--Victims may refrain from bringing legal actions against Syrian officials for fear of vindictive measures--
The following Op-Ed consists of excerpts from my speech at the 23rd annual Canadian International Law Students' Conference (CILSC), convened on Friday, January 29, 2016, at the Osgoode Hall Law School, York University, Toronto, Canada.
Since its eruption in March 2011, the Syrian peoples' movement for freedom and democracy has significantly changed. It has gradually shifted from a peaceful uprising to a civil war, and finally became a sectarian warfare. This dramatic change has occurred when Hezbollah and Iran--both belonging to the Shi'i faith--sent troops to fight alongside the government forces, majority of them belong to the Alawite sect, on the one hand, and when Salafists and jihadists--all belonging to the Sunni faith--sided with the Free Syrian Army (FSA), on the other.
As in most internal and transnational armed conflicts, rape has been a horrific component of the Syrian sectarian war, becoming a widespread weapon of terror and a form of torture to extract information from rebels or their family members and supporters. The aim of the perpetrators is to destroy the identity of the victims, intimidate them, and break the social fabric of their communities. Numerous reports indicate that most of these crimes were allegedly carried out by the Alawite government security forces, pro-government paramilitaries "shabbiha", as well as by Hezbollah troops.
Several reports also indicate that the situation for Syrian women and girls is frightening. Many families have fled the country to protect their women from rape, which was employed as a weapon of "sectarian cleansing"--a new conflict-related crime to be added to the long list of crimes against humanity, embodied in Article 7 of the Rome Statute of the International Criminal Court (ICC). Firsthand information collected from Syrian refugees in Jordan, Lebanon, Iraq and Turkey, reveals that Syrian women and young girls were gang-raped and many of them impregnated. They have been assaulted in detention and interrogation centres; during home raids and searches, often in front of members of their families; and in public at checkpoints and roadblocks. They were, and still are, in a living death behind bars or in refugee camps inside and outside Syria, and continue to be vulnerable to different kinds of exploitation by both friends and foes. In a heart-wrenching story from Za'tari refugee camp in Jordan, a father was forced to surrender his underage daughter to government security forces at a checkpoint after being threatened with the death of all family members inside the car.
In Syria as well as in other Arab countries, there are unequal gender norms. Customs and domestic laws maintain discriminatory provisions against women, considering them as just sexual objects and symbols of honour rather than human beings treated on an equal footing with men. Accordingly, raping a Syrian woman simply means sentencing her to death, physically, psychologically, and socially. Assaulted women might be killed, abandoned, or socially rejected. Moreover, women could be killed by their own families or commit suicide as a preventive measure of being raped. A report by the International Rescue Committee reveals that a father has shot dead his daughter as they were approached by an armed group in order to prevent the dishonour of her being sexually assaulted.
In this respect, testimonies collected in Amman, Jordan, by Hamida Ghafour, Toronto Star's foreign affairs reporter, disclosed that many raped Syrian women had been killed by their families or forced to commit suicide upon their release from jail, as they have allegedly brought "shame" to their families. Others were pressured to marry, even to elderly people to "restore" their honour. In the same vein, Syrian women agents procure teen brides, some as young as 12 years for men as old as 70 years. Ghafour brings to light the story of a 17-year-old bride wedded to a Saudi groom of 70; "the child bride would like to sacrifice herself for her family," as her mother said. Ghafour adds that this case is one of hundreds of forced marriages where teen girls have been "sold to early marriages" as little as $100.00 cash for a bride. However, many of these marriages are temporary, which last only for a few weeks or even days, before these child brides would be returned to their families. A case in point is a girl of 15 who was sold four times to early marriages.
Nevertheless, in the light of the above discussion, one may identify a number of newly invented conflict-related gender-based crimes, emerging from the sectarian strife in Syria.
Firstly: Zawaj Ta'assufi "Arbitrary Marriage"
Sexual exploitation and trafficking in young Syrian women and girls have become a disgraceful phenomenon spread during, and as a result of, the sectarian war in Syria. Field researchers discovered that many women who were sexually abused and sought shelter in refugee camps in neighbouring countries--particularly in the Za'tari refugee camp in Jordan--were revictimized and subjected to sexual exploitation. Associated stigma, shame, poverty, revenge, and dishonour have prevented victims and their families from speaking out or seeking help. For that reason, many young victims have been forced by their families to early marriages. The child brides, as young as 12-year-old, have been auctioned by their parents to Arab grooms, who married them as a "patriotic duty" and a form of "support to the revolution" against the Syrian regime. They usually take these young girls as second wives, promising to alleviate the families' financial problems and spare their daughters from a certain harsh life in the refugee camps. These marriages could be classified into two categories:
(A) Zawaj al-sawn "protection marriage", where parents force their daughters into early marriages under the pretext of fear of the unknown, fear of rape--which would damage the family's reputation and demolish the girl's future chances to get married--and because of the lack of financial resources to sustain them.
(B) Zawaj al-sutra "shame marriage", where families push their women who were sexually assaulted in war to marry volunteer Arab grooms in order to preserve their dignity and to restore the families' honour. Unfortunately, many of these arbitrary marriages end up being temporary for pleasure and last only for a few days or weeks. As a result of these deviant and nonbinding marriages, many young girls have been impregnated, abandoned, dumped alone, or left to return to the Za'tari refugee camp injured, insulted, and mortified. This is a form of licensed sexual exploitation, which was imposed by war conditions.
However, this crime has motivated a number of Syrian and Arab activists to launch an online campaign under the title laji'at la sabaya "refugees, not spoils of war" to expose individuals and institutions who served as sexual mediators between "grooms" and Syrian needy refugee families in the camp.
Secondly: Zawaj al-Istimta' "Pleasure Marriage"
In her testimony, a Syrian mother of two little children from the city of Douma, the centre of Damascus governorate, testified that she has been gang-raped by five members of Hezbollah brigade at her home while her husband was participating in demonstrations against the regime. She said that they have forced her, at gunpoint, to zawaj al-istimta' "pleasure marriage," one after another. The perpetrators might have conducted this crime under the plea of practicing zawaj al-mut'a "temporary marriage", commonly practiced by Shi'i communities, including Twelver Shia, who prevail in Iran and Southern Lebanon.
In "The Militarization of Sex: The Story of Hezbollah's Halal Hook-ups", a 2009 Foreign Policy article, Hanin Ghaddar provides that Shiite women and men practice temporary marriage as a religious duty. Zahra, a 25-year-old Shiite divorced woman notes that temporary marriages with women whose husbands were killed by Israelis would be more rewarding in heaven. However, zawaj al-mut'a, which was permitted for a very short period of time in the early days of Islam, and strictly prohibited by the Prophet Muhammad on the occasion of the battle of Khybar, as narrated by Ali Ibn Abi Talib, is quite different from this invented gender-based crime.
According to the Shiite personal law, temporary marriage is a fixed term marriage, freely performed under a temporary contract between a man and an unmarried woman who agrees to wed for a fixed period of time, spanning to a couple of months, weeks, days, or even hours. The woman should say: I have wedded you myself, declaring firmly the time period of marriage and the dowry. The man must respond by saying: I accepted the marriage. Moreover, when the proposed time is finished, the woman should wait for two menstrual periods before engaging in another marriage. On the contrary, the invented crime "pleasure marriage" is simply a kind of sexual violence and a prostitution in the form of marriage, where Syrian Sunni women, regardless their social status or age, have been allegedly forced to by the sectarian government forces or their allies.
Finally: Jihad al-Nikah "Sexual Jihad Marriage"
It has been widely reported that at least a dozen of young Tunisian girls have been lured to Syria in response to a fatwa "religious legal opinion," allegedly attributed to sheikh Muhammad al-Arifi, an authoritative Saudi Islamic scholar, to temporary marry and provide "sexual services" for jihadist rebels in order to help them better fight against the Alawite Syrian regime. Sheikh al-Arifi has repeatedly denied this fatwa, considering this marriage as a form of prostitution under the pretence of "temporary marriage," which is also a type of adultery and strictly proscribed under Islamic law.
However, many commentators argue that the above fatwa lies within the declared war between Shi'i and Sunni faith followers over the Syrian people's revolution. They believe that the fatwa was fabricated and widely disseminated by the Syrian regime and its allies, namely Hezbollah and Iran, to send a twofold message. The first one is directed to the Syrian conservative community with the aim of tarnishing and stigmatizing the jihadist rebels, who allegedly authorized prostitution in the garb of temporary marriages. The second message is to the international community to lose faith in the FSA, which mainly comes from Syria's Sunni majority, and to question its ability to build a free democratic Syria.
To this end, regardless the identity of the perpetrators of the above heinous crimes, it is necessary that the international community would take a further step and halt the war waged on Syrian women by all war factions, bring perpetrators to justice, and combat the culture of impunity. To achieve these legitimate goals, however, the UN Security Council should overcome its continuance failure over the past four years to stop war in Syria and refer its case under Chapter VII of the UN Charter to the Prosecutor of the ICC, pursuant to Article 13(b) of the Rome Statute. Moreover, it is also important to call upon the drafters of the Rome Statute of the ICC to reconceptualise, classify, define, and label gender-based crimes--including these newly introduced by the sectarian war in Syria--and incorporate them in the provisions of the Statute, as well as in the States Parties' national criminal legislations under core crimes, namely war crimes, crimes against humanity and genocide.
As I mentioned in my recent testimony before the Subcommittee on International Human Rights of the House of Commons on "Sexual Violence as a Weapon of War in the ongoing Syrian Conflict," Syrian victims of wartime gender-based crimes should try to overcome the stigma associated with these crimes by regarding themselves as wounded combatants rather than as mere victims of sexual violence, as veterans of a just war rather than a shameful statistic, and to come forward, speak out, and take legal actions against their perpetrators. However, in the light of the endemic failure of the international political well, it is a sad truth that victims may refrain from bringing an action against Syrian officials for fear of vindictive measures that could be carried out by the regime's security forces against their relatives remaining in Syria, or against them if they return home.