Evolution of Rape as a War Crime and Status in Pakistan

Introduction

Rape and acts of sexual violence against women have been committed during times of armed conflict for a long time. Rape was previously considered a property crime against a person who owned a woman.^[1] Now, in the 21st century, rape and other forms of sexual violence against women are being prosecuted as war crimes or crimes against humanity. There are different statutes and conventions which have categorized rape as a war crime, such as the Hague Convention, the Rome Statute of the International Criminal Court and the Geneva Convention and its Protocols. Various historical events  prove that rape has been considered a heinous crime. For example, a medical worker at the Trnopolje internment camp in Bosnia said:

“… when the rapes started they lost all hope. Until then they had hope that this war could pass, that everything would quiet down. When the rapes started, everybody lost hope, everybody in the camp, men and women. There was such fear, horrible.”^[2]

Similarly, an Albanian girl who was raped by Serb soldiers during the Yugoslav Wars stated,

“I don’t want to live, I wish someone would take my soul away.”^[3] 

The former US Secretary of the State, Condoleezza Rice stated that rape as a war crime could never be ignored. According to her, not only did such heinous crimes affect the mental health and safety of women and children, they also affected the social and economic conditions of a state.

Definition of Rape

Rape has been defined differently by different statutes. It was initially defined by the ad hoc criminal tribunals for Rwanda (ICTR) and former Yugoslavia (ICTY) through four main cases. The definitions are quite similar but they carry their own importance according to the varying facts.

1. Akayesu definition

The ICTR gave a very broad and comprehensive definition of rape in Prosecutor v Jean Paul Akayesu.^[4] It defined rape as the physical invasion of a sexual nature committed on a person under coercive circumstances.^[5] Rape was generally defined under this definition irrespective of gender and without the mention of any specific body parts. The definition holds that three elements must be present to prove the existence of rape:

• First, there must be physical invasion. This means that the victim must be physically assaulted, distinguishing rape from other sexual offences against women.
• Secondly, any act committed must be sexual in nature. It is not necessary that these acts are committed using bodily organs; they can be committed using objects like bottles, sticks and rifles.
• Thirdly, the act must be committed under coercive circumstances. The tribunal mentioned that coercion could include the use of physical force as well as making a victim fearful in armed conflicts, whereby the victim would be afraid of her enemy and do anything he says for the sake of remaining alive, regardless of whether or not the coercion included undergoing sexual acts against herself.

A similar approach had also been adopted by the Tribunals of Rwanda and Yugoslavia in the Musema case.^[6] 

2. Furundzija Definition

In the case of Prosecutor v. Anto Furundžija, a special forces commander had been accused of rape as a war crime under Article 3 of the Geneva Convention.^[7] The court did not have a clear definition of rape and thus relied on a general definition used by legal systems around the world. The court deduced the following:

“Rape is the the sexual penetration, however slight: of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or of the mouth of the victim by the penis of the perpetrator by coercion or force or threat of force against a victim or third person.”

According to this, an act will be termed as sexual assault when there is penetration, which means that the sexual assault must consist of a male perpetrator and a female victim. This implies that the statement is not gender-neutral, as men can be targeted as victims of sexual assault as well. The court also addressed the issue of consent and said that if any woman had been held captive and was raped, then she was not in a position to give consent.^[8]

3. Kunarac definition

In Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic,^[9] Bosnian women had constantly been exposed to sexual violence and rape for a long period in detention. The trial chamber defined rape in the following words:

“The sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; where such penetration occurs without the consent of the victim. Consent for this purpose, must be consent given voluntarily, as a result of the victim’s free will, assessed in the contents of the surrounding circumstances. The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim.”

The trial chamber held that sexual penetration would only be termed as rape if it was done forcefully or had been non-consensual on the part of the victim. The principle established in this case was used by future courts under the common law doctrine of stare decisis.

Elements of Rape as a War Crime

1. The enforcer invades the body of the victim with any sexual organ or object into the genitourinary part, be it anal canal or introitus or vaginal canal.^[10]
2. The forceful act of invasion is done by the perpetrator using a threat or fear of violence, or psychological oppression, or actual violence, or committing the act against a person unable to give consent.^[11]
3. The act of assault has taken place in relation to an international armed conflict.
4. The perpetrator is well aware that he is using armed conflict in order to commit the act.^[12]

These elements have been derived from the ICTR and ICTY Procedural Rule 96, along with the definitions given in the judgments of Akayesu, Furundzija and Kunarac cases.

Legal Responses to How Rape Evolved as a War Crime

Rape evolved as a war crime through different stages in history.

1. The Lieber Code of 1863

This was the first legal instrument to prohibit rape during armed conflict. It gave a soldier or officer’s superior the right to kill the perpetrator of rape on the spot. Article 44 of the Code gives the exact words for the prohibition of rape:

“All wanton violence committed against persons in the invaded country…all rape, wounding, maiming, or killing of such inhabitants, are prohibited under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offense. A soldier or an officer in public or in private, in the act of committing such violence, and disobeying a superior ordering him to abstain from it, may be lawfully killed on the spot by such superior.”

The Code described rape as a heinous crime, punishable with severe consequences.

2. The Hague Conventions of 1899 and 1907

The Hague Convention of 1907 does not specifically talk about rape and sexual violence against women and children during armed conflict, but does mention respect to be given to families in armed conflict. The Martens Clause in the preamble of the 1907 Convention mentions laws and customs of war on land and provides humanitarian rules for the protection of families and the population of occupied territories. Rape and sexual violence has been condemned by the customs of war on land.^[13] Moreover, the natural law of the land also prohibits certain types of sexual violence and rape during the time of hostilities.

3. The London Charter 1942

The Nuremberg trials were organised to try war criminals after the Second World War. Article 6 of the London Charter provided the tribunal jurisdiction to try cases of rape and sexual violence against women and children. Such crimes were divided into three main categories: war crimes,^[14] crimes against humanity^[15] and crimes against peace.^[16]

The Charter mentioned that rape and sexual violence could be prosecuted as war crimes. They could also be prosecuted as crimes against humanity as they were heinous crimes undermining the principles of humanity.

4. International Military Tribunal for the Far East (IMTFE) Charter

In addition to the Nuremberg tribunal, a second tribunal was set up in Tokyo to provide punishments to war criminals in the Far East and prosecute perpetrators of sexual violence. The tribunal was set up on the basis of evidence of Chinese women being raped by Japanese soldiers. This was the first tribunal that gave justice to women raped in an armed conflict.

5. The Geneva Convention of 1949 and Additional Protocols

The Geneva Convention and its Protocols do not specifically mention rape or sexual violence against women but there are some articles which suggest that rape and sexual violence is prohibited. Article 3 vetoes violence to life and against persons and prohibits cruel and inhumane treatment and torture.

On the other hand, the fourth Geneva Convention, which talks about civilians, specifically mentions rape and sexual violence in Article 27. It states the following:

“Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats.”^[17]

This shows that rape and sexual violence are considered war crimes during armed conflict and constitute violation of international humanitarian law (IHL).

6. International Criminal Tribunal for the Former Yugoslavia (ICTY)

This tribunal was made to prosecute individuals who breached the rules of international humanitarian law. Under the tribunal, rape was considered to be a crime against humanity, alongside other crimes like torture and inhumane treatment. The definition of ‘slave’ was also enhanced under the Yugoslavian tribunal to include sexual slavery.

7. International Criminal Court (ICC)

The ICC was founded by the Rome Statute which was ratified by sixty member states in 2002. According to the Rome Statute, rape is considered to be a crime under three articles: Article 6, as a crime of genocide; Article 7, as a crime against humanity; and Article 8, as a war crime. Article 8 indicates various forms of sexual violence which take place in armed conflicts,^[18] including forced pregnancy, sexual slavery, rape and enforced prostitution.^[19]

8. Resolutions passed by the United Nations Security Council

The UN Security Council has also played an immense role in prohibiting all acts of sexual violence committed in armed conflicts. It passed Resolution 1325^[20] in 2000 which described the impacts of war on women and women’s role in the sustenance of peace. Not only did the Resolution prohibit crimes against humanity, it also instructed officials to prosecute those who indulged in such activities. Furthermore, it was made the responsibility of all actors who negotiated the agreement to protect the rights of women and girls.^[21]

Another Resolution was passed in June 2008 by the name of Resolution 1820^[22] which declared sexual violence as a means to initiate armed conflict and war. It barred all such activities to stop crimes against civilians, particularly women and girls, and maintain international peace.^[23]

Status of Rape as a Crime in Pakistan

Sexual violence is a harsh reality of our society which prevails even in today’s advanced and intellectually evolved 21st century. Sexual violence is said to transcend religion and caste, degrading women’s bodies across all regions of the world. In many parts of the world, unacceptable sexual behaviour of men against women is not considered wrong at all, leaving the victims of sexual violence without any support, despite rape being one of the most heinous of crimes.

In Pakistan, rape was not legally recognized as a separate crime to begin with. Laws such as the Hudood Ordinance 1979 did not clearly categorize rape but amalgamated it with fornication and adultery.^[24]

In 2006, Pakistan introduced the Protection of Women Act which reclassified rape beyond fornication and adultery. As a result, the Pakistan Penal Code, the main statute dealing with crimes, was revised. The revision was carried out on the basis of research conducted and interactions made between women’s rights activists, advocates and legal professionals as well as religious scholars.^[25] The Act was introduced for the amendment of several other Acts, such as the Zina Ordinance 1979, Qazf Ordinance 1979 and the Pakistan Penal Code 1860 with the purpose to separate the offences of zina and rape and understand the nature of confessions in both offences.

The WPA amended the Zina Ordinance for the definition of rape. Article 375, PPC defines rape as a man having sexual intercourse with a victim in the following conditions:

1. against her will;
2. without her consent;
3. with her consent, but when that consent has been obtained from her out of fear of death or harm;
4. with her consent, but when the man knows that he is not married to her and consent has been given because she believes the man to be another person to whom she believes to be married to; or
5. with or without her consent, when she is under sixteen years of age.

Although the WPA inserted amendments related to rape in previously enacted laws, it has often failed to deliver justice to the victims because of the general population’s lack of knowledge about the law itself, the status of women in society and the lack of proper implementation.

The women in Pakistan are oppressed and have to face many obstacles in their daily lives. The reason behind it is the patriarchal and male-orientated society and culture of Pakistan which allows women to be exploited and subjected to violence. For example, a female victim or survivor of violence will always be forced to need the support of a male relative in order to even seek justice for herself instead of being facilitated to do it on her own.

Pakistan’s laws may be said to be progressing but at a very slow pace. The rate at which they are being implemented and enforced is far below the desired level. It is unfortunate that some crimes are even treated as part of societal, cultural or traditional norms and people do not feel the need to even report them let alone seek accountability and justice for them.

Rape, sexual violence and other heinous crimes must be prosecuted to the fullest extent of the law and the perpetrators must be punished, even when such crimes are committed during armed conflict. The international community and agencies must ensure that such crimes are always punished and the victims are provided with fair trial and justice.

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Bibliography

Primary Sources

• Conventions

1. Rome Statute of ICC Article 6,7,8,9

2. London Charter Article 6(a), 6(b), 6(c)

3. Geneva Convention article 27

4. The Lieber Code of 1863 Article 44

5. The Hague Convention of 1899 and 1907

Secondary Sources

• Case-Law

1. The Prosecutor v. Jean-Paul Akayesu (Trial Judgement),

2. Prosecutor v. Alfred Musema, Judgment,

3. ICTY, Prosecutor v. Anto Furundžija,

4. Prosecutor v. Miroslav Bralo, Judgment,

5.  Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic

• Resolutions

1. Resolution 1325 (2000), adopted by the Security Council at its 4213th meeting

2. Resolution 1820 (2008), adopted by the Security Council at its 5916th meeting,

• Books

1. War Crimes Against Women, BY Kelly Dawn Askin

2. Corporal Wins the Trust of Raped Muslims, BY Stephen Farrell

• Articles

1. Sharia and National Law in Pakistan.” In Sharia Incorporated: A Comparative Overview of the Legal Systems of Twelve Muslim Countries in Past and Present, edited by J. M. Otto

2. CII (Council of Islamic Ideology). 2007. A Critical Report on Hudood Ordinance 1979.

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References

^[1] Kelly Dawn Askin in his book, War Crimes Against Women, states “Triumph over women by rape became a way to measure victory; part of a soldier’s proof of masculinity and success, a tangible reward for services rendered; an actual reward of war”.

^[2] Kelly D. Askin, Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status, 93 AM. J. Iwr’L L. 97, 102 (1999); Prosecutor v. Tadic, Opinion and Judgment, No. IT-94–1-T (May 7, 1997) 175

^[3] Stephen Farrell, Corporal Wins the Trust of Raped Muslims, TIMES OF LONDON, Sept. 4, 1999, available at 1999 WL 8021758.

^[4] The Prosecutor v. Jean-Paul Akayesu (Trial Judgement), ICTR-96-4-T, International Criminal Tribunal for Rwanda (ICTR), 2 September 1998,

^[5] Prosecutor v Jean Paul Akayesu, judgement para 598

^[6] Prosecutor v. Alfred Musema, Judgment, Case No. ICTR-96-13-T, 27 January 2000

^[7] ICTY, Prosecutor v. Anto Furundžija, Case No. IT-95-17-1, Judgment (Trial Chamber), 10 December 1998, para. 185

^[8] Prosecutor v. Miroslav Bralo, Judgment, IT-95-17-A, 2 April 2007, Disposition, p.44

^[9] Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, Case No. IT-96-23-A and IT-96-23/1A, 12 June 2002

^[10] Articles 6, 7 & 8, Rome Statute

^[11] Article 9, Rome Statute

^[12] EoC, Article 8 (2) (e) (vi)-1, War crime of rape

^[13] For example, Islam acknowledged the essential requirements of humanity and protection of women. In his orders to the first caliph, Abu Bakar (c. 632) stipulated for instance that; “the blood of women, children and old people shall not stain your victory”

^[14] Article 6(b) of the Charter named them to include; planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing

^[15] Article 6(c) of the Charter named them to include; murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

^[16] Article 6(a) of the Charter named them to include; violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity

^[17] Article 27 of the 4th Geneva convention

^[18] Article 8 of the Rome Statute, ICC

^[19] Ibid, Article 8(2)(a)xxii

^[20] Resolution 1325(2000), adopted by the Security Council at its 4213th meeting, on 31 October 2000 S/RES/1325(2000)

^[21] Ibid, Resolution 8(c)

^[22] Resolution 1820(2008), adopted by the Security Council at its 5916th meeting, on 19th June 2008 S/RES/1820(2008)

^[23] Ibid, Resolution 2

^[24] CII (Council of Islamic Ideology). 2007. A Critical Report on Hudood Ordinance 1979. http://cii.gov.pk/publications/h.report.pdf

^[25] “Sharia and National Law in Pakistan.” In Sharia Incorporated: A Comparative Overview of the Legal Systems of Twelve Muslim Countries in Past and Present, edited by J. M. Otto, 373–432. Leiden: Leiden University Press.

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