The development of the legal protection
against sexual violence in armed conflicts
- advantages and disadvantages
By
Annette Lyth
December 2001
Gender Based Violence in Armed Conflicts
____________________________________________________________________
1. INTRODUCTION
Rape used as a weapon in armed conflicts, is an issue that has achieved great
attention during the last years, especially in connection to the conflict in the former
Yugoslavia. This may give the impression that this is a crime that has evolved
recently and was used in a way that was unique for the crisis in Yugoslavia.
Unfortunately, this is far from the reality. Rape has been committed in connection to
most armed conflicts that have taken place around the world. To mention but a few
examples, during the Second World War Russian, German and Japanese soldiers
systematically abused women, in the 1970’s Pakistani soldiers sexually abused
Bangladeshi women and Turkish soldiers abused women in Cyprus during the
occupation. In the 60’s and 70’s, American soldiers abused Vietnamese women and
in the 80’s and 90’s the Security Forces raped Peruvian women in their haunt for the
guerrilla.1 Rape also continues to be used in on-going conflicts today, except for
former Yugoslavia, can Sierra Leone and Chechnya be mentioned as examples were
rape have and still is used in a systematic way in connection to an armed conflict.2
Despite the fact that it is so widespread, sexual violence has been vastly
underreported and the victims have suffered in silence. It is not until recently that
German women have began to speak openly about the rapes committed during the
Russian occupation, and Japanese and Korean women about how they were forced
to become so-called comfort women to the Japanese troops during the Second
World War.3 Because of the shame factor involved, i.e. that the surviving woman risk
getting stigmatised and ostracised by her society, many victims have chosen to be
silent about the crimes that have been committed against them. Furthermore, in the
few cases where they do have spoken, they have not always been believed. As
indicated above, the silence has began to break during the last years and there is
now an emerging jurisprudence in international law, establishing that rape in armed
conflicts constitutes a serious violation of human rights and humanitarian law.
1.1 Gender based violence in armed conflicts
The Declaration on the Elimination of Violence Against Women defines violence
against women as “any act of gender based violence that results in, or is likely to
result in, physical, sexual or psychological harm or suffering to women, including
threats of such acts, coercion or arbitrary deprivation of liberty”.4 Gender based
violence constitutes a type of harm that is either particular to the person’s gender,
such as female genital mutilation, forced prostitution, rape and other sexual abuses
or that affects women disproportionately.5
1
Women, Law & Development International, “Gender Violence: The Hidden War Crime”, 1998 Washington,
D.C.
2
Human Rights Watch , “Sierra Leone, Getting Away with Murder, Mutilation, Rape, New Testimony from
Sierra Leone”, July 1999, Vol.11 No 3(A) <http://www.hrw.org/reports/1999/sierra/> and Human Rights Watch
Press
release
from
20
January
2000,
“Rape
Allegations
Surface
in
Chechnya”
<http://www.hrw.org/press/2000/01/chech0120.htm> and Press release from 30 March 2000 More Evidence of
Rape by Russian Forces in Chechnya <http://www.hrw.org/hrw/press/2000/03/chech0330.htm>
3
E.g. the United Nations Special Rapporteur on Violence Against Women, “Report on the mission to the
Democratic People’s Republic of Korea, the Republic of Korea and Japan on the issue of military slavery in
wartime”, E/CN.4/1996/53/ADD.1,4 January 1996.
4
United Nations Declaration on the Elimination of Violence Against Women, A/C.3/48/1.5,23 February 1994,
art. 1.
5
Supra note 1.
2
Annette Lyth
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There are many reasons for why gender based violence against women in wartime is
widely spread and it can take many forms. Rape can be used in order to terrorise the
civilian population and to induce civilians to flee their homes and villages. It can be a
mean to humiliate the rival army by showing control over ”their” women. It can be
used as a ”perk” for soldiers and as an inducement to courage on the battlefield.
Forced prostitution can be used us a moral booster for the soldiers and as a way to
make the women feel responsible for their own violation. Forced impregnation and
forced pregnancy can be used to deepen the humiliation and to produce babies of
the ethnicity of the rapists.6
The reason why individual women are singled out for violent treatment can vary, it
may be;
‰
‰
‰
because of her sex and gender,
because of her relationship to a man, or
because of the social, religious or ethnic group she belongs to.
It is also common with combinations of different reasons above, which often serve to
reinforce each other. Cultural biases toward women that exist during peacetime
exacerbate the exploitation of women during wartime.
In some countries, states use sexual abuse as a tactic:
‰
‰
‰
of social control to intimidate women and men;
to secure information on male relatives;
to demoralise men for failure to “protect their women” and to punish women
for not conforming.7
The deconstruction of a culture can be considered one of the primary goals of
warfare, because only through its destruction – which involves destruction of people
– can a decision be forced. Because of the cultural position of women and their
important role within the family structure they are a principal target if one intends to
destroy a culture.8
1.2 The mechanisms behind sexual and gender violence in armed conflicts
In the context of war, rape can be considered as the final symbolic expression of
humiliation of the male opponent. It communicates to the enemy men that they are
not able to protect ”their” women. Many societies carry the idea that women are the
vessels of the community honour and the men as its protector. These kind of genderspecific concepts of honour find their ultimate expression in time of war.9 Thus, it is a
very effective weapon and continues to be a very effective weapon as the men who
belong to same group as the raped women, often exacerbate and perpetuate the
crime by rejecting the women that have been sexually abused and putting the blame
on the women.10
6
Supra note 1.
Ibid.
8
Ruth Seifert, “War and Rape, Analytical Approaches”, Publication by the Women’s International League for
Peace and Freedom, 1993.
9
Supra note 1.
10
Supra note 8.
7
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Gender Based Violence in Armed Conflicts
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2. THE DEVELOPMENT OF THE LEGAL PROTECTION OF WOMEN’S RIGHTS IN
ARMED CONFLICTS
The fundamental principle is that men and women have the same rights and
protection in armed conflicts, as in times of peace.11 As part of the civilian population,
women are protected by rules that e.g. forbid the fighting forces to attack civilian
targets.12 But women are especially vulnerable because of their gender and over time
has therefore a set of special rules developed for the protection of women in armed
conflicts. These rules underline and strengthen the same rights that are valid for all
members of the civilian population.
2.1 Historical background
The Hague Conventions with respect to the Laws and Customs of War13 failed to
mention sexual violence, as did the Nuremberg Charter.14 While the Control Council
Law No.10 on the Punishment of Persons Guilty of War Crimes and Crimes against
Humanity for Germany included rape as a crime against humanity, it did, however,
not include any other forms of sexual violence. Nor did it include rape as a war
crime.15 The distinction is significant, as the threshold of proof is higher in crimes
against humanity – i.e., that the acts have been committed on either a widespread or
systematic basis.
Rape was not among the crimes that were punished either in the Nuremberg-tribunal
or the Tokyo-tribunal, which both were put up after the Second World War. Rape was
not even mentioned in the prosecution in Nuremberg. In Tokyo, accusations of
sexual violence were brought up, but they were rejected as the judge found it too
difficult to prove that the women had not given their consent to sexual intercourse.
Crimes of sexual violence were not recognised in the 1949 Geneva Conventions as
constituting “grave breaches”, nor were they enumerated under Article 3 common to
all of the Geneva Conventions, which sets out minimum protections during the
course of armed conflicts. Instead, they were categorised as “outrages upon personal
dignity, in particular, humiliating and degrading treatment, or attacks against a
woman’s honour”.16 Even when the Additional Protocols to the Geneva Conventions
were adopted in 1977, crimes of sexual violence continued to be subsumed under
categories dealing with honour and dignity.17
11
Fourth Geneva Convention, art 27(1); protocol I, art 75(1) protect women against discrimination in
international armed conflicts; Forth Geneva Convention common art 3(1) and Protocol II, art 2(1) and 4 protect
women against discrimination in non-international armed conflicts.
12
Art. 48, Additional Protocol I and art. 13 of Protocol II.
13
Convention with Respect to the Laws and Customs of War on Land, The Hague (Hague Convention II) (29
July 1899); Convention Respecting the Laws and Customs of War on Land, The Hague (Hague Convention IV)
(18 October 1907). The relevant provisions referred to respect to “family honour and rights”.
14
Charter of the International Military Tribunal for the Trial of Major War Criminals, appended to Agreement
for the Prosecution and Punishment of Major War Criminals of the European Axis, 8 August 1945, London, as
amended, Protocol to Agreement and Charter, 6 October 1945, 82 UNTS 279, 57 Stat. 1544.
15
Control Council Law No.10 on the Punishment of Persons Guilty of War Crimes, Crimes against Peace and
Humanity (20 December 1945), 3 Official Gazette of the Control Council for Germany 50
16
Common Article 3 to the Geneva Conventions of 1949 and article 27 of the Convention Relative to the
Protection of Civilian Persons in the Time of War. (12 August 1949) (Fourth Geneva Convention).
17
Articles 75 (2) and 76, Protocol additional to the Geneva Conventions of 12 August 1949 and relating to the
Protection of Victims of the International Armed Conflicts (Additional Protocol I) (8 June 1977); Article 4 (2)
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In order for rape to be considered as grave breach under the Geneva Conventions it
has to be interpreted into the crimes of “wilful killing, torture or inhumane treatment”
or “wilfully causing great suffering or serious injury to body and health”. The
significance of a war crime’s categorisation as a grave breach is threefold;
‰
‰
‰
It emphases the egregiousness of the assault.
One act of rape is punishable, it is thus not necessary that rape be mass or
systematic.
Only crimes that are grave breaches give rise to universal jurisdiction under
the Geneva Conventions.18
In the cases where the Geneva Conventions have technically provided explicit
protection against rape and other sexual abuse, it has been formulated as a crime
against honour and decency. Such formulations can be found in Fourth Geneva
Convention art 27(2), art 75(2)(b) and art 76(1) Additional Protocol I and art 4(2)(e) of
Protocol II. The implications of defining sexual violence, as crimes against honour
and dignity will be further discussed below.
2.2 Obstacles to the recognition of gender based violence in international law
A major obstacle against the recognition of gender based violence in international
law has been that, until recently, international humanitarian law has addressed
sexual violence in terms of women’s honour, separate from other crimes of violence,
such as murder, mutilation, cruel treatment and torture. This construction defines
sexual violence as a moral crime instead of the violent physical crime it actually is. It
also represents a biased thinking, implying that only ”pure” women can be raped.
Where rape is treated as a crime against honour, the honour of women is called into
question and virginity and chastity is often a precondition. Honour implies the loss of
status or respect; it reinforces that social view, often internalised by women, that the
raped woman is dishonourable.19
More recently, international law has moved away from this morality-based thinking. A
significant part of this development has been achieved especially through the two adhoc tribunals for ex-Yugoslavia and Rwanda that both list rape explicitly among
crimes against humanity without any reference to honour or moral.
2.3 Recent jurisprudence
In the light of the relative marginalisation of gender based violence in international
legal tradition, the jurisprudence of the two ad hoc-tribunals for Rwanda and exYugoslavia has been groundbreaking as they have both condemned perpetrators of
rape. This has not come easy to neither tribunal, however. Both tribunals needed
lobbying and other interventions by international coalitions of women organisations
before the prosecutors included rape in the accusation charges
2.3.1 The International Tribunal for Yugoslavia (ICTY)
(e), Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of the
Victims of Non-International Armed Conflicts (Additional Protocol II) (8 June 1977).
18
Rhonda Copelon “Surfacing Gender: Re- Engraving Crimes Against Women in Humanitarian Law”, Hastings
Women’s Law Journal, Vol. 5:2, Summer 1994.
19
Ibid.
5
Gender Based Violence in Armed Conflicts
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The Yugoslavia Tribunal was established in 1993 and is the first international tribunal
to be held since Nuremberg and Tokyo. It is also the first tribunal to give particular
attention to gender-based crimes. Almost half of the persons indicted by the Tribunal
are accused of sexual assault or rape as either perpetrators or superiors. The Statue
creating ICTY names rape as a crime against humanity under Article 5, as mentioned
above, it is not connected to notions of dignity and honour. Rape is, however, not
explicitly named in the article on grave breaches of humanitarian law, which is based
on the Geneva Conventions. Neither is it named as a violation of the customs and
laws of war or as genocide.
In its rules on admissibility of evidence in cases of sexual assault, Rule 96 states that
no corroboration of the victim’s testimony is required, i.e. it is sufficient with the
statement of the women that she was assaulted and abused. It also required that
before evidence of the victim’s consent to sexual intercourse is admitted in court, the
accused must satisfy the Trial Chamber before a hearing in camera that the evidence
is relevant and credible. This rule is important as it helps protecting the integrity of
the victim and hopefully avoids that she is being smeared in public.
2.3.1.1 The Foca-case
The so-called Foca-Indictment20 was the first, and so far the only one, before ICTY
that deals exclusively with organised rape and sexual slavery during and after a
military attack. It was, in fact, the first indictment in history to charge sexual slavery or
even enslavement in general. The indictment was first issued on 26 June 1996 and
covers multiple rape, gang-rape, forced nudity, torture and enslavement of Muslim
women in the South-Eastern Bosnian municipality of Foca and neighbouring
Kalinovik and Gacko. The indictment connected rape with the strategy of ethnic
cleansing21. The attack was “an organised and planned campaign and policy of the
Bosnian Serb authorities to ethnically purge the Foca municipality of non-Serbs”22.
One 22 February 2001, the Tribunal found the three accused guilty of, inter alia, rape
as a crime against humanity, rape as a violation of the laws or customs of war,
enslavement as a crime against humanity, outrages upon personal dignity as a
violation of the laws or customs of war. The decision marked the first time that ICTY
defined rape and enslavement as crimes against humanity. Further, the Tribunal
found in the decision that enslavement of the women did not necessarily require the
buying or selling of a human being. Some commentators have interpreted this
statement as setting a legal standard for sexual enslavement as a crime against
humanity.23
2.3.2 International Criminal Tribunal for Rwanda
Rape is explicitly mentioned as a crime against humanity and a serious violation of
article 3 of the Geneva Conventions in the statute of the International Criminal
Tribunal for Rwanda. Even though rape and sexual violence was an integral part of
20
Foca IT-96-93, IT-96-23/1 and IT-96/2
For more information on rape as part of ethnic cleaning in former Yugoslavia, see Nicoloc-Ristanovic, Vesna,
“Sexual Violence” in Women, Violence and War, Wartime Victimisation of Refugees in the Balkans, ed. by
Nicoloc-Ristanovic, Vesna, Central European University Press, Budapest, 1999.
22
Supra note 20.
23
E.g. “Bosnia: Landmark Verdicts for Rape, Torture, and Sexual Enslavement”, Press Release by Human
Rights Watch, New York, 22 February 2001.
21
6
Annette Lyth
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the genocide24, it took quite long for the ICTR to bring accusations of sexual violence
into the charges25 and it necessitated much pressure and lobbying from women’s
organisations (see below).
2.3.2.1 The Akayesu-case
When the former mayor of Taba Communse, Jean-Paul Akayesu, was indicted in
1996, the 12 counts in his indictment did not include sexual violence, despite
documentation that rape was widespread during the genocide in general, and in his
commune in particular. The charges of rape were only added to the Akayesu
indictment mid-trial, following concerted pressure by non-governmental organizations
and an amicus curiae brief filed by a women’s coalition in May 1997.26
On 2 October 1998, the International Criminal Tribunal for Rwanda sentenced to
three life sentences for genocide and crimes against humanity, and to 80 years
imprisonment for other violations including rape and encouraging widespread sexual
violence. It was the first time that an international court has punished sexual violence
in a civil war and the first time that rape was found to be used as an act of genocide,
as well as an act of torture. The Akayesu judgment affirms that such measures,
which target woman specifically, both as members of an ethnic group and as women,
may constitute genocide. The Akayesu judges note that, “in patriarchal societies,
where membership of a group is determined by the identity of the father, an example
of a measure intended to prevent births within a group is the case where, during
rape, a woman of the said group is deliberately impregnated by a man of another
group, with the intent to have her give birth to a child who will consequently not
belong to its mother’s group.”27
The judges also affirm that mass rape can constitute a crime against humanity. In
this connection, the judges note that while there is “no commonly accepted definition
of rape in international law, it includes acts used for such purposes as intimidation,
degradation, humiliation, discrimination, punishment, control or destruction of a
person”. They define rape as a physical invasion of a sexual nature, committed on a
person under circumstances, which are coercive. When rape is inflicted by or at the
instigation of or with the consent or acquiescence of a public official or other person
acting in an official capacity, it constitutes torture.28 They specifically recognized that
sexual violence, including rape, when committed as part of a widespread or
systematic attack on a civilian population on a discriminatory basis, constitutes a
crime against humanity.29
2.3.3 The International Criminal Court
The Statute of the International Criminal Court is the first international treaty to
recognize a range of acts as of sexual and gender violence as among the most
24
E.g. Human Rights Watch “Shattered Lives, Sexual Violence during the Rwandan Genocide and its
Aftermath”, September 1996 and, Catherine Bonnet “Le viol des femmes survivantes du genocide au Rwanda”
in Rwanda, Un genocide du XXe siècle, ed. by Verdier, Raymond and others, Editions L’Harmattan, 1995.
25
Supra note 1.
26
<http://www.hri.ca.doccentre/violence/amicus-brief.shmtl>
27
Prosecutor v. Jean-Paul Akayesu ICTR-96-4-T, Sept. 2, 1998.
28
ibid.
29
More generally, the judges affirm that, as stated in article 3 of the ICTR’s statute, a prosecution for crimes
against humanity requires proof of acts committed either in a widespread fashion or systematically. Such crimes
do not require evidence that acts of violence were both widespread and systematic.
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Gender Based Violence in Armed Conflicts
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serious crimes under international law.30 In addition to the enumeration of sexual and
gender crimes in the section on jurisdiction, the Statute contains two further clusters
of important gender-specific provisions ensuring the participations of women as well
as of staff with expertise in issues of gender in the various organs of the Court; and
procedural provisions to ensure proper investigation and prosecution methods in
gender violence cases.31
Article 6 of the Rome Statute, which defines genocide, contains no specific reference
to sexual or gender violence. However, Articles 7 and 8, which set out definitions of
crimes against humanity and war crimes respectively, contain separate subparagraphs enumerating a broad range of gender-specific crimes as among the most
serious crimes of concern to the international community. Article 7(1)(g) includes
rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation
and any other form of sexual violence “of comparable gravity” as individual acts
constituting crimes against humanity. These specific sexual violence crimes are also
included in two separate sub-paragraphs under war crimes, where the additional
language “also constituting a grave breach of the Geneva Conventions” (in the
context of international armed conflicts)32 and “also constituting a serious violation of
Article 3 common to the four Geneva Conventions” (in the context of internal armed
conflicts)33 is also found. The Statue is the first international treaty that specifically
codifies the crimes of sexual slavery, forced pregnancy and gender-based
persecution.
2.4 The current status of sexual violence in armed conflicts in international law
2.4.1 Rape as torture
Even where the statutory definitions of war crimes or crimes against humanity do not
explicitly specify rape or other sexual assaults, they are typically understood to be
acts of torture and inhuman treatment. As such, they can be charged as grave
breaches of the laws of war, war crimes or crimes against humanity. It has already
been noted above that the judges in ICTR affirmed in the Akayesu-case that rape
constitutes torture, when inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity. The UN
Special Rapporteur on torture and the European Court of Human Rights have also
confirmed it34.
The ICTY has also characterized the rape of Bosnian Serb women prisoners at the
Celebici prison camp as acts of torture. 35 The tribunal found that Hazim Delic, a
deputy camp commander, was guilty of grave breaches of the Geneva Conventions
(torture) and war crimes (torture) for the rapes he had committed. Another camp
commander, Zdravko Mucic, was found to have command responsibility for crimes
30
For a more detailed narrative of the negotiating history of gender issues in the Rome Statute, see Cate Steins
“Gender Issues” in The International Criminal Court, The Making of the Rome Statute, Ed by Roy S. Lee, Kuler
Law International 1999.
31
Rome statute of the International Criminal Court adopted and opened for signature on 17 July 1998 by the
United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal
Court, Rome, Italy, 15 June – 17 July 1998, A/CONF.183/9 and Corrections to the Rome Statute of the
International Criminal Court, C.N. 577.1998 Treaties-8 (Annex ).
32
Ibid, Article 8(2)(b)(xxii).
33
Ibid, Article 8(2)(e)(vi).
34
ECHR, Case of Aydin v. Turkey 00023178/94, 25/09/1997.
35
Delalic et al. (IT-96-21).
8
Annette Lyth
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committed at Celebici, including crimes of sexual assault. This landmark decision
underscored that rape inflicts severe physical and psychological pain and suffering
that characterizes torture. Sexual violence, wrote the judges, "strikes at the very core
of human dignity and physical integrity." The trial chamber emphasized that when
such violence is committed against a woman because of her gender, the
perpetrator's intent triggers the prohibited purpose of discrimination as an element of
the crime of torture, just as discrimination based on ethnicity does.
Torture may also be prosecuted under national law when an alleged perpetrator
evades the reach of an international tribunal. The Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment requires ratifying
states to ensure that torture is a criminal offence under domestic law, and to
prosecute or extradite alleged perpetrators whenever they are found within its
territory. Rape and other forms of sexual violence constitute torture when they are
intentionally inflicted on a victim, by an official or with official instigation, consent or
tolerance for purposes such as intimidation, coercion, punishment, or eliciting
information or confessions or for any reason based on discrimination of any kind,
including gender discrimination.
2.4.2 Rape as war crime
In connection to armed conflicts, rape can be prosecuted as a war crime, when it
interpreted as falling under the Geneva Conventions prohibition against acts such as,
"torture or inhuman treatment" and "wilfully causing great suffering or serious injury to
body or health" against any person. Rape does not have to be widespread to be
prosecuted as a war crime, one single rape is enough.
ICTR has affirmed the possibility of prosecuting rape as a war crime in the Akayesu
case, where the prosecutor charged the defendant with rape as a war crime during
Rwanda's civil war and genocide. However, Akayesu was acquitted of this charge as
the prosecution failed to establish that he was a member of the armed forces or
charged with military duties.
In the Furundzija decision36, the ICTY found Anto Furundzija, a local Bosnian Croat
military commander, guilty of aiding and abetting a war crime, i.e. the rape of a
Bosnian Muslim woman. Furundzija was found to have provided "assistance,
encouragement, or moral support which had a substantial effect on the perpetration
of the crime" when his subordinate orally, anally and vaginally raped a Bosnian
Muslim woman who was interrogated by Furundzija.
2.4.3 Rape as crime against humanity
Where acts of sexual violence are widespread or systematic, it is possible to
prosecute them as crimes against humanity. They can thereby, be prosecuted
regardless whether they took place in the context of war or peace. Crimes against
humanity include acts such as murder, torture, enslavement, imprisonment, rape or
other inhumane acts, when they are committed systematically or on a mass scale
against civilians.
In the Akayesu-case the ICTR found the defendant guilty of crimes against humanity
based on evidence that he had witnessed and encouraged rapes of Tutsi women
36
Furundzija (IT-95-17/1).
9
Gender Based Violence in Armed Conflicts
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while he was a communal leader. The tribunal found that the rapes were both
systematic and carried out on a massive scale.
2.4.4 Rape as genocide
In some cases sexual violence can constitute one of the means of committing
genocide. Genocide constitutes by certain acts that are ”committed with the intent to
destroy, in whole or in part, a national, ethnical, racial or religious group as such”.
The acts that are proscribed include killings, causing serious bodily or mental harm,
imposing measures intended to prevent births within the group, forcibly transferring
its children to another group, or deliberately inflicting on the group conditions of life
calculated to bring about the destruction in whole or in part. Rape, sexual
enslavement, forced prostitution, forced sterilisation, forced abortion and forced
pregnancy can be used as instruments to impose conditions calculated to destroy the
victims, to sunder their families or to destroy their groups capacity to reproduce. The
ICTR has confirmed that rape can constitute genocide in the verdict against Akayesu,
as has been described above.
Genocide, war crimes and crimes against humanity are all classified as grave
breaches of the Geneva conventions and are thereby under universal jurisdiction.
They are so universally recognised as abhorrent and the interest of the entire
international community must be to suppress them. Hence, any nation may
prosecute the perpetrators, regardless of their nationality, the nationality of the
victims or of where the crime took place. Rape and other kind of sexual violence are
thereby also falling under this jurisdiction, when they constitutes one of the crimes
that have been described above. Despite this fact, sexual violence continues to be
committed with impunity all over the world.
3. EFFECTS AND CONSEQUENCES OF THE LEGAL DEVELOPMENTS
3.1 Rape as a propaganda-tool
In connection with armed conflicts, rape and sexual abuse has also proven to be a
very effective propaganda-tool, which can further stigmatise the abused women. In
the propaganda women are portrayed as victims and the abuses are blamed on the
enemy and used to instil anger and hate.37 The Zagreb-based Centre for Women
War Victims have expressed their fears as follows: “… we fear that the process of
helping raped women is turning on a strange direction, being taken over by
governmental institutions… and male gynaecologists in particular. We fear that the
raped women could be used in political propaganda with the aim of spreading hatred
and revenge, thus leading to further violence against women and to further
victimisation of survivors.”38
The concern of the Centre for Women War Victims is a legitimate one. Examples of
this development can be found in many post-conflict societies over the world. One
example can be found in Rwanda where rape was used in a highly systematic way
during the genocide in 1994. There have been a number of reports written that
describes these horrendous crimes in detail39 and it is also widely debated and
discussed in the Rwandese society. The blame has thereby been taken off the
37
Supra note 1.
M.Belic and V.Kesic, quoted in Christine Chinkin, “Rape and Sexual Abuse of Women in International Law”,
<http://www.ejil.org/journal/vol5/No3/art2.html>
39
See supra note 23.
38
10
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survivors of these crimes (however only to a certain degree, as young women are still
very reluctant to talk openly about their experience as they fear not being able to get
married). However, as the debate has been focused solely on the rapes that were
committed during the genocide, which were committed by the enemy, the implication
has become, that it is much worse for a woman to be raped by “the enemy” rather
than by someone from her own group. The issue of rape in general is still as
stigmatised as before, and very few cases of the “ordinary” rape are being reported
to the police. Caution may therefore be called upon concerning the recent
development of the notion of “genocidal rape”. It has been coined to describe the
atrocities committed against Muslim women in Bosnia and the notion of genocidal
rape is use to imply that their experience is unparalleled. However, the notion of
genocidal rape is factually dubious and risks back lashing on women that are raped
in peacetime, as showed in the case above.40
The armed conflict in Kosovo can provide another example. When the fighting broke
out in Kosovo 1998 and intensified during NATO’s bombardment in the end of March
1999, many knew that mass rapes were likely to occur having the previous
experiences in Bosnia and Croatia in mind. This general knowledge proved
disastrous for many women in Kosovo. As the refugees were crossing the border into
Macedonia there were more difficulties getting through the waiting crowd of
journalists than the Macedonian border guards.41 If the journalists spotted a woman
who wore signs of ill treatment, they would immediately attack her with questions on
whether she had been raped. In some cases they were able to make the women
confess that they had been raped while the camera was running and in many of
these cases those women, who were still traumatized and had been taken by
surprise by reporters, soon regretted their openness.42
Also the Kosovo Albanian political leaders quickly picked up on the propaganda
value of these rapes and were very eager to encourage the women to talk about their
experiences. From a culture where rape by tradition is met by compact silence, it
became very easy to get to talk to women in private and the men would always leave
the room or the tent with the encouragement to the women to tell “everything”. At one
occasion a local political leader asked an OSCE Human Rights Officer to go and
speak again with a young girl that had left an earlier statement because “she had not
said everything” during that discussion. When returning to the young girl, she denied
having called a second meeting and continued by stating that the political leader
wanted her to confess to having been raped, even though she had not.43
3.2 The case of women survivors in Rwanda
Visiting Rwanda four years after the genocide, it is striking to see how little support
women who had testified against rapists to international human rights investigators
had received from the international community. As women organisations and activists
all over the world hailed the sentence in the Akayesu-case as a major step forward
for the protection of women’s rights, the women who had testified continue to live
40
For more on the discussion, see supra note 18.
Told by OSCE officials that were monitoring the border crossing at Blace border.
42
Told by other witnessing refugees.
43
Personal experience of the author during interviews for the OSCE in Macedonian refugee camps in spring
1999.
41
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Gender Based Violence in Armed Conflicts
____________________________________________________________________
under deplorable circumstances. During the trial, the attacks from the militia also
intensified and some of the inhabitants of Taba commune had to flee for the security.
When speaking to the women after they had been to Arusha, where the ICTR is
based, to give their testimonies, they described their experience with the words “we
were treated like cattle”. Even though some measures had been taken to protect their
identities, there were some serious flaws in this protection. For instance were they
allowed walking out to the ICTR plane at Kigali airport without disguise, thus it was
possible for everybody at the airport to see that they were flying to Arusha. The
women had an escort with them until they arrived in Arusha, but thereafter they only
had interpreters’ help during the trial procedures. Outside of the court they were not
even able to ask for a glass of water. They were shoved around without any
explanations on what was going on and they were sent back straight home without
any chance to speak to a third person about their traumas and experiences.44
Instead of getting support, Rwandan women have become the study objects of the
researchers of the world. There is massive flow of researchers coming to Rwanda to
write reports about the sexual violence during the genocide. These reports, however,
do very little to improve the situation of the women. The president of one of the
organisations for survivors of sexual violence described how, when she introduced
an external researcher to the women in her organisation, the women told her to send
the researcher away. They said that they were tired of being used a research objects,
telling their story over and over again and never receive anything back.
4. CONCLUSION
It is clear that rape and sexual abuse, by now are recognised as serious crimes in
international law. In connection to armed conflicts, rape can be prosecuted as a war
crime, crime against humanity, as torture and as genocide. As shown above, it has
also been successfully prosecuted in a number of cases in the two international adhoc tribunals. Thereby, it can be established that there has been a significant positive
development concerning recognition of rape in international law.
However, it is questionable whether this development has benefited or protected
women who are or will be the victims of this violence, in the past or in the future.
There has been much criticism, especially from women’s organisations against how
the two ad-hoc tribunals have handled investigations of these crimes, especially in
regard to the women that have testified. The criticism concerns, inter alia, the
ineffectiveness in prosecuting sexual violence, lack of competent personnel for
sexual violence cases, failing witness protection and insufficient or absent
psychological support to victims/witnesses. 45
From the treatment that abused women have received in e.g. Rwanda and Kosovo, it
is justified to ask whether the development in international law has been to the
advantage of the survivors of these crimes. Or are they just re-victimised again by
journalists who are looking for a story, researchers that are looking for projects or
even by women activist’s who can build a career on this issue? It is difficult to
establish for a fact whether this is a positive or a negative development. It is,
44
Interviewed by author spring 1998.
E.g. Letter to Justice Louise Arbour regarding the International Criminal Court of Rwanda, from the Coalition
for Women’s Human Rights in Conflict Situations, 16 October, 1997.
45
12
Annette Lyth
_________________________________________________________________________
however, of utmost importance that these ethical questions that are raised in this
paper, are born in mind of all those well-meaning persons who wants to work with the
victims of sexual violence in armed conflicts.
13
Gender Based Violence in Armed Conflicts
____________________________________________________________________
References
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Gender Violence: The Hidden War Crime, Women, Law & Development
International, 1998 Washington, D.C.
Seifert, Ruth, “War and Rape, Analytical Approaches”, Publication by the Women’s
International League for Peace and Freedom, 1993.
Christine Chinkin, “Rape and Sexual Abuse of Women in International Law”,
<http://www.ejil.org/journal/vol5/No3/art2.html>
Coalition for Women’s Human Rights in Conflict Situations, Letter to Justice Louise
Arbour regarding the International Criminal Court of Rwanda, from the 16 October,
1997
Copelon, Rhonda, “Surfacing Gender: Re- Engraving Crimes Against Women in
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Human Rights Watch Press release from 20 January 2000, Rape Allegations Surface
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The United Nations Special Rapporteur on Violence Against Women, “Report on the
mission to the Democratic People’s Republic of Korea, the Republic of Korea and
14
Annette Lyth
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Japan on the issue of military slavery in wartime”, E/CN.4/1996/53/ADD.1,4 January
1996.
United Nations Declaration on the Elimination of Violence Against Women,
A/C.3/48/1.5,23 February 1994.
Legal Documents
Convention with Respect to the Laws and Customs of War on Land, The Hague
(Hague Convention II) (29 July 1899); Convention Respecting the Laws and Customs
of War on Land, The Hague (Hague Convention IV) (18 October 1907). The relevant
provisions referred to respect to “family honour and rights”.
The Convention Relative to the Protection of Civilian Persons in the Time of War. (12
August 1949) (Fourth Geneva Convention).
Protocol additional to the Geneva Conventions of 12 August 1949 and relating to the
Protection of Victims of the International Armed Conflicts (Additional Protocol I) (8
June 1977).
Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to
the Protection of the Victims of Non-International Armed Conflicts (Additional
Protocol II) (8 June 1977).
Charter of the International Military Tribunal for the Trial of Major War Criminals,
appended to Agreement for the Prosecution and Punishment of Major War Criminals
of the European Axis, 8 August 1945, London, as amended, Protocol to Agreement
and Charter, 6 October 1945, 82 UNTS 279, 57 Stat. 1544.
Control Council Law No.10 on the Punishment of Persons Guilty of War Crimes,
Crimes against Peace and Humanity (20 December 1945), 3 Official Gazette of the
Control Council for Germany.
Rome statute of the International Criminal Court adopted and opened for signature
on 17 July 1998 by the United Nations Diplomatic Conference of Plenipotentiaries on
the Establishment of an International Criminal Court, Rome, Italy, 15 June – 17 July
1998, A/CONF.183/9 and Corrections to the Rome Statute of the International
Criminal Court, C.N. 577.1998 Treaties-8 (Annex ).
Court cases ICTY
Foca IT-96-93, IT-96-23/1 and IT-96/2
Delalic et al. (IT-96-21).
Furundzija (IT-95-17/1).
Court Cases ICTR
Prosecutor v. Jean-Paul Akayesu ICTR-96-4-T, Sept. 2, 1998.
Court Cases ECHR
ECHR, Case of Aydin v. Turkey 00023178/94, 25/09/1997.
15