Germany’s push for ambitious UNSCR on sexual violence in armed conflict hits the veto power

Published: 15 April 2021 Author: Stefan Talmon

Germany identified “the women and peace and security agenda” as one of the priorities of its two-year term as a non-permanent member on the UN Security Council in 2019-2020. Its objective was to help women play a stronger role in preventing and managing conflicts, but also to better protect them against sexual violence in conflicts. In an interview published on 25 March 2019, Germany’s permanent representative to the United Nations, Ambassador Christoph Heusgen, stated that sexual violence against women in conflicts was often completely underestimated. He continued: “When you see how it is systematically used as an instrument of war […] the subject suddenly gains security policy relevance. We would like to draw attention to its significance.” In order to do this, Germany used its first presidency of the Security Council in April 2019, organising a so-called “signature event” on “sexual violence in conflict”.

On 23 April 2019, the Security Council held a mammoth high-level open debate on the topic chaired by Germany’s Federal Foreign Minister, Heiko Mass, which lasted for more than ten hours. Germany invited two Nobel Peace laureates, Denis Mukwege and Nadia Murad, celebrity barrister Amal Clooney, and Inas Miloud, Co-founder and Director of the Tamazight Women’s Movement in Libya, to brief the Security Council. During the meeting, after about three hours of debate, the Security Council adopted a 10-page draft resolution prepared by Germany as resolution 2467 (2019). The resolution received 13 votes in favour with none against and Russia and China abstaining. Agreement on the text of the resolution was secured only at the very last minute while the debate was already ongoing. During the negotiations of the draft resolution, Germany had to make substantial concessions on its content in the face of threats of the use of the veto power by three permanent members of the Council. China, the Russian Federation, and the United States were opposed to several aspects of earlier German drafts of the resolution.

The initial text, the so-called zero draft, had ambitious goals to progressively develop the agenda. On 9 April 2019, Ambassador Heusgen stated: “We are working on an ambitious resolution that we put forward for adoption”. For example, the first draft of the resolution included a call to strengthen laws to protect and support gay, lesbian, bisexual, and transgender people who could be targeted during conflict. It also contained a reference to the International Criminal Court’s role in prosecuting alleged perpetrators and promoting justice for survivors of sexual violence. None of this language made it into the final draft resolution. The same is true for the statement that the Security Council “further encourages support to and training of journalists on sexual violence in conflict and post-conflict situations and gender inequality”. The two major sticking points, however, concerned the provision of “sexual and reproductive health services” to victims of sexual violence and the establishment of a new formal mechanism to monitor and secure compliance with the Council’s resolutions on conflict-related sexual violence.

Sexual and reproductive health of victims of sexual violence

The zero draft resolution submitted by Germany at the beginning of April 2019 contained the following paragraph:

“Recognizing the importance of providing timely assistance to survivors of sexual violence, urges United Nations entities and donors to provide non-discriminatory and comprehensive health services, including sexual and reproductive health, psychosocial, legal, and livelihood support and other multi-sectoral services for survivors of sexual violence, taking into account the specific needs of persons with disabilities.”

The reference to sexual and reproductive health services in a Security Council resolution was by no means novel. In fact, the proposed paragraph was exactly identical to paragraph 19 of Security Council resolution 2106 (2013), which had been adopted unanimously. However, under the Trump administration this language was no longer acceptable to the United States. From the outset of the negotiations, the United States made it clear that it was opposed to the use of the term “sexual and reproductive health” which it considered to endorse a right to abortion. A U.S. State Department spokesperson explained that the “United States cannot, under U.S. law, commit taxpayer monies to the promotion or provision of abortion.” In fact, during the presidency of Donald Trump, the United States refused to agree to any UN document that used that language.

Despite strong U.S. opposition, the German delegation to the United Nations in New York made changes to the controversial language only on 22 April 2019, suggesting the following compromise wording:

“Recognizing the importance of providing timely assistance to survivors of sexual violence, urges United Nations entities and donors to provide non-discriminatory and comprehensive health services, in line with Resolution 2106.”

The U.S. Government, however, rejected any reference to sexual and reproductive health – even by implication. An express reference to resolution 2106 in the context of the provision of comprehensive health services was therefore unacceptable. On the morning of 23 April 2019, the office of the U.S. Secretary of State sent a cable to the U.S. Embassy in Berlin and the U.S. Mission to the United Nations in New York instructing U.S. diplomats to notify their German counterparts of the United States’ intention to veto the German draft resolution if Germany did not eliminate the relevant paragraph entirely. The cable also expressed criticism of Germany’s approach to the negotiations. It stated that the United States:

“has consistently and clearly communicated red lines since the beginning of negotiations on Germany’s draft, which include: budget implications related to a new mechanism; references to the International Criminal Court (ICC); and references to sexual and reproductive health services. We cannot accept unamended explicit, or implicit, references to ‘sexual and reproductive health’ [because] we do not support or promote abortion.”

German diplomats seemed to be undeterred by the United States’ objection, initially briefing the media that they intended to put the resolution to a vote with the contentious wording in it, hoping that the United States would give in at the final hour. However, the United States did not budge, and Germany itself was forced to eliminate the paragraph at the last minute to get the resolution adopted.

In the final text of the resolution, the passage on the question of health services for survivors was watered down to a call by the Security Council on Member States to “ensure that survivors of sexual and gender-based violence in conflict in the respective countries receive the care required by their specific needs and without any discrimination”. The only reference to resolution 2106 (2013) was made in the first preambular paragraph of resolution 2467 (2019), in which the Security Council generally reaffirmed “its commitment to the continuing and full implementation” of previous resolutions on the agenda item women and peace and security, including resolution 2106 (2013). Asked at the Security Council media stakeout on 23 April 2019 about the reference to sexual and reproductive healthcare services being dropped from the text of resolution 2467 (2019), Ambassador Heusgen tried to put a positive spin on the German climb-down, stating:

“[W]hat we achieved is that we, with the resolution, reaffirm the existing resolution 2106, and this in the first sentence of the resolution; that we reconfirm 2106, and otherwise we do not mention the topic to make sure that international law remains in place; that what has already been adopted with regard to sexual and reproductive healthcare remains valid, 2106 remains valid; this is expressly stated in the resolution.”

This line was echoed the next day by a spokesperson from the Federal Foreign Office who stated:

“The resolution refers right in its first paragraph to all previous resolutions of the Security Council on the subject, so we have not compromised on substance compared with previous positions.”

If that was in fact the case, one may wonder why States fought so hard about the text of the resolution and the deletion of an express reference to resolution 2016 (2013). Surely, previous Council resolutions must be interpreted in light of the latest resolution on the same agenda item. Words matter. One could also argue that, by deliberately purging any reference to sexual and reproductive health services, the Security Council signalled that there is no longer agreement that survivors need or are entitled to these services. Whatever spin Ambassador Heusgen tried to put on the outcome of the negotiations, his rhetoric did not match reality. Especially his claim that “we have a survivor-centred approach” was indirectly contradicted by the Special Representative of the UN Secretary-General on Sexual Violence in Conflict who stated that comprehensive health services for all survivors, including sexual and reproductive health, are “at the heart of the survivor-centred approach”.

A more sober and realistic assessment of resolution 2467 (2019) was provided by Ambassador Heusgen on 24 April 2019 in the UN General Assembly where he stated:

“Yesterday in the Security Council, we adopted resolution 2467 (2019), a new resolution on sexual violence in conflict. However, unfortunately, it was not possible to just repeat our adoption of Security Council resolution 2106 (2013), which clearly guaranteed sexual and reproductive health and rights, because the United States Administration basically said that it is no longer sticking to commitments made by previous Governments. If that is a general practice, we will have a lot of problems in our international system.”

A new formal mechanism to monitor and secure compliance with the Council’s resolutions on sexual violence in conflict

Germany wanted to strengthen compliance with the Council’s resolutions on sexual violence in conflict and the mechanism through which information on non-compliance reached the Security Council. Pursuant to resolution 2106 (2013), the UN Secretary-General submitted annual reports to the Council on sexual violence in conflict. On the basis of these reports, however, it was difficult for the Council to ascertain the exact prevalence of sexual violence in conflict as the data in the Secretary-General’s reports could only be based on UN-verified information which creates a very high threshold. Furthermore, the Secretary-General’s Special Representative on Sexual Violence in Conflict did not directly report to the Security Council. The existing mechanism to bring violations of the resolutions on sexual violence in conflict to the attention of the Security Council was therefore considered inadequate.

On 22 April 2019, Federal Foreign Minister Heiko Maas published an opinion piece in the Washington Post newspaper together with the actress and co-founder of the Preventing Sexual Violence in Conflict Initiative, Angelina Jolie, writing:

“[W]e need better monitoring. Resolutions from the U.N. Security Council remain mere pieces of paper if we don’t ensure compliance. Many parties to conflict listed by the secretary-general of the United Nations for committing rape or other forms of sexual violence in conflict completely disregard their obligations. This gap ought to be closed. Germany is proposing strengthening the channels through which information on non-compliance reaches the Security Council and its sanction committees by invigorating the work of the Security Council’s informal working group. […]

As current president of the Security Council, Germany is proposing a resolution that addresses these […] concerns, urging targeted sanctions on those who perpetrate and direct violence [and] anchoring the topic in an informal working group […]. Adopting it would be a much-needed step toward ending impunity for sexual violence in conflict.”

The initial German draft resolution provided that the Security Council establish a Working Group of the Security Council on Sexual Violence in Conflict. Working groups of the Security Council consist of all Council members and are subsidiary organs of the Security Council. The Working Group was to review reports of the Secretary-General and other relevant information presented to it, review progress on ending sexual violence in conflict, make recommendations to the Council and address requests to other bodies within the United Nations system, including sanctions committees, for action to ensure compliance with the Councils resolutions on sexual violence in conflict. This new mechanism was strongly opposed by an unusual alliance of the United States, Russia and China which forced Germany to delete the corresponding paragraphs form the final draft resolution.

U.S. officials commented on the German-proposed new mechanism saying it would “require dozens of reports and negotiations, creating significant new work for council members”, and that “the answer to every crisis is not an expansion of the UN bureaucracy.” On 24 April 2019, a U.S. State Department spokesperson explained the country’s opposition to the new mechanism as follows:

“The original German resolution would have created a costly new mechanism that would have undermined the independence of the Special Representative of the Secretary General. It also would have subjected the Special Representative to the whims of UN Members States hostile to the office’s mandate, at a substantial cost to nations like the United States, who fought for the office’s independence.”

Interestingly enough, however, the new mechanism had the support of the Secretary-General’s Special Representative on Sexual Violence in Conflict.

The U.S. criticism of over-bureaucratisation of the United Nations was shared by the Russian Federation. Speaking in explanation of vote, after the vote on resolution 2467 (2019), the Russian representative stated:

“The previous version of the resolution could have taken the Council’s mandate beyond its remit of maintaining peace and security and expanded the powers of the Secretary-General and the functions of his Special Representative on Sexual Violence in Conflict. There was no explanation of the attempts to use a thematic resolution to intrusively expand the mandates of various United Nations mechanisms and bodies by directing them to tackle the issue of combating sexual violence. Nor did we see any reason for the request for numerous reports from the Secretary-General on various aspects of sexual violence. We are concerned about the efforts to increase the number of bureaucratic United Nations bodies in order to create the appearance of robust activity. […]

[A]s a permanent member of the Security Council, we have a special responsibility to the international community not to allow the issue of sexual violence in conflict to be exploited and manipulated. The Council is a serious body, and we cannot damage its reputation in the eyes of the international community. It must make balanced decisions, set clear, achievable objectives and leave no room for arbitrary or biased interpretations of them.”

In the end, resolution 2467 (2019) did not make any changes to the reporting and monitoring arrangements. The Council merely requested “the Secretary-General and relevant UN entities to further strengthen, the monitoring, analysis and reporting arrangements on conflict-related sexual violence”.

Criticism of Germany’s conduct of the negotiations on the text of resolution 2467 (2019)

China, Russia, and the United States took issue with Germany’s conducting of the negotiations on the text of resolution 22467 (2019). While China would have preferred to have had more “extensive discussions well in advance” with regard to the establishment of the new mechanism, the Russian criticism was more fundamental. The Russian representative told the Security Council:

“In the circumstances, we are truly disappointed with the approach of the coordinators of the negotiation process, who in hastily preparing for today’s open debate submitted a non-consensus draft text. That is a dangerous precedent that could have an extremely negative effect on the Council’s working methods in the future. It was only at the last minute that we succeeded in agreeing to exclude the provisions that were wholly unacceptable, enabling us to abstain in the voting. […]

It is unacceptable to constantly promote concepts and terms that have either previously failed to achieve consensus or been rejected by the Council.”

The United States also criticised Germany for conducting a “rushed process of negotiations characterized by artificial, abbreviated timelines that failed to permit member states, the United States included, to represent national positions or debate the complex issues related to them.”

It seems that Germany tried to push through a particularly ambitious resolution without proper prior consultation of major Council members, without due regard to their red lines, and without genuine attempts to achieve consensus – a strategy that ultimately backfired.

Federal Foreign Minister Maas called the adoption of resolution 2467 (2019) a “milestone on the path towards putting an end to sexual violence in conflict.” While the resolution is not without its merits, this sounds rather self-congratulatory. The resolution brings the total number of Security Council resolutions on the agenda item “women and peace and security” to nine. The first – resolution 1325 (2000) – was adopted in October 2000. In that resolution, the Council called “on all parties to armed conflict to take special measures to protect women and girls from gender-based violence, particularly rape and other forms of sexual abuse, and all other forms of violence in situations of armed conflict”. Resolution 1325 (2000) had 18 operative paragraphs and was a mere 4 pages long. The German draft resolution submitted in April 2019 had 37 operative paragraphs and was an excessive 10 pages long – too long. One may wonder whether an ever-increasing number of calls, encouragements and reiterations, and more elaborate reporting requirements devised in New York have led to any change on the ground over the last 20 years.

Category: United Nations

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  • Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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