Why we need gender-specific provisions on enforced disappearances in Africa

Following its 71st Ordinary Session from 23 April to 13 May 2022, the African Commission of Human and Peoples’ Rights (ACHPR) officially demonstrated its commitment to addressing widespread enforced disappearances in the continent by publishing the “Guidelines on the Protection of all Persons from Enforced Disappearances in Africa[i]. Given the underreporting and lack of addressing enforced disappearances within the African continent[ii], this is a promising step toward greater accountability for the crime perpetrated across Africa.

While waiting for their official publication, the ACHPR’s announcement raises thoughts on the gendered aspects of the phenomenon. This publication addresses women’s experiences of enforced disappearances during conflicts and post-conflict settings. It highlights how women experience the crime differently from men and how they play an essential role in addressing it. Including gendered perspectives on enforced disappearances in peace processes and peace agreements would be a further step toward women’s empowerment and gender justice in post-conflict societies. In this regard, the Guidelines have great potential to provide a regional framework for increasing awareness of the gendered aspect of the crime and incentivising gender-sensitive approaches to conflict resolution across the African continent.

Women’s experience as relatives of someone who was disappeared

 During armed conflicts, men are the main target of enforced disappearances[iii]. Yet, the crime significantly affects women as the relatives of those who disappeared, and they can face different consequences because of their gender[iv].

Firstly, the unknown fate of their relatives can pose a significant challenge for people to move forward with their lives. Mothers, spouses, and children of the disappeared are particularly vulnerable to extreme suffering, which can amount to torture and ill-treatment[v].

Moreover, pre-existing gender disparities may enhance socio-economic challenges experienced by women after the disappearance of their partners or sons. In many countries, boys have greater access to education and the job market than girls. Consequently, men tend to be the family’s primary breadwinners. The disappearance of men can leave women with an increased risk of experiencing financial struggles, social exclusion, homelessness, and greater chances of relying on precarious work or even sex work[vi]. Additionally, when experiencing economic challenges, women cannot finance children’s education or provide adequate healthcare. In Lebanon, for instance, wives of the disappeared have struggled to obtain identification documents for their children since only fathers have legal authority over them[vii].

Women as victims of disappearances

While women are not the main target of enforced disappearances, they too are victims of the crime. They can be deprived of their right to liberty, freedom from torture and ill-treatment, and potentially their right to life. The General Assembly recognised that women victims of enforced disappearances face increased chances of experiencing sexual harassment and Gender-Based Violence (GBV)[viii].

Further, they risk experiencing gender-specific vulnerabilities, such as disappearing when already pregnant, unwanted pregnancies following sexual violence, and lack of appropriate health care during menstruation or while giving birth[ix]. These may cause severe health conditions and trauma or lead to instances of giving birth in inhuman conditions, potentially resulting in the loss of the child.

The Inter-American Court of Human Rights endorsed a gender-sensitive approach in Gelman v. Uruguay. It recognised that the disappearance of Mrs Gelman, who gave birth while kept in captivity and whose daughter was given for adoption, was “classified as one of the most serious and reprehensible forms of violence against women”[x].

Beyond victimhood: Women affected by enforced disappearances as drivers for justice and truth

When discussing gender and enforced disappearances, we should consider women’s role as drivers for justice and truth and not limit the narrative to their experiences as victims. Women have played an essential role in leading civil society organisations (CSO), calling for the truth about what occurred to the disappeared and fighting for accountability and redress. Some example movements are Las Abuelas de Plaza de Mayo in Argentina[xi], SOS Disparus in Algeria[xii], and the Abductees’ Mothers Association in Yemen[xiii].

The latter, for instance, is a women-led Yemeni CSO instrumental in prisoners’ release since 2016. The movement is evidence of the critical role of women in mediation as they were engaged in multiple activities advancing national reconciliation. Its members actively negotiated with parties involved in the conflict for prisoner release and successfully released 600 men in 2019, with an additional 40 people in 2020. Additionally, they worked towards building a bridge between warring parties by collaborating with women of opposing groups to provide humanitarian assistance to those affected by disappearances and locate and release those forcibly disappeared. Ultimately, the organisation worked toward the well-being of civilians in Yemen. Its members negotiated with the government to provide funds for relatives of the disappeared and psycho-social support to those released, restoring their dignity and contributing to their social integration[xiv].

With this in mind, the Guidelines have great scope to enhance gender-sensitive approaches to enforced disappearances. They could encourage mediators engaging in peace negotiations to consider women’s experiences of enforced disappearances, as relatives of those who disappeared or as people themselves disappeared. Moreover, they could acknowledge women’s role in peace processes during and after armed conflicts. This would contribute to viewing women as active agents for peace, incentivising their inclusion in official peace processes in line with the UNSC Resolution 1325 and the Women, Peace and Security agenda.

Towards a widely applicable definition of enforced disappearances

The Guidelines present an opportunity to introduce a broader definition of enforced disappearances applying to state and non-state actors and addressing gender-specific issues, as the current definition of enforced disappearances is inadequate to address enforced disappearances in contemporary armed conflicts[xv].

The leading international human rights framework is tackling the crime; the International Convention for the Protection of All Persons from Enforced Disappearance (CED) defines enforced disappearance as a practice perpetrated by or with the consent of the government or state agents. It mirrored the widespread practice in the 60s and 70s across Latin American governments to silence political opponents. However, in recent times armed groups and non-state actors are relying on such a practice too[xvi]. This is significant considering that most African conflicts are intra-state, often involving multiple non-state actors.

While the Rome statute has broadened the definition of the crime to include political organisations[xvii], the ICC can only prosecute disappearances as a crime against humanity, establishing a high threshold for prosecutions. Additionally, the article is gender-neutral, overlooking gender-specific issues, which are instead covered by The Protocol on the Prevention and Suppression of Sexual Violence against Women and Children of the International Conference of the Great Lakes[xviii]. Article 1(2)(i) prohibits enforced disappearances of women and children as a crime against humanity. However, as with the Rome Statute, its definition establishes a high threshold.

A broader definition of the crime introducing a lower threshold and a gender perspective will enhance the acknowledgement of disappearances of women in some conflict settings, but that cannot be prosecuted as a crime against humanity because it was perpetrated without the involvement of the state or because of its scale. Additionally, it would provide a framework on which mediators and international actors could rely during peace processes and through drafting peace agreements. As explored below, this could lead to responses such as national criminal law reform, recognising victims’ rights and support.

What can the Guidelines mean for conflict resolution? Challenges and prospects

Conflicts across Africa witnessed enforced disappearances, notably in Burundi, Ethiopia, Rwanda, DRC, Libya, Nigeria, Sudan, South Sudan, South Africa, Uganda and Zimbabwe[xix]. However, disappearances in Africa are underreported and under-addressed[xx]. In 2021, The Working Group on Enforced or Involuntary Disappearances reported 148 documented cases of enforced disappearances of women from 1980 to 2021 in the whole continent[xxi]. This number seems to underestimate the scale of the crime significantly. The lack of documentation and reporting is mirrored in peace processes concerning African Countries, of which South Sudan is the only case presenting gender provisions regarding missing persons in peace agreements[xxii].

The Guidelines are unlikely to be legally binding. Consequently, they may have a limited impact on implementing gender-specific provisions regarding enforced disappearances into national law. However, the Guidelines may raise awareness of the scale of enforced disappearances in the continent and incentivise states to undertake initiatives tackling disappearances while simultaneously addressing their gendered aspects, with the increased chances of these being addressed during peace processes. This can be achieved partly, but not exclusively, by recommending law reform addressing enforced disappearances while highlighting the increased vulnerability of women as a result of disappearances. An example is the local agreement “All-Jonglei Conference for Peace, Reconciliation and Tolerance” of 2012, signed in South Sudan[xxiii], which recognised the systemic abduction of women and children as a security issue[xxiv]. It demanded tracing and identification of abductees and, when possible, their immediate return. Further, it encouraged the enforcement of the rule of law and prosecution of those perpetrating disappearances.

However, the fight against enforced disappearances must go beyond law reform[xxv]. Establishing a Truth and Reconciliation Commission (TRC) can contribute to national reconciliation. Scholars questioned the effectiveness of TRCs in achieving a collective, objective truth, as they rely on subjective and deeply personal testimonies, sometimes influenced by the right to reparations, incentivising participants’ discretion to share selected memories[xxvi]. Nevertheless, TRCs are a tool with the potential to heal wounds, restore dignity and step toward national reconciliation. They may oversee investigating, researching, and conducting hearings on crimes perpetrated during an armed conflict, including enforced disappearances.

Additionally, they can deal with exhumations of the bodies of those killed after disappearing. Such activities are essential to discovering the truth about conflicts and contribute to achieving collective memory to deal with a violent past. TRC reports in Latin America have emphasised, to different extents, the gendered aspect of enforced disappearances, such as the sexual and gender-based violence of female detainees[xxvii]. Notably, the TRC in Peru officially recognised women as victims as the relatives of those who had disappeared[xxviii].

Recognising victimhood is essential for the relatives of the disappeared. It allows them to access justice and reparations. As this piece has argued, women are more likely to be victims as the relatives of someone who has disappeared. If peace processes address their grievances and needs caused by disappearances, such as potential financial struggles, they could enhance women’s empowerment in post-conflict environments. The Guidelines should encourage the protection of women and children and recognise women’s role in supporting communities affected by disappearances so that peace agreements such as those in South Sudan are no longer an exception but become the rule.

References

[i] African Commission on Human and People’s Rights (2022). Final Communiqué of the 71^st Ordinary Session of the African Commission on Human and People’s Rights. Virtual Session, 21 April – 13 May 2022.

[ii] Vicente, A., Nudd, E. (2021). Addressing a forgotten struggle: Victims of enforced disappearance in Africa – REDRESS. Torture Journal, Vol. 31(2), pp. 68-82.

[iii] Dewhirst, P., Kapur, A. (2015). The Disappeared and Invisible: Revealing the Enduring Impact of Enforced Disappearances on Women. International Center for Transitional Justice (ICTJ). Available from https://www.ictj.org/publication/disappeared-and-invisible-women-disappearance [Accessed 20/06/2022]

[iv] Janina, S. (2012). Human Rights Mechanisms for the Protection of Women and Children from Enforced Disappearance. Mediterranean Journal of Social Sciences, Vol. 3(8), pp. 291-296.

[v] Human Rights Council (2011) Report of the Working Group on Enforced or Involuntary

Disappearances: General Comment on the Right to the Truth in Relation to Enforced Disappearances. A/HRC/16/48.

[vi] Dewhirst, P., Kapur, A. (2015)

[vii] Yakinthou, C. (2015) Living with the Shadows of the Past: The Impact of Disappearance on Wives of the Missing in Lebanon. International Center for Transitional Justice (ICTJ.) Available from ICTJ-Lebanon-Disappearance-2015.indd [Accessed 22/06/2022]

[viii] Human Rights Council (2013) General comment on women affected by enforced disappearances / adopted by the Working Group on Enforced or Involuntary Disappearances. A/HRC/WGEID/98/2.

[ix] Goldblatt, B. (2006). Evaluating the Gender Content of Reparations: Lessons from South Africa.” In Rubio-Marín, R. “What Happened to the Women? Gender and Reparations for Human Rights Violations”. New York: Social Science Research Council, pp. 48-91

[x] Gelman v. Uruguay [2011] Inter-American Court of Human Rights, February 24^th.

[xi] Rodríguez, V. S. (2012). Movimientos sociales, territorio e identidad: El movimiento de Madres y Abuelas de Plaza de Mayo. Geograficando, 8.

[xii] Kristianasen, W. (2006). Truth & Justice after a Brutal Civil War: Algeria: The Women Speak. Review of African Political Economy, 33(108), 346–351

[xiii] Mellows, L. (2020). Abductees’ Mothers Association: On the Front Lines of Yemen’s Prisoner Swap. ICAN, 13^th November. Available from https://icanpeacework.org/2020/11/abductees-mothers-association-on-the-front-lines-of-yemens-prisoner-swap/ [Accessed 12/07/2022]

[xiv] (2019) Freeing the Kidnapped in Yemen’s War: How Yemeni Mothers Succeeded Where Everyone Else Failed, International Civil Society Action Network (ICAN), May 2^nd. Available from   https://icanpeacework.org/2019/05/freeing-the-kidnapped-in-yemens-war/ [Accessed 21/06/2022]

[xv] Sarkin, J. (2016). The Need to Deal with All Missing Persons including Those Missing as Result of Armed Conflict, Disasters, Migration, Human Trafficking, and Human Rights Violations (including Enforced Disappearances) in International and Domestic Law and Process. Inter-American and European Human Rights Journal, Vol. 8, pp. 112-142

[xvi] Srovin Coralli, A. (2021) Non-State Actors and Enforced Disappearances: Defining a Path Forward. Geneva Academy: Working Paper. Available from https://www.geneva-academy.ch/news/detail/470-new-paper-calls-for-a-revised-definition-of-enforced-disappearance-to-address-the-growing-number-of-disappearances-committed-by-non-state-actors [Accessed 30/06/2022]

[xvii] Rome Statute of the International Criminal Court (1998). Art. 7(2)(i), July 17^th.

[xviii] International Conference on the Great Lakes Region (2006) Protocol on the Prevention and Suppression of Sexual Violence against Women and Children, November 30^th. States parties are Angola, Burundi, Central African Republic, DRC, Republic of Congo, Kenya, Rwanda, Sudan, Uganda, Tanzania, Zambia, and South Sudan.

[xix] Vicente, A., Nudd, E. (2021)

[xx] Vicente, A., Nudd, E. (2021)

[xxi] Human Rights Council (2021) Report of the Working Group on Enforced or Involuntary Disappearances. A/HRC/48/57.

[xxii] Wise, L., Asproni, A. (2022) Gender perspectives in peace agreements: Time for a new approach? Available from Gender perspectives in peace agreements: Time for a new approach? | PeaceRep [Accessed 21/07/2022].

[xxiii] South Sudan (2012) All-Jonglei Conference for Peace, Reconciliation and Tolerance, held in Bor, 1-5 May 2012: Conference Resolutions and Recommendations. Available from PA-X: Peace Agreements Database [Accessed 12/06/2022]

[xxiv] For more information on gender and local agreements see Wise, L., Forster, R. & Bell, C. (2019). Local Peace Processes: Opportunities and Challenges for Women’s Engagement (PA-X Report, Spotlight Series). Edinburgh: Global Justice Academy, University of Edinburgh, and Wise, L., Asproni, A. (2022) cited above.

[xxv] Goldstone, R. J. (1998). Ethnic Reconciliation Needs the Help of a Truth Commission. The New York Times, 24 October. Available from: http://www.nytimes.com/1998/10/24/opinion/24iht-edgold.t_0.html [Accessed 20/06/2022]

[xxvi] For a general overview of the literature on TRC see Stanley, E. (2001). Evaluating the truth and reconciliation commission. The Journal of Modern African Studies, Vol. 39(3), pp. 525-546.

[xxvii] See Comisión para el Esclarecimiento Histórico (1999) Guatemala Memoria del Silencio. Volume III, and Comisión Nacional sobre la Desaparición de Personas (1984) Informe “Nuca Más”, Capitulo 1 and 2.

[xxviii] Comisión de la Verdad y Reconciliación (2003) Informe final – Perú: 1980-2000. Parte IV, pp. 95

Author

Anna Asproni is a research intern at PeaceRep and is pursuing a master’s degree in Human Rights Law at the University of Edinburgh.

Anna’s researcher profile