
necessary, to be seled in a fair hearing by a competent and independent court or tribunal, where
appropriate.
500
Eective legal assistance and representation is also key in overcoming prevailing gender
stereotypes and biases within criminal justice systems that limit the credibility of women, both as
p arties to a case and as witnesses.
501
In its resolution 65/228, on strengthening crime prevention and criminal justice responses to
violence against women, the General Assembly highlighted the importance of ensuring that female
victims of violence, in particular, have access to both adequate legal representation, in order to make
informed legal decisions, and to the civil and criminal justice systems.
502
e Commiee on the
Elimination of Discrimination against Women also calls for States parties to ensure access to nancial
aid and free or low-cost, high-quality legal aid for victims of violence against women.
503
Legal aid
e availability of free or low-cost legal aid, advice and representation in quasi-judicial and judicial
processes is critical in ensuring that victims and witnesses can obtain legal advice and fully participate
in the criminal justice process and that the rights of oenders are respected. It is the core means
through which some of the economic barriers to justice for women can be removed. As also noted by
the Commiee on the Elimination of Discrimination against Women, the lack of access to quality,
gender-competent legal advice, including legal aid, is one of the critical challenges preventing women
from accessing justice.
504
According to the United Nations Principles and Guidelines on Access to
Legal Aid in Criminal Justice Systems, legal aid should ideally cover legal advice, assistance and
representation, at no cost, for those without sucient means or when the interests of justice so require,
and should specically cover the following individuals:
• Persons detained, arrested or imprisoned, suspected or accused of, or charged with a criminal oence
• Victims and witnesses in the criminal justice process
505
According to the joint UNODC/UNDP Global Study on Legal Aid: Global Report, only 61 per cent
of Member State respondents indicated that legal advice and court services were provided in all legal
proceedings to female victims of violence, including victims of sexual and gender-based violence.
In addition, legal aid services to female victims of violence were noticeably less accessible in
499
Human Rights Commiee, general comment No. 32 (2007) on the right to equality before courts and tribunals and to a
fair trial, para. 10.
500
Commiee on the Elimination of Discrimination against Women, general recommendation No. 28 (2010) on the core
obligations of States parties under article 2 of the Convention, para. 34.
501
General recommendation No. 33 (2015) on women’s access to justice, para. 26.
502
General Assembly resolution 65/228, para. 12.
503
General recommendation No. 35 (2017) on gender-based violence against women, updating general recommendation
No. 19, para. 31 (a)(iii).
504
General recommendation No. 33 (2015) on women’s access to justice, para. 13.
505
General Assembly resolution 67/187, annex, para. 8.
CHAPTER 6. ACCESS TO JUSTICE AND REMEDIES FOR VICTIMS
lower-income countries (50 per cent) than in higher-income countries (68 per cent).
506
e study noted
that the central obstacles women face in accessing legal aid included:
• Lack of specialized legal aid services for women
• Lack of awareness about the availability of legal aid services at lile or no cost
• Lack of awareness about where to obtain legal assistance
• Perception that it is not socially acceptable for women to seek legal aid
e United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems,
and the Commiee on the Elimination of Discrimination against Women provide guidance and
r ecommendations on accessible legal aid services for women in criminal justice systems:
• Legal aid should be provided on the basis of non-discrimination. Ensure that legal aid is provided to
all persons who are entitled to it, including victims of crime and witnesses of crime on the basis of
non-discrimination, regardless of, inter alia, age, race, colour, gender, language, religion or belief
(principles 3–6).
• Inform women of their entitlements to legal aid. Conduct information and awareness-raising
programmes about the availability of legal aid, including eligibility for legal aid and social services
that interface with legal systems.
507
• Special measures. States may need to take special measures to ensure meaningful access to legal aid
for women (principle 10).
• Gender-sensitive administration of legal aid systems. Introduce a gender perspective into all policies,
laws, procedures, programmes and practices relating to legal aid to ensure gender equality and
equal and fair access to justice (principle 10 and guideline 9).
– Legal aid should be provided in a timely, continuous and eective manner at all stages of
judicial or quasi-judicial proceedings, including alternative dispute resolution mechanisms
and restorative justice processes (principle 3 and guideline 10).
508
– Where a woman lacks equal access to family income, means testing used to determine eligibility
for legal aid should be based on the disposable assets of the woman, not that of the family.
509
• Training and gender representation in legal aid systems. Ensure that legal aid providers possess the
relevant training, skills and experience to enable them to meet the rights and needs of women.
Where possible, female lawyers should be available to represent female defendants, accused and
victims (principle 13 and guideline 9). Also ensure that legal aid and public defence providers are
competent and gender-sensitive, respect condentiality and are granted adequate time to defend
their clients,
510
and are subject to regulation and oversight mechanisms (guideline 15).
• Legal aid for female victims of violence. Ensure that female victims of violence can access legal aid,
advice, court support and other services, to ensure access to justice and to avoid secondary
victimization (guideline 9).
(iii) Good quality and accountable justice mechanisms
Good quality and accountable justice mechanisms are those that are gender-sensitive and that adhere to
international standards of competence, eciency, independence and impartiality, and accountability.
506
UNODC and UNDP, Global Study on Legal Aid: Global Report (New York, 2016), p. 78.
507
General recommendation No. 33 (2015) on women’s access to justice, paras. 33 (b) and 37 (c).
508
Ibid., para. 37 (a).
509
Ibid., para. 64 (e).
510
Ibid., para. 37 (b).
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
Achieving adherence to these standards will vary, depending on national context. Eorts may include
training justice system professionals in gender sensitivity and countering gender stereotypes, providing
measures to overcome language barriers and ensuring female representation in justice institutions.
Female victims may be impeded from claiming their rights through judicial processes as a result of the
fear of stigmatization of victims and fear of reprisals or social ostracism, especially for victims of sexual and
gender-based violence. Female victims may also abandon eorts to claim those rights out of fear of being
associated with a terrorist group or prosecuted for terrorism-related acts. e keys to overcoming these
barriers include the provision of victim protection measures(see chap. 3); the allocation of psychosocial
and medical support for victims; and the additional allocation of com munity and family support.
An accountable and inclusive justice system requires the eective monitoring, not only of
mechanisms, to ensure consistency with these principles, but also of justice system professionals and
their legal responsibility in cases in which they violate the law.
(iv) Provision of remedies
Provision of remedies means the ability of women to receive viable protection and meaningful redress.
e provision of gender-sensitive remedies is essential to meeting the specic needs of victims, and
enabling them to access justice, and is discussed in detail below.
. Improving access to justice for victims of terrorism
Measures to ensure access to justice through formal judicial mechanisms for all victims of terrorist crime
were identied in two UNODC publications: the Handbook on Criminal Justice Responses to Terrorism
and e Criminal Justice Response to Support Victims of Acts of Terrorism. ose measures include:
• Informing victims of their role in the criminal justice process, the nature and timing of proceedings,
and the extent of required cooperation
• Ensuring the availability of legal aid mechanisms to facilitate legal representation
• Allowing for the views and concerns of victims to be presented and considered at appropriate
stages of the proceedings where their personal interests are aected, without prejudice to the
accused and consistent with the relevant procedures of the national criminal justice system
• Informing victims of their rights in seeking redress through available judicial or administrative
mechanisms
• Protecting victims from potential intimidation and retaliation, and protecting their privacy (see
chap. 3)
• Avoiding unnecessary delay in the disposition of cases and the execution of orders granting
awards to victims
• Oering victims the necessary material, medical, psychological and social assistance through
governmental, voluntary and community-based means (considered below)
• Oering victims access to restitution and compensation (considered below)
511
While these considerations remain applicable, identifying the gender dimensions that may operate
to impede women’s access to justice as victims of terrorist crimes is crucial to ensuring that the needs
of female victims are also met.
511
Handbook on Criminal Justice Responses to Terrorism, Criminal Justice Handbook Series (United Nations publication, Sales
No. E.09.IV.2), pp. 109–110; and UNODC, e Criminal Justice Response to Support Victims of Acts of Terrorism, pp. 32–35.
CHAPTER 6. ACCESS TO JUSTICE AND REMEDIES FOR VICTIMS
. Access to justice for victims of sexual and gender-based violence
Providing access to justice for victims of sexual and gender-based violence perpetrated by terrorist
groups, in line with the principles established in section A of the present chapter, is integral to victim
protection and assistance. States also have a number of obligations to provide such access. e
Commiee on the Elimination of Discrimination against Women has called upon States parties, in its
recommendation No. 35, on gender-based violence against women, to ensure that legal systems,
including plural legal systems, protect victims and survivors of gender-based violence against women
and ensure they have access to justice and to an eective remedy in line with the guidance provided in
the Commiee’s general recommendation No. 33 (2015).
Enhancing access to justice for women whose rights have been violated is also a key tenet of the
Women, Peace and Security Agenda. In paragraph 4 of its resolution 1820 (2008), the Security Council
called upon Member States to ensure that all victims of sexual violence, particularly women and girls,
had equal protection under the law and equal access to justice, and stressed the importance of ending
impunity for such acts as part of a comprehensive approach to seeking sustainable peace, justice, truth
and national reconciliation.
In aempting to access justice, victims of sexual and gender-based violence may face additional
barriers to those examined above. ose barriers will require a targeted response. Social stigma sur-
rounding sexual violence and gender stereotypes may be manifested in dierent parts of the criminal
justice system, and impede an eective investigative and judicial process. In a case on gender st ereotypes
in judicial decisions on sexual violence, the Commiee on the Elimination of Discrimination against
Women established that stereotyping aects the rights of women to a fair and just trial and that the
judiciary must take caution not to create inexible standards of what women or girls should be or what
they should have done when confronted with a situation of rape, based merely on preconceived notions
of what denes a rape victim or a victim of gender-based violence.
512
FURTHER READING
UNODC has developed a number of publications providing guidance on access to justice, including:
• UN-Women and others, A Practitioner’s Toolkit on Women’s Access to Justice Programming
• e Model Law on Legal Aid in Criminal Justice System with Commentaries, which provides guidance to
States on the administration, funding and organization of a national legal aid mechanism, in line with
the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems
(see, in particular, model article 5 on non-discrimination in legal aid systems).
• e Criminal Justice Response to Support Victims of Acts of Terrorism
• Good Practices in Supporting Victims of Terrorism within the Criminal Justice Framework
B. Access to remedies and reparations for victims
of terrorist crime
. The right to an eective remedy for victims of terrorism
e provision of remedies is integral to a victim-centred approach, and is a key part of facilitating equal
and eective access to justice for victims. e right to an eective remedy for victims of crime and
512
CEDAW/C/46/D/18/2008, para. 8.4.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
violations of international human rights and humanitarian law – including those commied by
members of terrorist groups – is well entrenched in international norms and standards.
513
Where the perpetrators responsible for inicting harm have not been identied or apprehended, or
where they are not solvent, it is the responsibility of States to provide remedies for harm suered by
their nationals. In many cases, States full this responsibility by establishing national compensation
schemes. is is reected in the Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power:
12. When compensation is not fully available from the oender or other sources, States should
endeavour to provide nancial compensation to:
(a) Victims who have sustained signicant bodily injury or impairment of physical or mental
health as a result of serious crimes;
(b) e family, in particular dependants of persons who have died or become physically or
mentally incapacitated as a result of such victimization.
13. e establishment, strengthening and expansion of national funds for compensation to
victims should be encouraged. Where appropriate, other funds may also be established for this
purpose, including in those cases where the State of which the victim is a national is not in a position
to compensate the victim for the harm.
514
e Special Rapporteur on the promotion and protection of human rights and fundamental
freedoms while countering terrorism has conrmed that the duty to protect the rights of victims of
terrorism rests primarily with States.
515
e Special Rapporteur wrote that States were bound by an
international human rights obligation to provide for such assistance to victims of terrorism, including
their families. at obligation includes the duty to provide pecuniary compensation, including for moral
damages sustained; rehabilitation; provision of health care; and psychosocial and legal assistance.
516
e form and extent of the remedy required will depend on the circumstances of each case, as well
as the nature of the State’s primary obligation.
. Access to remedies through judicial mechanisms
and administrative schemes
Victims of terrorist crime may seek remedies in a number of ways, depending on domestic legislation,
and the nature of the legal system.
• Victims may obtain remedies through judicial mechanisms, including by bringing individual civil
claims against perpetrators. Where provided for in national law, victims may pursue compensation
or restitution in criminal proceedings.
517
• Remedies and other forms of support may be oered through administrative schemes, such as
national compensation funds.
513
See Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (General Assembly resolution40/34,
annex), paras. 8–13; and Basic Principles and Guidelines of the Right to a Remedy and Reparation for Victims of Gross Violations of
International Human Rights Law and Serious Violations of International Humanitarian Law (General Assembly resolution60/147,
annex), paras. 3 (d) and 16.
514
For an example of such a measure, see the Protocol on the Prevention and Suppression of Sexual Violence against Women
and Children of the Pact on Security, Stability and Development in the Great Lakes Region, art. 6, paras. 6 and 8.
515
A/66/310, para. 23.
516
Ibid., paras. 20 and 24.
517
In some jurisdictions, civil action and criminal prosecution can be sought concurrently. In others, a criminal conviction
may be required for civil action, while in some contexts, criminal courts will consider civil claims in the course of the same case.
CHAPTER 6. ACCESS TO JUSTICE AND REMEDIES FOR VICTIMS
States may elect to establish administrative programmes for reparations and assistance as an
alternative or to supplement individual remedies through judicial processes, where large-scale viola-
tions have occurred or where perpetrators are unwilling or unable to meet their obligations pursuant to
court-ordered remedies.
518
e Commiee against Torture, for example, has recommended implement-
ing accessible mechanisms for victims of torture and ill-treatment, such as national funds that include
special measures to facilitate access to reparations, in particular for victims who have been marginalized
or made vulnerable.
519
Administrative schemes, such as national compensation funds, are particularly
relevant for victims of terrorism, in the light of the large numbers of victims and large-scale damage
oen caused by terrorist acts, and the fact that the perpetrators may be unidentiable or deceased, and
in most cases lack the necessary means to meet their obligations for court-ordered remedies.
e guidance note of the Secretary-General on reparations for conict-related sexual violence,
issued in 2014, denes an administrative reparations programme as an out-of-court process used by
States to provide reparation to massive numbers of victims of gross violations of international human
rights law and/or serious violations of international humanitarian law. In such programmes, States
identify the violations and the victims to be redressed and provide them with reparation through an
established procedure. Reparation can also be ordered by national or international courts against a
State or against the perpetrator of the crime, as applicable.
> FOCUS: ADMINISTRATIVE REPARATIONS PROGRAMMES
ere are a number of considerations to take into account with respect to administrative reparations schemes:
• Administrative programmes have the potential of being more inclusive and accessible than courts. Such
programmes are in fact capable of reaching a larger number of victims and are more victim-friendly
because their procedures are more exible, and evidentiary standards and costs are considerably lower.
a
• Administrative programmes may oer a more prompt and condential way to access reparations and
support that can minimize the risk of secondary victimization and stigma.
• e availability of such schemes should not aect the ability of victims to obtain judicial remedies,
including adequate, prompt and full reparation for the harm suered, and courts should take into
account reparations awarded through these schemes when deciding on remedies.
b
• ese schemes should be developed in consultation with victims, taking into account their needs
and priorities.
• Information should be available to those who are potentially eligible about how to apply for/access
these schemes, and the application period should be open for a reasonable period of time.
a
“Guidance note of the Secretary-General on reparations for conict-related sexual violence” (2014), p. 6.
b
Ibid., p. 6; and general comment No. 3 (2012) on the implementation of article 14, para. 20.
C. Gender-sensitive remedies and reparations
Reparations mechanisms have conventionally disregarded gender perspectives, priorities and
dierences in their design and administration, which has undermined eective access to reparations
for women. e need to integrate gender perspectives into reparations schemes for victims of
518
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International
Human Rights Law and Serious Violations of International Humanitarian Law (General Assembly resolution 60/147, annex),
para. 16.
519
Commiee against Torture, general comment No. 3 (2012) on the implementation of article 14, para. 29.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
terrorism has, however, become increasingly recognized in recent years.
520
e Special Rapporteur on
the promotion and protection of human rights and fundamental freedoms while countering terrorism
has stated that reparation schemes should aim at full restitution and foresee individual and collective
reparation for both victims of counter-terrorism measures by the State and victims of terrorist acts, and
follow a participatory approach. National reparation mechanisms must be independent and provide
for adequate, eective and prompt reparation, “which includes their being readily accessible and their
taking a gender perspective into account”. Compensation must never become a substitute for bringing
perpetrators to justice or for revealing the truth in compliance with applicable international human
rights obligations.
521
e following considerations should be taken into account in implementing gender-sensitive
reparations programmes.
. General principles
• All facets of reparations programmes should be based on the principles of equality and non- discrimination.
522
Programmes should be designed to recognize and support all victims, and implemented without
discrimination, including on the basis of sex, ethnicity, social class and economic standing, while
ensuring that assistance is appropriately tailored to the needs of victims.
523
Further, they must be
designed in a manner that avoids reinforcing norms and practices that disadvantage and marginalize
women, or which further existing decits in women’s legal, political, social or economic agency, to
the extent possible.
524
Equality and non-discrimination should underpin the entire reparations process, from the
investigations and fact-nding stage, to outreach, registration mechanisms, design of the form and
distribution of reparations, and decision-making. In addition to these basic principles, reparations pro-
cesses generally should prioritize the agency, wishes and decisions, safety, dignity and integrity of the
victim or survivor, and should avoid revictimization.
525
• e design, implementation and monitoring of the reparation process should be a victim- and gender-
inclusive process. Meaningful engagement with a wide range of stakeholders, including women,
ensures that a full understanding of the needs of victims can be captured, and signals an ocial
acknowledgement of the dierentiated experiences of victims, which is an important step in
restoring their dignity. Such engagement is necessary given that in contexts where decision-
making on nancial, educational or legal maers is male-dominated, women may be constrained
from beneing from reparations.
As noted in the report of OHCHR on the analytical study focusing on gender-based and sexual
violence in relation to transitional justice, victims know their needs and priorities best, and are uniquely
placed to address concerns about the modalities and distribution of reparations, including with regard
to ensuring that benets are accessible, equitable and eective. In Uganda, OHCHR and the Uganda
520
“Guidance note of the Secretary-General on reparations for conict-related sexual violence”; and A/HRC/27/21, para. 45.
521
A/66/310, para. 25.
522
Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Gross Violations of International
Human Rights Law and Serious Violations of International Humanitarian Law, para. 25.
523
UNODC, e Criminal Justice Response to Support Victims of Acts of Terrorism, p. 71.
524
Margaret Urban Walker, “Transformative reparations? A critical look at a current trend in thinking about gender-just
reparations”, International Journal of Transitional Justice, vol. 10, No. 1 (2016), p. 121.
525
General recommendation No. 35 (2017) on gender-based violence against women, updating general recommendation
No. 19, paras. 32 (b) and 33 (b).
CHAPTER 6. ACCESS TO JUSTICE AND REMEDIES FOR VICTIMS
Human Rights Commission have been conducting training since 2008 to build awareness of reparations,
while simultaneously conducting research on the views of conict-aected communities.
526
Further, victims have diering conceptions of justice, priorities and assistance needs for them-
selves, their families and their communities, which may reect gendered disparities.
527
Some victims
may prioritize service delivery to meet basic needs, while others may prioritize pecuniary compen-
sation. Engaging inclusively with victims through consultations is required, both to gauge these pri-
orities and to manage victim expectations about what can reasonably be expected from the
programme.
Many women consulted in the aermath of conict or authoritarianism about the form of redress
that they would favour expressed preference for services to meet their basic needs and those of their
family members over restitution of lost property or monetary compensation in proportion to harm or
for lost opportunities. For instance, common demands of women include services for their medical
and psychological rehabilitation and that of their families, as well as education for their children and
housing-related assistance.
528
• e participation of women in reparations processes should be actively encouraged. Encouraging the
participation of women in community processes such as consultations may require educational
initiatives, especially where women’s participation in public life is limited.
529
Given the obstacles to eective victim participation, adopting structural incentives to encourage
gender-sensitive outreach and procedures should be encouraged. In Timor-Leste, the Commission for
Reception, Truth and Reconciliation recommended that 50 per cent of reparations resources be
earmarked for women to ensure that the implementing mechanism would make a suciently strong
eort to reach women and girls.
530
Decentralized consultations are useful, where possible, to reach a broad range of victims, noting
that the needs of victims may vary substantially depending on factors such as location.
531
• Gender considerations should inform the types of harms falling within the scope of the programme.
Reparations programmes should follow a “harms-based” approach in assessing the types of
harms to be included in the scope of the programme, taking into account direct victims,
beneciaries and vulnerable dependents. A gender analysis of the eects of the harm suered
and its dierential impacts on women, men, boys and girls, as well as any explicitly gendered
harms – including sexual and gender-based violence, the loss of reproductive capacity or
forced pregnancy (see section D.2 of the present chapter) – should also be conducted.
532
is avoids a gender bias in determining priorities and assessing what constitutes harm requir-
ing reparations.
533
526
A/HRC/27/21, paras. 46–47; and Uganda Human Rights Commission and Oce of the United Nations High
Commissioner for Human Rights (OHCHR), “e Dust Has Not Yet Seled”: Victims’ Views on the Right to Remedy and
Reparation – A Report om the Greater North of Uganda (Kampala, 2011), pp. 26–27.
527
UN-Women and UNDP, “Reparations, development and gender: report of the Kampala workshop – 1–2 December 2010”
(2010), p. 14.
528
Ruth Rubio-Marín, “e gender of reparations: seing the agenda” in What Happened to the Women? Gender and
Reparations for Human Rights Violations, Ruth Rubio-Marín, ed., Advancing Transitional Justice Series (New York, Social
Science Research Council, 2006), p. 29.
529
“Reparations, development and gender”, p. 14.
530
A/HRC/27/21, para. 50; see also Galuh Wandita, Karen Campbell-Nelson and Manuela Leong Pereira, “Learning to
engender reparations in Timor-Leste: reaching out to female victims”, in What Happened to the Women?, Rubio-Marín, ed., p. 308.
531
“Guidance note of the Secretary-General on reparations”, pp. 11–12.
532
“Reparations, development and gender”, p. 16.
533
Fionnuala Ní Aoláin, Dina Francesca Haynes and Naomi Cahn, On the Frontlines: Gender, War, and the Post-Conict Process
(New York, Oxford University Press, 2011), pp. 190 and 216.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
• Victim support and rehabilitation programmes must be designed and delivered in a gender-sensitive
manner. Eective victim support also requires, beyond criminal justice proceedings, that the
necessary material, medical, psychological and social assistance, including information on
available health and social services, is available at the national level. e criminal justice system
and its role in supporting victims of acts of terrorism should be part of a broader action for
assistance and support to victims in all aspects.
534
ese forms of support provide victims of terrorism with the assistance required for their social
rehabilitation.
535
However, in many contexts, the ability to successfully claim these forms of reparation
is intricately linked to concerns regarding women’s access to public and social services generally.
Where, for example, women’s needs are not adequately represented in decision-making forums, access
to priority health-care and psychological services for gendered harms may not be recognized, or
benets may be distributed unequally.
. Procedural and administrative considerations
• Programmes should take into account and ameliorate the barriers to equal participation. Like the points
raised in section A of the present chapter with regard to access to justice, the process for registering
for reparations programmes must take into account physical, social, cultural and economic barriers
to participation, especially for socioeconomically disadvantaged women and those in rural areas.
Specic outreach initiatives to circulate information about the availability of programmes, eligibil-
ity requirements and the implications of registering may be required, taking into account literacy
and language considerations.
536
e physical accessibility of the programme should also be taken
into account, particularly for those located in rural areas. Further, the criteria and procedures for
accessing reparations must be gender-sensitive. e imposition of strict application deadlines or
closed-list systems, whether linked to participation in truth commissions or otherwise, is likely to
exclude some victims.
537
e Commiee on the Elimination of Discrimination against Women has
recommended that States create women-specic funds to ensure that women receive adequate
reparation in situations in which the individuals or entities responsible for violating their human
rights are unable or unwilling to provide such reparation, including for victims of sexual and
gender-based violence.
538
• Sta involved in the administration of reparations programmes should be trained in the gendered
dimensions of reparations processes. In order to avoid revictimization, such training should address
issues that include engaging with victims in a gender-sensitive way and understanding dierent
types of harm. In addition, training courses should stress the importance of including both men
and women among the sta involved in taking statements.
• e evidentiary requirements for victim registration should take into account the need to provide prompt
and accessible remedies. As highlighted by UN-Women and UNDP, stringent documentation and
evidentiary requirements, including the demand for death certicates, land titles or medical
documentation proving sexual violations, need to be considered thoughtfully, taking into account
534
UNODC, e Criminal Justice Response to Support Victims of Acts of Terrorism, para. 47.
535
A/HRC/20/14, para. 62.
536
Beth Goldbla, “Evaluating the gender content of reparations: lessons from South Africa” in What Happened to the Women?
Rubio-Marín, ed., p. 74.
537
A/HRC/27/21, para. 48.
538
General recommendation No. 33 (2015) on women’s access to justice, para. 19 (d); and general recommendation No. 35
(2017) on gender-based violence against women, updating general recommendation No. 19, para. 47.
CHAPTER 6. ACCESS TO JUSTICE AND REMEDIES FOR VICTIMS
the context of the programme and the extent to which victims can realistically access such
evidence,
539
both in terms of the time and expense incurred in obtaining such documentation.
• Reparations awards should be dispersed in a gender-sensitive manner, taking into account, where
appropriate, the diering needs of victims. Experience from past reparations programmes has shown
that, when awarding compensation, disbursing standard, lump-sum benets to all victims fails to
take into account gendered vulnerabilities, such as where a family has lost a male breadwinner,
given that female-headed households tend to be less nancially stable than male-headed ones.
is nancial inequality is due in part to the fact that women tend to earn less than male counter-
parts, and also can be the result of the role of women in some societies as caregivers to a range of
dependants.
540
Further, programmes must be sensitive to the diculties women and children face
in complying with formal requirements, such as providing ocial documentation or holding a
bank account.
541
• e form of reparations should not reinforce gender-based legal, social or economic barriers to redress.
For example, women may face barriers in accessing compensation in contexts where they have
limited autonomy over nancial resources. e Nairobi Declaration reinforces that reparations
should seek to have a transformative impact. Principle 3 provides that Reparation must drive
post-conict transformation of sociocultural injustices, and political and structural inequalities
that shape the lives of women and girls; that reintegration and restitution by themselves are not
sucient goals of reparation, since the origins of violations of the human rights of women and
girls predate the conict situation.
Transformative reparations are discussed further below in the context of victims of sexual and
gender-based violence.
> EXAMPLE: REPARATIONS AND VICTIM SUPPORT AND THE TRUST FUND FOR VICTIMS
e Trust Fund for Victims supports victims of crimes that fall under the jurisdiction of the International
Criminal Court.
e Strategic Plan for 2014–2017 of the Trust Fund for Victims contains eight programmatic principles
identied as guiding its work. e rst of these principles is aimed at supporting the advancement of the
human rights of women as well as increasing the participation of women and incorporating gender per-
spectives. is includes addressing disparities and the impact of sexual and gender-based violence, in line
with the Convention on the Elimination of All Forms of Discrimination against Women and the Security
Council resolutions on women, peace and security.
a
To this end, the Trust Fund aims to mainstream gender across its activities, specically targeting victims
of sexual and gender-based violence, and to pursue a “structured inclusion” of gender issues into its needs
assessment and project planning. Doing so will indicate additional areas of intervention, such as the provi-
sion of care and support to both female and male survivors of sexual and gender-based violence, an increase
in the number of tailored interventions to support the reintegration of child mothers and girls associated
with armed groups, and a wider array of vocational and livelihood options.
b
a
Trust Fund for Victims, “TFV Strategic Plan 2014–2017” (e Hague, August 2014), p. 15. Available at
www.trustfundforvictims.org/sites/default/files/imce/1408%20TFV%20Strategic%20Plan%202014-2017%20
Final%20ENG.pdf.
b
Ibid., p. 21.
539
“Reparations, development and gender”, p. 17.
540
Goldbla, “Evaluating the gender content of reparations” in What Happened to the Women?, Rubio-Marín, ed., pp. 75 and 215.
541
A/HRC/27/21, para. 48.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
FURTHER READING
• e UNODC Handbook on Justice for Victims: On the Use and Application of the Declaration of Basic
Principles of Justice for Victims of Crime and Abuse of Power serves as a guide for States implementing the
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. e handbook
outlines basic steps for developing comprehensive assistance services for victims of crime, as well as
victim-sensitive policies, procedures and protocols for criminal justice. An updated version of the
handbook is currently under development.
• e Special Rapporteur on the promotion and protection of human rights and fundamental freedoms
while countering terrorism has dedicated a report to the development of framework principles for
securing the human rights of victims of terrorism (A/HRC/20/14).
• e OHCHR publication Rule-of-Law Tools for Post-conict States: Reparations Programmes provides
guidance on the design and implementation of reparations initiatives generally and includes a section
on gender-sensitive reparations.
D. Remedies for victims of sexual and gender-based
violence and tracking in persons perpetrated
by terrorist groups
. Right to remedies
One of the integral components of the responsibility of States to eectively respond to sexual and
gender-based violence is the provision of just and eective remedies to victims of such acts.
542
e
Commiee on the Elimination of Discrimination against Women has recognized that States are spe-
cically required to provide eective reparation to women who are victims or survivors of gender-
based violence. Reparation should include dierent measures, such as monetary compensation; the
provision of legal, social and health services, including sexual, reproductive and mental health, for a
complete recovery; and satisfaction and guarantees of non-repetition. Such reparations should be
adequate, promptly aributed, holistic and proportionate to the gravity of the harm suered.
543
e need to provide reparations and ocial support to victims has been similarly recognized in
numerous Security Council resolutions, including resolutions 2242 (2015), 2331 (2016), 2349
(2017) and 2388 (2017).
In its resolution 2331 (2016), the Security Council armed that victims of sexual violence and
tracking in persons, perpetrated by terrorist groups, should be classied as victims of terrorism, with
the purpose of rendering them eligible for the ocial support, recognition and redress available to such
victims, and that they should have access to national relief and reparations programmes, as a way of
facilitating rehabilitation and reintegration eorts. To that end, victims of sexual violence and tracking
should benet from relief and recovery programmes, including health care, psychosocial care, safe
shelter livelihood support and legal aid, and services should include provision for women with children
born as a result of wartime rape, as well as men and boys who may have been victims of sexual violence
in conict, including when it is associated with tracking in persons in armed conict.
542
See general recommendation No. 28 (2010) on the core obligations of States parties under article 2 of the Convention,
paras. 32–36; the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women,
art.7, para. (g); the Declaration on the Elimination of Violence against Women, art. 4, para. (d); the Beijing Declaration and
Platform for Action adopted at the Fourth World Conference on Women, paras. 124 (d) and (h); and the Nairobi Declaration
on Women’s and Girls’ Right to a Remedy and Reparation.
543
General recommendation No. 35 (2017) on gender-based violence against women, updating general recommendation
No. 19, para. 33 (a).
CHAPTER 6. ACCESS TO JUSTICE AND REMEDIES FOR VICTIMS
. Remedies for victims of sexual and gender-based violence
In addition to the general principles of gender-sensitive reparations programmes discussed in
section C of the present chapter, there are a number of considerations with respect to victims of
sexual and gender-based violence and tracking in persons in particular that should be taken into
account. ese good practices have largely emerged from previous experience with reparations for
conict-related sexual violence.
ese principles apply equally to female and male victims, who both suer from the physical and
psychological, social and economic eects of victimization, while recognizing that their needs and
appropriate responses can dier substantially, depending on the context.
(i) General principles
• Criminal justice systems have a crucial role to play. Member States should ensure that women
subjected to violence have access to prompt and fair redress for the harm that they have suered
as a result of violence, including the right to seek restitution from the oender or compensation
from the State.
544
Sentencing policies and procedures should not only denounce, deter and stop
violent behaviour but also provide reparations for harm caused as a result of the violence.
545
• Reparations programmes must fully recognize harms caused by sexual and gender-based violence.
Conventionally, post-conict reparations programmes have failed to systematically include gender
issues in their design and implementation, focusing on what was perceived to be the most “serious”
rights violations (e.g., murder, torture or violations of physical integrity resulting in permanent
impairments). In some cases, a “hierarchy of violations” was created, in which harms related to
sexual and gender-based violence were marginalized or seen as less serious, non- permanent
harms.
546
Such a hierarchy fails to recognize the gravity of harms related to sexual and gender-based
violence, which disproportionately aects women, and reveals an extraordinary masculine bias in
the assessment of what constitutes irreparable harms and how those harms play out over a lifetime,
particularly in societies where women are valued for their childbearing capacity as well as their
perceived purity.
547
ere has been a positive shi towards acknowledging these harms, as reected by civil society
initiatives. e rst such initiative was the Nairobi Declaration on Women’s and Girls’ Right to a Remedy
and Reparation, which develops principles on gender-sensitive reparation, particularly for victims of
sexual violence. is shi was also signalled by the work of the Special Rapporteur on violence against
women, its causes and consequences, advocating for gender-sensitive reparations,
548
and the guidance
note of the Secretary-General on reparations for conict-related sexual violence, developed in 2014.
Recognition of harms related to sexual and gender-based violence must be reected in the
identication of the forms of harm eligible for reparations; in the denition of “beneciaries” as those
persons eligible to benet from reparations, and in the forms of reparations made available.
549
Concerning the forms of harm related to sexual and gender-based violence eligible for reparations,
recognition of victimization should not be limited to forms of physical violence such as rape, but the
range of harms discussed in chapter 5. ose forms include the eects of rape, forced pregnancies,
544
Updated Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime
Prevention and Criminal Practice, para. 18 (d).
545
Ibid., para. 17 (a).
546
Ní Aoláin, Haynes and Cahn, On the Frontlines, pp. 189–190.
547
Ibid., p. 190.
548
See A/HRC/14/22, paras. 30–85.
549
Ibid., para. 41.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
forced abortions and sterilization, and more “domestic” forms of enslavement, such as forced marriage.
550
Even where harms related to sexual and gender-based violence are acknowledged, reparations processes
should endeavour to fully understand the gendered nature and impacts of such harms. ey not only
constitute physical violations, but impair social, economic and emotional capacities that can fuel wider
discrimination against women, and heightened social and economic vulnerabilities.
551
With regard to the scope of beneciaries, processes should adopt an inclusive approach towards
identifying beneciaries, keeping in mind the above-mentioned general principles for dening victims
and entitlements to support of family members. A good practice is to dene the entitlements of chil-
dren born out of rape, who face being ostracized by their communities and families in many contexts.
Such entitlements may entail enabling those caring for children born out of rape to claim reparations
on their behalf. As noted in the guidance note of the Secretary-General on reparations for conict-
related sexual violence, in Peru, the Reparations Plan recognized children born of rape as a distinct
category of beneciary, noting they should be entitled to economic compensation up to the age of 18
and should be eligible for preferential access to education services.
552
Identication of the forms of reparations made available should be one of the main outcomes of an
inclusive consultations process in order to identify needs and priorities. Reparations programmes
should be comprehensive and not limited only to compensation or immediate forms of rehabilitation.
• Reparations programmes should adopt a exible approach to the categorization of harms. Without
prejudice to the importance of recognizing harms specic to sexual and gender-based vio-
lence, it is also necessary to enable victims, if they wish, to present their claims under other
forms of harm, owing to the stigma associated with sexual and gender-based violence in some
contexts. e Special Rapporteur on torture and other cruel, inhuman or degrading treat-
ment or punishment, has noted that victims of sexual violence in Guatemala have reported
feeling more protected from social stigmatization when the crime is dened as torture rather
than rape, forced impregnation or sexual slavery.
553
Gauging the views of victims on this point
should be one of the aims of consultations. In Timor-Leste, the Commission for Reception,
Truth and Reconciliation recommended the inclusion of non-harm-based categories, such as
single mothers and children aected by the conict, in addition to victims of sexual and
gender-based violence.
554
• Urgent interim reparations, in particular rehabilitation measures, should be made available to meet
the immediate needs of victims. ese measures must be designed to respond to the particular
harms suered by women and men, girls and boys who are immediate victims, as well as children
born of rape.
555
Such measures are particularly important for victims of sexual and gender-based
violence, given the nature of the physical and psychological trauma they have sustained, and
potential sexual and reproductive health complications. Urgent measures should include access
to health services, including sexual, reproductive and psychosocial services; medication; and
housing for displaced persons and those who have been marginalized by their families. Urgent
interim reparations measures may be ordered by transitional justice mechanisms, where they are
empowered to administer funds; by courts; or by administrative programmes.
550
See A/HRC/14/22, para. 44.
551
Ní Aoláin, Haynes and Cahn, On the Frontlines, p. 192.
552
“Guidance note of the Secretary-General on reparations”, p. 15.
553
A/HRC/7/3, para. 66.
554
A/HRC/27/21, para. 48.
555
“Guidance note of the Secretary-General on reparations”, p. 13.
CHAPTER 6. ACCESS TO JUSTICE AND REMEDIES FOR VICTIMS
> EXAMPLE: URGENT INTERIM REPARATIONS FOR VICTIMS OF SEXUAL VIOLENCE IN SIERRA LEONE
In Sierra Leone, an urgent reparations scheme was established by the State through its National Commission
for Social Action, with support from international partners and donors, in order to implement
recommendations issued by the Truth and Reconciliation Commission. is scheme included support for
victims of sexual violence, who formed one of the ve categories of victims identied as priority recipients
of urgent interim assistance. Victims of sexual violence were screened and provided with nancial assistance
for the purposes of addressing gynaecological issues and for stula surgeries.
a
a
Jeanne Ward and UN-Women, Violence against Women in Conict, Post-conict and Emergency Seings (2013), pp.342–
343; and United Nations, Mid-Term Review of the UN Joint Vision for Sierra Leone 2009–2010 (2011), p. 31.
• Reparations programmes should endeavour to have a transformative impact. e understanding that
reparations should seek to have a transformative eect on the pre-existing structural inequalities
and discrimination that caused or contributed to the commission of acts of sexual and gender-
based violence has emerged as a leading principle in the context of post-conict reparations
programmes. According to the Special Rapporteur on violence against women, its causes and
consequences, this implies that reparations should aspire, to the extent possible, to subvert
instead of reinforce pre-existing paerns of cross-cuing structural subordination, gender
hierarchies, systemic marginalization and structural inequalities that may be at the root cause of
the violence that women experience before, during and aer the conict.
556
is entails a multidimensional process, addressing not only legal, political and economic structures,
but also local cultural and societal structures, which have discriminatory eects.
> EXAMPLE: TRANSFORMATIVE REPARATIONS AT THE INTER-AMERICAN COURT OF HUMAN RIGHTS
e Inter-American Court of Human Rights case of González et al. (“Coon Field”) v. Mexico (2009) provides
an illustration of transformative reparations in a judicial context. In this case, the Court found the State had
failed to exercise due diligence in investigating the disappearances of three women who were subsequently
found to have been sexually assaulted and murdered. e Court found a violation of the right to life, right
to humane treatment and right to liberty enshrined in the American Convention on Human Rights, as well
as a violation of the State’s obligation to prevent, punish and eradicate violence against women contained
in the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against
Women. e Court noted in particular the ineective responses and the indierent aitudes that have been
documented in relation to the investigation of these crimes, because they appear to have permied the
perpetuation of the violence against women in Ciudad Juárez. Murders with characteristics of sexual violence
present higher levels of impunity.
a
In awarding reparations, the Court held that reparations for the violations that had occurred should take
into account the context of structural discrimination surrounding their commission, aiming not only to
provide restitution, but to rectify such discrimination.
b
e Court ordered Mexico to take a number of
armative measures with respect to the investigation of the case itself, and to introduce measures to
improve its investigative and protection responses to cases involving sexual and gender-based violence
generally. Among other things, the Court ordered Mexico to do the following:
• Conduct eective criminal proceedings related to the deaths of the three women, involving ocials
experienced in dealing with victims of discrimination and gender-based violence, taking into account
a gender perspective, and undertaking specic lines of inquiry concerning sexual violence
556
A/HRC/14/22, para. 85; see also general recommendation No. 30 (2013) on women in conict prevention, conict and
post-conict situations, paras. 77 and 79, and the Nairobi Declaration on the Right of Women and Girls to a Remedy and
Reparation, para. 3.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
• Continue standardizing all its protocols, manuals, prosecutorial investigation criteria, expert services
and services to provide justice that are used to investigate all the crimes relating to the disappearance,
sexual abuse and murders of women, based on a gender perspective and international standards,
including the Istanbul Protocol
• Continue implementing permanent training programmes for public ocials on human rights and
gender to ensure due diligence in conducting preliminary inquiries and judicial proceedings
concerning sexual and gender-based violence
• Provide medical and psychological treatment free of charge and reparations to the families of victims,
as established in the judgment
c
a
Inter-American Court of Human Rights, González et al. (“Coon Field”) v. Mexico, Judgment of 16 November 2009
(Preliminary Objection, Merits, Reparations and Costs), para. 164.
b
Ibid., para. 450.
c
Ibid., pp. 147–149.
(ii) Procedural and administrative considerations
• Reparations processes must respect victim privacy and condentiality. Such an approach is integral at
all stages of the process as a means of protecting victims of sexual and gender-based violence,
encouraging their participation and avoiding stigma. Public reparations processes requiring proof
of harm can disadvantage women, who are disproportionately aected by sexual and gender-
based violence, owing to the stigma aached to such harms. is may directly impede access to
reparations. Condentiality must be prioritized throughout the entire reparations process,
including the registration process. UNDP and UN-Women have observed that public registra-
tion processes that openly categorize violations were likely to exclude many victims of sexual
violence. By utilizing locations where women and girls already gathered to receive information
and services, such as local health clinics and women’s organizations, reparations processes could
ensure greater levels of condentiality and avoid further stigmatization of victims.
557
Administrative mechanisms allow for a greater degree of exibility in implementing measures to
protect condentiality, such as by enabling victims to provide evidence by proxy, in private or with the
assistance of a support person, provided that such measures were not inconsistent with national law. In
the context of judicial proceedings, alternative, victim-sensitive means of providing testimony should
also be considered to the greatest extent possible (see chap. 3).
• Reparations programmes should not be unduly time restricted. Time limits for the registration
process should take account of the fact that victims of sexual and gender-based violence may suf-
fer from trauma symptoms aecting their willingness to come forward.
558
To mitigate that issue,
the Commission for Reception, Truth and Reconciliation in Timor-Leste recommended a two-
year time period for other potential beneciaries to be identied, in addition to those victims
who had appeared before the Commission.
559
557
“Reparations, development and gender”, p. 16.
558
Council of Europe, Directorate General of Human Rights and Legal Aairs, Non-Criminal Remedies for Crime Victims
(Strasbourg, 2009), p. 27.
559
Ní Aoláin, Haynes and Cahn, On the Frontlines, p. 190.
> EXAMPLE: TRANSFORMATIVE REPARATIONS AT THE INTER-AMERICAN COURT OF HUMAN RIGHTS
(continued)
CHAPTER 6. ACCESS TO JUSTICE AND REMEDIES FOR VICTIMS
• Evidentiary rules should, where possible, reect the specic nature of sexual and gender-based violence.
Specic evidentiary rules in judicial and administrative proceedings may need to be adopted for
cases involving sexual and gender-based violence.
560
Victims may encounter signicant challenges
in meeting stringent evidentiary requirements, including in cases in which acts of sexual and
gender-based violence are commied in armed conict or in territory controlled by a terrorist
group, or as a result of the time that has passed since the commission of the crime and the
d estruction of evidence. ese concerns should be taken into account when establishing the
required standard of proof, without prejudice to the rights of the accused.
Bodies processing claims for reparation could consider expanding the scope of evidence accepted
for acts of sexual and gender-based violence to include testimony given by other witnesses and
experts.
561
Another option would be to adopt a standard of proof that is lower than that required in
criminal proceedings. e Appeals Chamber of the International Criminal Court, in the amended
order for reparations for the Lubanga case, made the following stipulations:
In the reparation proceedings, the applicant shall provide sucient proof of the causal link between
the crime and the harm suered, based on the specic circumstances of the case. Given the funda-
mentally dierent nature of reparations proceedings, a standard less exacting than that for trial, where
the prosecution must establish the relevant facts to the standard of “beyond a reasonable doubt”,
should apply. In determining the appropriate standard of proof in reparation proceedings, various
factors specic to the case should be considered, including the diculty victims may face in obtaining
evidence in support of their claim due to the destruction or unavailability of evidence.
562
• States should consider allocating specic funds for victims of sexual and gender-based violence. Where
large-scale violations involving sexual and gender-based violence have occurred, fund allocation
may be done through reparations funds aimed solely at this category of victims. Alternatively,
funds could be allocated within existing programmes, while taking care to avoid stigmatizing
v ictims of this form of crime or puing them at risk for revictimization.
563
. Reintegration programmes for victims of sexual and gender-based
violence
e design and implementation of gender-responsive disarmament, demobilization and reintegration
programmes has emerged as a key international norm, as reected in Security Council resolution 1325
(2000), which encourages all those involved in the planning for disarmament, demobilization and
reintegration to consider the dierent needs of female and male ex-combatants and to take into account
the needs of their dependants.
Exploring the challenges and good practice that have emerged from disarmament, demobilization
and reintegration programmes that have previously been implemented for women and girls formerly
associated with armed groups in the context of armed conict can therefore provide guidance for the
design and implementation of similar programmes for individuals who have been associated with
terrorist groups, including those who are victims of sexual and gender-based violence.
560
“Guidance note of the Secretary-General on reparations”, p. 13.
561
Ibid., pp. 13–14.
562
International Criminal Court, e Prosecutor v. omas Lubanga Dyilo, Judgment on the appeals against the “Decision
establishing the principles and procedures to be applied to reparations” of 7 August 2012 with amended order for reparations
(annex A) and public annexes 1 and 2, case No. ICC-01/04-01/06-3129, 3 March 2015, annex A, para. 22.
563
A/HRC/27/21, para. 47.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
It is important to highlight that challenges faced in particular communities will be context-specic.
Reintegration programmes must thus be responsive to a number of variables, including social and
cultural norms, gender roles and relations, community experiences of terrorist violence and armed
conict, and the incidence of dierent forms of violence.
(i) General considerations
• e fear of association with a terrorist group – even in instances in which women were associated
against their will – and insucient aention to the needs of victims of sexual and gender-based
violence are two key challenges of reintegration programmes in this context.
564
• A number of principles identied in the present chapter pertain also to reintegration programmes
for victims of sexual and gender-based violence. ese include the need for programmes based
on the principles of equality and non-discrimination; the amelioration of barriers to participa-
tion; the provision of services to meet the immediate needs of victims; and the inclusion of both
female and male personnel who possess an understanding of gender issues. Likewise, an under-
standing of the specic needs of victims of sexual and gender-based violence in reintegration
processes must inform programme design, planning and implementation. Such an approach is
necessary to ensure the recognition of dierent forms of victimization and the needs of dierent
beneciaries, including victims with children born from sexual violence.
• Reintegration programmes should adopt a gender-mainstreaming approach and take gender-
specic vulnerabilities into consideration. Victims of sexual and gender-based violence, as
opposed to other participants in reintegration programmes, face particular challenges arising
from social stigma aached to this form of harm, in addition to the stigma derived from being
associated with a terrorist group.
• e reintegration process should integrate measures supporting access to justice for victims of
sexual and gender-based violence participating in integration programmes, particularly the
provision of information on legal rights and remedies.
565
(ii) Fostering community and family acceptance
• With regard to women who have been subjected to sexual and gender-based violence by terrorist
groups, specic challenges exist upon returning to their homes, communities or camps for inter-
nally displaced persons. ey may face marginalization, discrimination and rejection by their
communities and families owing to their perceived association with these groups, as a result of
social aitudes towards sexual and gender-based violence, or out of fear that they have been radi-
calized. is fear has been heightened by the increasing use of women in terrorist groups, includ-
ing as suicide bombers. Further, children born as the result of sexual violence are at a particular
risk of marginalization, may confront issues arising from a lack of ocial identity documents and
may be at risk of becoming stateless.
• Reintegration programmes should make family and community acceptance of victims of sexual
and gender-based violence by terrorist groups a priority, because that acceptance builds the foun-
dation for further reintegration activities. Engaging in community-level dialogue is integral to rais-
ing awareness of and sensitizing communities to the needs of victims of sexual and gender-based
564
See, in the context of post-conict disarmament, demobilization and reintegration, United Nations, Operational Guide to
the Integrated Disarmament, Demobilization and Reintegration Standards (2014), p. 206; and Inter-Agency Working Group on
Disarmament, Demobilization and Reintegration and others, How-To Guide: Gender-Responsive Disarmament, Demobilization
and Reintegration (2012), p. 13.
565
Inter-Agency Working Group on Disarmament, Demobilization and Reintegration, How-To Guide, p. 65.
CHAPTER 6. ACCESS TO JUSTICE AND REMEDIES FOR VICTIMS
violence and children born of sexual violence. Working with community leaders and commiees
in the design and implementation of reintegration programmes, where possible, is important in
sharing an understanding of the experiences and needs of victims.
• Public information and awareness-raising campaigns in communities of return can reduce stigma
and encourage both female and male victims of sexual and gender-based violence to access care.
566
(iii) Access to medical and psychosocial assistance
• Victims of sexual and gender-based violence participating in reintegration programmes must be
aware of and have access to comprehensive medical and psychosocial assistance. is includes
access to comprehensive clinical services, including emergency contraception and post-exposure
prophylaxis to prevent HIV infection.
567
While access to special services may be required for
victims of sexual and gender-based violence, care should be taken not to make public information
about such services. Otherwise, victims may be exposed to stigma in order to access assistance.
• Gender-responsive screening for physical and mental health issues, including exposure to sexual
and gender-based violence, should be integrated into the beginning of reintegration programmes.
568
• A related good practice is to enable family members to access psychosocial support. is can be a key
means of sensitizing families to the needs of returning victims and to mitigate the risk of rejection.
569
. Assistance and reparations for victims of tracking in persons
(i) Access to assistance
Victims of tracking in persons are entitled to specic protection and assistance under international
instruments and, increasingly, in national law.
570
As discussed above, Security Council resolution 2331
(2016) arms that victims of tracking in persons commied by terrorist groups should be classied
as victims of terrorism so as to enable them to access ocial support, recognition and redress available
to victims of terrorism.
States parties to the Tracking in Persons Protocol, which know (or should know) that an individ-
ual within their jurisdiction is a victim of tracking, are required to:
• Endeavour to provide for the physical safety of victims of tracking in persons while they are
within its territory (art. 6, para. 5)
• Take into account the age, gender and special needs of victims of tracking in persons (art. 6, para. 4)
• Consider implementing measures to provide for physical, psychological and social assistance and
support. is includes the following types of support: medical, psychological and material
assistance; housing; counselling and information, including with regard to legal rights, and assis-
tance with language and translation to understand this information; and employment, educational
and training opportunities (art. 6, para. 3). ese services should be provided in a comprehensive
and integrated way
571
566
UNDP and Inter-Agency Working Group on Disarmament, Demobilization and Reintegration, Blame it on the War? e
Gender Dimensions of Violence in Disarmament, Demobilization and Reintegration (2012) p. 44.
567
International Alert and United Nations Children’s Fund, “Bad Blood”: Perceptions of Children born of Conict-related Sexual
Violence and Women and Girls associated with Boko Haram in Northeast Nigeria – research summary (London, 2016), p. 22.
568
UNDP and Inter-Agency Working Group on Disarmament, Demobilization and Reintegration, Blame It on the War?, p. 39.
569
International Alert and United Nations Children’s Fund, “Bad Blood”, p. 23.
570
As of May 2018, there were 173 States parties to the Tracking in Persons Protocol. As of August 2016, a total of 88 per
cent of States had laws that criminalized most or all forms of tracking in persons in line with the denition contained in the
Tracking in Persons Protocol (Global Report on Tracking in Persons 2016, p. 12).
571
See also guideline 6 of the Recommended Principles and Guidelines on Human Rights and Human Tracking
(E/2002/68/Add.1).
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
In addition, States parties to the Tracking in Persons Protocol are required under article 6, para-
graph 2, to provide information to victims on relevant court and administrative proceedings, and to
provide assistance to enable their views and concerns to be presented and considered at appropriate
stages of criminal proceedings against oenders, in a manner not prejudicial to the rights of the
defence.
Access to justice may include the provision of legal aid. According to principle 10 of the United
Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, meaningful
access needs to be granted to, inter alia, foreign citizens. As many of the tracking victims are seeking
justice in countries other than the one of their nationality, legal aid can be an important tool to support
them in realizing their rights.
In practice, the scope of these measures will depend on the needs of the victims and the circumstances
in which the tracking occurred.
> FOCUS: PROTECTION AND ASSISTANCE FOR VICTIMS OF TRAFFICKING IN PERSONS IN CONFLICT AND
POST-CONFLICT SITUATIONS – SECURITY COUNCIL RESOLUTIONS 2331 (2016) AND 2388 (2017)
In its resolutions 2331 (2016) and 2388 (2017), the Security Council highlighted key priorities for the
protection and assistance of victims of tracking in persons in the context of conict and post-conict
situations, including as a result of the activities of terrorist groups.
Based on an understanding of the extreme trauma experienced by the victims of tracking in persons in
armed conict and post-conict situations and the need to prevent further victimization, the resolutions
underscore the need to implement mechanisms for the identication of individuals who are or may be
victims, and to provide protection and assistance for such persons, extending to their physical, psychological
and social recovery, as well as rehabilitation and reintegration.
In its resolution 2331 (2016), the Council called upon Member States to address the needs of victims
comprehensively, including the provision of or access to medical, psychosocial assistance and legal aid, as
well as ensure that victims were treated as victims of crime (para. 2 (d)). Further, with regard to victims
of such crimes, the Council noted that dierent forms of sexual violence in conict might require tailored
programmatic responses, including specialized medical and psychosocial assistance (para. 9).
Both resolutions underscore the principle of non-criminalization of tracking victims for unlawful
activities in which they have been compelled to engage (see chap. 2). In its resolution 2388 (2017), the
Council called upon Member States to enhance the capabilities of professionals interacting with persons
forcibly displaced by armed conict, including refugees, to identify victims or persons vulnerable to
tracking, to adopt gender and age sensitive assistance, including adequate psychosocial support and
health services, regardless of their participation in criminal investigations and proceedings (para. 13).
(ii) Access to remedies
Tracking victims are also entitled to dierent forms of remedies. e duty of the State – which may
include countries of origin, transit and destination – to provide remedies to all victims of tracking
under its jurisdiction, both citizen and non-citizen, arises in instances where:
• Violations result from an act or omission of the State
• Violations are commied by non-State actors but with the acquiescence or knowledge of
the State
CHAPTER 6. ACCESS TO JUSTICE AND REMEDIES FOR VICTIMS
• A State has failed to exercise due diligence to prevent, investigate or prosecute a violation by
private actors.
572
A State may therefore be obliged to provide remedies to victims if it fails to take
reasonable steps to prevent human tracking and protect potential or actual victims of tracking,
to the required standard of due diligence
573
Article 6, paragraph 6, of the Tracking in Persons Protocol requires States parties to ensure that
their domestic legal systems contain measures that oer victims of tracking the possibility of
obtaining compensation. Similarly, article 25, paragraph 2, of the Organized Crime Convention
requires States parties to establish appropriate procedures to provide access to compensation and
restitution for victims of oences covered by the Convention. As recognized by the Special Rapporteur
on tracking in persons, especially women and children, the international community clearly recog-
nizes that tracked persons, as victims of human rights violations, have the right to adequate and
appropriate remedies, which goes beyond the right to the possibility of obtaining compensation.
574
e basic principles on the right to an eective remedy for victims of tracking in persons is a prod-
uct of cooperation between the Special Rapporteur on tracking in persons, especially women and
children; OHCHR; Member States; intergovernmental bodies; and civil society organizations. e
principles provide a framework of guidance and good practice in meeting State obligations to provide
remedies,
575
including the following:
• Victim identication is a precondition for realizing the right to a remedy. e basic principles
emphasize the importance of prompt and accurate victim identication, requiring adequate
procedures and appropriate training for State ocials and cooperation between authorities and
non-governmental organizations (para. 7 (b)).
• Victims must be fully and promptly informed, in a language they understand, of their legal rights
and access to remedies, and procedures to access these (para. 7 (c)).
• Victims should be provided with a reection and recovery period, whether as identied or
presumed victims, with access to physical, psychological and social assistance as contained in
article 6, paragraph 3, of the Tracking in Persons Protocol. is is particularly important for
victims who have irregular immigration status. Following this period, the victim should be
aorded the residence status necessary to exercise his or her right to remain during proceedings
or as a form of restitution (para. 7 (d)).
• Assistance should be provided to enable victims to access remedies, regardless of their immigration
status, including medical, psychological, social, administrative and qualied linguistic and legal
assistance, such as free legal aid (para. 7 (e)).
• Victims should not be detained, charged or prosecuted for activities consequential to their
situation as a victim of tracking in persons, and should have the right to remain in the country
in which the remedy is being sought for the duration of proceedings (paras. 7 (f) and (g)).
• Victims should have equal access to remedies. is requires, inter alia, that investigations,
prosecutions and other mechanisms are gender-sensitive, account for the dierent protection
needs of women, men, girls and boys, address sexual and gender-based violence, prevent discrim-
inatory evidentiary rules, and avoid trauma, re-victimization and stigmatization (para. 7 (h)).
572
A/HRC/26/18, para. 7; see also E/2002/68/Add.1.
573
Inter-Agency Coordination Group against Tracking in Persons, “Providing eective remedies for victims of tracking in
persons: issue paper” (2016), p. 4.
574
A/HRC/17/35, para. 16.
575
A/HRC/26/18, annex.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
• Access to remedies should not be predicated on willingness to cooperate in legal proceedings and
they should have their rights to safety, privacy and condentiality protected before, during and
aer proceedings (paras. 7 (i) and (j)).
• Eective cooperation at the national and international levels, with regards to mutual legal
assistance and victim care, is necessary to ensure that victims are identied and are able to access
recovery, rehabilitation and reintegration measures (para. 6).
576
e UNODC Model Law against Tracking in Persons also contains provisions relating to
remedies. In particular, article 27 provides that a victim of tracking in persons shall have the right to
initiate civil proceedings to claim material and non-material damages suered, while articles 28 and 29
refer to compensation for victims of tracking in persons.
FURTHER READING
• With respect to victims of sexual and gender-based violence in particular:
• For operational guidance on tailoring dierent forms of reparations to meet the needs of victims of
sexual and gender-based violence, see the guidance note of the Secretary-General on reparations for
conict-related sexual violence, pp. 15–20.
• e International Commission of Jurists’ publication Women’s Access to Justice for Gender-Based Violence:
A Practitioner’s Guide contains a section on providing eective remedies and reparations for violence
against women, including in post-conict contexts, as part of realizing women’s broader access to justice.
• Concerning gender-sensitive reintegration programmes for victims of sexual and gender-based violence:
• Inter-Agency Working Group on Disarmament, Demobilization and Reintegration, How-To Guide:
Gender-Responsive Disarmament, Demobilization and Reintegration
• UNDP, Blame It on the War? e Gender Dimensions of Violence in Disarmament, Demobilization and
Reintegration
• United Nations, Operational Guide to the Integrated Disarmament, Demobilization and Reintegration
Standards, Section 5.10: Women, Gender, and DDR
• With respect to victims of tracking in particular:
• e UNODC Toolkit to Combat Tracking in Persons, Tool 8, provides comprehensive guidance and
good practice on the delivery of victim assistance, including language and translation assistance, medical
assistance, psychological assistance, material assistance, shelter programmes, rehabilitation, skills training
and education, and access to information and legal representation.
• Guidance on tailoring specic forms of reparations (restitution, rehabilitation, compensation,
satisfaction and guarantees of non-repetition) to the needs of victims of tracking in persons is
provided in the basic principles on the right to an eective remedy for victims of tracking in persons
(principles8–17), and in the report of the Special Rapporteur on tracking in persons, especially
women and children (A/HRC/17/35, paras. 20–41).
• International Organization for Migration, Handbook on Direct Assistance for Victims of Tracking
• Report of the Special Rapporteur on tracking in persons, especially women and children, contains a
thematic analysis of the right to an eective remedy for tracked person (A/HRC/17/35, sect. III).
• Inter-Agency Coordination Group against Tracking in Persons, Providing Eective Remedies for Victims
of Tracking in Persons
576
A/HRC/26/18, para. 17.
CHAPTER 6. ACCESS TO JUSTICE AND REMEDIES FOR VICTIMS
E. Transitional and traditional justice mechanisms
In addition, or as an alternative, to pursuing accountability for oences commied by terrorist groups
through criminal justice proceedings, informal and non-judicial mechanisms can provide an important,
socially legitimate means to providing accountability for such crimes, in particular for sexual and gen-
der-based violence. ey may also oer more accessibility, particularly for disadvantaged women, who
may never have the opportunity to access the formal justice system in conict-aected or fragile
contexts. ese mechanisms may also provide a means to bolster reform for women’s rights and greater
leadership opportunities, and may assist in addressing underlying discrimination that perpetuates
sexual and gender-based violence.
. Transitional justice
Given the oen overlapping contexts of terrorism and conict it is helpful to consider the mechanisms
adopted in transitional contexts following conict or widespread human rights violations. Many
gender-specic best practices and lessons learned across transitional justice mechanisms apply equally
to gender-based challenges experienced by victims of terrorism and tracking, including victims of
sexual and gender-based violence in these contexts.
> FOCUS: DEFINING TRANSITIONAL JUSTICE
According to the United Nations, transitional justice is the full range of processes and mechanisms
associated with a society’s aempt to come to terms with a legacy of large-scale past abuses, in order to
ensure accountability, serve justice and achieve reconciliation.
a
Transitional justice includes judicial and
non-judicial processes, including one or a combination of:
• Prosecution initiatives (considered in chapter 5 of this publication)
• Reparations programmes
• Truth-seeking mechanisms
• Institutional reform
• Comprehensive national consultations with those whose rights have been violated
b
a
United Nations, Guidance note of the Secretary-General: United Nations Approach to Transitional Justice (2010),
p. 3 (see also S/2004/616).
b
Ibid.; and A/HRC/27/21, para. 6.
As described by the Secretary-General, transitional justice can provide an opportunity to transform
both inadequate laws and harmful social norms, by ensuring that the gravity of sexual violence is
registered on the historical record and in the public memory.
577
Eective participation in transitional justice processes can be central to realizing the goals of the
Women, Peace and Security Agenda, particularly under Security Council resolutions 1325 (2000) and
2122 (2013), which identify the need to include women in post-conict reconstruction and peace-
building. ose resolutions also present an opportunity, in accordance with Council resolution 1820
(2008), to end impunity for sexual violence as part of a comprehensive approach to seeking sustainable
peace, justice, truth and national reconciliation.
577
S/2017/249, para. 11.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
(i) Key principles of gender-sensitive transitional justice
Transitional justice mechanisms must respect and reinforce women’s rights, be based on principles of
inclusivity and consultation with victims, and take steps to mitigate the barriers to justice identied in
section A of the present chapter, some of which remain prevalent outside the judicial context.
e design of these mechanisms should be guided by the following principles:
• Rights-based approach. Transitional justice processes should comply with international norms
and standards and reinforce the right to justice, the right to truth, the right to reparations and
guarantees of non-recurrence of violations.
578
• A mandate to address sexual and gender-based violence. It is recommended that a mandate to
address crimes involving sexual and gender-based violence is specically identied during the
establishment of the mechanism. is may be complemented, where appropriate, by specialized
gender units providing victim and witness support.
579
• National consultations. ese are a critical element of the human rights-based approach to
transitional justice and to ensure that processes do not solely reect the experiences and priori-
ties of men.
580
Consultations require meaningful engagement with women and girls on the
priorities, design and implementation of mechanisms, including the terms of engagement and
working methods.
581
Consultations with groups that have been conventionally marginalized can,
in themselves, achieve a sense of recognition and empowerment for victims. Consultations
should be condential and conducted separately from those with men.
• Victim-centred processes. While transitional justice mechanisms strive to achieve accountability,
victims should be empowered and remain central in the design and implementation of processes,
including through the availability of support services and protection.
• Removal of physical and economic barriers for participation. e design of mechanisms must
account for factors that may impede the participation of women, such as lower literacy levels,
language barriers, location and the costs of participation.
• Representation of women as leaders or commissioners, and as sta. According to OHCHR, experience
shows that appointing commissioners and sta who understand and are commied to addressing
the gendered dimensions of conict is vital to maintaining a proactive focus on gender-based and
sexual violence. Some commissions have used quotas to ensure the representation of women as
commissioners, at expert levels and as sta.
582
• Provision of gender-sensitivity training. Training should be provided on working with victims of
gender-based and sexual violence to those facilitating consultations, sta and adjudicators. Truth
commissions in Ghana, Liberia, Sierra Leone and Timor-Leste included gender training for their
sta on subjects including international norms on sexual and gender-based violence, gender-
sensitive interviewing practices, the collection of gender disaggregated data and the mainstreaming
of gender in report writing.
583
• Evaluation and benchmarking. Assessments should be undertaken to evaluate the gender sensitivity
of mechanisms and improve future processes.
584
578
Guidance note of the Secretary-General on transitional justice, pp. 3–4.
579
A/HRC/27/21, para. 21.
580
Ibid., para. 9.
581
Ní Aoláin, Haynes and Cahn, On the Frontlines, p. 185.
582
A/HRC/27/21, para. 24.
583
Ibid., para. 25.
584
Ní Aoláin, Haynes and Cahn, On the Frontlines, p. 186.
CHAPTER 6. ACCESS TO JUSTICE AND REMEDIES FOR VICTIMS
(ii) Truth and reconciliation commissions
Truth and reconciliation commissions may be well-placed to seek accountability for wide-scale
sexual and gender-based violence, including as a tactic of conict and terrorism, and – where a
gender perspective is eectively integrated – in breaking down stigma aached to victims of such
violence. Truth and reconciliation commissions can have the symbolic, institutional and structural
capacity to articulate women’s experience of sexual and gender-based violence, to dene such expe-
riences in the language of human rights, and to create the moral and legal basis to require redress in
measures such as reparations that oen follow truth processes.
585
As opposed to criminal trials,
which are generally aimed at delivering accountability at an individual level, the aim of truth com-
missions is to provide victims with a safe space to share their experiences, identify the causes and
consequences of human rights violations and create an accurate record of a society’s past in order to
prevent recurrence.
586
> EXAMPLE: INTEGRATION OF GENDER PERSPECTIVES IN THE WORK OF PAST TRUTH
AND RECONCILIATION COMMISSIONS
In its report on the analytical study focusing on gender-based and sexual violence in relation to transitional
justice, OHCHR identied a number of instances in which truth and reconciliation commissions had
successfully integrated gender perspectives into their work:
• In Peru, the truth commission established to examine human rights violations commied in the
conict between the Government and Shining Path, an armed group designated as a terrorist
organization by several Governments; established a specic gender unit as a focal point to
address sexual and gender-based violence; and dedicated two chapters of its nal report to
gender issues, including gender-based and sexual violence. Some experts recommend both estab-
lishing a gender unit and taking a cross-cuing approach, as was done by the commission in
Timor-Leste.
• e report of the truth commission of Kenya includes a long chapter on sexual violence, and another
on gender and gross violations of human rights, in which the commission explored paerns of
discrimination and displacement, as well as the record of women’s political participation and their
historical role in peacemaking.
• In Sierra Leone, the truth commission addressed violations of economic, social, cultural, civil and
political rights and looked at linkages between pre-existing gender inequality and the gender-based
and sexual violence that was prevalent during that country’s civil war.
a
a
A/HRC/27/21, paras. 17–18, 20 and 22.
585
Ní Aoláin, Haynes and Cahn, On the Frontlines, p. 185.
586
Ibid., p. 178.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
> EXAMPLE: INTEGRATION OF WOMEN INTO CONFLICT RESOLUTION PROCESSES – THE PARTICIPATION
OF WOMEN IN THE PEACE PROCESS IN COLOMBIA
In 2016, the Government of Colombia and the Revolutionary Armed Forces of Colombia (FARC), which
is designated by the Governments of Colombia and several other States as a terrorist organization, signed
a peace accord, ending more than 50 years of civil war between these, and several other, armed entities.
e inclusion of women before and during the negotiations and in the peace accords has been described
as seing a new norm in the participation of women in transitional justice. is process was headed by
the victims unit, the members of which were mostly women, including the highest-ranking members. e
Gender Sub-Commission was also a party to the negotiations, and was tasked with reviewing the nal
agreement and prior agreements reached, and with guaranteeing that they had an adequate gender focus.
In addition, the representation of victim delegations was covered by a gender quota.
Notably, the peace accord expressly prohibits any form of amnesty or pardon for crimes against humanity,
genocide, serious war crimes or sexual violence commied during the conict. e peace agreement in
Colombia is the rst of its kind to include such an explicit prohibition.
. Traditional and customary processes
Traditional or customary processes can play a key role in securing justice, particularly where the for-
mal justice system has been weakened by conict. In some countries, the customary justice forums
hear a vast majority of all disputes. While forms of traditional or customary processes vary greatly,
they may provide greater accessibility to justice, contain forms of dispute resolution that are more
expeditious, and yield decisions that enjoy greater community legitimacy.
587
ey may, however,
reinforce traditional gender roles, and be dominated by men who apply a male-biased interpretation of
customary law.
588
OHCHR made the following observation:
Previous paerns of gender discrimination of such mechanisms make resolving gender-based and
sexual violence cases through them extremely problematic. Eorts should be made to transform
customary justice systems in gender-sensitive ways, and to ensure their compatibility with
international human rights standards, while not allowing this to substitute for formal justice sector
reform. For instance, in Uganda, the local council courts are now required to ensure that a minimum
of one third of their judges are women. In South Africa, the Law Reform Commission has made
recommendations for harmonization of customary law with that country’s Constitution.
589
Specic eorts must be directed towards ensuring that customary and traditional processes
integrate gender-sensitive practices into traditional justice systems. For example, the Gacaca courts of
Rwanda, which were traditionally used to sele civil disputes but adapted to hear cases following the
1994 genocide, initially failed to provide victim support measures or training to facilitators in handling
cases involving sexual and gender-based violence. Laws adopted in 2004, however, enhance protection
for victims of sexual and gender-based violence during stages of reporting and testifying, oering
alternatives for the provision of testimony.
590
Traditional justice mechanisms may oer greater accessibility to forms of redress and accountability,
and they may be the only justice mechanism available. However, the use of informal and non-judicial
mechanisms to address cases of sexual and gender-based violence can lead to further violations of
587
Shelby Quast, “Justice reform and gender” in Gender and Security Sector Reform Toolkit, Megan Bastick and Kristin Valacek,
eds. (Geneva, Geneva Centre for the Democratic Control of Armed Forces, OSCE/Oce for Democratic Institutions and
Human Rights and International Research and Training Institute for the Advancement of Women, 2008), p. 13.
588
Quast, “Justice reform and gender”, p. 13; and A/HRC/27/21, para. 36.
589
A/HRC/27/21, para. 36.
590
Ní Aoláin, Haynes and Cahn, On the Frontlines, p. 171.
CHAPTER 6. ACCESS TO JUSTICE AND REMEDIES FOR VICTIMS
women’s rights and a culture of impunity where such mechanisms are informed by patriarchal values
and not designed in a gender-sensitive manner.
591
e use of informal and non-judicial mechanisms,
when not designed in a gender-sensitive manner, increases the risk of revictimization in violence cases
since it removes such cases from judicial scrutiny, and may reduce oender accountability. It can also
compound the sense of disempowerment of victims if their views are not taken into consideration in
deciding the reparation or remedy. International instruments and standards therefore provide for a
number of fundamental safeguards and minimum requirements concerning issues such as the informed
consent of the victim or survivor, the need for risk assessments and safety measures, or the importance
of accepting responsibility for violence as a wrongful act.
592
> FOCUS: TRADITIONAL JUSTICE MECHANISMS IN NORTHERN UGANDA
Transitional justice mechanisms were widely used to address violations perpetrated by the Lord’s Resist-
ance Army, which has been designated by the Government of Uganda and the African Union as a terrorist
organization, in the course of its conict with the Government of Uganda. Many of these mechanisms
focused on reconciliatory measures of forgiveness for oenders and traditional reparations that did not
take into account the full scope of gender-related harms, including sexual and gender-based crimes.
Cleansing rituals were used as a means of reconciliation and reintegration; however, in some communities,
they did not reect the gravity of sexual and gender-based crimes, owing to the exclusion of oences such
as rape or abduction. In other communities, these processes shied the focus away from the perpetrator’s
responsibility and exclusively towards the “cleansing” of the victim as a form of justice.
a
UN-Women, the International Federation of Women Lawyers (FIDA) Uganda, and Ker Kwaro Acholi (the
traditional chieaincy body) have been making concerted eorts to build the capacity of traditional and informal
adjudicatory mechanisms to administer gender-sensitive dispute resolution. is approach includes the develop-
ment of the Acholi Gender Principles, which are used by cultural and community leaders when handling cases
involving women, including with respect to sexual and gender-based violence. e chieaincy has also appointed
a Minister with responsibilities over gender issues, including monitoring women’s access to justice.
a
Vahlda Nalnar, In the Multiple Systems of Justice in Uganda, Whither Justice for Women? (Kampala, Uganda Association
of Women Lawyers, 2011), pp. 33–34; and Laura Nyirinkindi, “Access to justice for victims of sexual violence in post
conict situations in Africa”, East Aican Journal of Peace and Human Rights, vol. 19, No. 2 (2013), p. 232.
FURTHER READING
• For a detailed discussion of women’s substantive and procedural rights to access informal justice systems,
see the joint publication of UN-Women, UNICEF and UNDP, Informal Justice Systems: Charting a
Course for Human Rights-based Engagement
• e International Centre for Transitional Justice has developed a gender justice programme aimed at
improving accountability for gender-based atrocities, and has published a number of research reports on the
issue. On the issue of truth commissions, see Truth Commissions and Gender: Principles, Policies, and Procedures
• Report of OHCHR on the analytical study focusing on gender-based and sexual violence in relation to
transitional justice (A/HRC/27/21)
• Guidance note of the Secretary-General on the United Nations approach to transitional justice
• UN-Women and others, A Practitioner’s Toolkit on Women’s Access to Justice Programming, Module 3
591
See UN-Women and others, A Practitioner’s Toolkit on Women’s Access to Justice Programming, pp. 232–234.
592
See basic principles on the use of restorative justice programmes in criminal maers (Economic and Social Council
resolution 2002/12, annex); UN-Women and others, Essential Services Package for Women and Girls Subject to Violence, Core
Elements and Quality Guidelines (2015); and UNODC, Strengthening Crime Prevention and Criminal Justice Responses to Violence
against Women (2014), p. 77.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
SUMMARY OF KEY POINTS
• Equal and eective access to justice through fair and impartial mechanisms is an essential
part of a robust criminal justice response to terrorism.
• Access to justice encompasses access to redress for victims for violations of their rights;
the availability and accessibility of legal counsel for those suspected, accused or convicted
of terrorism-related oences; and the ability of justice mechanisms both to adjudicate
cases in a fair and impartial manner and to enforce decisions.
• Women face a number of barriers in accessing justice created by social, economic and
cultural practices that entrench structural gender inequality. The present chapter reinforces
the idea that measures aimed at improving women’s access to justice must target six key
areas: justiciability, availability, accessibility, good quality, accountability and the provision
of remedies.
• Victims of crime and violations of international human rights and humanitarian law,
including when perpetrated by members of terrorist groups, are entitled to remedies for the
harms suered. Victims of sexual and gender-based violence and tracking in persons
perpetrated by terrorist groups are also entitled to just and eective remedies.
• Mechanisms for remedies and reparations have conventionally disregarded gender
perspectives in their design and administration, which has undermined eective access to
reparations for women. The present chapter contains an examination of a number of
considerations necessary to develop gender-sensitive reparations programmes, which
support equal access to reparations and non-discrimination, recognize gender perspectives
when determining the types of harm covered by the programme, and which respond to the
needs of victims in a gender-sensitive manner.
• The present chapter includes key principles for remedies for victims of sexual and
gender-based violence, which should be fully recognized in reparations programmes. Gender
considerations should also be reflected in reintegration programmes for these victims.
• Victims of tracking in persons are entitled to specic protection, assistance and remedies
under international instruments and, increasingly, in national law.
• Transitional and traditional justice mechanisms can provide an important means to
achieving accountability for crimes committed by terrorist groups, in particular, for victims
of sexual and gender-based violence. Transitional justice mechanisms must respect and
reinforce women’s rights, be based on principles of inclusivity and consultations with
victims, and take steps to mitigate the barriers to justice identied in the present chapter.
Specic eorts must be directed towards ensuring that traditional and customary processes
integrate gender-sensitive practices into traditional justice systems.
GLOSSARY
593
Child. In the present publication, the term “child” refers to a human being below the age of 18 years, in
accordance with article 1 of the Convention on the Rights of the Child.
Gender. e term “gender” refers to the roles, behaviours, activities and aributes that a given society
at a given time considers appropriate for men and women. In addition to the social aributes and
opportunities associated with being male and female and the relationships between women and men
and girls and boys, gender also refers to the relations among women and those among men. ese
aributes, opportunities and relationships are socially constructed and are learned through socializa-
tion processes. ey are context- and time-specic, as well as changeable. Gender determines what is
expected, allowed and valued in a woman or a man in a given context. In most societies there are dier-
ences and inequalities between women and men in responsibilities assigned, activities undertaken,
access to and control over resources, as well as decision-making opportunities. Gender is part of the
broader sociocultural context, as are other important criteria for sociocultural analysis including class,
race, poverty level, ethnic group, sexual orientation and age.
Gender mainstreaming. Gender mainstreaming is the chosen approach of the United Nations system
and international community toward realizing progress on the rights of women and girls, as a subset of the
human rights to which the United Nations is dedicated. Gender mainstreaming is not a goal or objective
on its own; it is a strategy for achieving equality for women and girls in relation to men and boys.
Mainstreaming a gender perspective is the process of assessing the implications for women and men of
any planned action, including legislation, policies or programmes, in all areas and at all levels. It is a way
to make women’s as well as men’s concerns and experiences an integral dimension of the design,
implementation, monitoring and evaluation of policies and programmes in all political, economic and
societal spheres so that women and men benet equally and inequality is not perpetuated. e ultimate
goal is to achieve gender equality.
593
e denitions in the glossary are based on those contained in Economic and Social Council agreed conclusions 1997/2,
general recommvendations of the Commiee on the Elimination of Discrimination against Women, publications and resources
of the Oce of the United Nations High Commissioner for Human Rights, the Strategy for Gender Equality and the
Empowerment of Women (2018–2021) of the United Nations Oce at Vienna and the United Nations Oce on Drugs and
Crime, and reports of the Secretary-General on conict-related sexual violence.
GENDER DIMENSIONS OF CRIMINAL JUSTICE RESPONSES TO TERRORISM
Gender-based discrimination against women. is refers to any distinction, exclusion or restriction
which has the eect or purpose of impairing or nullifying the recognition, enjoyment or exercise by
women of human rights and fundamental freedoms, even where discrimination was not intended.
Direct discrimination against women constitutes dierent treatment explicitly based on grounds of
sex and gender dierences. Indirect discrimination against women occurs when a law, policy,
programme or practice appears to be neutral in so far as it relates to men and women, but has a
discriminatory eect in practice on women because pre-existing inequalities are not addressed by the
apparently neutral measure.
Gender-sensitive approach. A gender-sensitive approach uses a gender perspective to understand
dierences in status, power, roles and needs between males and females, and the impact of gender on
people’s opportunities and interactions.
Gender stereotype. A gender stereotype is a generalized view or preconception about aributes or
characteristics that are or ought to be possessed by, or the roles that are or should be performed by,
women and men.
• Wrongful gender stereotyping. is is the practice of ascribing to an individual woman or man spe-
cic aributes, characteristics or roles by reason only of her or his membership in the social
group of women or men, which results in a violation or violations of human rights and funda-
mental freedoms. e harm is caused by the application of a stereotypical belief to an individual
(e.g., through a State enforcing a gender stereotype into a law) in such a way as to negatively
aect the recognition, exercise or enjoyment of their rights and freedoms.
Intersectionality. e term “intersectionality” refers to the way in which gender interacts with social,
cultural, religious and other factors that may form the basis of discrimination (such as race, ethnicity,
religion and nationality) to structure the experiences of, in particular, women.
Sex. is refers to biological sex: in other words, the physical and biological characteristics that
distinguish males and females.
Sexual and gender-based violence. is refers to any harmful act that is perpetrated against one
person’s will and that is based on socially ascribed (gender) dierences between males and females. It
includes acts that inict physical, mental, or sexual harm or suering, threats of such acts, coercion and
other deprivations of liberty, whether occurring in public or in private life. Sexual and gender-based
violence entails widespread human rights violations, and is oen linked to unequal gender relations
within communities and abuses of power. Acts of sexual and gender-based violence are not restricted
to one gender, but rather, may be inicted upon women, men, girls and boys.
It comprises the following two notions:
• Sexual violence, which encompasses any sexual act, aempt to obtain a sexual act or acts otherwise
directed against a person’s sexuality using coercion, by any person regardless of their relationship
to the victim, in any seing. Sexual violence takes multiple forms and includes rape, sexual abuse,
forced pregnancy, forced sterilization, forced abortion, forced prostitution, sexual enslavement,
forced circumcision, castration and forced nudity.
• Gender-based violence, which is considered to be any harmful act directed against individuals or
groups of individuals on the basis of their gender. Other forms can include acts of physical
violence, domestic violence and harmful traditional practices. Accordingly, while sexual violence
is a form of gender-based violence, gender-based violence is a broader category of crime and may
be perpetrated through non-sexual acts (e.g., physical violence).
GLOSSARY
Conict-related sexual violence. is term refers to incidents or paerns of sexual violence, that is
rape, sexual slavery, forced prostitution, forced pregnancy, enforced sterilization or any other form of
sexual violence of comparable gravity against women, men or children. Such incidents or paerns occur
in conict or post-conict seings or other situations of concern (e.g., political strife). ey also have a
direct or indirect nexus with the conict or political strife itself, that is, a temporal, geographical and/or
causal link. In addition to the international character of the suspected crimes (which can, depending on
the circumstances, constitute war crimes, crimes against humanity, acts of genocide or other gross viola-
tions of human rights), the link with conict may be evident in the prole and motivation of the
perpetrator(or perpetrators), the prole of the victim(or victims), the climate of impunity/State col-
lapse, cross-border dimensions and/or the fact that they violate the terms of a ceasere agreement.
Terrorism. ere is currently no universally accepted, comprehensive denition of “terrorism”. As
noted in the Secretary-General’s Plan of Action to Prevent Violent Extremism, the denition of
“terrorism” is the prerogative of Member States and must be consistent with their obligations under
international law, in particular international human rights law.
Terrorist group. For the purposes of the present publication, the term “terrorist group” encompasses
at least the entities designated by the Security Council on the ISIL (Da’esh) and Al-Qaida Sanctions
List and the Taliban sanctions list, as well as Al-Shabaab. It may also include other groups that resort to
acts proscribed by the universal counter-terrorism conventions and protocols, as well as groups
designated as terrorist groups at the national or regional level.
*1706263*
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Tel.: (+43-1) 26060-0, Fax: (+43-1) 263-3389, www.unodc.org
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