SEXUAL VIOLENCE AS A WEAPON OF WAR IN
INTERNATIONAL HUMANITARIAN LAW
Jennifer Park‡
ABSTRACT
Sexual violence as a weapon of war targets individuals not only on the basis of group membership,
but also uniquely on the basis of gender. Despite substantial increases in occurrence during warfare, international and national mechanisms have largely neglected the impact of sexual violence in
hindering peace and obscuring perceptions of security among population groups. The failure to
clearly recognise sexual violence as a weapon of war has resulted in impunity, in turn affecting the
likelihood of future outbreaks of conflict. To prevent further negligence, the establishments of the
International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal
Tribunal for Rwanda (ICTR) have made notable progress toward reconceptualising sexual violence
as a weapon of war. This paper highlights and evaluates the innovations made by the ICTY and the
ICTR towards recognising the issue of sexual violence as a threat to international peace and security in international law.
Keywords: gender; International Criminal Tribunal for the former Yugoslavia; International Criminal Tribunal for Rwanda; security; sexual violence; war
Atrocities committed during conflicts over recent decades underscore the need to
move beyond traditional state-centric conceptualisations of security. As witnessed in the
former Yugoslavia and Rwanda, the nature of contemporary warfare tactics, targeting
specific individuals for the purposes of ethnic cleansing and genocide, make apparent the
inadequacies of conventional notions of security. These two cases exemplify how threats
to the peace and security of states, or rather the individuals within the territories of states,
emanate from “internal” sources of tension. While both cases exhibited elements of crossborder spillover, it is important to note that the use of the terms “genocide” and “ethnic
cleansing” were specifically interpreted as applying to the state-sponsored threats on its
“internal” or “natural” population groups. Levels of hostility against identity-based
groups reached unspeakable magnitude, calling for greater attention towards understanding the internal dimensions of conflict. In particular, the use of sexual and genderbased violence as a means of ethnic cleansing and genocide presents a compelling case for
rethinking measures of administering peace and security in high-risk areas.
Sexual violence as a weapon of war targets individuals not only on the basis of group
membership (i.e. ethnicity, tribe, race, etc.), but also uniquely on the basis of gender. Despite substantial increases in occurrence during warfare, international and national
mechanisms have largely neglected the impact of sexual violence in hindering peace and
obscuring perceptions of security among population groups. The failure to clearly recognise sexual violence as a weapon of war has resulted in impunity, affecting the likelihood
‡
MSc International Public Policy, University College London. Outreach Coordinator, Women In International Security and the Center for Peace and Security Studies at Georgetown University in Washington,
DC. For questions or comments, please contact: jcp59@georgetown.edu.
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INTERNATIONAL PUBLIC POLICY REVIEW
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of future outbreaks of conflict. To prevent further negligence, the establishments of the
International Criminal Tribunal for the former Yugoslavia (ICTY) and the International
Criminal Tribunal for Rwanda (ICTR) have made notable progress towards reconceptualising sexual and gender-based violence as a weapon of war. This paper aims to highlight
and evaluate the innovations made by the ICTY and the ICTR towards establishing the use
of sexual violence as a threat to international peace and security in international law.
The ICTY and the ICTR have undoubtedly increased the visibility and role of international law in administering and promoting peaceful mechanisms for post-conflict transitions. While controversy and debate surround the establishment of ad hoc war tribunals,
the process of international law continues to build upon understandings of the “absolute
worst crimes” committed during conflict through such legal mechanisms. As stated
through the principle of nullum crimen sine lege, nulla poena sine lege,1 defining criminal behaviour is essential for the purposes of deterrence and punishment, and can easily be applied to the rules of engagement in warfare. Tribunals uniquely address the most serious
crimes of warfare in ways domestic courts are not positioned to do. As iterated by Fionnuala Ni Aolain, “where the actions of an individual clearly point to a pattern of transgressive behavior, unless a legal device exists to disclose associated information, the focus
on individual responsibility may eschew an expanded picture of liability.”2 International
tribunals, which by nature encompass a larger political and military context, render the
kind of venue in which sexual violence may be considered within the scope of war crimes,
crimes against humanity, and genocide. Perpetrators may range from civilian participants
to heads-of-state. Acknowledging this range, the ICTY and the ICTR have made groundbreaking developments for advancing the issue of sexual violence within the arena of international concern.
Before the work of the ICTY and the ICTR, the lack of definitions and appropriate
procedural processes for prosecuting sexual violence proved to be a significant barrier towards advancing the status of sexual violence in international law. As noted by Theodor
Meron, the reference to sexual violence in the Hague Regulations and the Geneva Conventions and Additional Protocols limits sexual crimes to the prohibition of rape, with no
express definition of what constitutes rape.3 While the prohibition of rape by these treaties
serves an important purpose, it by no means covers the complex and varied forms of sexual aggression witnessed in modern conflicts. Moreover, Fionnuala Ni Aolain explains,
“not only have all-encompassing sexual crimes against women been excluded from legal
prohibition under the laws of war, but when included they have been facets of male status
violation.”4 Her criticism points to the wider problem of masculine gender-biased notions
of warfare, which have failed to address the ever-changing practices and settings for
widespread political violence. Ni Aolain’s line of reasoning aptly attends to the inclusion
of women and gender-based concerns in conceptualising legitimate tactics for combat. In
short, the issue of sexual violence deserves a much greater role in efforts to establish peace
and security, as it has been much neglected in regard to its use as a tool of war.
In her analysis of sexual violence and war, Inger Skjelsbaek points out, “[t]he determining features for both conventional and non-conventional weapons to be characterized
as weapons of war, are that they are used as part of a systematic political campaign which
has strategic military purposes.”5 The ethnic cleansing practices in the former Yugoslavia
and the genocide in Rwanda clearly demonstrate the use of sexual violence beyond traditional notions of rape and as part of wider political agendas, as will be shown below. The
1
See F. Ni Aolain, “Radical Rules: The Effects of Evidential and Procedural Rules on the Regulation of
Sexual Violence in War,” Albany Law Review vol. 60, no. 3 (1997), p. 898. The general legal principle “nullum
crimen sine lege, nulla poena sine lege” translates as “no crime without law, no punishment without law.”
2
Ibid.
3
T. Meron, “Rape as a Crime Under International Humanitarian Law,” The American Journal of International Law vol. 87, no.3 (1993), p. 425.
4
Ni Aolain, p. 888.
5
I. Skjelsbaek, “Sexual Violence and War: Mapping Out a Complex Relationship,” European Journal of
International Relations vol. 7, no. 2 (2001), p. 213.
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linkage between sexual violence and political agendas is essential in these contexts. While
sexual violence may be an unconventional weapon of war, it is arguably one of the most
effective tactics used in warfare. A report by UNIFEM states:
Men and boys as well as women and girls are the victims of this targeting, but
women, much more than men, suffer gender-based violence. Their bodies become a
battleground over which opposing forces struggle. Women are raped as a way to
humiliate the men they are related to, who are often forced to watch the assault. In
societies where ethnicity is inherited through the male line, ‘enemy’ women are
forced to miscarry through violent attacks. Women are kidnapped and used as sexual slaves to service troops…6
The effects of sexual violence persist long after the actual events have occurred. Physical
and psychological pain, forced impregnation resulting in unwanted children, and the deliberate spread of HIV/AIDS give ample justification for lasting skepticism and mistrust
of members of the opposing group. For these reasons, the disassociation of sexual violence from post-conflict peace processes and security sector reform constitutes as gross
negligence by the international tribunals.
Although statistics often fall short of expressing the true extent of the aftermath of
conflict, the following help illustrate the pervasive use of sexual violence in the former
Yugoslavia and Rwanda. In the former Yugoslavia, several reports have cited a conservative approximation of 20,000 Bosnian women as victims of rape during the war.7 In a report by Tresnjevka, a Croatian nationalist women’s group, more than 35,000 women and
children were allegedly held in Serb-run “rape/death camps.”8 To add to the magnitude,
such reports have acknowledged underreporting by survivors of sexual violence. According to the above UNIFEM report, 250,000 to as many as 500,000 women were raped
during the 1994 genocide in Rwanda.9 Many of the victims were infected with HIV by
perpetrators during the genocide, causing an ongoing crisis for Rwandans.10 These numbers point to the widespread, systematic nature of sexual violence in both contexts. As can
be imagined, however, statistics for the various forms of sexual assault have been incredibly difficult to gather. In spite of this, the documenting and reporting of individual incidences have helped to include sexual violence in the agendas of the ICTY and the ICTR, as
will be shown with the first cases for each court.
Commissioned with the immense task of bringing justice and deterring further
crimes, the ICTY and the ICTR both base their case laws on their respective Statutes as
well as on customary international law. This feature of the tribunals produces a greater
level of influence on the development of criminalising sexual violence in warfare, since
customary international law inevitably affects all states.11 Customary law allows the tribunals to draw upon a wider frame of reference beyond their prescribed Statutes, adding a
level of flexibility necessary for adjudicating crimes of sexual violence. The tribunals considered rape and sexual assault in terms of torture, grave breaches to the Geneva Conventions, violations to the laws or customs of war, crimes against humanity, and genocide.12
6
E. Rehn and E. J. Sirleaf, Women, War and Peace: The Independent Experts’ Assessment on the Impact of
Armed Conflict on Women and Women’s Role in Peacebuilding (New York: UNIFEM, 2002), p. 10.
7
“The Impact of Conflict on Women in Bosnia and Herzegovina: Political and Security Impact,” available online: http://www.womenwarpeace.org/bosnia/bosnia.htm (accessed 31 March 2006).
8
B. G. J. De Graaff, “Rapes in Bosnia: A New Theme in the Media,” Srebrenica – A Safe Area (2002),
available online: http://213.222.3.5/srebrenica/toc/p1_c09_s002_b01.html (accessed 1 April 2006).
9
Rehn and Sirleaf, p. 9.
10
“The Impact of Conflict on Rwandan Women: The Humanitarian Impact”, available online:
http://www.womenwarpeace.org/rwanda/rwanda.htm (accessed 31 March 2006).
11
F. Hampson, “Working Paper on the Criminalization, Investigation and Prosecution of
Acts of Serious Sexual Violence”, UN Doc. E/CN.4/Sub.2/2004/12, available online: http://documents-ddsny.un.org/docs/UNDOC/GEN/G04/154/40/pdf/G0415440.pdf?OpenElement (accessed 20 March 2006),
p. 4.
12
Ibid., p. 5.
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The importance of regarding sexual violence within the scope of the worst crimes committable under international law lies in the understanding that within the contexts of both
interstate and non-interstate conflicts, violence that is sexual in nature may have deliberate
and planned characteristics amounting to a mechanism of warfare. Moreover, including
sexual violence as a weapon of war reflects a rethinking of post-conflict reconciliation and
methods to establish respective understandings of security.
As the first international tribunal since the Nuremberg Trials, the ICTY has endeavoured to hold individuals responsible for serious violations of international humanitarian
law since 1991 on the territory of the former Yugoslavia. Fionnuala Ni Aolain states, “The
Yugoslav conflict is exceptional because of the way in which violence against women has
been widely exposed as a method and means of warfare, not ancillary to military objectives, but innately linked to them.”13 Rape camps and alleged plans written by Serb army
officers to use rape as a tool of ethnic cleansing during the war exemplify this linkage.14
This has also been witnessed in the treatment of men during the conflict, as demonstrated
through the cases of Bosnian concentration camp victims where the majority of victims
were men.15 The Statute of the ICTY in defining the crimes under Articles 2 through 5 include rape as a crime against humanity, and leaves considerable flexibility for inclusion of
other forms sexual violence as punishable under international law.
As the first trial of the ICTY, Prosecutor v. Tadic set a major precedent by including
sexual violence as an indictable crime by an international court. The charges against
Dusko Tadic included a wide range of participation in sexual violence toward males and
females. Charged with 34 counts of crimes against humanity, grave breaches, and violations to the laws or customs of war,16 Tadic was found guilty of direct and indirect participation in sexual crimes. The significance of this case lies partly in the Tribunal’s
interpretation of individual criminal responsibility, as spelled out in Article 7 of the Statute. As noted by Kelly Askin:
Even though it was not proven that Tadic himself had committed sexual violence, the
chamber held him responsible for his participation in a general campaign of terror,
manifested by murder, rape, torture and other forms of violence.17
In interpreting Tadic’s actions, the Tribunal found indirect involvement in sexual violence
sufficient for holding Tadic personally responsible for such crimes. The verdict demonstrates the use of international law to implicate and convict an individual for “inactive
participation” in sexual crimes, an innovation aimed at influencing participants in conflict
to curtail one another’s brutality. In effect, this judgment has serious implications for future convictions of direct and indirect participation of sexual crimes, as well as creating
impetus for deterrence.
Similarly, the first case for the ICTR, Prosecutor v. Akayesu, also set precedents for advancing the status of sexual violence in post-conflict justice. As the first international tribunal to define rape and sexual violence, the ICTR explicitly set sexual aggression on the
agenda for post-genocidal justice in Rwanda. Utilising the Convention against Torture and
Other Cruel, Inhuman and Degrading Treatment or Punishment, the Tribunal likened rape to
torture, thus expanding the treatment of rape beyond the Fourth Geneva Convention’s
interpretation of rape as an offense against the honor of the victim. In a statement regarding the significance of sexual violence in international justice, the court stated:
Chamber takes note of the interest shown in this issue by non-governmental organizations, which it considers as indicative of public concern over the historical exclu13
Ni Aolain, pp. 883-884.
Skjelsbaek, p. 220.
15
Ibid., p. 224.
16
See Prosecutor v. Dusko Tadic. ICTY. Case No. IT-94-1-L. Second amended indictment.
17
K. Askin, “Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals:
Current Status”, The American Journal of International Law vol. 93, no. 1 (1999), p. 104.
14
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sion of rape and other forms of sexual violence from the investigation and prosecution of war crimes. The investigation and presentation of evidence relating to sexual
violence is in the interest of justice.18
The ICTR stands apart from the ICTY in that the genocide in Rwanda mainly raised issues
of internal armed conflict. While the ICTY was able to justify the use of international humanitarian law on the basis of international armed conflict among the fragmented territories of Yugoslavia, the ICTR had to take a further leap forward in prosecuting sexual
violence as genocide in the context of internal conflict.
The Prosecutor v. Akmkayesu case presented the first conviction of an individual for
the charges of genocide and international crimes of sexual violence, a truly groundbreaking feat. Kelly Askin highlights three historic aspects of this case:
…(1) the trial chamber recognized sexual violence as an integral part of 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 violence as independent crimes constituting crimes against humanity; and (3) the chamber enunciated a
broad, progressive international definition of both rape and sexual violence.19
Essentially, the Akayesu case made the linkage between the prevalence of sexual violence
and the political agenda behind identity-based conflict. In this way, the Tribunal established that sexual violence and military objectives could be one and the same. The use of
the term “sexual violence” to encompass rape and other forms of sexual aggression has
more relevance in modern warfare than the previous references to rape. According to the
Akayesu judgment, the Tribunal identified sexual violence to include acts that did not
necessary involve physical invasion of the human body or physical contact.20 The innovative and expansive use of terminology reflects the level of understanding acquired
through thorough investigation of such crimes. Like the Tadic case, the consequences of
the Akayesu case will certainly resonate in future indictments.
The indictments and convictions of perpetrators of sexual violence by the ICTY and
the ICTR have made invaluable contributions towards addressing the use of sexual aggression as a tool of war. While the successful prosecutions of such perpetrators as Tadic
and Akayesu have certainly revolutionized the understanding of sexual violence in warfare, the tribunals have yet to demonstrate the desired deterrent effect in ongoing conflicts.
A much-cited criticism of the ICTY is that the atrocities committed in Srebrenica posed a
major challenge to the deterrent value of the court. Also, despite proximity to the ICTR,
widespread sexual violence continues to be rampant in areas of the greater Great Lakes
region, including Uganda, Democratic Republic of Congo, Sudan, etc. Deterrence may be
a matter of time, publicity, and accumulation of international legal documentation towards norm establishment. But the issue of deterrence also points to the need for complementary mechanisms for international peace and security. The lack of enforcement
power severely limits the effectiveness of tribunals, thus necessitating institutional and
multilateral cooperation.
Sexual violence in warfare is ultimately a greater issue that cannot solely be addressed through legal procedures. It is not within the scope or jurisdiction of an international tribunal to deal with all the complex and lasting consequences of widespread sexual
violence. Financial support and international collaboration greatly affect the ranging facets of dealing with aftercare services for survivors, reconciliation with former “enemies,”
establishing rule of law and trust in legal systems, among other aspects of peace-building.
Publicity and immediate relevance to those who have been affected also play a large role
in validating the work of the tribunals. Other mechanisms for peace-building such as
18
See par. 417 in Prosecutor v. Jean-Paul Akayesu. Case No. ICTR-96-4-T. Decision of 2nd September 1998.
Askin, p. 107.
20
Prosecutor v. Jean-Paul Akayesu. Case No. ICTR-96-4-T.
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UNIFEM’s call for an international Truth and Reconciliation Commission aim to fill the
historical gap left by undocumented and unacknowledged crimes.21 The expansive and
long-lasting nature of sexual violence may necessitate such an institution, and may serve
to complement the work of tribunals. The ICTY and the ICTR have paved the way for
more sophisticated understandings of sexual violence. It is imperative that existing institutional mechanisms build upon the momentum created by the tribunals. Essentially,
peace-making and peace-building efforts will be better served by greater attention paid to
the use of sexual violence in conflict through international collaboration.
REFERENCES
Askin, Kelly D. “Sexual Violence in Decisions and Indictments of the Yugoslav and
Rwandan Tribunals: Current Status.” The American Journal of International Law vol.
93, no. 1 (1999), pp. 97-123.
De Graaf, B. G. J. “Rapes in Bosnia: A New Theme in the Media.” Srebrenica – A Safe Area.
2002. The Netherlands for War Documentation. Available online:
http://213.222.3.5/srebrenica/toc/p1_c09_s002_b01.html
Hampson, Françoise. “Working Paper on the Criminalization, Investigation and Prosecution of Acts of Serious Sexual Violence.” UN Doc. E/CN.4/Sub.2/2004/12. Available online: http://documents-dds-ny.un.org/docs/UNDOC/GEN/G04/154/
40/pdf/G0415440.pdf?OpenElement
Meron, Theodor. “Rape as a Crime Under International Humanitarian Law.” The American Journal of International Law vol. 87, no. 3 (1993), pp. 424 – 428.
Ni Aolain, Fionnuala. “Radical Rules: The Effects of Evidential and Procedural Rules on
the Regulation of Sexual Violence in War.” Albany Law Review vol. 60 no. 3 (1997),
pp. 883–905.
Prosecutor v. Jean-Paul Akayesu. Case No. ICTR-96-4-T. Available online:
http://69.94.11.53/default.htm
Prosecutor v. Dusko Tadic. Second amended indictment. ICTY. Case No. IT-94-1-L. Available online: http://www.un.org/icty/indictment/english/tad-2ai951214e.htm
Rehn, Elisabeth and Ellen Johnson Sirleaf. Women, War and Peace: The Independent Experts’
Assessment on the Impact of Armed Conflict on Women and Women’s Role in Peace
Building. New York: UNIFEM, 2002.
Skjelsbaek, Inger. “Sexual Violence and War: Mapping Out a Complex Relationship.”
European Journal of International Relations vol. 7, no. 2 (2001), pp. 211 – 237.
“The Impact of Conflict on Rwandan Women: The Humanitarian Impact.” UNIFEM.
Available online: http://www.womenwarpeace.org/rwanda/rwanda.htm
“The Impact of Conflict on Women in Bosnia and Herzegovina: Political and Security Impact.” UNIFEM. Available online:
http://www.womenwarpeace.org/bosnia/bosnia.htm
21
Rehn and Sirleaf, p. 18.