International Law and War Rape
War rape, until recently, had not been punished under international law. War crimes or humanitarian law specifically considers the treatment of the civilian population and "any devastation not justified by military necessity". War rape has rarely been prosecuted as a war crime. After World War II the Nuremberg Tribunals failed to charge Nazi war criminals with rape, although witnesses testified on war rape. The War Crimes Tribunal in Tokyo did convict Japanese officers "of failing to prevent rape" in the Nanking massacre, which is known as the "Rape of Nanking".
Since 1949 Article 27 of the Fourth Geneva Convention explicitly prohibits wartime rape and enforced prostitution. These prohibitions were reinforced by the 1977 Additional Protocols to the 1949 Geneva Conventions.
The Rome Statute Explanatory Memorandum, which defines the jurisdiction of the International Criminal Court, recognises rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, "or any other form of sexual violence of comparable gravity" as crime against humanity if the action is part of a widespread or systematic practice.
Rape was first recognised as crime against humanity when the International Criminal Tribunal for the former Yugoslavia issued arrest warrants based on the Geneva Conventions and Violations of the Laws or Customs of War. Specifically, it was recognised that Muslim women in Foca (southeastern Bosnia and Herzegovina) were subjected to systematic and widespread gang rape, torture and sexual enslavement by Bosnian Serb soldiers, policemen, and members of paramilitary groups after the takeover of the city in April 1992.
The indictment was of major legal significance and was the first time that sexual assaults were investigated for the purpose of prosecution under the rubric of torture and enslavement as a crime against humanity. The indictment was confirmed by a 2001 verdict by the International Criminal Tribunal for the former Yugoslavia that rape and sexual enslavement are crimes against humanity. This ruling challenged the widespread acceptance of rape and sexual enslavement of women as intrinsic part of war.
Over the last two decades international human rights law and international criminal law has brought new understandings of the sexual assault, which replaced outdated ideas about rape being a normal if regrettable aspect of conflict:
- Rape constitutes a crime against the physical and mental integrity of the victim, a major advance over the antiquated concept found in the 1977 Additional Protocols to the 1949 Geneva Conventions that rape of women and girls in conflict was merely a crime against "honour" "dignity" or property rights of male relatives;
- According to the factual situation in which the crime took place, rape can constitute a war crime or a crime against humanity (Rome Statute of the International Criminal Court), an act of genocide (Prosecutor v. Akayesu, International Criminal Tribunal for Rwanda, 1998), or an act of torture (Mejia v. Peru, Inter-American Commission on Human Rights, 1996; Aydin v. Turkey, European Court of Human Rights,1997);
- An act of oral penetration can constitute rape (Prosecutor v. Furundzija, International Criminal Tribunal for the former Yugoslavia, 1998);
- Even slight penetration of any part of the body of the victim with a sexual organ, or of the anal or genital opening of the victim with an object or other body part, such as fingers or hands, can constitute rape (Rome Statute, Elements of Crimes, 2002)
- Rape is not solely perpetrated through the use of physical force (M.C v. Bulgaria, European Court of Human Rights, 2003). Rape is any penetration committed by the perpetrator through coercion or through taking advantage of a coercive environment (Prosecutor v Akayesu, International Criminal Tribunal for Rwanda, 1998); Rome Statute, Elements of Crimes, 2002).
- On June 19th, 2008, the United Nations Security Council passed Resolution 1820 unanimously, which describes rape as a “tactic of war and a threat to international security,” and can now constitute war crimes or crimes against humanity. In the past, rape was seen as an inevitable side-effect of war when men are deprived of female companionship for long periods of time, but in the 20th century rape has become a tactic of physical and psychological warfare.
Elements of Crimes definition of rape reflects the brutality of rape, which frequently is perpetrated with sticks, guns, bottles or other objects to injure victims. This definition is gender-neutral, recognizing that men and women, boys and girls alike are raped. While rape of women and girls has been most often documented, often in high numbers, men and boys are also frequently raped, but shame and stigma stops them from reporting this or seeking medical assistance.
- ↑ Office of the High Commissioner for Human Rights. (2010). Rape: Weapon of War. Retrieved August 13, 2010, from United Nations Human Rights: http://www.ohchr.org/en/newsevents/pages/rapeweaponwar.aspx
- Amnesty International . "International Criminal Court: Clarifying the scope of the crime of rape ." 13 January 2009. Amnesty International . July 28 2010, available at: http://www.amnesty.org/en/library.
- "Unrecognized Victims: Sexual Violence Against Men in Conflict Settings Under International Law, by Dustin A. Lewis, Wisconsin International Law Journal, Vol. 27, No. 1, pp. 1–49 (2009).
- "IHL Primer on Sexual Violence. International Humanitarian Law Research Initiative, June 2009.
- UN classifies rape a 'war tactic'. 20 June 2008. BBC News.
- "Rape as an Instrument of Total War". By David Rosen. 4 April 2008. CounterPunch.
- "Intended Consequences" by Jonathan Torgovnik on MediaStorm
- Duty, Honor, Rape: Sexual Assault Against Women During War by Kevin Gerard Neill. Journal of International Women's Studies.
- Extreme War Rape in Today's Civil-war-torn States by Kathryn Farr. Paper presented at the annual meeting of the American Sociological Association, New York City, 11 August 2007.