Authored by Riddhi Agarwal, III Year, B.A. LL.B. (Hons.) Student at the Rajiv Gandhi National University of Law, Patiala
Introduction
One of the most common disadvantages faced by citizens in a conflict-affected area is physical abuse or sexual violence which is also known as “Conflict-Related Sexual Violence” (CRSV). It is a heinous form of Gender-Based Violence that includes Rape, Slavery, forced Prostitution, forced Pregnancy, forced abortion, enforced sterilization, forced marriage, and other forms of sexual acts of violence. Sexual violence is a deliberate use of military force to exert power. As said by Pramila Patten (UN Secretary General’s Special Representative on Sexual Violence in Conflict) “Every new wave of warfare brings with it a rising tide of human tragedy, including new waves of war’s oldest, most silenced, and least-condemned crime.”
To take a survivor’s approach, the Murad Code was introduced to facilitate effective documentation, interviewing, investigation, etc. of the survivors of sexual violence in areas of conflict. The main aim of the Murad Code is to record the survivors’ experiences safely, ethically, and effectively. The UK initiated the initial call against such kind of gender-based violence by launching the ‘Preventive Sexual Violence in Conflict Initiative’ (PSVI). In this blog, the author aims to analyze the code, its implementation, and discuss its challenges & limitations.
Background
Murad Code or Global Code of Conduct for Gathering and Using Information about Systematic and Conflict-Related Sexual Violence is a collaboration between the Foreign and Commonwealth Office of the United Kingdom, Nadia’s Initiative, and the Institution for International Criminal Investigation. The code is named after Nobel Peace Prize winner Nadia Murad and represents ideas and goals that prioritize survivors. It came about through an extensive discussion among 166 actors and stakeholders, which included primary discussions to be a global consultative initiative. The code owes its origin in the PSVI and the International Protocol on the Documentation and Investigation of Sexual Violence in Conflict. The drafting of the Murad code was carried on in a phased manner, wherein the first phase involved research to identify best practices and guidelines for documentation of survivors, the second phase involved taking in-person, remote, and written soundings, and the third phase revolved around the preparation of the code.
Aims and Objectives of Murad Code
The code is counter to the past practices in which techniques of investigation of Conflict-Related Sexual Violence (CRSV) were ineffective, re-traumatizing, verbose, and lacking proper safety measures. The code is based on certain principles, as follows: Give the survivor priority; Think about the practicalities of both space and time; Find out more about the surrounding area; Make the necessary arrangements; Cut down on the number of injuries; Acquire and convey proficiency; Use trauma-informed strategies; Move forward responsibly and with integrity.
Lord Ahmad, the UK Minister of State who chaired the UNSC meeting of 2022, admired the code and noted that it should become the “Gold standard” for NGOs, government agencies, and human rights groups. He further added “Putting survivors at the center of investigation should not be an option. It should be done by everyone, everywhere.” The code also aims at investigation and documentation for legal purposes or which could be relevant to legal actions. The Code is provided as a collection of core values, norms, guidelines, and conduct that are intended to lessen harm and improve the results for survivors. The Murad Code is part of a bigger project that includes three other initiatives aimed at addressing existing issues in documenting sexual abuse in combat. They include the Murad Code, comments, and a “Survivor’s Charter.”
Evident from the Ukraine-Russia war, while the international community was focused on the military dimensions and discussed only how to tackle Russia’s invasion, efforts were being taken to record the testimonies of women and children who were victims of war crime which led to a shift from mainstream concern to concerns regarding sexual abuse and torture of women and children. With the implementation of the Murad code, such groups of women and children would have legal recourse to crimes committed against them during the conflict.
Working of Murad Code in Coherence with the International Protocol of 2017
One of the essential tools to facilitate fair and effective remedies for sexual violence in areas of conflict is the International Protocol on the Documentation and Investigation of sexual violence in Conflict (2017).
The document explains the core standards for recording sexual crimes, such as forced marriage, abortion, and other actions, which are considered grave violations of international humanitarian law. The government, medical professionals, legislators, attorneys, and non-governmental organizations use information obtained through interviews, investigations, and other forms of documentation to build evidence and investigate these horrific crimes against humanity. The Protocol’s basic pillars are to do no harm, respect individual autonomy, acquire informed consent, and protect confidentiality.
Its recommendations suggest that it is vital to remember that simply agreeing to testify makes the victim a hero, despite existing stereotypes, stigmatization, and so on. Adopting a survivor-centered approach, the victim should be heard and given the time they need and their decision not to participate in the investigation must be respected. When dealing with the survivors, they should not be questioned about the validity of the facts or questioned about the decisions they made in that situation.
The Murad code is voluntary and prescribes the basic standards for the secure collection and utilization of information collected from the victims. The primary queries that the Code poses is whether there was a goal of an interview set since before approaching the affected party, the interviewer must have a clear agenda and should be well prepared to seek necessary information in a structured manner. In furtherance of the information sought to seek, it should be the agenda of the interviewer to seek such information which is advantageous for the victims and further motivates the victims. The interviewer should be well aware of the context since those who come into touch with victims must understand the context of the violence as well as its impact on victims, their families, and communities. Every potential benefit must be carefully weighed against the hazards already in place, and strategies to mitigate those risks must be developed. To make the victims feel more comfortable, individuals infected with CRSV must be allowed to pick who they speak with (depending on age, gender, affiliation, and so on). The code places a great emphasis on weighing the benefits and risks to develop strategies to mitigate risks.
These are similar to principles laid down in the International Protocol of 2017, which operates on the principles of “do not harm; respect a person’s autonomy; get informed consent; and protect confidentiality”.
Challenges & Limitations to Murad Code
The UNSC under Resolution 2467 brought attention to the challenges in documenting and handling sexual assault related to conflicts in a recent report. As per the report the main causes of sexual assault in conflict zones were found to be, among other things, “rising inequality, increased militarisation, reduced civic space, and the illicit flow of small arms and light weapons.”
For every victim who can express their feelings, thousands more will remain silent – or silenced. Sexual violence is a grossly underreported crime even in times of peace and the barriers to reporting only become more difficult in times of crisis. As a result of their efforts, many people, journalists, and humanitarians who call for accountability or successfully report these atrocities to the world endure persecution. Victims are reluctant to approach law enforcement due to depression and fear of repercussions on their families, as well as stigmatization within the family or community. Additionally, national legislation lacks particular procedures for the protection and support of CRSV victims and witnesses.
Another unresolved issue is the requirement for multiple interviews with witnesses during the pre-trial and trial stages. This leads to visiting and re-visiting those memories again and again which retraumatizes the victim and also ingrains a negative impression on the mind of the victim.
One of the major limitations of the code is that it is non-binding and it’s enforcement is dependent upon the will of the government and other international organizations. It is evident from the code that it has a very narrow scope since it only focuses on sexual violence in the areas of conflict and does not cover other significant war crimes such as torture, genocide, and collateral damage in the affected area. As has been pointed out by Ms. Murad during a debate in UNSC there is a need for a universal enforcement mechanism, While international bodies like the International Criminal Court (ICC) and other tribunals can prosecute CRSV as war crimes, the Murad Code does not establish new courts or processes for prosecution, leaving survivors reliant on existing international and national legal frameworks.
Conclusion
Therefore, to achieve international standards and those set by the Murad code, effective measures need to be taken by nations. To incorporate these principles and facilitate the effective and efficient documentation of evidence against heinous crimes like sexual violence in conflict-affected areas, the Murad code should be taken as a model code. However, especially in conflict-affected areas, its non-binding character, practical difficulties, and lack of uniform enforcement restrict its efficacy. As important as the code is, there is still room for improvement in terms of tackling more widespread systemic impunity and guaranteeing uniform implementation across international borders. All things considered; the Murad Code is an essential instrument that allows for greater international cooperation.