ILN

ABA New Policy on Sexual and Gender-Based Violence

By Bernice Leber and Salli Swartz

At its Midyear Meeting in Miami, the ABA House of Delegates adopted a policy resolution urging governments worldwide, non-governmental organizations (NGOs), the United States, and the United Nations to improve donor coordination, transparency, and accountability for programs and services provided to victims of sexual and gender-based violence, including in armed conflict areas. In the resolution, the ABA recommends better data collection, independent audits, evaluations, and disclosure of how funds are spent and calls upon governments, donors, NGOs, and multilateral institutions to work together to develop and implement methodologies to create publicly accessible national databases with data about programs and the number of victims.

ABA as a Leader in Promoting Accountability

The new ABA resolution is responsive to the need to measure and track the prevalence of sexual and gender-based violence. A paucity of empirical data and research within and across countries about the incidents makes it extremely difficult to assess the impacts on victims and the adequacy of new criminal laws, judicial mechanisms, reparations, and deterrence through prosecutions.

Such information also is needed to understand the effectiveness of the funding and delivery of victims’ assistance programs and services. The public and private sectors at all levels need to develop and implement methodologies with qualitative and quantitative data on reported incidents, emergency services, and spending of donor, NGO, and governmental funding for victims’ services.

Ending Sexual and Gender-Based Violence

The international community has consistently and uniformly condemned sexual and gender-based violence. Goals 5 and 16 of the UN Sustainable Development Goals (SDGs) call for the elimination in all forms of such violence by 2030. Goal 5.2 calls for countries to “eliminate all forms of violence against all women and girls in the public and private spheres, including trafficking and sexual and other types of exploitation.” Targets for Goal 16 require countries to “significantly reduce all forms of violence and related death rates everywhere” and “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.”

Legally binding international instruments recognize sexual and gender-based violence as specific crimes to be prosecuted through domestic criminal laws and, under international law, as both a crime against humanity and war crime.

The major treaties recognizing sexual violence as an international crime are the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Rome Statute of the International Criminal Court. Within the Rome Statute, sexual violence is a qualifying act under article 7 on crimes against humanity and article 8 on war crimes. The inclusion within the Rome Statute, rather than secondarily referenced within the Elements of Crimes, demonstrates the international sentiment by which “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity” constitute grave breaches of international law.

About the Resolution

The resolution reflects three years of work by a task force of the ABA Representatives and Observers to the United Nations. The project behind this resolution was initially launched in 2011 at the request of then-ABA President Carolyn Lamm. The ABA Section of International Law supported the resolution, and the ABA Rule of Law Initiative and the New York State Bar Association co-sponsored the Resolution. Among the referrals were the ABA Center for Human Rights, the ABA Commission on Domestic and Sexual Violence, the ABA Civil Rights and Social Justice, the ABA Commission on Women, and more than a dozen state and local bar associations in the United States. Mark H. Alcott, chair of the ABA UN Committee, submitted the resolution and its accompanying report to the ABA House of Delegates. We are grateful for his leadership of the UN Committee and the assistance from all the members of the different entities and sections of the ABA in reviewing and refining the many R&R draft versions.

The project began as an in-depth research project into the reparations framework in the Democratic Republic of Congo (DRC) by a working group comprised of Bernice Leber of Arent Fox, Salli Swartz of Artus Wise Paris and former Chair of the Section of International Law, Helaine Barnett, winner of the Outstanding Service Award 2017 bestowed by the Fellows of the American Bar Foundation, Pauline Schneider of Ballard Spahr, and Julia Bienstock of Arent Fox.

Watch the video of the debate before the ABA House of Delegates at the Midyear Meeting 2017.

Read the text of ABA Resolution 105 [click to download PDF].

 

ABA RESOLUTION 105

RESOLVED, That the American Bar Association urges the United Nations, the United States and other governments and relevant international actors to develop and implement methodologies to measure and track the prevalence of sexual and gender-based violence.

FURTHER RESOLVED, That the ABA endorses international efforts to improve donor coordination, transparency, and accountability with respect to assistance to victims of sexual and gender-based violence including in situations of armed conflict, and specifically recommends that donors require quantitative public reporting from funding recipients globally, including disclosure of independent audits or evaluations showing funds expended on services to victims of sexual violence and the services provided using such funds.

FURTHER RESOLVED, That the ABA recommends that international Non-Governmental Organizations, donors, and multilateral agencies work with and support governments to develop and adopt appropriate methodologies to create publicly accessible national databases of information on assistance to victims of sexual violence, enabling stakeholders to coordinate, track, and evaluate this assistance.

Adopted February 6, 2017

Bernice Leber

Bernice Leber is a partner of Arent Fox. She serves as a delegate to the ABA House of Delegates. She is a member of the ABA Commission on Fair and Impartial Courts, the ABA Commission on the Future of the Legal Profession, the ABA UN Representatives and Observers delegation.

Salli Swartz

Salli Swartz is a partner of Artus Wise in Paris, France, a former chair of the Section, the ABA representative to the International Legal Assistance Consortium, a member of the ROLI Africa Council, and the Section of International Law’s liaison to the Center for Human Rights and the Paris Bar. She is a member of the ABA UN Representatives and Observers delegation.