International humanitarian and criminal law relevant for addressing GBV in conflict and other complex emergencies

INTERNATIONAL HUMANITARIAN LAW

A historical analysis of international humanitarian law shows that sexual violence was always considered as collateral damage of conflicts, and women have not figured prominently in either the laws restraining the conduct of warfare or in war crimes tribunals.81 In the aftermath of World War II, rape was included in the Tokyo Tribunal’s indictments, but an independent category of crimes of a sexual nature was omitted from the Tokyo Charter.82

The post-war codification of international humanitarian law culminated in the signing of the four Geneva Conventions of 1949. The Fourth Geneva Convention is the first international instrument to protect women against “rape, enforced prostitution, or any form of indecent assault” [article 27(2)]. This Convention is exclusively on international armed conflict and does not apply to armed conflicts not having an international character. The international humanitarian law applied to those is the common article 3 to the First, Second, Third and Fourth Geneva Conventions of 1949. Importantly, this article regulates conflict of a non-international character and prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment” [article 3 (1c)].

Protocol I (1977) additional to the Geneva Conventions, and applicable to armed conflicts with an international character, in article 76 (1) affords protection to women from “rape, forced prostitution and any other form of assault”, and in article 77 (1) to children, including the girl child, against “indecent assault”. Additional Protocol II (1977) also prohibits rape in situations of non-international armed conflict in its article 4 (1e). Thus, the Geneva Conventions 1949 and the Additional Protocols 1977 contributed to the development of international humanitarian law protecting women against sexual violence in times of war. In December 1992, post the ratification of the Additional Protocols to the Geneva Conventions, the International Committee of the Red Cross issued an aide-memoire to clarify the prohibition of rape under the Geneva Conventions of 1949. It stated, in particular, that the grave breaches enumerated in article 147 of the Fourth Geneva Convention, especially that of wilfully causing great suffering or serious injury to body or health, “obviously covers not only rape, but also any other attack on a woman’s dignity”.83

INTERNATIONAL CRIMINAL LAW

Parallel to the post World War II developments in international humanitarian law, rape also incrementally gained recognition as an international crime, including as a crime of genocide and crime against humanity. In Jean-Paul Akayesu (1998), the International Criminal Tribunal for Rwanda delivered the first conviction of sexual violence and rape as crimes of genocide. The Tribunal found Akayesu, formerly serving as mayor of Taba, Rwanda, guilty on many counts. In particular, with regard to his crimes of GBV, the Tribunal found him responsible for: rape as a crime against humanity, other inhumane acts as a crime against

humanity, and rape as a crime of genocide. The work of the two ad hoc tribunals for Rwanda (International Criminal Tribunal for Rwanda) and ex-Yugoslavia (International Criminal Tribunal for Yugoslavia) contributed to the realization that gender-based crimes during conflict are an exacerbated form of the discrimination women and girls suffer in times of peace, an insight that has since been the cornerstone of all the strategies related to both conflict-related violence against women and “peacetime” GBV.

The Rome Statute of the International Criminal Court of 1998 is the first international legal instrument to expressly include various forms of sexual and gender-based crimes — including rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and other forms of sexual violence — as underlying acts of both crimes against humanity and war crimes when committed in international and non-international armed conflicts.

• Article 7 (1) of the Rome Statute lists rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity as a crime against humanity. • Article 8 (2)(b)(xxii) lists rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence as serious violations of the laws and customs applicable in international armed conflict.

• Article 8 (e)(vi) lists rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence as a serious violation of article 3 common to the four Geneva Conventions applicable to armed conflict not of an international character.

While the International Criminal Court struggled to advance international jurisprudence on gender-based crimes in its first decade of practice, it has made significant progress since 2014.84 That year, the Office of the Prosecutor adopted its “Policy Paper on Sexual and Genderbased Crimes”.85 Some examples include:

In 2021, in The Prosecutor v. Bosco Ntaganda, the International Criminal Court delivered the first final conviction for sexual and gender-based crimes.86 In 2019, the Trial Chamber convicted Ntaganda of 18 counts of war crimes and crimes against humanity, including rape and sexual slavery committed against child soldiers, as well as both male and female civilians, sentencing him to 30 years’ imprisonment, the heaviest sentence handed down by the court at that date. On 30 March 2021, the Appeals Chamber upheld the conviction and sentence.

Furthermore, The Prosecutor v. Dominic Ongwen is the first International Criminal Court case in which the Prosecutor brought the charges of forced marriage as an inhumane act, amounting to crimes against humanity, and it is the first time that the crime of forced pregnancy has been prosecuted by an international court.87 On 4 February 2021, the Trial Chamber found Ongwen guilty of 61 counts of war crimes and crimes against humanity, including all 19 counts relating to 11 charges of sexual and gender-based crimes.

In Al-Hassan, a case arising from the Mali situation, which is currently at the trial stage, the Office of the Prosecutor broke new ground by including as crimes against humanity persecution on gender grounds, alongside charges for several sexual and gender-based crimes.88