President Biden Issues Policy on Promoting Accountability for Conflict-Related Sexual Violence

On November 28, 2022, President Joseph R. Biden, Jr. issued a memorandum on promoting accountability for conflict-related sexual violence (CRSV).¹ It states that the United States “does not accept CRSV as an inevitable cost of armed conflict” and emphasizes its “commit[ment] to supporting survivors . . . by invoking all tools available, including legal, policy, diplomatic, and financial tools, to deter such violence, break the vicious cycle of impunity, and provide the necessary services to survivors.”² Though focusing on impunity and accountability, the policy also seeks to “complement a broader, holistic approach to preventing and responding [to CRSV] . . . [that] includes advancing gender equity and equality; prioritizing the immediate needs of survivors; and amplifying survivor voices in transitional justice, the provision of services, and peace and political processes.”³ Issuance of the memorandum was timed to coincide with the Preventing Sexual Violence in Conflict Initiative (PSVI) conference in London, where the United States joined fifty-three other countries in supporting the conference's political declaration on conflict-related sexual violence and, together with forty other states, made national commitments to preventing CRSV.⁴ While states and international organizations have begun to devote greater attention to preventing and punishing CRSV, survivors and advocates argue, and diplomats and UN officials recognize, that “sexual violence continues to occur in many conflicts across the world, with almost total impunity.”⁵

The memorandum defines CRSV as “incidents or patterns of sexual violence that occur in conflict or post-conflict situations with a direct or indirect link to conflict.”⁶ It notes that “CRSV may include rape, sexual slavery, sex trafficking, forced pregnancy, forced sterilization, and any other form of sexual violence of comparable gravity, against individuals of all gender identities.”⁷ While men and boys are at risk,⁸ women and girls—97 percent in a recent UN report—are predominately the victims.⁹ CRSV is often underreported, and practitioners estimate that between ten and twenty conflict-related rapes go undocumented for every one reported.¹⁰ CRSV is used as a tactic of war and terrorism.¹¹ Victims are often “selective[ly] target[ed] . . . from opposing ethnic, religious or political groups, such as the . . . Yazidi community by the Islamic State of Iraq and the Levant (ISIL) or . . . women and girls by Boko Haram.”¹² “Sexual violence is no longer treated as merely a byproduct of insecurity,” Pramila Patten, the UN special representative on sexual violence in conflict has concluded, “but rather as a significant form of insecurity in itself.”¹³

Diplomatic efforts to combat CRSV began in earnest only within the past twenty years. The first major international conference addressing CRSV convened in 2006 and issued the Brussels Call to Action to Address Sexual Violence in Conflict and Beyond.¹⁴ Since then, the United Kingdom and the United Nations have led initiatives to highlight awareness of CRSV and spur action domestically and internationally. In 2008, the UN Security Council adopted Resolution 1820, the first that focused on CRSV. The resolution “[s]tresse[d] that sexual violence, when used or commissioned as a tactic of war in order to deliberately target civilians or as a part of a widespread or systematic attack against civilian populations, can significantly exacerbate situations of armed conflict and may impede the restoration of international peace and security.”¹⁵ The Council also “[d]emand[ed] the immediate and complete cessation by all parties to armed conflict of all acts of sexual violence against civilians with immediate effect,” “[d]emand[ed] that all parties to armed conflict immediately take appropriate measures to protect civilians, including women and girls, from all forms of sexual violence,” and “[n]ote[d] that rape and other forms of sexual violence can constitute a war crime, a crime against humanity, or a constitutive act with respect to genocide, . . . call[ed] upon Member States to comply with their obligations for prosecuting persons responsible for such acts, . . . and stresse[d] the importance of ending impunity.”¹⁶ In 2009, the UN secretary-general, at the request of the Council, established the Office of the Special Representative.¹⁷ The special representative speaks out and advocates on CRSV, prepares the secretary-general's Annual Report on Conflict-Related Sexual Violence, chairs the UN Action Against Sexual Violence in Conflict (currently a network of twenty-four UN entities), and works with a Team of Experts on the Rule of Law and Sexual Violence in Conflict to support investigations and prosecutions, legislative reform, and the protection of victims and witnesses.¹⁸ In its resolutions, the Security Council has continued to emphasize the importance of preventing and responding to CRSV and has encouraged strengthening accountability mechanisms, including urging its sanctions committees “to apply targeted sanctions against those who perpetrate and direct sexual violence in conflict.”¹⁹ The resolutions, together with international humanitarian law and international human rights, establish a framework of state obligations concerning CRSV.²⁰

Outside the United Nations, the United Kingdom, through the PSVI, has taken the lead among states in coordinating cross-governmental action. That project generated the 2013 Declaration of Commitment to End Sexual Violence in Conflict (now endorsed by 156 states),²¹ and convened the first Global Summit to End Sexual Violence in Conflict the following year.²² At the PSVI conference in November 2022, over fifty countries, including the United States, endorsed the Political Declaration on Conflict-Related Sexual Violence.²³ The declaration included commitments “[t]o prevent conflict-related sexual violence from occurring,” “[t]o strengthen justice for all those affected by conflict-related sexual violence and hold perpetrators to account, including as a means of prevention,” and “[t]o make available and co-create holistic and meaningful support to victims and survivors.”²⁴ In March 2023, the United Kingdom launched the International Alliance on Preventing Sexual Violence in Conflict—composed of states (including the United States), international organizations, and non-governmental organizations—to coordinate global action on CRSV.²⁵ Despite these efforts, according to UN Special Representative Patten, “[i]mpunity for wartime rape remains the rule and accountability the rare exception.”²⁶ “It is time to move from visibility to accountability,” she told the Security Council in April 2022.²⁷ “It is time now to make accountability inevitable.”²⁸

Focusing on accountability, the Biden memorandum seeks to ensure that executive branch agencies use their authorities “in a manner that responds to the full scale of [the] problem.”²⁹ To that end, the memorandum states that it is U.S. policy to

fully exercise existing authorities to impose economic sanctions and implement visa restrictions in order to promote justice and accountability for acts of CRSV; devote the necessary resources to ensure regular coordination and reporting on CRSV incidents and to conduct training on CRSV issues more broadly, including to support the designation of sanctions targets; strengthen the implementation of other existing tools and authorities to promote accountability for CRSV, including the provision of United States security assistance; and broaden engagement with foreign partner governments to encourage the establishment and use of their own tools to promote justice and accountability.³⁰

In addition to domestic actions, the memorandum specifies the importance of bilateral and multilateral engagement “to broaden the number of countries willing to support accountability for acts of CRSV and to strengthen policies and locally-driven programming in multilateral institutions, including efforts to address the immediate and long-term needs of survivors.”³¹

In particular, the memorandum stresses and expounds upon the use of sanctions. It makes clear, for example, that “an act of CRSV” may “constitute a ‘serious human rights abuse’ for purposes of designation” under the Global Magnitsky Human Rights Accountability Act.³² And it clarifies that the “criteria for targeting certain abuses or violations of human rights” in country-specific sanctions programs “may include CRSV.”³³ Existing sanctions, the memorandum emphasizes, should be “used to the fullest extent possible to target perpetrators of acts of CRSV and their enablers.”³⁴ But other measures “to prevent and respond to CRSV and promote accountability for perpetrators” are highlighted too, including rules regarding security assistance, such as the Leahy Laws.³⁵

The memorandum reflects a broader U.S. commitment preventing and responding to conflict-related sexual violence through financial support, programming, and policy. At the PSVI conference, the United States committed $10 million over two years to “support civil society organisations to document sexual violence in conflict in line with the Murad Code,” the Global Code of Conduct for Gathering and Using Information about Systematic and Conflict-Related Sexual Violence.³⁶ The United States has also committed $2 million for “survivor-centered, trauma-informed approaches to fostering survivor resilience during and after conflict” and an additional $400,000 to the United States's already $1.75 million annual contribution to the Office of the UN Special Representative to the Secretary-General on Sexual Violence in Conflict.³⁷ On December 6, 2022, the United States announced “Safe from the Start ReVisioned,” an initiative focusing on “improving and expanding protection services for women and girls from the onset of every conflict or disaster.”³⁸ Updating “Safe from the Start,” which was launched in 2013, “Safe from the Start ReVisioned” “recommits [the United States] to leading the global community in responding to the needs of women and girls, in all their diversity, from the very start of every conflict or disaster.”³⁹ Also that December, the Department of State issued an updated Strategy to Prevent and Respond to Gender-Based Violence Globally. The Strategy includes among its action items the “consider[ation] and incorporat[ion] [of] gender-based violence risks, prevention, and response [into] U.S. national security and human rights efforts to promote peace, security, and democracy around the world.”⁴⁰ In line with the presidential memorandum, the Strategy, seeks to promote accountability for CRSV.⁴¹

On January 26, 2023, the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) designated the Wagner Group, under Executive Order 13,667, “for being responsible for or complicit in, or having engaged in, the targeting of women, children, or any civilians . . . through conduct that would constitute a serious abuse or violation of human rights or a violation of international humanitarian law in relation to the [Central African Republic].”⁴² The Department of State indicated that these designations were to “advance President Biden's plan to promote accountability for conflict-related sexual violence, which calls for federal agencies to leverage existing sanctions authorities to pursue its perpetrators.”⁴³ On June 20, 2023, OFAC and the State Department designated a total of four individuals for involvement in CRSV.⁴⁴ In a statement, President Biden noted that this marked “the first time that a dedicated focus on conflict-related sexual violence has led to the imposition of U.S. sanctions.”⁴⁵