Sexual Violence During Armed Conflict: An Inevitable Reality?

Despite being acts of shame, sexual atrocities have been committed against women since a long time. ‘Sexual violence’ is not a new term but it is usually misunderstood to include rape only. However, the term covers several other crimes as well, such as forced prostitution, unwanted  pregnancy, sexual humiliation and mutilation. Instances of sexual violence during conflicts have also been evident in recent history. In the early 1920s, around the time of the World Wars, sexual violence was considered to be an inevitable, albeit grievous, reality of armed conflict and such a myth was upheld strongly until the 1940s. Seeking redress was sadly never an option for women as they could not even talk about rape, molestation or sex crimes. Glancing at the facts in the past, it would be safe to say that the international community majorly failed to restrain sexual violence during armed conflict, especially against women. It wasn’t until the 1990s that a significant stand had been taken for the very first time against sexual violence.

In 1992, during conflict in former Yugoslavia, special detention camps had been formed for the purpose of raping women. Several media houses highlighted the act before the issue finally emerged as a serious global agenda for the international community.

Also in 1992, the Japanese government apologized for compelling women into sexual slavery during the Second World War.

In 1993, the United Nations Security Council, in exercise of its powers under Chapter VII of the UN Charter, established an ad hoc wartime tribunal in Yugoslavia (International Criminal Tribunal for the former Yugoslavia – ICTY) to prosecute alleged criminals for committing violations of international humanitarian law (IHL) during conflict in former Yugoslavia. The Statute of International Criminal Tribunal of Yugoslavia in Article 5(g) declared rape as a crime against humanity.

Moreover, in the Prosecutor v Dragoljub Kunarac Case (2002), ICTY for the first time declared a person guilty of rape as having committed a crime against humanity and broadened the definition of rape to include sexual slavery.

Post World War II, two multinational war-crime tribunals were established in Tokyo and Nuremberg to prosecute criminals for committing sex crimes.

Furthermore, as a result of an ongoing conflict in Rwanda, under United Nations Security Council Resolution 955, adopted by the Security Council on 8th November 1994, the International Criminal Court for Rwanda (ICTR) had been established to punish criminals for rape, molestation and other sexual violations. The Statute of Rwanda in Article 4 included rape in the list of crimes against humanity. In a prominent case, Prosecutor v Jean Paul,the court held that rape not only comprised a crime against humanity, it could also constitute genocide if it had been committed with an intent to destroy a particular race.

Multiple definitions of rape have been covered in different court judgments and tribunal cases. The ICTR in the Akayesu case defined rape as a physical invasion which was sexual in nature and had taken place in coercive circumstances. Several months later, the same court in Gacumbitsi v Prosecutor established that rape occurred when there was lack of consent on the part of an individual with whom sexual intercourse had been performed. The same element of lack of consent was further explained in Prosecutor v Kajelijeli (2003), setting a precedent that the presence of mens rea to indulge in sexual violence without consent would amount to rape.

As discussed before, it was in the beginning of the 21st century when legally, through legislation, rape was declared as a war crime or crime against humanity. The Lieber Code of 1863 was the first proper legislation which, in Article 44, prohibited rape during wartime. On the other hand, the Hague Conventions of 1899 and 1907 did not provide any specific clauses for rape or sexual violence, though the Martens Clause did say that the honour of women and families was to be protected during armed conflict. Following this was the London Charter (1942) which, in Article 6, provided the Nuremberg Tribunals jurisdiction to prosecute crimes involving sexual violations. In addition to the Nuremberg Tribunals, a special tribunal had been set up in Tokyo. Article 5(b) of the International Military Tribunal for Far East (IMTFE) Charter provided Tokyo Tribunal the jurisdiction to resolve cases of sex crimes. Later, in 1949, four Geneva Conventions and three Additional Protocols had been adopted which, under Article 3, outlawed violation to life, as well as degrading and humiliating treatment. Article 76(1) of the Convention further provided protection to children and women during atrocious hostilities of war. Moreover, the Rome Statute, which came in force in 2002, recognized rape as a crime under Article 6. Article 7 of the Statute considers sexual violence during conflict a crime against humanity. Article 8 of the Rome Statute marks rape as a war-crime during armed conflict.

The role of the United Nations Security Council in defeating the culture of sexual atrocities against women has been commendable. The United Nations Security Council has focused deliberately on the punishments for sexual criminals. Furthermore, the UNSC through Resolution 1325 (2000) has emphasized the drastic after-effects of rape and other sexual crimes against women. Most importantly, it has worked to provide protection to females against rape, assault and harassment and tried to limit acts of sexual violence through deterrence. Other international instruments, legislation and entities include the Declaration on Elimination of Violence Against Women (1993), the Special Rapporteur on violence against women appointed by the Commission on Human Rights in 1994, the Rapporteur on rape, sexual slavery and other similar practices during armed conflicts, and the Fourth World Conference on Women collectively emphasizing the utmost need for providing protection to women against sexual brutalities and prohibiting acts of violence.

Problems also exist within the laws of armed conflict meant to proscribe sexual violence against women. For example, the Geneva Convention of 1949 and the Additional Protocol I classify some crimes as ‘grave breaches’ depending on the severity and horrific nature of the crimes. Strangely, rape and other sexual crimes are not classified as grave breaches, thereby generating a debate on the non-effectiveness and poor credibility of the Convention and Additional Protocol. Moreover, the Convention has associated sexual violence with the ‘honor and dignity’ of women and has not discussed it with reference to males, ignoring the fact that sexual violence can occur against any gender. Also, in the Charters of Nuremberg and Tokyo, no reference to sexual violence has been made, considering tribunals work on the basis of the Charter. International law, through various conventions and declarations prohibits rape and other forms of sexual violence against women during armed conflict. However, as discussed, there do exist certain drawbacks which limit the application of international legislation.


References

Njoroge, Fraciah Muringi, Evolution of Rape As a War Crime and a Crime Against Humanity (July 25, 2016). Available at SSRN: https://ssrn.com/abstract=2813970 or http://dx.doi.org/10.2139/ssrn.2813970
Conflict-Related Sexual Violence
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=4&cad=rja&uact=8&ved=2ahUKEwj6j87jgYjpAhV0A2MBHTk2AdwQFjADegQIBRAB&url=https://www.un.org/en/events/elimination-of-sexual-violence-in-conflict/pdf/1494280398.pdf&usg=AOvVaw34Z6X7H7dWnlXJT7KtnkN3
The Prosecution of Sexual Violence in Conflict
https://www2.ohchr.org/english/issues/women/docs/Paper_Prosecution_of_Sexual_Violence.pdf

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which she might be associated.

Shafaq Farooq

Author: Shafaq Farooq

The writer is a student at Nadira Hassan Law Department, Kinnaird College, Lahore. She has also participated in the 61st Philip C. Jessup International Law Moot Court Competition where her team ranked among the top 4 and qualified to compete in the international rounds in Washington DC.

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