Addressing Gender Specific Violence Against Women During Armed Conflicts Under International Criminal and Humanitarian Law

Introduction

All over the world, sexual violence is commonly committed against women in times of armed conflict. Gender specific acts of violence include sexual mutilation, forced pregnancy, rape and sexual slavery.¹ Women and young girls are often singled out for sexual abuse on the basis of their gender, irrespective of their caste, political affiliation, age, colour or race. Rape is also used as a weapon to assert authority, to terrorise a particular community and to demonstrate power and control over a certain population.² The horror, pain and terror inflicted by a rapist is meant to destroy not only the woman herself but also the greater group of which she is a part.

Women and children, like men, take an active part in war as combatants. Compared with men, women are more likely to become refugees or part of a displaced population. Women are especially vulnerable targets because they occupy a position at the bottom of the pyramid.

Even so, these were not treated as issues of war for a very long time. Concern for the victims of war crimes has grown only recently. The question of wartime sexual assault and rape became a matter of global concern because of the disclosure of the scale of the sexual atrocities committed during the war in the former Yugoslavia in 1992. Press reporting, beginning with Roy Gutman's report Mass Rape: Muslims Recall Serb Attacks, gave the issue prominence and brought it to the notice of the United Nations.³ The fragmented structure of the United Nations framework for dealing with international crimes committed during armed conflict has, however, led to serious questioning of its capacity to deliver justice for victims of sexual assault.

What is Wartime Sexual Violence?

Rape is one of the many forms of sexual violence committed during war. Other forms include forced pregnancy, forced prostitution and sexual mutilation, all of which are equally harmful and detrimental to the victim's health. Because of the property-like status historically accorded to women, the woman has long been seen as part of the battle booty, a prize for the winner. Wartime sexual violence has historically been encouraged and seldom prosecuted.⁴ In time she acquired the role of keeping combatant men content and of weakening the enemy by destroying their women and, with them, the communal morale and pride of the enemy.

Historical accounts record that, as in many other armed conflicts, the victor in the wars of ancient Greece claimed a "right to rape".⁵ The extent of the mass rape and sexual enslavement committed by Japanese troops during the Second World War is only now being acknowledged. Brothels have long been maintained at military bases in the belief that they would sustain the morale of soldiers.⁶

Sexual violence in times of conflict has consistently been used as a method of dehumanisation, domination and humiliation, and it has also been used to challenge the manhood of the men of the affected community, who are presented as "unable to protect their women".

The Present Law on Wartime Sexual Violence

A. The Geneva Conventions, 1949

The Geneva Conventions of 1949, brought about by the International Committee of the Red Cross with the object of assisting the victims of war, contain special provisions that apply specifically to women and children. There are provisions in the Conventions and in their Additional Protocols that address sexual violence in terms. Even so, it appears that where the Conventions deal expressly with sexual violence as a crime, they do not give the offence the gravity it deserves. Rape is not separately enumerated among the grave breaches of the Convention and of Additional Protocol I, an omission which for many years obscured the obligation of States to search for and to prosecute or extradite offenders, although it is now settled that rape may amount to torture or inhuman treatment and so fall within the grave breaches regime.

Article 27 of Geneva Convention IV states:

"Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault."⁷

Article 76(1) of Additional Protocol I of 1977 states:

"Women shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other form of indecent assault."⁸

Article 4(2)(e) of Additional Protocol II of 1977 prohibits:

"Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault."⁹

Rape and sexual violence are thus dealt with under the rubric of attacks against the honour of women and of outrages upon personal dignity.¹⁰ Many communities continue to hold the view that a raped woman is dishonoured or has lost her dignity, but that belief should have no place in international humanitarian or criminal law. Like every other form of violence, rape is an assault upon the body and a crime of violence. It is, among other things, a violation of the basic human right of personal self-determination. To treat it as an assault upon honour both trivialises it and concentrates attention upon the woman as helpless and in need of protection rather than upon the attacker, who must be punished.

B. The United Nations Response to Wartime Sexual Violence

Various bodies and representatives of the United Nations have expressed concern about the plight of women during war, among them the Commission on the Status of Women, the General Assembly in its Declaration on the Protection of Women and Children in Emergency and Armed Conflict of 1974¹¹ and the Economic and Social Council in its resolutions on the situation of women and children living in the occupied Arab territories. None of these instruments referred expressly to sexual violence.

Resolution 798 of 18 December 1992, adopted by the Security Council, which condemned the massive, organised and systematic detention and rape of women, in particular Muslim women, in Bosnia and Herzegovina, was the real change maker.¹² Sexual violence was given prominence by the Commission of Experts on the former Yugoslavia, which investigated violations of international humanitarian law and documented them in great detail. The Commission recorded in its Final Report that, although acts of sexual violence had been committed by all the participating forces, the majority of the perpetrators identified were Bosnian Serb, that the majority of the victims were Bosnian Muslim women, and that most of the rape camps were run by Serb forces.¹³ In 1993 a task force was sent by the Special Rapporteur on the situation of human rights in the territory of the former Yugoslavia to investigate the occurrence of rape. The team found that rape was used as a weapon of ethnic cleansing with the express or implied consent of military and other leaders.¹⁴

Acting at the behest of the Security Council, the Tribunal for the former Yugoslavia was tasked with prosecuting suspects for violations of international humanitarian law committed during that war. That its Statute expressly lists rape as one of the crimes against humanity shows that sexual violence was within its remit from the beginning.

C. Formation of the ICTR in Response to the Sexual Atrocities during the Armed Conflict in Rwanda

The extent of the crimes committed against Rwandan women during the genocide of 1994 was staggering. Thousands of women were forced into sexual servitude, brutalised with sharp objects and raped repeatedly. Often this was the penultimate act, the woman having first been forced to watch the torture and murder of her family, her rape following those killings.¹⁵

A significant development between Nuremberg and Rwanda was the rise of a strong and successful feminist movement with a powerful base of non-governmental organisations for lobbying and media coverage.¹⁶ It was largely because of that lobbying that the Rwandan conflict was placed on the international agenda after a protracted delay in the response of the United Nations.

Genocidal propaganda portrayed Tutsi women in sexualised terms, and rape was deployed as a means of humiliating and subjugating the group.¹⁷

The Rwandan authorities at first conducted very little investigation into claims of rape. The majority of the investigators were men, and for cultural reasons it was unlikely that survivors would describe their experiences of rape to them. A Sexual Assault Committee for the Rwanda Tribunal was established in July 1996, which sought to redress the balance by adopting fresh approaches to investigation. The number of convictions for sexual violence nevertheless speaks for itself.¹⁸

The creation of the ICTR was not, however, a universal remedy. Only a few investigations of sexual violence were conducted in the first two years of the Tribunal's existence, and the first indictment charging rape as a crime came in 1997.

This was surprising in the light of the advances made on paper by the Statute of the Rwanda Tribunal, which not only followed the ICTY in listing rape as a crime against humanity but also expressly declared rape, enforced prostitution and indecent assault to be violations of common Article 3 of the Geneva Conventions and of Additional Protocol II.¹⁹

Although there has been a general, if slow, development in the treatment of sexual violence in the legal instruments, an unwelcome connection between sexual violence and honour or dignity persists. Moreover, before the ICC Statute it was through the jurisprudence of the two tribunals that the real advance in the punishment of sexual violence in international criminal law occurred, each court interpreting the other crimes under that law to embrace sexual violence implicitly.²⁰

Selected Landmark Cases of the ICTY and the ICTR

Female judges in both the ICTY and the ICTR played a noteworthy role in devising the rules of procedure and evidence, such as Rule 96, and have influenced a number of key decisions. The two tribunals established a gender sensitive mechanism for the protection of victims and witnesses. Selected significant decisions are examined below.

A. Tadic, ICTY, 1997

The Tadic case at first overlooked the importance of the evidence of the rapes at Omarska, concentrating instead upon the physical abuse endured by male prisoners. The judges were prompted to inquire into the absence of charges of sexual violence after considering an amicus brief in detail. This resulted in the addition of rape charges. The allegations of rape were later withdrawn, however, because a witness refused to testify, not having been given sufficient protection and fearing to give evidence.²¹

Tadic, a Bosnian Serb cafe owner, karate instructor and part-time policeman, was indicted on 34 counts of grave breaches of the Geneva Conventions, violations of the laws or customs of war and crimes against humanity, in relation to the torture and murder of Muslims at three Serb-run prison camps.²²

The first live testimony of rape before the ICTY was heard in the Tadic trial chamber. Although the rape charges against Tadic were withdrawn before the trial began, the testimony of a witness about rapes was used as part of the evidence against him in relation to the other charges he faced.²³

The ICTY trial chamber found him guilty of sexual offences, though not those with which he had first been charged, and made clear reference to sexual violence against both men and women, specifying the torment and grief of the victims. The Tribunal had been expected to be the first international war crimes tribunal to prosecute rape charges separately as a war crime, but the prosecutor had to withdraw the rape charges in counts 2 to 4 because a witness was too frightened to testify. Among the convictions, however, were inhumane acts which included sexual mutilation as both a crime against humanity and a war crime, and persecution which included rape and other forms of sexual violence. The Tribunal observed that corroboration was not essential, Rule 96(i) providing that in cases of sexual assault "no corroboration of the victim's testimony shall be required".²⁴

B. Furundzija, ICTY, 1998

The Tribunal dismissed the notion that a person suffering from post-traumatic stress disorder is inherently untrustworthy as a witness. The accused was the local commander of the "Jokers", a special unit of the Military Police of the Croatian Defence Council, and the charges concerned the rape and assault of a Muslim woman by another soldier in his presence.²⁵ What should have been a straightforward trial was complicated by an allegation of false memory syndrome on the part of the victim, which was later discounted. He was found guilty on both counts of war crimes, as a co-perpetrator of torture and as an aider and abettor of outrages upon personal dignity including rape. The Tribunal examined the definitions of rape in the law of many countries in order to formulate its own, conducting the first of several exercises in comparative law, and the judgment is significant because it recognised rape as a war crime. The Tribunal gave definitions both of rape and of aiding and abetting.²⁶

C. The Celebici Camp Case (Delalic), ICTY, 1998

The Celebici case holds significance because it acknowledges rape as torture even when it occurs outside the circumstances of interrogation. The Trial Chamber also noted that rape causes both physical and psychological suffering to the victim, and held that rape committed during armed conflict serves the same purposes as torture, namely coercion, intimidation and discrimination.²⁷

There were four accused. Zdravko Mucic, who had risen through the ranks to become commander of the prison camp at Celebici, was convicted on the principle of superior responsibility for acts of torture and ill-treatment committed by his subordinates. Hazim Delic and Esad Landzo were also found guilty of grave breaches of the Geneva Conventions, and Zejnil Delalic was acquitted on all counts. Rape was in this case held to be both torture and a war crime. There was a successful attempt to define command responsibility, the Chamber holding that a defendant need not bear direct responsibility and that de facto authority may found command responsibility, and that constructive knowledge amounts to knowledge.²⁸ The definition of rape given in this case is a very broad one:

"a physical invasion of a sexual nature, committed on a person under circumstances which are coercive."²⁹

D. Kunarac, Kovac and Vukovic, ICTY, 2001

The victim's right to sexual autonomy was expressly acknowledged by the Court. The judgment is also a landmark decision on sexual violence and enslavement, and it produced the first conviction for enslavement as a crime against humanity.³⁰

E. Akayesu, ICTR, 1998

Trial Chamber I in Akayesu was presided over by Judge Navanethem Pillay.³¹ The accused was the bourgmestre of Taba commune, an office carrying executive functions and responsibility for the maintenance of public order. This historic case produced the first conviction for genocide by an international tribunal. The Tribunal found that sexual violence, including rape, can constitute genocide. The landmark definition of rape given in the judgment was "a physical invasion of a sexual nature, committed on a person under circumstances which are coercive". The verdict is remarkable for its detailed analysis of a range of issues, including sexual assault. The Court was sensitive towards the victim and accommodating of her requests.³²

The indictment defined acts of sexual violence to include "forcible sexual penetration of the vagina, anus or oral cavity by a penis and/or of the vagina or anus by some other object, and sexual abuse, such as forced nudity".³³ The reference to forced nudity shows that the violence may be not only physical but also mental in nature.

In the authors' assessment, the ruling in Akayesu is the most progressive in any international case concerning sexual violence, and it highlights the extent to which sexual violence was an integral part of the Rwandan genocide.

Sexual Violence in the Statute of the International Criminal Court

Gender and sexual violence have historically been overlooked, degraded and distorted in the conventions of international humanitarian law. This was caused by a variety of factors, including the misogynistic assumption that sexual violence is a common incident of all wars, or that such crimes are arguably less serious than other crimes. Because of that belief, extensive sexual violence has occurred during every war and other armed conflict without ever being sufficiently acknowledged or given sufficient attention.

The Rome Statute, which established the International Criminal Court, addresses this discrepancy in significant measure by recognising a wide range of very serious crimes involving sexual and gender-based abuse.

A difficulty in the drafting of the Rome Statute was that its basic task was to codify existing international law rather than to advance it. Even so, the Women's Caucus for Gender Justice advocated energetically and efficaciously for the inclusion in the ICC law of measures addressing sexual violence during armed conflict and the rights of victims. On the authors' account of the negotiations, a significant point of contention was the opposition of the United States to the adoption of the Akayesu definition of rape for the ICC Statute, it being argued that both force and penetration should be included as elements of the definition. The opposing view was that force is not a relevant element of sexual violence during armed conflict, since the whole process of armed conflict is coercive and terrifying.

A. The Gender-Specific Provisions of the ICC Statute

Article 8 of the Rome Statute includes among the war crimes over which the ICC has jurisdiction rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation and any other form of sexual violence.³⁴

This is an expansion of the previous list and, most importantly, it rejects the classification of sexual violence as a matter of humiliation or of attacks upon dignity.

Article 7 of the Rome Statute provides for crimes against humanity, which include the acts committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack. Those acts include, among others, rape, sexual slavery, enforced prostitution, forced pregnancy and enforced sterilisation.³⁵

As to the rules of procedure and evidence, the ICC framework builds upon the developments made in this regard by the ICTY and the ICTR.

Rule 70 sets out the principles of evidence in cases of sexual violence:

"In cases of sexual violence, the Court shall be guided by and, where appropriate, apply the following principles:

(a) Consent cannot be inferred by reason of any words or conduct of a victim where force, threat of force, coercion or taking advantage of a coercive environment undermined the victim's ability to give voluntary and genuine consent;

(b) Consent cannot be inferred by reason of any words or conduct of a victim where the victim is incapable of giving genuine consent;

(c) Consent cannot be inferred by reason of the silence of, or lack of resistance by, a victim to the alleged sexual violence;

(d) Credibility, character or predisposition to sexual availability of a victim or witness cannot be inferred by reason of the sexual nature of the prior or subsequent conduct of a victim or witness."³⁶

In addition, Rule 72 requires an in camera procedure to consider the relevance or admissibility of evidence.³⁷

The procedural requirements of the Rome Statute should significantly improve the involvement of victims and other vulnerable witnesses, the ICC having learned from the experience and the practice of the ICTY and the ICTR and having witnessed the suffering of victims.

The specific provisions of the ICC Statute which empower victims are the following:³⁸

•  Article 57(3)(c), under which the Pre-Trial Chamber has power to provide for the protection of victims and witnesses.

•  Article 64(2), under which the Trial Chamber must ensure that trials are conducted with due regard to the protection of victims and witnesses.

•  Articles 43(6) and 68(4), under which a Victims and Witnesses Unit staffed by trauma experts is to be created.

•  Articles 64(2) and 68(1), under which the trial must be fair to the rights of both the accused and the victim.

•  Article 68(3), under which a victim has the right to participate in the proceedings and to have a legal representative.

•  Article 75, which recognises the victim's right to remedies such as compensation and rehabilitation.

Whether the International Framework Sufficiently Protects Victims of Sexual Violence: Concluding Remarks and the Way Forward

Before the formation of the two ad hoc tribunals, the traumatic experiences of women and their encounters with sexual violence during wartime were disregarded as minuscule within the realm of international criminal law. When those tribunals were established, and more particularly when the ICC was created, the international community began to show signs of hope and accommodation: hope for the rehabilitation of victims and deterrence of the accused in the trial process. That opening has, however, been cautiously managed so as not to disrupt significantly the social dynamics between the genders.

Women were earlier not recognised as victims. Their status was not formally recognised until the ICC was established. With the formation of the ICC, the right to participate in legal proceedings was granted to victims. The role of women as catalysts for change and as major contributors to the evolution of international criminal law is, however, only minimally acknowledged, and then chiefly in the ICC Statute.

Even as a victim, the recognition of the woman is confined, focusing primarily on her status as a victim of the most severe and organised forms of sexual violence during armed conflict. Other forms of sexual violence largely remain unaddressed and ignored within the realm of international criminal law.

This selective recognition of women's victimhood within international criminal law shows that the international legal system has not transformed enough to accommodate the pain of victims of sexual violence or to value their experiences of armed conflict. As observed, women's traumatic wartime experiences are often assimilated into the masculine discourse of law, perpetuating existing gender norms.

Attempts to include women's experiences in the discourse of international criminal law will not gain prominence until there is a thorough investigation and re-evaluation of the roles of masculinity and femininity in times of conflict. Although law cannot single-handedly shape and restructure societal perceptions, it still serves as a crucial tool for initiating change. Even with its criticisms and limitations, the framework of the ICC and the jurisprudence developed through the precedents of the two ad hoc tribunals are an important first step towards that restructuring. The journey ahead, however, is long.

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Footnotes

1. Human Rights Watch, Shattered Lives: Sexual Violence During the Rwandan Genocide and Its Aftermath 1 (1996).

2. Id.

3. Roy Gutman, Mass Rape: Muslims Recall Serb Attacks, Newsday, Aug. 23, 1992.

4. Kelly Dawn Askin, War Crimes Against Women: Prosecution in International War Crimes Tribunals 10-49 (Martinus Nijhoff 1997).

5. Askin, supra note 4, ch. 2.

6. Askin, supra note 4, ch. 2.

7. Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 27, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.

8. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) art. 76(1), June 8, 1977, 1125 U.N.T.S. 3.

9. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) art. 4(2)(e), June 8, 1977, 1125 U.N.T.S. 609.

10. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, supra note 7, art. 27; Protocol II, supra note 9, art. 4(2)(e).

11. G.A. Res. 3318 (XXIX), Declaration on the Protection of Women and Children in Emergency and Armed Conflict (Dec. 14, 1974).

12. S.C. Res. 798, U.N. Doc. S/RES/798 (Dec. 18, 1992).

13. Final Report of the Commission of Experts, U.N. Doc. S/1994/674, Annex IX.

14. Claire De Than & Edwin Shorts, International Criminal Law and Human Rights (Sweet & Maxwell 2003).

15. Human Rights Watch, supra note 1, at 1.

16. Barbara Bedont & Katherine Hall Martinez, Ending Impunity for Gender Crimes under the International Criminal Court, 6 Brown J. World Aff. 65 (1999).

17. Human Rights Watch, supra note 1, at 1.

18. Human Rights Watch, supra note 1, at 2.

19. Statute of the International Criminal Tribunal for Rwanda art. 4(e), S.C. Res. 955, U.N. Doc. S/RES/955 (Nov. 8, 1994).

20. De Than & Shorts, supra note 14.

21. Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment (Int'l Crim. Trib. for the Former Yugoslavia May 7, 1997).

22. Prosecutor v. Tadic, Case No. IT-94-1-A, Judgment (Int'l Crim. Trib. for the Former Yugoslavia July 15, 1999).

23. Tadic, supra note 21.

24. Int'l Crim. Trib. for the Former Yugoslavia, Rules of Procedure and Evidence r. 96(i), IT/32/Rev.43.

25. Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgment (Int'l Crim. Trib. for the Former Yugoslavia Dec. 10, 1998).

26. Furundzija, supra note 25, paras. 185, 249.

27. Prosecutor v. Delalic, Case No. IT-96-21-T, Judgment paras. 475-96 (Int'l Crim. Trib. for the Former Yugoslavia Nov. 16, 1998).

28. Delalic, supra note 27, paras. 941-43.

29. Delalic, supra note 27, para. 479.

30. Prosecutor v. Kunarac, Case Nos. IT-96-23-T & IT-96-23/1-T, Judgment (Int'l Crim. Trib. for the Former Yugoslavia Feb. 22, 2001).

31. Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment (Int'l Crim. Trib. for Rwanda Sept. 2, 1998).

32. Akayesu, supra note 31.

33. Prosecutor v. Akayesu, Amended Indictment para. 10A (Int'l Crim. Trib. for Rwanda).

34. Rome Statute of the International Criminal Court arts. 8(2)(b)(xxii), 8(2)(e)(vi), July 17, 1998, 2187 U.N.T.S. 90.

35. Rome Statute, supra note 34, art. 7(1)(g).

36. Int'l Crim. Court, Rules of Procedure and Evidence r. 70, ICC-ASP/1/3 (2002).

37. Id. r. 72.

38. Rome Statute, supra note 34, arts. 43(6), 57(3)(c), 64(2), 68(1)-(4), 75.