Legal Remedies for Women Against Sexual Violence During Armed Conflicts in Nigeria
WOKOMA Sotonye
LL.B (NSU-Keffi); BL (Abuja)
Faculty of Law, Rivers State University, Port Harcourt
Email: wokomasotonye27@gmail.com Phone: +2349095037079
ABSTRACT
Nigeria, an African country, with population of about 212,094,982 million, with territory spanning about 910,770 kilometers gained its independence from the United Kingdom on the 1st of October, 1960. However, it is apt to state that, the country was embroiled in an armed conflict between the armed forces of Nigeria and other dissident armed groups, from 1967-1970. Women in most cases are made vulnerable to sexual and other forms of gender based violence. This article extensively analyzed the extent to which women are exposed in situations of armed conflicts, the concept of sexual violence, its nature, causes, forms and effects on women in armed conflicts, available legal remedies for victims of sexual violence in situation of armed conflicts in Nigeria. This article contended that, non-domestication of International treaties on crimes of sexual violence, non-prosecution of perpetrators of sexual crimes, inadequacy of penal laws, lack of specialized courts and trained personal for conflict related sexual offenses, lack of access and confidence in the legal system by the survivors have been largely responsible for the current state of affairs. The following recommendations had been made: International treaties on crimes of sexual violence, such as, the Rome statute of the International Criminal Court, the convention on the Elimination of All Forms of Discrimination Against Women, the Protocol to the African Charter on Human and People’s Rights on the Rights of women (Maputo Protocol), Declaration of Human Rights and The African Charter on Human and People’s Rights which had been domesticated already, should be made more practicable.
INTRODUCTION
Sexual violence against women in situations of armed conflicts has been a subject of jurisprudential debate and the need to address the problems with a broader agenda, has received increased attention in recent years. The issue of women affected by armed conflicts has been discussed recently among governments, both in the context of meetings focusing specifically on women such as the 1995 Beijing Fourth World Conference on Women and the Beijing Fifth World Conference held in the year 2000 and by organizations and the United Nations Commission on Human Rights.1
Sexual violence is one of the most notable and wide spread violations women are subjected in situations of armed conflicts. It is also prominent among the most traumatic experiences women suffer during war. Women during war are systematically raped, intimidated, killed, sexually abused and forced into unwanted pregnancies. The rationale behind these heinous crimes is to humiliate, degrade, terrorize and shame the armed forces of an enemy nation, to impinge on women’s health and well-being; to destroy the family based organization or structure of the enemy.2 Sexual violence is often perpetrated against women as a form of torture, to injure, to extract information to degrade and intimidate and as punishment for actual or alleged actions. It has also been used, as a means of ethnically, cleansing an area, compelling people to quit a particular area, through wide spread systematic rape and forced impregnation aimed at destroying the identity of an ethnic group.3
Virtually, in all continents, regions and states of the world the law has stood and risen for the liberation of women from all sorts of discrimination, abuses and violence. Legal instruments have been made to accommodate women’s rights. The Constitution of the Federal Republic of Nigeria has put in place protective measures for the promotion and protection of women against all forms discriminations4. In the light of the fore-going, this article would examine the concept of sexual violence, its nature, causes, forms and effects on women in situations of armed conflicts, as well as the legal regulatory mechanism, anomalies there in and remedies. This article, would also explore circumstances and experiences of women in the society and the function of law in the liberation of women.
Sexual violence faced by women during the period of armed conflicts encompasses a completed non-consensual sexual act (rape), an abusive sexual contact (unwanted touching), non-contact sexual abuse (threatened sexual violence), forced prostitution, forced impregnation, forced termination of pregnancy, forced maternity, sexual slavery and forced sterilization.5 The spate of sexual violence women are subjected to is being compounded and aggravated by the obnoxious cultural practices, customs and traditions in our society, coupled with the inadequacies of both our municipal and international implementation machinery.6
Sexual Violence
Sexual violence is defined as sexual exploitation and sexual abuse. It refers to any act, attempt or threat of a sexual nature that results or is likely to result in physical, psychological and emotional harm. They further described sexual violence as the deliberate use of sex as a weapon to demonstrate power, to inflict pain and humiliation upon another human being.7 Violence has been described as the intentional use of physical force or power, threatened or actual against oneself, another person or against a group or community, which either results in or has a high likelihood of resulting in injury, death, psychological harm, mal-treatment or deprivation. It is apt to state that, this definition encompasses all forms of violence against the folk. Violence also depicts harms, injury, pains, sufferings, threats, coercion deprivation, elusion of liberty, peril, loss of person or integrity, abuse, damage, arbitrary of power infringement or contravention against women.8
This article further posits that, sexual violence occupies a central position in our international jurisprudence of warfare. Statistics made available has it that, since the end of World War II, 248 armed conflicts have been recorded in 153 locations. The spate of sexual and other forms of gender – based violence are reported to be higher in areas of armed conflict than in non-conflict affected settings. Recent analysis on rape kept the record in the following percentage: 11% among displaced women in Columbia; 19% of women in Burundi, 25% of women in Azerbaidan and 39% of women in Kwanda genocide.9
The United Nations commission on the status of woman reported that more than 60,000 women were raped during the civil war in Sierra Leone (1991-2002) more than 40,000 in Liberia (1989-2003) up to 60,000 in former Yugoslavia (1992-1995) and at least 200,000 in Democratic Republic of Congo since 1998.10
Nature and Causes of Sexual Violence During Armed Conflicts
Violence against women during armed conflicts has assumed an alarming proportion. In situations of armed conflict, violence against women is applied on a massive scale or magnitude.Women during war are systematically raped, intimidated, killed, sexually abused and forced into unwanted pregnancies. The rationale behind these heinous crimes is to humiliate, degrade, terrorize and shame the armed forces of an enemy nation, to impinge on women’s health and well being; to destroy the family based organization or structure of the enemy.11The nature and causes of sexual violence in situation of armed conflict could be summarized thus: “The Social Stigmas, cultural or religious attitudes, emotional traumas, physical abuses, reproductive manipulations and historical impunities have made sexual assault an extremely effective weapon of war and destruction. Furthermore, the deterioration or collapse of protective police and legal systems, the confusion and turmoil prevalent in war, the expectant ruthless brutality of war, the multiple conflicts inherent within the psychology of battle and the wartime practices of retaliation and reprisals each provide endless opportunities and incentives for sexual assault”.12
Sexual violence is motivated by plethora of factors; a commonly held view throughout history has been that women are part of the spoils of war to which soldiers, are entitled. Rape and other forms of sexual violence have often been regarded as a by-product of war, either as a reward for soldiers or civilians or because of the breakdown of traditional and or institutional mechanisms for preventing its occurrence. Deeply entrenched in this motion is the idea that women are property chattel available to victorious warriors, hence forced into military sexual slavery.13Sexual Violence is also perpetrated to destroy male and community pride. Men who have failed to protect their Women are considered to be humiliated and weak. Women in situations of Armed conflicts are regarded by the community as symbolic and bearers of the community’s honour. They are regarded as symbolic bearers of caste, ethnic, cultural and national identities. The rape of women in conflict situation is not only intended as violence against women but also an aggression against a nation or community.14
Lackadaisical attitude on the part of women to bring issues of sexual violence to the knowledge of national institutions for fear of social stigma has been largely responsible for the increasing rate of sexual violence. Most victims of sexual violence are fond of concealing sexual assaults unleashed on them for fear of social stigma, as bringing such to the attention of the public would further endanger their future in some cultures, the “shame” associated with rape is in a social sense perceived as even worse than the physical act itself. The need for protection by women during armed conflicts has been also responsible for the increasing rate of sexual violence. Women who fear, or have been subjected to, sexual violence may seek alliances, especially through sexual relations, with members of the armed forces as a means of obtaining protection or assistance. Women must be accorded protection and discouraged from seeking such alliances with armed troops as their only means of security.15
Statistics made available by the United Nations Special Rapporteur and the United Nations High Commissioner for Human Rights stated thus: Soldiers had asked women for sex, offering little money or a tin of sardines in return. The women often sought such alliances as a means of securing protection and assistance for themselves and their families, preferring to have one man who would offer them protection and assistance than risking being subjected to repeated violation by many men.Sexual violence is often perpetrated against women as a form of torture, to injure, to extract information to degrade and intimidate and as punishment for actual or alleged actions. It has also been used as a means of ‘ethnically cleansing’ an area, of spreading fear and compelling people to quit a particular area and through widespread and systematic rape and forced impregnation aimed at destroying the identity of an ethnic group.16
2.3.1 Effects of Sexual Violence on Women
Sexual violence is usually characterized by psychological, emotional and physical effect on a survivor. In the aftermath of sexual assault or rape, survivors are faced with extremely difficult and painful emotions and experience. Every survivor responds to traumatic events in their own way. The effects of the trauma can be short term or long term after several violence of rape. Reactions and adjustments to rape are in many ways similar to those one might experience following other life crisis. They vary greatly depending on such things as the victim’s age, maturity, life experience and support system.17
Sexual and other gender-based violence during armed conflicts have wide-range of physical, psychological, social and economic effects on women and girls. It is apt to state that, the degree of the effects and the experiences of women and girls in conflict situation differ and are influenced by certain factors such as age, race, ethnicity, nationality, class, disability, sexuality and gender identity.18
It gives rise to a number of consequences that constitute terrible humanitarian issues such as depression, including prolonged sadness, feelings of hopelessness, unexplained crying, weight loss, loss of energy or interest in activities previously enjoyed, suicidal thoughts or attempts, dissociation and post-traumatic stress disorder (PTSD) including flashbacks, nightmare, severe anxiety and uncontrollable thoughts. These effects will be discussed hereunder.19
2.3.2 Psychological Effects
It is apt to state that, most physical abuses suffered by women result into psychological injury. Most times after the scars of the physical injury has disappeared, emotional injury resulting from the physical trauma sets in. Psychological injuries to women are in the form of being disillusioned and isolated from society. Psychological injuries include every form of violence or torture intentionally directed towards belittling, undermining, underestimating and destroying a women’s ego, her sense of belonging, her inner mind and beauty.20Sexual violence can seriously affect the victim’s mental health, with direct consequences in the short, medium, or long term. In the hours and days following the event, the victim may present a wide range of physical, emotional, cognitive and behavioural symptoms. Although they may be unsettling or appear strange, most of these symptoms are considered to be normal or at least expected responses to an extreme and terrifying event.21After experiencing sexual violence, some women act rationally, whereas others display behaviour that is inadequate or inappropriate (e.g. uncontrolled agitation, individual panic flight, incessant and incoherent talking etc.) and predisposed individuals may show psychological behaviour (e.g. brief reactive psychosis).22Psychological health consequences include non-pathological distress (such as fear, sadness, anger, self-blame, shame, sadness or guilt), anxiety disorders (including Post-Traumatic Stress Disorder, PTSD), depression, medically unexplained somatic complaints, and alcohol and other substance use disorders, as well as suicidal ideation and self-harm.23
Physical Effects
Physical symptoms are those things, which manifest in or upon the survivor’s body that are evident to her and under physical examination by a nurse or doctor. Some of these are only present immediately after the rape while others only appear at a later stage. Sexual and reproductive health consequences include sexually transmitted infections, including HIV, unwanted pregnancies, unsafe abortions, gynecological problems and physical injuries. There can also be physical effects to trauma that become apparent, either in the immediate aftermath of the experience or that manifest in waves later on. In the case of pregnancy or sexually transmitted infections or disease, some physical effects are biological responses. More than 32,000 pregnancies result from rape every year, some long-term consequences include: chronic pelvic pain, premenstrual syndrome, gastrointestinal disorders, gynecological and pregnancy complications, migraines and other frequent headaches, back pain, facial pain, disability that prevents work.24
Social Effects
Sexual violence breaks every social convention relating to sexuality, it generally exposes the victims to stigmatization, often to discrimination, and it may jeopardize their position in society. In many societies, victims of sexual violence are banned for their fate. Traditional beliefs and prejudices are used to justify their state of disgrace in the eyes of the community. Rape and other forms of sexual coercion are equated with adultery.25Social consequences include stigma such as social exclusion, discrimination, rejection by family and community, and further poverty. Sexual violence also has social impacts on its victims, such as strained relationship with the victims family, friends and intimate partners, less emotional support from friends and family, less frequent contact with friends, relatives and lower likelihood of marriage.26
Armed Conflict
The concept of “Armed Conflict” does not have a universally acceptable definition and it is also not defined in the conventions or protocols, although, it has been observed that “any difference arising between states, leading to the intervention of members of the armed forces is an armed conflict and an armed conflict exists whenever there is a resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups within a state.27
Armed conflict is experienced universally, even by the developed countries of the world. It is a truism that, in situation of armed conflict, the entire community, whether they are directly or indirectly involved, are greatly affected, the impact on women is especially complex. Women constitute a major portion of the reported 85% civilian victims of present day conflicts. Statistics made available by the United Nations enforced migration shows that, women comprise almost 80% of refugees and internally displaced people. During period of active conflict, women’s vulnerabilities to different forms of violence are multiplied and their daily lives are a constant struggle and test of precarious balances28.
The term armed conflict is heterogeneous, as it is applicable to both the developed and under developed countries of the world. It varies in scale degree, magnitude, duration and intensity, in geographical scope, armed conflict could be international Inter-state or internal, intra-state to the extent and nature of foreign intervention, and in the level of military technology used for warfare. Geographically, the most common type of armed conflict is internal conflict. As a matter of analysis, armed conflict could be categorized as major and minor. Statistics made available shows that, the number of major armed conflicts is relatively small; there are a great number of minor armed conflicts. It is also submitted that, the majority of armed conflicts take place in the under-developed countries only a few internal armed conflicts have been located in the developed countries.29
Legal and Institutional Frameworks
Legal and Institutional Frameworks have been put in place for the protection and promotion of the rights of women.
Constitution of the Federal Republic of Nigeria 1999, (as amended)
The constitution did not mention rape; however, in view of the fact that, rape constitutes a violation of a person’s Fundamental Human Rights and freedom and a gender-based violence, this researcher would want to discuss the topic in line with available constitutional provisions. The Constitution of the Federal Republic of Nigeria prohibits the act of subjecting and subjugating any person to torture, inhuman, degrading treatment, slavery, servitude, unlawful arrest and detention. Women are also accorded the rights mentioned above.
The constitution has also put in place protective measures for the promotion and protection of the rights and freedom of women, prohibiting all forms of discriminatory practices against women.30 The Constitution of the Federal Republic of Nigeria, 1999 (as amended), has made provision for the enforcement of the Fundamental Human Rights of victims of sexual violence. This proposition strives on the presumption that, rape or sexual violence, constitutes a violations of the right to dignity of human person and not to be subjected to any form of inhuman and degrading treatment, which is one of the Fundamental Human Rights provided by the constitution.31
Criminal Code Act Cap 38 LFN 2004
The crime of rape, under the Nigerian legal system, is regulated by statutes. The notion of rape, in Nigeria, strives on the presumption that only a male can commit the offence. The application of the law, for the offence of rape, under statute depends on the part of the country, the offence is committed. Where the offence is committed in the Southern states of Nigeria, the Criminal Code Act would be applied. Whereas the Penal Code Act is applicable in the Northern States of Nigeria.32
The offence of rape is said to have been committed under the Criminal Code Act, where unlawful carnal knowledge of a woman or girl is had without her consent or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind or by fear of harm, or by means of false and fraudulent representation as the nature of the act, or in the case of a married woman by impersonating her husband.33The commission of the crime of rape under the Criminal Code Act, attracts a penalty of life imprisonment. For the prosecution to secure conviction on a charge of rape, it must prove the essential elements of the offence of rape, which must be corroborated. The prosecution must prove carnal knowledge. To satisfy this requirement, the slightest penetration of the vagina is sufficient. There cannot be rape without penetration.34
On a charge of rape, absence of consent is very important and the prosecution has to prove that the accused has carnal knowledge of a woman without her consent. A male person under the age of 12 years is presumed to be incapable of having carnal knowledge. It means that, he cannot be guilty of the offence of rape or attempted rape.It is apt to state that, the Criminal Code does not recognize spousal rape. Marriage, being a union between a man and woman, implies consent for a husband to have sexual intercourse any time he demands it with his wife.35Corroboration is another requirement to be met, for the prosecution to secure conviction. Corroboration is the confirmation or validation of an existing evidence, coming from another independent witness. The rationale for the requirement of corroboration is to prevent an accused person from being unjustly accused for a sexual offence.36
The Convention on the Rights of the Child 1990
The Convention on the Rights of the Child came into force on the 2nd of September, 1990. The convention is the first globally binding treaty for the protection of Children’s civil, political, economic, social and cultural rights. After the conclusion of the convention, the child became an active subject of rights. Convention on the Rights of the Child, in fact, provided a bill of rights for children. The convention has 54 articles and divided into three parts. It is apt to note that, the convention on the Rights of child, like the Child’s Rights Act, has put in place measure, for the protection and promotion of the rights of the child. The convention has made provisions for the protection of children against sexual exploitation, abduction, sale, traffic and other forms of exploitation prejudiced to any aspect of the child’s welfare. The rights of the child are inalienable and states are advised to protect such rights. Presently, millions of victims, of human rights are children. They continue to be the most vulnerable sector of the society, particularly in situation of conflicts.37
Two optional protocols to the Convention on the Rights of the Child were adopted on the 25th of May, 2000. Optional protocol on the involvement of children in Armed conflict. The protocol established that no person under the age of 18 shall be subjected to compulsory recruitment into regular armed forces. Optional protocol on the sale of children, child prostitution and child pornography. The optional protocol supplements the provisions of the convention on the Rights of the child by providing detailed requirements for the criminalization of violations of the rights of children in the context of the sale of children, prostitution and child pornography.38
Universal Declaration of Human Rights 1948
The Universal Declaration of Human Rights is one of the notable international instruments that has put in place protective measures for the promotion and protection of the rights of women during armed conflicts under international law.39 The Charter prohibits all forms of discriminatory practices against women. It also prohibits the act of subjecting women to torture, cruel and inhuman and degrading treatment. It is submitted that there are clear implications that, sexual violence violates certain provisions of the Universal Declaration of Human Rights.40 In furtherance of the provisions of the Universal Declaration of Human Rights Charter, member states have been directed to domesticate and include its provisions in their national laws.41 In Nigeria, for instance, the provisions of the Universal Declaration of Human Rights are enforceable.42
Convention on the Elimination of all Forms of Discrimination Against Women1979.
Another International Instrument that has put in place protective measures for the promotion and protection of the rights of women during armed conflicts is the Convention on the Elimination of All Forms of Discrimination against Women. The convention reinforces state responsibility, in ensuring without delay that, any act or practice of discrimination against women be stopped. The Convention on the Elimination of all forms of Discrimination Against Women’s committee enumerated a wide range of obligations of states, related to combating sexual violence, including, ensuring appropriate treatment for victims in the justice system, counseling and medical assistance.43
International Criminal Court
The International Criminal Court, investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression. The court participates in a global fight to end impunity, and through international criminal justice, the court aims to hold those responsible accountable for their crimes and to help prevent these crimes from happening again44.
The court cannot reach these goals alone. As a court of last resort, it seeks to complement, not replace, national courts. Governed by an international treaty called the Rome Statute, the International Criminal Court is the world’s first permanent international criminal court. Justice is a key prerequisite for lasting peace. International justice can contribute to long-term peace, stability and equitable development in post conflict societies. These elements are foundational for building a future free of violence.45It must also be stressed that, the creation of the International Criminal Court has greatly provided the enabling environment for the International community to prosecute crimes of sexual violence. However, it is disheartening to point out that, only few perpetrators have been tried by the international tribunals for sexual violence either as a war crime, crime against humanity or genocide and fewer were found guilty and convicted. This trend is informed by the fact that collection of evidence has been challenging for the International tribunals owing to cultural and political dispositions and ideologies46.
Amnesty International
Amnesty International, one of the leading International human rights movement or organizations, plays a fundamental role in the protection of the rights of women in situations of armed conflict47.
Amnesty International was founded by British lawyer Peter Beneson and is independent of any government, political ideology, economic interest or religion. It does not support or oppose any government or political system, nor does it support or oppose the views of the victims whose rights it seeks to protect. It is concerned with impartial protection of human rights. It is a worldwide movement of people who campaign for internationally recognized human rights. Amnesty International has a varied network of members and supporters around the world. Presently, there are more than 1.8 million members, supporters and subscribers in over 150 countries. Although they come from many different backgrounds and have widely different political and religious beliefs, they are united by a determination to work for a World where everyone enjoys human rights.48
Amnesty International’s vision is of a World in which every person enjoys all the human rights enshrined in the Universal Declaration of Human Rights and other human rights standards. In pursuit of this vision, Amnesty International’s mission is to undertake research and action focused on preventing and ending grave abuses of the rights to physical and mental integrity and freedom of conscience and expression, and freedom from discrimination, within the context of the work to promote all human rights49.
Legal Remedies
Enforcement of Fundamental Human Rights
A statute that readily comes to mind, which provides remedies for victims of sexual violence, in Nigeria, is the Constitution of the Federal Republic of Nigeria 1999. The Constitution provides to the effect that, no person should be subjected to torture, in human and degrading treatment or punishment based on cultural practices. The fact stressed here is that, rape during armed conflict is used to humiliate, intimidate and dominate thereby subjecting women to inhuman and degrading treatment, hence the relevance of the provision against inhuman and degrading treatment.50
The Nigerian Constitution also provides against all forms of discriminatory practices against women.Furthermore, in furtherance of the provisions of the constitution of the Federal Republic of Nigeria, 1999 (as amended) and by way of remedy to victims of sexual and other related offences. The Constitution of the Federal Republic of Nigeria, 1999 (as amended), has made provision for the enforcement of the Fundamental Human Rights of victims of sexual violence. This proposition strives on the presumption that, rape or sexual violence, constitutes a violations of the right to dignity of human person and not to be subjected to any form of inhuman and degrading treatment, which is one of the Fundamental Human Rights provided by the Constitution, for which the Constitution states that any person who alleges that, his or her right, is being or likely to be violated may apply to High Court for redress.51
The Violence Against Persons (Prohibition) Act
The Violence Against Persons (prohibition) Act, was passed into law in May, 2015. The Act was a result of agitations for protection of persons against the different forms of violence. Violence, both at the home front and the larger society, is fast becoming a trend in the recent day Nigeria. We had cases of women been subjected to inhuman and degrading treatment such as rape, indecent assault, sexual slavery and killing. It was the need to protect citizens from violence such as these that led to the enactment of The Violence Against Persons (prohibition) Act, 2015.52 The Violence Against persons (Prohibition) Act, is an improvement, on the Penal and Criminal code Acts, in relation to violence. It also makes provision for compensation to victims, as well as, the protection of their rights. The Act, was passed into law in a bid to eliminate violence in private and public life; prohibit all forms of violence, including physical, sexual, psychological, domestic, harmful traditional practices; discrimination against persons and to provide maximum protection and effective remedies for victims and punishment of offenders. The content of the Act in encompassing, as its provisions, cover most of the prevalent forms of violence in Nigeria today, ranging from physical violence; psychological violence, sexual violence, harmful traditional practices; and socio-economic violence. The National Agency for the Prohibition of Trafficking in Personsis named as the service provider.53
Under The Violence Against Persons (prohibition) Act, rape, spousal battery, forceful ejection from home, forced financial dependence or economic abuse, harmful widowhood practices, female circumcision or genital mutilation, abandonment of children, harmful traditional practices, harmful substance, attacks such as acid baths, political violence, forced isolation and separation from family and friends, depriving persons of their liberty, incest, indecent exposure and violence by state actors (especially government security forces) among others are punishable offences. One of the very notable and commendable provisions of the Act, is its expansion of the meaning of rape and its prohibition thereof. While other existing laws limited their scope of rape to protect only females in relation to vaginal penetration without consent, the Violence Against Persons (prohibition) Act, has taken a giant stride to expand the meaning and scope of rape54. By virtue of the Act, rape is when a person intentionally penetrates the vagina, anus or mouth of another person with any other part of his or her body or anything else without consent, or where such consent is obtained by force or means of threat or intimidation of any kind or by fear or harm or by means of false and fraudulent representation as to nature of the act or the use of any person or in the case of a married person by impersonating his or her spouse. By this definition, both males and females are protected against rape. The issue of rape being gender biased has been a jurisprudential issue in Nigeria for a while because our law, does not recognize rape against men55.
Prosecution of Alleged Offenders
Prosecution of alleged offenders or perpetrators of crimes of sexual violence during armed conflicts and making them liable is also another legal remedy available under the Nigerian legal system. However, it must be noted that, since victims of sexual violence are reluctant to report, to the appropriate authorities, coupled with the prevalence of weak structures, institutions and obsolete laws, that did not envisage sexual crimes committed during armed conflict, prosecution of alleged offenders has not been successful. The requirement for corroborative evidence has also been a major challenge56.
Imprisonment
Imprisonment of perpetrators of sexual violence during armed conflict, is also seen as a legal remedy available under the Nigerian criminal justice system. Where complaint is lodged to the appropriate authority, upon proper investigation and prosecution, the alleged offender is liable to terms of imprisonment. However, the major challenge is the prevalence of obsolete penal laws that did not have in their contemplations, sexual crimes committed during armed conflict. On the strength of the available Criminal Code Act, the offence of rape, it attracts life Imprisonment.57
Appointment of Special Rapporteurs
The appointment of Special Rapporteurs is another available legal remedy under International Law to handle issues relating to victims of sexual and other gender based violence.58 Special Rapporteurs, treaty bodies and working groups created by the United Nations, which are saddled with the examination and investigation of human rights violations, commissions of sexual and other gender related offences and compilation of information on sexual violence committed during armed conflicts, play a major role by providing humanitarian services to victims of sexual violence during armed conflicts.59
Lodging of Complaints
This is another legal remedy provided under International Law for victims of sexual and other gender-related offences committed during armed conflicts.60 A number of human rights treaties, have made provisions, for individuals and non-governmental organizations, to lodge complaints on the commission of sexual offences during armed conflicts before the appropriate international bodies. For instance, the Convention on the Elimination of all Forms of Discrimination Against Women, International Covenant on Civil and Political Rights and the Convention Against Torture, permit individuals and non-governmental organizations to make petitions against their states on issues relating to gross violations of human rights and commission of sexual and other gender related offences.61
Summary of Findings
Having subjected the topic under reference to an objective analysis, the following findings are established:
1) Women who are victims of sexual violence during armed conflicts are massively raped, killed, intimidated, sexually abused, forced into unwanted pregnancies, frequently shunned, ostracized and considered unfit for marriage62.
2) The non-domestication of international treaties on sexual violence committed during armed conflict has made it practically impossible for Nigeria to prosecute the crimes of sexual violence in times of armed conflict. It is important to note that Nigerian penal laws (the criminal and penal Codes Acts) may not be amended or reviewed until the treaties recognizing sexual violence as crimes of international magnitude are domesticated. Though the constitution has put in place protective measures to protect the rights of women. Same constitution forbids the implementation or enforcement of any treaty which has not been domesticated by the National Assembly. Consequently, Nigeria has ratified the additional protocols to the Geneva Conventions, the Rome Statute of International Criminal Court, the Convention on the Elimination of All Forms of Discrimination Against Women, the protocol to the African charter on Human and People’s Rights on the Rights of Women in African (the Maputo protocol).63
3) Inadequacy of the Nigerian Penal Laws (the Criminal and Penal Code Acts) has made it practically impossible for Nigeria to prosecute the crimes of sexual violence committed during armed conflicts. The Nigerian Penal Laws are applicable in the Southern and Northern States respectively. They are peace time legislations.64
4) Lack of access and confidence in the legal system, by the survivors, have made it very difficult for Nigeria to prosecute the crimes of sexual violence committed during armed conflict. In Nigeria, most citizens do not have confidence in the judicial process and may never resort to the courts for the resolution of any dispute or to seek redress for any wrong that they have suffered in peace time and becomes more difficult in periods of conflict.65
5) Lack of specialized courts and trained personnel for conflict related sexual offences have been identified as an obstacle to the smooth prosecution of crimes of sexual violence in Nigeria.66
5.2 Conclusion
Having subjected the background to the study, significance of the study, summary of literature, gap in knowledge, legal and institutional frameworks, available legal remedies and summary of findings to thorough and objective legal analysis, this dissertation concluded that, despite clear legal prohibitions, sexual violence remains wide spread and prevalent during armed conflicts and other situations of violence. It occurs in various contexts and for various purposes and has grave humanitarian consequences. Sexual violence is often utilized as a tactical or strategic means of overwhelming and weakening the adversary, whether directly or indirectly by targeting the civilian population. The non-domestication of international treaties on sexual violence constitutes impediment to the smooth prosecution of sexual crimes committed during armed conflict in Nigeria.67 Currently, there is no domestic legislation that criminalizes sexual violence in times of armed conflict. The Nigerian Penal Laws (the criminal and Penal Code Acts) are peace time legislations. This creates a huge gap in the accountability process, as the lack of the necessary laws for prosecution may be the reason for the prevalence of the crime of sexual violence in armed conflict68.
Recommendations
In view of the fore-going findings made, the following recommendations are herein advanced.
1) Prosecution of perpetrators of crimes of sexual violence during armed conflicts and making them liable is highly recommended as a legal remedy. Once a perpetrator is charged and convicted, more survivors will be willing to report these crimes. However, the capacity of states to do so, in view of the prevalence of weak structures, institutions and obsolete laws, needs to be addressed. Beyond the law enforcement approach, dealing with the political economy of armed conflicts in a more holistic manners is crucial to the finding of lasting remedies to the situation of conflicts around the world. In that regard, multilateral cooperation should be enhanced to as to strengthen states’ capabilities to deal with threats posed by violent conflicts, criminality and terrorism69.
2) Domestication of international treaties on crimes of sexual violence committed during armed conflicts is recommended. To bridge the lacuna created by the non-domestication of relevant treaties, the legislature, must be ready to adopt international treaties in this regard which Nigeria has ratified. Such treaties include the Rome statute of the International Criminal Court, Additional protocols to the Geneva Conventions, the Convention on the Elimination of All Forms of Discrimination Against Women, the protocol to the African Charter on Human and Peoples’ Right on the Rights of Women in African (The Maputo Protocol). Until the afore-mentioned and other relevant international treaties are domesticated, Nigeria courts may not be able to prosecute because the extant penal laws have not been reviewed.70The foregoing submission is hinged on the fact that, where a state has domesticated the Rome statute of the International Court, the national courts would not only have their normal jurisdiction to hear and determine general cases of sexual and gender based violence which do not occur in times of armed conflict, but can also hear and determine cases of sexual violence that took place in times of conflict which may either be a war crime, crime against humanity or genocide71.
3) The current penal laws, in Nigeria, as already pointed out, are inadequate, since they do not make provision for sexual violence in times of armed conflict. There is the need for these laws to be reviewed to accommodate sexual crimes of international nature that happens in times of armed conflict. It imperative to note that national courts can prosecute both international and domestic forms of sexual violence if the national penal law have been amended to recognize war crimes, crimes against humanity and genocide. This amendment has not been carried out in Nigeria72.
4. Both the Federal and States governments should put in place reintegration, reorientation and rehabilitation programmes, designed to meet the needs of each victim of sexual violence73.
5) Priority must be accorded to addressing the enabling environment and underlying root causes of armed conflicts, such as human rights abuses, injustice, unemployment, corruption, the lack of inclusiveness and impunity74.
6) Having identified the lack of access and confidence in the legal system by the survivors of sexual violence a major challenge in prosecuting alleged perpetrators. It is recommended that, courts should be made more accessible to victims of sexual violence. Victims must have access to justice. Government should take up the cost of litigation in cases of sexual violence. Courts must not unnecessarily delay the prosecution of these cases by unending adjournment which at the end of the day serves no useful purpose, then frustrating the victims 75.
