Rape as a war crime under international law Lessons from Bosnia and Rwanda The moral scars of the international community as milestones for legal development with regard to gender-based violence
Xhensila GABA
Independent study: Human Rights and Humanitarian Law Instructor: Max Hilaire, PhD June, 2013
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Structure of the paper I.
Introduction
II.
Research questions
III.
Thesis statement
IV.
Literature review
a. Reviewing the debate on rape, genocide and international law b. Historical insight about the concerns on rape as war crime V.
Case study 1: The conflict in Yugoslavia, rape as a tool of ethnic cleansing and the decisions of ICTY
VI.
Case study 2: Rwandan massacre, genocidal rape and the significance of ICTR
VII.
Criticizing the ‘jurisprudential criticism’ to ICTY and ICTR decisions to make rape a crime against humanity
VIII. Conclusion: The legacy of ICTY and ICTR, lessons learnt and prospects for the future IX.
References
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I.
Introduction Rape has always been a brutal phenomenon of any internal and international armed
conflicts, throughout history. Unfortunately, for much of history, rape has been looked upon as an unavoidable aspect of conflict. Sexual violence against women during wartime can be a series of singular, isolated acts or it can occur on a massive scale such as in Bosnia-Herzegovina or Rwanda. During the ethnic cleansing that took place during this conflict rose in April 1992 and in 1993, a European commission estimated the number of rape victims in Bosnia at twenty thousand (Trabucchi, 2008). The Muslim-led government insisted the number was fifty thousand. The war ended in November 1995 while genocide ravaged Rwanda in April and May of 1994. Women again were victims of sexual violence. According to human rights observers and Rwandan medical workers, rape was the rule, not the exception: an integral part of the genocide. The number of women being raped are shocking; from 250,000 to 500,000 women and girls in less than one hundred days. Most often the perpetrators have been rebel forces, but sadly, acts of violence are also carried out by the very same people who are put in place to protect citizens, including humanitarian workers and allied soldiers. Though the location of conflict may change—Bosnia, Rwanda, etc—the experiences of what women suffer and endure are all similar. Their stories tell of fear and severe pain as well as strength, courage and hope. Sometimes, there exist misperceptions that men are the ones who suffer the most from the atrocities of war, since they are the main participators in the army or military. In fact, this is a fallacy. It is important to understand the conditions and difficulties of women’s lives in times of war and conflict. Already subjugated to a lower status in many societies, women are affected even more during a country’s upheaval.
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While armed conflict will continue even in the 21st century, the nature of warfare has changed substantially; it is no longer soldiers who comprise the largest number of causalities, but civilians. The nature of the battlefield has changed: warfare is no longer fought in remote battlefields between armies but is fought in our homes, our schools, our communities and increasingly on women’s bodies. As the nature of war escalates, the use of sexual violence grows more widespread. In many societies, women are viewed as the fabric of the community and are held to be the keepers of a culture’s values with great importance placed on their sexual purity. They are targeted for violence for this reason. Violence against women has been used as a weapon of war, not just to violate the women, but to humiliate the men of the other side, and to erode the social and moral fabric of entire communities across generations. Rape has always been part of war, but it remains one of the most underreported crimes worldwide and it is also one of the least punished in the aftermath of a war. It is a pity that calamities happened in Bosnia and Rwanda would be the cause for the public awareness to pressure the international community to take legal measures in punishing gender-based violence and considering rape not only as a grave breach of international customary law, but also as a massive disrespect for human beings, particularly women. II.
Research questions How does international law address the war’s offensive on women, particularly the acts
of sexual violence such as rape, either isolated act or genocidal tool during wartime? What are the challenges that humanitarian law faces when it comes to protecting women during armed conflicts and what are the solutions that the existing legal framework provides when the body of women becomes the battlefield? 4
III.
Thesis statement In this paper, I argue that the establishment of two ad hoc tribunals, ICTY and ICTR, had
a significant value to providing the first legal steps in defining sexual assault and particularly rape, as a war crime. Moreover, I argue that both tribunals became milestones in initiating a process of reconstructing international law by explicitly condemning rape as a grave breach, as a crime against humanity that could not be left legally unpunished any longer. First I will provide the theoretical background regarding the issue of rape during wartimes and different legal approaches to it. Second, I will discuss in detail two case studies: the establishment of the ICTY and ICTR and their decisions with regard to rape as a war crime referring to the calamitous events in Bosnia and Rwanda. Third, I will provide some of the criticisms that followed the decisions of both courts and then counter-argue these criticisms as unpersuasive and failing to be considered given the grave events in Bosnia and Rwanda. Last, I will conclude with lessons learnt from the tragedies in both case studies and the future prospects of the international law with regard to gender-based violence. IV.
Literature review and the historical development of rape as war crime A. Reviewing the debate on rape, genocide and international law There is an academic and legal debate with regard to rape as a genocidal act. One side of
the debate is concerned with gender disappearing from ‘genocidal rape’ while the other recognizes and deems important its intersection. The issue surrounding genocidal rape is whether an overemphasis on ‘genocidal rape’ will result in the ‘elision of rape and genocide’. The fear is that the focus on ‘genocidal rape’ could result in the effacement of gender in the crime of 5
violence perpetrated against women because they are women. On the cons side, the legal scholar Rhonda Copelon writes: The elision of genocide and rape in the focus on ‘genocidal rape’ as a means of emphasizing the heinousness of the rape of Muslim women in Bosnia is dangerous. Rape and genocide are each atrocities. Genocide is an effort to debilitate or destroy a people based on its identity as a people, while rape seeks to degrade and destroy a woman based on her identity as a woman. But to emphasize as unparalleled the horror of genocidal rape is factually dubious and risks rendering rape invisible once again (Russell-Brown, 2003). Copelon expressed concern about this "overemphasis" and "focus" on genocidal rape. Her concerns were: 1) that an overemphasis on "genocidal rape" could result in the elision of rape and genocide; 2) that the gendered nature of the crime of rape-a violent crime committed against women could become obscured; 3) that rape victims could lose their subjectivity and become objectified because the crime of genocidal rape would be viewed primarily as a crime perpetrated against a group and not against the individual woman; and, lastly, 4) that rape committed in an armed conflict outside of the context of a genocide could become invisible. On the other side of the debate, there are those legal scholars, including Catharine MacKinnon and Jasmina Kalajdzic, who argue that it is important to recognize the particular as well as the generic in the crime of genocidal rape. She argues that it true that women are targeted for rape generally because they are women, but also particular women from a specific group who are targeted for genocide are also targeted for genocidal rape. Thus, for both Kalajdzic and MacKinnon, it is important not to lose sight of the interrelation between ethnicity and gender in genocidal rape (Russell-Brown, 2003). Genocidal rape differs from acts of rape and sexual violence that occur outside of genocide. Genocidal rape is not just about a woman’s identity as a woman but it is also about a woman’s identity in a particular group and that both are equally important and distinguishing. 6
Why the women’s bodies become the battlefield? Barstow (2000) identifies three different forms of sexual violence: (1) individual rapes, (2) military sexual slavery or forced prostitution, (3) mass rape, as specifically planned in the conflict in Bosnia-Herzegovina and Rwanda’s genocide. Research has documented the use of rape ‘as a means of humiliating the enemy and destroying family and community life’. Susan Brownmiller (1975) emphasizes that rape is considered by the people of a defeated nation to be part of the enemy’s conscious effort to destroy them. In fact, by tradition, men appropriate the rape of their women as part of their own male anguish of defeat. Defense of women has long been a hallmark of masculine pride, as possession of women has been a hallmark of masculine success (Trabucchi, 2008). Rape by a conquering soldier destroys all remaining illusions of power and property for men of the defeated side. Todd Salzman (2000) continues with this deeply rooted patriarchal ideal that extends through societies by arguing that when a ‘man’s woman’ is violated through rape; it is often very difficult for him to accept the humiliation of such an event. He has failed to live up to his masculine duty and the obligation to defend ‘his woman’, regardless of the circumstances. The rapes and sexual violence that took place in Bosnia and Rwanda went much further than pride and possession. It fulfilled the objective of both wars and became part of military strategy behind them. B. Historical insight about the concerns on rape as war crime What has been the role and function of the international law regarding crimes against humanity prior to Bosnia and Rwanda tribunals? Legally, the notion of a crime against humanity had little significance until the twentieth century. Few states saw an international community capable of being harmed, and even fewer felt that they could be held responsible for their conduct. Nonetheless, as the twentieth century dawned, some states began to recognize a need 7
for new norms that respected law and humanity. The Hague Conventions of 1899 and 1907 first contemplated establishing normative principles based on the laws of humanity (McHenry, 2002). The attempts focused at creating such principles focused primarily on efforts to limit warfare and arms buildup and to establish an international court of justice, but the issue of sexual attacks upon civilians did not arise during the meetings. The Conventions were ultimately unsuccessful in limiting warfare or what would later be called ‘crimes against humanity’, but they did establish a foundation for the prosecution of later violations of the laws of humanity in the twentieth century. After the end of World War I, the concept of individual criminal liability for what would later deem human rights violations began to acquire more meaning. The phrase ‘crimes against humanity’ was first used publicly by Allied prosecutors in the Nuremberg Trials (Meron, 1993). It was given its meaning by the charter which established the International Military Tribunal to try Nazi officials following the conclusion of WWII though, contrary to some assertions, the charter contained no specific reference to rape as a crime against humanity. The trials at Nuremberg, and also the similar postwar trials of former Japanese military officials in Tokyo, resulted in not only the convictions of several perpetrators of the Holocaust, but they also established a clear foundation for the future prosecution of war crimes and crimes against humanity. Later, the adoption of Geneva Convention in 1950 made reference to the treatment of civilians during times of war. In relevant part, it asserts that women shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault. Thus, for the first time in international law rape was considered to be a crime, though its parameters at this time were ill-defined. Moreover, the Geneva Conventions served as a solid legal source for ICTY to establish rape as a crime against humanity. The establishment of International Criminal Tribunal for former Yugoslavia and the 8
International Criminal Tribunal for Rwanda prosecuted rape as a war crime and grave breach of Geneva Convention and international customary law. I will analyze both cases with details in the next section. V.
Case study 1: The conflict in Yugoslavia, rape as a tool of ethnic cleansing and the decisions of ICTY The International Criminal Tribunal for the former Yugoslavia (ICTY) was established in
1993 to prosecute war crimes committed during the Yugoslav conflict and it had the competence to try alleged offenders for crimes enumerated in Articles 2-5 of its Statute, namely, grave breaches of the 1949 Geneva Conventions, violations of the laws or customs of war, genocide and crimes against humanity. The Yugoslav Tribunal as of October 1998, had nineteen public indictments pending against fifty-six suspects, as well as an undisclosed number of sealed indictments (Askin, 1999). At least half of the public indictments in ICTY have brought charges alleging some form of gender-based violence, particularly sexual violence. Tadic, the first trial held by either UN Tribunal, resulted in many decisions that could have significant bearing on the future of gender-based crimes under international law, that are of particular importance to women. In reaching its verdict, the ICTY trial chamber included specific references to sexual violence and convicted Tadic of sex crimes. Many parts of the second amended indictment addressed sexual violence against males and females. It alleged that Tadic, a Serb, had participated in the killing and maltreatment of Bosnian Muslims and Croats within and outside Omarska Camp. Approximately, forty women were in Omarska, where both female and male prisoners were beaten, tortured, raped, sexually assaulted and humiliated. Tadic was charged with crimes against humanity (persecution on political, racial and religious grounds, for taking part in a campaign of terror which included killings, torture, sexual assaults and other physical and psychological abuse. 9
Tadic was expected to be the first international war crime trial in history to prosecute rape separately as a war crime, and not solely in conjunction with other crimes. The withdrawal of significant parts of the indictment, and the refusal of certain witnessed to testify, did contribute in part to the misperception. In addition, the vague and misleading language of international humanitarian law instruments regarding gender-based violence, including sexual violence, which is essentially reproduced in the Statutes of the Tribunals, was a contributing factor. Even though insufficient evidence was submitted at trial that Tadic himself had committed rape crimes, the evidence did establish that sexual violence was pervasive and rampant and that the consequences for victims and the community were devastating, therefore, anyone-including non-state actors and low-level participants-may be convicted of aiding and abetting crimes of physical, mental and sexual violence through continued and knowing participation in, or tacit encouragement of these crimes (McHenry, 2008). VI.
Case study 2: Rwandan massacre, genocidal rape and the significance of ICTR The Akayesu case in the Rwandan Tribunal was the first international war crimes trial in
history to try and convict a defendant for the crime of genocide. At trial evidence of rape was heard during courtroom testimony. Extensive testimony concerning rape and other forms of sexual violence was used to establish that sexual violence was a fundamental and integral part of the genocide committed during the Rwandan conflict. Akayesu has exclusive control over the communal police and responsibility for maintaining public order within the commune. The indictment defined sexual violence in broader terms by including offenses such as forced nudity, which supports the view that violence need not result solely from physical violence, but also includes mental violence of this nature. Akayesu was accused of knowing that the acts of sexual violence and other crimes were being committed and of being present at times during their 10
commission, of having facilitated the commission of the sexual violence, beatings and murders by allowing the sexual violence and beatings and murders to occur on or near the bureau communal premises’, and of having encouraged these acts by failing to prevent them. The indictment thus alleged that Akayesu was criminally responsible for genocide and crimes against humanity. As mentioned above, the Akayesu judgment is historic in convicting the accused of the crime of genocide. The decision has additional significance in the prosecution of gender-based crimes in international criminal law: (1) the trial chamber recognized sexual violence as an integral part of the genocide in Rwanda, and found the accused guilty of genocide for crimes that included sexual violence, (2) the chamber recognized rape and other forms of sexual violence as independent crimes constituting crimes against humanity, and (3) the chamber enunciated a broad, progressive international definition of both rape and sexual violence (McHenry, 2008). The court showed great sensitivity to the difficulties of bringing forward the victims who are required to reveal, often in public, the shocking indignities to which they were subjected. VII.
Criticizing the ‘jurisprudential criticism’ to ICTY and ICTR decisions to make rape a crime against humanity
Like previous international law decisions that affected the scope of the nature of crimes against humanity, recent decisions by the ICTY and ICTR are not without criticism. Indeed, these decisions represent a trade-off between domestic state autonomy and the desire of the international community to effectuate justice following the commission of particularly inhumane crimes. Moreover, these decisions may contain underlying by-products, such as the violation of conventional due process and the reification of gender stereotypes about women, which undercut the overall attempts by the ICTR and ICTY to secure justice. The criticisms are worth exploring 11
because of what they reveal about the nature of international human rights justice and because of how they may be addressed in future human rights’ cases. Some of the main criticisms were: (1) prosecuting crimes against humanity violets established principles of state and personal sovereignty, (2) international prosecution of rape represents ex post facto, retroactive adjudication, (3) international criminal prosecution of rape reifies women as a weaker sex in need of special protections (Russell-Brown, 2003). The first criticism is unpersuasive because the mass rape of Bosnian women by Serbians was not inherently a domestic Serbian incident. Moreover, each modern state is bound by jus cogens norms that prohibit the commission of genocide or crimes against humanity. A state does not have the sovereignty to massacre its people under any kind of international legal standards. The second criticism asserted that because rape was not defined expressly as a crime against humanity at the time that the events happened, and because the crime of rape was not clearly defined within international law in general, the standard by which the defendants were prosecuted was necessarily ex post facto. But the counterarguments are that although rape was implied being a crime against humanity under the categories of torture and enslavement, even if it was not recognized as a specific crime of its own. The third criticism about considering women as the weaker sex, hence stereotyping them, fails to consider because the essence of the decisions in tribunals apply equally to men and women, thus both genders are afforded the protections under international law. Moreover, men were already accorded protections during time of war as both soldiers and civilians, thus the decision of the tribunals simply bring women into an equal position as men under international law. In short, rather than reinforcing tired stereotypes about women and their weakness and vulnerability during war, the decisions by the tribunals actually
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make women more fully members of the international community and subject to the same protections as men. The arguments used to refute the criticisms may be used to provide a strong justification both for the decisions and also for the jurisprudential methods by which they were obtained. The justifications for the decisions rest on three principal foundations: international law, conventional morality, and global respect for humanity (McHenry, 2008). The fact that rape often functions in ways similar to other human rights abuses makes all the more striking that fact that until recently, it has not been condemned like any other abuse. Though it was rarely prosecuted in the past, rape was considered a criminal act under international law, and the decisions of ICTY reinforced this conclusion by making rape legally tantamount to genocide. Morally speaking, no society condones the physical, nonconsensual sexual violation of another human being, though sadly many societies do not prosecute or punish such violations as they should. Unlike other crimes that may acquire moral defenses to their commission, rape is never justifiable because it can never be a defensive act. Thus, specifically criminalizing rape and sexual enslavement in the international community recognizes this fact, and by criminalizing such wholly indefensible behavior, international legal tribunals raise the moral dignity of all members of that community. Moreover, both tribunals reinforce prohibitions on physical violation, racism or ethnic hatred, and sexism-all of which affect interpersonal interaction within the larger community of humans, especially in the developing world. They acknowledged both human obligations to tolerate those who are different and the need to recognize similarity as part of the human community, as the first step towards effectuating a change in international behavior. VIII. Conclusion: The legacy of ICTY and ICTR, lessons learnt and prospects for the future 13
While gender-based crimes were largely ignored during the war crimes trials held in Nuremberg and Tokyo after WWII, crimes of sexual violence are being charged in the Yugoslav and Rwandan Tribunals as violations of the laws or customs of war, genocide, crimes against humanity, grave breaches of the 1949 Geneva Conventions and the 1977 Additional Protocols. These charges represent significant progress for the heretofore inadequate international law on gender-based crimes. Much remains to be done. Victims and witnesses need to be ensured adequate protection and support. The Tribunals must guarantee that the violent, gendered and sexual nature of the crimes is not lost in broad, vague catchall phrases used in treaties and the respective statutes. The contribution of the tribunals have value for use by other tribunals, the establishment of a definition of rape under international law, increased equalization of the two genders before international law, and the establishment of an inviolable jus cogens principle against rape. One hopes that the precedents set by these Tribunals will have a significant impact on gender-based wartime violence, which is commonly inflicted on women in particular, and has previously been ignored in postwar remedial actions. There is great need for an international treaty that directly addresses the treatment of women during periods of international and internal armed conflict, and that definitely criminalizes gender-based violence. More women need to participate in the process of prescribing and adjudicating the laws of armed conflict. It will take significant social and legal reconstruction before gender-based crimes obtain parity with other international crimes.
References 14
Askin, K. (1999). Sexual violence in decisions and indictments of the Yugoslav and Rwandan Tribunals: Current Status. The American Journal of International Law, 93 (1), 97-123
McHenry. (2002). The prosecution of rape under international law: Justice that is long overdue. Journal of Transnational law, 35,
Meron, T. (1993). Rape as a crime under international humanitarian law. The American Journal of International Law, 87 (3), 424-428
Russell-Brown, S. (2003). Rape as an act of genocide. Berkeley Journal of International Law, 21 (2), 350-374
Trabucchi, E. (2008). Rape warfare and international humanitarian law. Journal of the Sociology of Self-knowledge, 6 (4), 39-48
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