Rape and other acts of sexual violence as crimes against humanity

Catherine Phuong

Newcastle Law School, United Kingdom

For quite a long time, rapes and other acts of sexual violence committed against women by armed forced in the field were only considered to a "side-effect" of war. In particular, the Nuremberg and Tokyo Tribunals had ignored crimes committed against women. Over the last ten years, there has been increasing awareness that such crimes could be part of a wider strategy to eliminate a group in ethnic conflicts. During the conflict which ravaged Bosnia and Herzegovina between 1992 and 1995, there were numerous reports of women being deliberately targeted by armed forces for their ethnic background and being raped on a large scale. Sometimes, these women were forced to remain in detention camps to prevent pregnancies resulting from the rapes to be terminated. This has led the Commission on Human Rights’ Special Rapporteur on the former Yugoslavia to send a team of experts to investigate such allegations. The team produced a detailed report with medical evidence and confirmed the scale of the atrocities committed against women in the field. Sexual violence against women was clearly used as a weapon of war by all sides to the conflict. Similarly, a large number of Tutsi women were victims of rape during the genocide in Rwanda in the spring of 1994. Two ad hoc international tribunals were established by the Security Council to prosecute crimes committed during these two conflicts: the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). This article proposes a brief overview of the jurisprudence of these two tribunals with regard to sexual violence against women and the implications for the future International Criminal Court.

Rape is proscribed as a crime against humanity under Article 5(g) of the ICTY Stature and Article 3(g) of the ICTR Statute. Several indictments brought by the Office of the Prosecutor which is common to both tribunals have included charges of crimes committed against women. The ICTR has reached several ground-breaking decisions which illustrate a growing awareness of crimes committed against women. Unfortunately, its decisions are less publicised that the ones from the ICTY. Akayesu was the first person in history to be charged and tried for the crime of genocide. His indictment included charges of sexual violence and defined acts of sexual violence to "include forcible sexual penetration of the vagina, anus or oral cavity by a penis and/or of the vagina or anus by some other object, and sexual abuse, such as forced nudity" (para.10A). In September 1998, Akayesu was found guilty by the Trial Chamber of the crime of genocide and for the first time, an international tribunal made some historic pronouncements concerning gender-based crimes which were recognised as an integral part of the genocide as Tutsi women were systematically raped with Akayesu’s "tacit encouragement" (para.708). Moreover, rapes and other acts of sexual violence were recognised as crimes against humanity.

As for the ICTY, several of its public indictments have brought charges alleging some form of sexual violence. In Tadic, the first trial held by the ICTY, it was expected that rape be prosecuted separately as a war crime, but the Tribunal did not have sufficient evidence to do so. Nevertheless, it made several important pronouncements on crimes of sexual violence, including sexual violation of males in Omarska camp. It was noted by the Tribunal that acts of sexual violence were used as a general strategy to terrorise the non-Serb population. The Tribunal reaffirmed in Furundzija that "all serious abuses of a sexual nature inflicted upon the physical and moral integrity of a person by means of coercion, threat of force, or intimidation in a way that is degrading and humiliating for a victim's dignity" (para.186) were prohibited by international law. In a more recent decision, the ICTY followed the ICTR’s pronouncements in Akayesu by finding that rape and enslavement were not only war crimes, but could also constitute crimes against humanity. The judgment in Kunarac, Kovac and Vukovic was delivered in February of this year and has attracted considerable media attention. The three accused are ethnic Serbs and have participated in the campaign of ethnic cleansing in the Foca area from where Muslim women and young girls were taken to "rape camps". Rapes were used to terrorise the Muslim population and clearly tolerated, if not encouraged, by the leaders of Bosnian Serb armed forces. The women and girls detained were ordered to cook and do some cleaning as well. Some of the women were "loaned" or sold by the three accused to other Serb men.

The Statute of the International Criminal Court was adopted in Rome in June 1998 and will come into force after 60 ratifications, which should happen within the next few years. The Statute makes several references to sexual violence against women. In particular, Article 7 includes "rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity" in the definition of crimes against humanity. Such acts can also constitute grave breaches of the Geneva Conventions of 12 August 1949 under Article 8 of the Statute. The future Court will have to take into account the important jurisprudence of the two ad hoc tribunals and recognise the plight suffered by many women and girls during armed conflicts around the world and who are often deliberate targets of persecution.

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