Rape as a War Crime: State Sanctioned Degradation of Women
By Peter Tonge
Student, Robson Hall Faculty of Law
University of Manitoba Winnipeg, Manitoba Canada R3T 2N2
Introduction
In his book Shake Hands with the Devil1, Lieutenant General (LGen.) Roméo Dallaire
details the horrors of the Rwandan genocide which took place while he was the
commander of the United Nations peace keeping force in that country. Some of the most
striking parts of his account deal with the mass rape of civilian women and girls during
the conflict. As he vividly recounts:
“For a long time I completely wiped the death masks of raped and sexually
mutilated girls and women from my mind as if what had been done to them was
the last thing that would send me over the edge….
…They died in a position of total vulnerability, flat on their backs, with their legs
bent and their knees wide apart. It was the expressions on their dead faces that
assaulted me the most, a frieze of shock, pain and humiliation.”2
LGen. Dellaire’s writing and his decision to speak publicly about the devastating effects
his experiences had on his own life, brought the issues of genocide and rape as a weapon
of war to the forefront in Canada and around the world. However, the use of rape in war
is not new. In the epic poem the Iliad, written in the fifth century B.C., Homer refers to
the possession of women during the Trojan War.3 In the twentieth century, the use of
rape in war was documented in both WWI and WWII. The practice continued during the
Vietnam War and in civil war between Pakistan and Bangladesh during the 1970’s.
1
Roméo A. Dallaire, Shake Hands with the Devil (Toronto: Random House, 2003).
Roméo A. Dallaire, Shake Hands with the Devil (Toronto: Random House, 2003) at 430.
3
Homer, The Iliad (New York: Viking Penguin, 1990) at 81.
2
Rape as a weapon of war continues today. The rape of women and girls has been a brutal
part of recent conflicts in Bosnia-Herzegovina, the Democratic Republic of Congo,
Rwanda and Sudan and in too many other regions to fully enumerate here. The brutality
took place despite the development and ratification of wide range international human
rights instruments designed to address such degrading treatment both during peace time
and in times of war.
This paper will review some of these human rights instruments and consider the obstacles
that women and girls face when seeking justice for the crimes perpetrated against them.
The effectiveness of a purely legal remedy will be evaluated and other possible solutions
will be discussed.
Rape as a Weapon of War
Rape has been used as a weapon of war for thousands of years. In the epic poem
the Iliad, written in the fifth century B.C., Homer refers to the possession of women
during the Trojan War.4 In the twentieth century, the use of rape in war was documented.
In a 1937 incident which became known as the “Rape of Nanking”, the invading
Japanese forces raped and killed thousands of Chinese women. The incident did not
come to light until during the post WWII war crime tribunals. The Military Tribunal of
the Far East heard testimony on the incident and found that 20,000 acts of rape had
occurred at Nanking.5 During WWI the German armies used rape as a part of the battle
plan during the invasions of Belgium and of France. As constitutional law professor J.H.
Morgan explains: “outrages upon the honour of women by German soldiers have been so
frequent that is is impossible to escape the conviction that they have been condoned and
4
5
Homer, The Iliad (New York: Viking Penguin, 1990) at 81.
China News Digest, The Tokyo War Crimes Trials, online: <http://cnd.org/mirror/nanjing/NMTT.html>.
2
indeed encouraged by German officers.”6 The trials at Nuremberg following WWII
documented the use of rape as a weapon of war during that conflict. For example, the
record described the German invasion of Russia this way:
“Women and young girls are vilely outraged in all the occupied areas. In the Ukrainian village of
Borodayevka, in the Dniepropetrovsk region, the fascists violated every one of the women and
girls. In the village of Berezovka, in the region of Smolensk, drunken German soldiers assaulted
and carried off all the women and girls between 16 and 30.”7
When the front lines later shifted, the Russian army perpetrated the same crimes
on the German women. War historian Cornelius Ryan tells us: “Hordes of Russian troops
… demanded the rights due the conquerors: the women of the conquered.8
It has also come to light that during WWII the Japanese army established front
line brothels to service the Japanese Imperial Army. These 80,000-200,000 Asian women
were sex slaves and were known as “comfort women”9
The practice continued during the Vietnam War. United States court martial
statistics for rape and related charges during the conflict totaled 86 charges with 50
convictions.10
Rape is used as a weapon because it is extremely effective. As one writer bluntly
put it: “When I rape your woman ,… I will destroy your property. I will insult you. I will
humiliate you. If I rape all your women, I defile an entire generation. And if I force your
women to bear my children, I pollute your race.”11
6
Susan Brownmiller, Against Our Will: Men, Women and Rape 38 (1975) at 42.
Trial of the Major War Criminals Before the International Tribunal 456 (1947).
8
Cornelius Ryan, The Last Battle 26 (1966).
9
Danise Aydelott, Mass Rape During War: Prosecuting Bosnian Rapists Under International Law, Emory
International Law Review.
10
Susan Brownmiller, Against Our Will: Men, Women and Rape 38 (1975) at 97-99.
11
Dianna Marder, Once Again, Rape Becomes a Weapon of War, Atlanta Journal and Constitution,
February 17, 1993 at A1
7
3
When rape is used to violate the women in a society, it not only damages the
women, but creates shame and fear in the society as a whole. As one doctor from the
United States explains: “It (rape) produces a sense of inadequacy on the part of the
collective heart of the race, a sense of worthlessness.”12 This is particularly true in
certain cultures, for example the Muslim culture. “For Muslim women, virginity is
divine, incredibly precious… Once it is lost an unmarried women will not be accepted. A
married woman who is raped may not be accepted by her husband.”13 The brutality of
rape leaves the women severely damaged. Perpetue, a young Rwandan woman, described
her ordeal this way:
“…two Interahamwe watched over us while the others went to kill. The two were complaining
they were feeling tired from all the killing. Then, one of them sharpened the end of the stick of a hoe. They
held open my legs and pushed the stick into me. I was screaming. They did it three times until I was
bleeding everywhere. Then they told me to leave. I tried to stand up, but I kept falling down. Finally I
crawled outside. I was naked crawling on the ground covered in blood. I tried to ask someone on the road
for help, but they thought I was a madwoman and just ignored me.” 14
Sadly, the full effects of the use of rape in war goes far beyond the victimization
and demoralization of the enemy and goes in fact to destroying the culture. As one writer
on the use of rape in the Bosnia-Herzegovina conflict explained:
If husbands are never able to embrace again wives whom they know to have been violated, if women
so violated recoil from sexual contact, if families reject daughters twice victimized, by violence and
then by the strictures of a culture that esteems virginity – then it is possible that the rape policy will
help wipe out the Bosnian Muslims.” 15
The impact of rape during war on a culture has become deadly with the spread of
HIV and AIDS. Raping soldiers infect women with HIV, giving a death sentence not only
12
Statement of Dr. Stanley Ducharme, Boston University Medical Centre. Nightline: Rape as a Weapon of
War Against Bosnian Muslims (ABC television broadcast, Jan 14, 1993).
13
Leslie Sowers, Angered into Action; Use of Rape as a War Tactic in the Bosnian Conflict Has Prompted
Muslim Women to Unite In Rare Public Protest, Houston Chronicle, June 8, 1993 at 1.
14 Human Rights Watch, Shattered Lives: Sexual Violence During the Rwandan Genocide and its
Aftermath, online:< http://www.hrw.org/reports/1996/Rwanda.htm>.
15
Anna Quindlen, Is Rape of Bosnians a Sophisticated form of Genocide?, Dallas Morning News, March
17, 1993 at 27A.
4
to the woman, but to the children she may have as well. Causing these deaths has the
effect of diminishing the culture and its ability to reestablish itself even further.
It is also important to note that in the conflicts discussed, rape has been used as a
weapon, not by one side, one nation, or one people, but by all sides. Reports on some
conflicts have shown that as the battle lines move in a conflict the same people are
repeatedly victimized by whichever army, militia or faction who passes through the area.
For example in Kimbombo in the Democratic Republic of the Congo : “The town
changed hands a half-dozen times, and each time, the soldiers of the new force would go
on systematic campaigns of rape, designed to establish their control and to punish the
women, who were accused of supporting the losers.”16
Rape in Current Conflicts
Bosnia-Herzegovina
The country of Yugoslavia was formed in 1918 with the merging of the Kingdom
of Serbia and Montenegro with Croatia and Slovenia. Cultural tensions existed between
the four founding groups throughout Yugoslavia’s history. The tensions remained calm
during the rule of Josip Tito, but began to rebuild following Tito’s death in 1980. In
1991, Croatia and Slovenia seceded from Yugoslavia. Bosnia’s Muslim and Croatian
majority also voted to secede from the Serbian dominated Yugoslavia. This vote
prompted violent rebellion by Bosnian Serbs.17 The Bosnian Serbs wished to create a
“Greater Serbia” by clearing Bosnia of all non-Serbs.
16
Stephanie Nolan, The War on Women, The Globe and Mail, November 27, 2004 at D1
Danise Aydelott, Mass Rape During War: Prosecuting Bosnian Rapists Under International Law, Emory
International Law Review at 600.
17
5
Reports of human rights abuses, including rape as a weapon of war, were well
documented during the conflict. Tadeusz Mazowiecki, the UN Human Rights
Commission’s special envoy to Yugoslavia reported in 1993 that Serbian “ethnic
cleansing does not appear to be the consequence of the war but rather its goal…This goal,
to a large extent, has already been achieved through killings, beatings, rape, the
destruction of houses and threats.”18 A confidential European Community report on the
conflict estimated that 20,000 Muslim women had been raped as part of a deliberate
pattern of abuse aimed at driving Muslims from the area.19 These findings were
confirmed by an Amnesty International investigation which found that although soldiers
in each of the three warring factions have raped and abused women, Muslim women were
the chief victims and the Serbs were the chief perpetrators.20 Amnesty did not conclude
that rape was used for genocide, but did conclude:
“[s]uch incidents would seem to fit into a wider pattern of warfare, involving intimidation and abuses
against Muslims and Croats which have lead thousands to flee or to be compliant when expelled from
their home areas out of fear of further violations” 21
Human Rights Watch went much further. Following their investigation, that
group published a report which stated: “[w]hat is taking place in Bosnia-Hercegovina
is attempted genocide-the extermination of a people in whole or in part because of
their race, religion or ethnicity.”22 Faced with these reports from various international
agencies and increasing pressure from the international community, The United
Nations Security Council voted unanimously to establish a war crimes tribunal under
UN Human Rights Envoy Presents Report on Croat and Muslim “War Crimes”, BBC;Summary of
World Broadcasts, May 23, 1993 at C1.
19
Danise Aydelott, Mass Rape During War: Prosecuting Bosnian Rapists Under International Law, Emory
International Law Review Vol. 7, 1993 at 604.
20
Amnesty International, Bosnia-Herzegovina: Rape and Sexual Abuse by Armed Forces 4 (1993).
21
Ibid at 4.
22
Brendan Murphy, Murder, Mayhem, Malice – The Evidence Mounts in Bosnia, San Diego Union
Tribune, May 2, 1993 at G4.
18
6
Chapter 7 of the UN Charter. The report on the tribunal, produced by the UN
Secretary General, outlined the terms of reference for the tribunal:
“The tribunal will hold high ranking persons individually responsible for giving unlawful orders to
commit war crimes as well as for failing to prevent the unlawful behavior of their subordinates.” 23
Importantly, the tribunal was given the power to prosecute war crimes “crimes
against humanity” and genocide . The definition of “crimes against humanity” are rape,
torture, and enslavement.24
Through the Yugoslavia Tribunal many men were successfully prosecuted for the
crimes of rape, sexual slavery and sexual based torture. The tribunal established many
international standards on the crime of rape including: the objective elements of rape,25
the equal responsibility of all those involved in an incident,26that rape of a single
individual may constitute a crime against humanity27 and the elements of the offence of
sexual slavery.28
Rwanda
From April to July 1994 the majority Hutu in Rwanda committed a genocide on
the minority Tutsi people. As a major component of the genocide, Members of Hutu
militias known as Interahamwe, civilians, and the Rwandan Armed Forces (Forces
Armées Rwandaises, FAR) targeted Rwandan women and girls in a genocidal campaign
23
Report of the Secretary Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc.
S/25704, May 3, 1993.
24
Report of the Secretary Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc.
S/25704, May 3, 1993, at 49.
25
Askin, Kelly, Prosecuting War Time Rape and Other Gender Related Crimes Under International Law:
Extraordinary Advances, Enduring Obstacles, 21 Berkeley J. Int’l L. 390 p.23.
26
Ibid. at 24.
27
Ibid at 23
28
Ibid at 26.
7
of mass sexual violence.29 The U.N. Special Rapporteur to Rwanda estimated that at least
250,000 women were raped during the conflict. Women and girls contracted sexually
transmitted diseases, including HIV/AIDS; faced unwanted pregnancies, and health
complications resulting from botched abortions; and suffered sexual mutilations and other
injuries30
The Interahamwe and other Hutu groups were not the only perpetrators of rape.
Human Rights Watch field research has documented rape and forced marriage by
advancing soldiers of the Rwandan Patriotic Army (RPA)—the military arm of the
Rwandan Patriotic Front (RPF), the majority Tutsi rebel group that defeated the
genocidal government in 1994 and proceeded to form the new Rwandan government—
against Tutsi women whom they had “rescued” from perpetrators of the genocide.31
LGen. Roméo Dallaire was the commander of the United Nations peace keeping
force in Rwanda at that time . In a book which won the Governor General’s award for
Literature, LGen. Dallaire details the horror of the Rwandan genocide. Some of the
most striking parts of his account deal with the mass rape of civilian women and girls
during the conflict. As he describes the experience:
“For a long time I completely wiped the death masks of raped and sexually mutilated girls and
women from my mind as if what had been done to them was the last thing that would send me
over the edge….
…They died in a position of total vulnerability, flat on their backs, with their legs bend and their
knees wide apart. It was the expressions on their dead faces that assaulted me the most, a frieze of
shock, pain and humiliation.”32
29
Human Rights Watch, Struggling to Survive: Barriers to Justice For Rape Victims in Rwanda, Vol. 16,
No, 10(A) at 7.
30
Ibid at 8.
31
Ibid at 8.
32
Roméo A. Dallaire, Shake Hands with the Devil (Toronto: Random House, 2003) at 430.
8
LGen. Dellaire’s experiences had a devastating impact on his own life. Upon his
return he struggled with alcoholism, depression and post traumatic stress syndrome. With
medical and physiological help, LGen. Dallaire has managed to rebuild his life and has
become a world leader, speaking about peace, on Rwanda and on genocide. In a recent
interview on CBC television’s Hot Type he explained that he still carries daily guilt over
not being able to stop the Rwandan genocide and that he holds himself personally
responsible.33
As was the case in Bosnia-Herzegovina, the United Nations security council
established The International Criminal Tribunal for Rwanda (ICTR) to prosecute crimes
which took place during the genocide. The tribunal has jurisdiction over genocide, crimes
against humanity, and violations of international humanitarian law committed in Rwanda
and neighboring states.34 The ICTR has tried twenty-three defendants in its ten-year
history.35
The Tribunal’s decision in Prosecutor v. Akayesu.36 was a landmark decision . In
that case, the court recognized that rape can be a constitutive act of genocide under
international law. Prosecution of other rape cases by the tribunal have been
disappointingly rare.
By the end of the genocide period, Rwanda was a failed state. The country
counted only 20 judicial personnel responsible for criminal investigations and only 19
lawyers.37 The non existent Rwandan justice system was faced with prosecuting more
33
CBC Newsworld, Hot Type, February 2005.
Human Rights Watch, Struggling to Survive: Barriers to Justice for Rape Victims in Rwanda, Vol. 16,
No. 10(A) at 9.
35
Ibid.
36
Prosecutor v. Akayesu, Case No. ICTR-96-4-T (Trial Chamber) September 2, 1998.
37
Human Rights Watch, Struggling to Survive: Barriers to Justice for Rape Victims in Rwanda, Vol. 16,
No. 10(A) at 13.
34
9
120,000 people accused of genocide related crimes. In response the overwhelming task,
the Rwandan government established four categories of offenders subject to prosecution:
category one for organizers or leaders of genocide, notorious killers, and persons who
committed “acts of sexual torture”, category two for murderers or accomplices to murder
or serious attacks, category three for persons who committed serious attacks without the
intent to cause death, and category four for those responsible for property damage. 38
Persons convicted of category one crimes are eligible for life imprisonment or the death
penalty. In addition to the establishment of both military and provincial courts, the
Rwandan government established a community conflict resolution mechanism, known as
gacaca, to deal with genocide prosecutions.
Persons accused of genocide or related crimes in categories two, three, and four
are eligible for considerable reduction of their sentences through plea-bargaining in
accordance with the provisions of the gacaca law. Category one offenders who confess
may also have their sentences reduced.39
The large volume of cases, the complex judicial structure and the difficulty in
reestablishing the shattered Rwandan justice system have led to long delays in
prosecuting rape cases and in a growing reluctance for victims to come forward to pursue
their cases. These and other obstacles to justice for the women and girls victimized will
be discussed in more detail later in this paper.
Democratic Republic of Congo
Violence in this region began in 1994 following the Rwandan genocide. Hutu
militia the Interahamwe fled into neighbouring Zaire. The were pursued by Tutsi led
38
39
Genocide Law Article 2.
Organic Law No. 16/2004.
10
Rwandan forces.40 The conflict escalated in May 1997 when rebel forces took over
Kinshasa, the capital of Zaire. The rebel leader Laurent-Désiré Kabila renamed the
country the Democratic Republic of Congo and named himself President.41 Since 1988
Congolese and Rwandan forces have continued to battle with the new regime. In
September 1999 The United Nations Security Council established a peace keeping force
in the country, The UN Mission in the Democratic Republic of Congo (MONUC).42 The
force remains in the country, so far unable to stop the racially based violence. In January
2005 the Security Council increased both the size of the peacekeeping force and its
mandate in an effort to stem the violence.
As was the case in Rwanda, this conflict has been rampant with sexual violence
against women and girls. Amnesty International described the situation this way:
Tens of thousands of women and girls, and also men, have been raped at gunpoint by weaponsbearers, individually or collectively, in private or in public. The rape of boys is apparently on the
increase. The rapes are often accompanied by other acts of extreme violence, including bayonet or
gunshot wounds to the genitals of the victim. Many women have testified that they were raped
after seeing their husbands and sons gunned down at point blank range: the rapes were then
committed next to the corpses of their loved ones. The victims are left physically ravaged and
emotionally traumatised, and many thousands suffer devastating long-term effects43
The rapists were indiscriminate attacking girls and women of all ages, included
those injured or disabled. One young woman with a disability described her experience:
“The entire population fled into the forest but because of my leg, I couldn’t leave. Three soldiers
came into my hut and raped me, one after the other. After that, another group of three soldiers
came and raped me. After I was raped, my disability became worse and now, I can’t look after my
three-year-old. As the community looks down on us, we hide away."44
40
Stephanie Nolan, The War on Women, The Globe and Mail, November 27, 2004 at D1.
United Nations, United Nations Mission in the Democratic Republic of Congo Chronology, online:
<http://www.monuc.org/news.aspx?newsID=884>.
42
Ibid.
43
Amnesty International, Democratic Republic of Congo: arming the east AFR 62/006/2005, July 5, 2005
44
Amnesty International, Democratic Republic of Congo: Mass Rape – time for remedies AFR
62/018/2004, October 2004 at 18.
41
11
Women and girls were also kidnapped and kept as sexual slaves. One 17 year old
told Amnesty International:
“In 2002, I was abducted by an interahamwe soldier. When I arrived at their camp, they took away
all my clothes, just to humiliate me. As I was naked, I had to find animal skins to cover myself. I
had to live in the bush with them. The combatants kept lots of girls and women like me. Almost
every day, I was raped by soldiers.”45
The long-term effects truly are devastating. Many of the victims were so
brutalized, raped using machetes, gun barrels and bayonets , that they are left with torn
genitals or fistula - torn vaginal walls. These injuries leave the victims incontinent.
Unable to afford medical care, the girls and women are driven from their communities
because of the constant incontinence.46 HIV and AIDS pose an even more serious threat.
Aid agencies believe one third of the rape victims have been infected.47 Some estimates
suggest that several million people in the country are infected with HIV or AIDS.48
There have also been serious allegations of sexual abuse and exploitation by
members of the United Nations Peace keeping force. The allegations included instances
of rape and prostitution of minors. The victims were mainly women and girls at camps
for internally displaced persons. 49 In response to this the United Nations has established
a Conduct and Discipline unit within the MONUC. To date the unit has conducted 111
investigations50. No results of these investigations have been released.
Sudan
Amnesty International, Democratic Republic of Congo: Mass Rape – time for remedies AFR
62/018/2004, October 2004.
46
Stephanie Nolan, The War on Women, The Globe and Mail, November 27, 2004 at D1
47
Ibid.
48
Amnesty International, Democratic Republic of Congo: Mass Rape – time for remedies AFR
62/018/2004, October 2004.
49
Amnesty International, Democratic Republic of Congo: Mass Rape – time for remedies AFR
62/018/2004, October 2004 at 15.
50
United Nations, United Nations Mission in the Democratic Republic of Congo Conduct, online:
<http://www.monuc.org/news.aspx?newsID=855>.
45
12
The Darfur region is in western Sudan near the borders with Chad and Libya. In
recent years the region has suffered because of extended periods of drought, and
increased competition for scarce resources. The fight over resources has resulted in ongoing clashes between local guerrilla groups and government backed militia know as the
Janjawid.51 The forces appear to have adopted a strategy of asset stripping: killing,
looting villages, destroying wells, farming operations and other means of earning a
livelihood.52
There have been reports of wide spread rape as the armed forces move from
village to village. One man described the attack on his village:
"When we tried to escape they shot more children. They raped women; I saw many cases of
Janjawid raping women and girls. They are happy when they rape. They sing when they rape and
they tell that we are just slaves and that they can do with us how they wish." 53
Some rapists are particularly brutal, breaking limbs so that the women are unable
to escape:
“The Janjawid were inside the houses and the soldiers outside. Some 15 women and girls who had
not fled quickly enough were raped in different huts in the village. The Janjawid broke the limbs
(arms or legs) of some women and girls to prevent them from escaping.” 54
The destruction has forced as many as 1.88 million displaced people to flee to
refugee camps.55 Several refugee camps have been established in Darfur and Chad by the
United Nations High Commissioner for Refugees (UNHCR). Rapes have also been
occurring in and around the refugee camps. United Nations observers have reported:
51
UNICEF, The Effects of Conflict on Health and Well-being of Women and Girls in Darfur, online:
<http://www.unicef.org> at 8.
52
Ibid.
53
Amnesty International, Sundan-Darfur: Rape as a weapon of war: sexual violence and its consequences,
July 19, 2004.
54
Ibid.
55
UNICEF, The Effects of Conflict on Health and Well-being of Women and Girls in Darfur, online:
<www.unicef.org> at 8.
13
"The women unequivocally stated their great fear of living in this location (Kailek) due to the
daily and nightly harassment and sexual abuse of the Janjawid in town. They expressed how they
feel 'imprisoned' and how the women and girls have been raped and sexually abused when leaving
the IDP setting … the women identified several of the rapists and abusers among the present
group of armed elements. They explained how the perpetrators use to come to the setting during
the night to abduct girls, bringing them to the nearby wadi where they would be raped." 56
Observers from UNICEF have also reported cases of public rape and gang rape in
and around the camps. Women appear to be particularly vulnerable when they leave the
camps to collect firewood. 57 This conflict has attracted little international attention.
While tensions appeared to be lessening in the late summer of 2005, a more recent report
from the UNHCR suggest that the conflict may be about to escalate. In an October 25,
2005 press release António Guterres stated:
“The security situation has deteriorated tremendously within the past six weeks, especially in West
Darfur, with ambushes, hostage-taking and attacks on villages as well as on the Aro Sharow camp
for displaced people …’58
Human Rights Protections
Since the United Nation’s Universal Declaration of Human Rights in 1949 many
legal instruments have been developed to protect human rights. This section will review
some of the human rights instruments that may be used to protect women from the crime
of rape during wartime.59
The fourth Geneva Convention provides protections for civilians under enemy
control in a conflict zone. Article 3(1) explicitly prohibits “outrages upon personal
dignity, in particular humiliating and degrading treatment.”60 The treatment of girls and
56
United Nations. Inter-Agency Fact Finding and Rapid Assessment Mission. Kailek Town, South Darfur.
25 April 2004. at 4.
57
UNICEF, The Effects of Conflict on Health and Well-being of Women and Girls in Darfur, online:
<www.unicef.org> at 20.
58
UNHCR, Situation in Darfur seriously degenerating, online: <http://www.unhcr.ch/cgibin/texis/vtx/news/opendoc.htm?tbl=NEWS&page=home&id=435d130e4>.
59
This paper looks at the issue of rape as a weapon of war globally, rather than during one particular
conflict. Therefore, the parties to the various Conventions are not considered here.
60
Fourth Geneva Convention, International Committee of the Red Cross, online: <http://www.icrc.org>.
14
women that has been described in this paper are indeed outrages upon personal dignity
and would therefore violate the Geneva Conventions.
The International Covenant on Civil and Political Rights applies to all persons
who are within the territory of a country. Customary international law accepts that
territory is claimed by a nation via armed occupation. This was confirmed in a recent case
at the International Court of Justice Legal Consequences of the Construction Of A Wall In
the Occupied Palestinian Territory61. In that case the court found that Israel was bound
by the provisions of the ICCPR based on its” territorial jurisdiction as an occupying
power.” 62Following this logic, occupying forces who commit acts of rape would be in
violation of article 7 of the ICCPR which states: “No one shall be subjected to torture or
to cruel, inhuman or degrading treatment or punishment.”63
Similarly, the Covenant Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment prohibits the intentional infliction of severe
mental or physical pain on another. The application of the Covenant is clear: “No
exceptional circumstances whatsoever, whether a state of war or a threat of war, internal
political instability or any other public emergency, may be invoked as a justification of
torture.”64 Simply put, a state cannot torture and must take measures to prevent torture.
There are no exceptions, not even by public authority, or in a time of war. By any
standard the brutal rapes of girls and women are torture. The perpetrators and their
superiors are in violation of the Covenant Against Torture.
61
[2004] I.C.J. No. 131.
Ibid at 112.
63
United Nations Office For the High Commissioner For Human Rights, International Covenant on Civil
and Political Rights, online:< www.unhchr.ch/html/menu3/b/a_ccpr.htm>.
64
United Nations Office For the High Commissioner For Human Rights, International Covenant Against
Torture Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 2(2), online:
<http://www.ohchr.org/english/law/cat.htm>.
62
15
The genocide which occurred in Rwanda was racially based. The majority Hutu
took advantage of a period of political instability to try to eliminate the minority Tutsis
who had held power. The massacre which took place was driven, at least in part, by racist
radio broadcasts. These broadcasts spread fear amongst the Rwandan populace, urged
participation in the killing, shamed those who sought not to participate, and in many
cases, specifically named and provided the whereabouts of those to be killed.65 These
activities are prohibited under the International Convention for the Elimination of All
Forms of Racial Discrimination. Article 4 provides that states: “Shall declare an offence
punishable by law all dissemination of ideas based on racial superiority or hatred,
incitement to racial discrimination, as well as all acts of violence or incitement to such
acts against any race…”66
The Convention on The Elimination of All Forms of Discrimination Against
Women (CEDAW) provides protection for women in two ways. First, Article 6 of the
Convention requires parties “to suppress all forms of traffic in women and exploitation of
prostitution of women”67. More importantly the Convention requires parties to remove
barriers to women becoming involved in the legal, political and public institutions in
society. As women become more involved in the power bases of society, it will become
more difficult for this women to be marginalized and victimized during times of war.
The Human rights instruments discussed here as well as several others not
outlined, provide a framework of legal human rights protections under public
65
William Ferroggiaro, The U.S. and the Genocide in Rwanda 1994, August 20, 2001, online:
<http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB53>
66
United Nations Office For the High Commissioner For Human Rights, International Convention on the
Elimination of All Forms of Racial Discrimination, online:
<http://www.unhchr.ch/html/menu3/b/d_icerd.htm>.
67 United Nations Division for the Advancement of Women , Convention on the Elimination of All Forms
of Discrimination Against Women, online:
<http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm>.
16
international law. While these instruments are an important means of identifying and
condemning human rights violations, they are only effective legal tools for those who
have access to them.
Obstacles to Justice for the Victims
The girls and women who are the victims of rape during wartime are some of the
world’s most vulnerable people. They are damaged both psychologically and physically
and are suffering from severe injuries and often the ravages of HIV/AIDS. During the
conflict that brought rape upon them their husbands and families were all too often killed,
leaving the girls and women alone to care for themselves and their children. These
victims are not simply alone in terms of family or community supports, they find
themselves living in failed states. States were there is no access to health care,
counseling, housing, basic infrastructures or a justice system.
Daily survival, rather than a search for justice is the priority for many of these
women. In Darfur the years of drought and the scorched earth policies of warring
factions means that food is in short supply. As a result the women are preoccupied with
finding food and fetching water and firewood.68
Healthcare is also a predominant issue. Many of these women have been
mutilated, but have little or no access to medical care. In Rwanda for example, the
genocide destroyed many medical facilities, particularly in rural areas. UNICEF estimates
that 88 percent of women in Rwanda must walk more than
68
UNICEF, The Effects of Conflict on Health and Well-being of Women and Girls in Darfur, online:
<www.unicef.org> at 16.
17
one hour to reach a health care center69 In addition HIV and AIDS is rampant. For
example, an estimated 60 percent of the combatants in the war in the Democratic
Republic of Congo have HIV. Aid agencies believe that a third of the women raped are
infected.70
Shame and a lack of community support create huge barrier for women who
might otherwise wish to report the crimes perpetrated against them. In the Muslim
culture for example, once virginity is lost an unmarried women will not be accepted. A
married woman who is raped may not be accepted by her husband.”71 In Rwanda, rape
prosecutions were transferred to community resolution courts know as gacaca courts in
an attempt to relieve the overburdened upper court system. Sadly, the system discouraged
women from testifying. Under the 2001 Gacaca Law, a rape victim who chose to
report rape to a gacaca court could testify orally or in writing before the general
assembly, which is composed of a minimum of 100 community members.72 The judge
was also required to read any written testimony aloud to those assembled. This of course
was very traumatic to those already victimized, driving both witnesses and victims away
from justice.
In most cases there simply was no justice system for these women turn to.
Following the war in Bosnia there were no courts, no judges, no lawyers and no law
69
UNICEF, Rwanda: Facts and Figures, April 23, 2004, online:
<http://www.unicef.org/infobycountry/20289_20292.html> .
70
Stephanie Nolan, The War on Women, The Globe and Mail, November 27, 2004 at D1.
71
Leslie Sowers, Angered into Action; Use of Rape as a War Tactic in the Bosnian Conflict Has Prompted
Muslim Women to Unite In Rare Public Protest, Houston Chronicle, June 8, 1993 at 1.
72
Human Rights Watch. Struggling to Survive: Barriers to Justice For Rape Victims in Rwanda (2004) 16
Human Rights Watch No. 10(A).
18
books. As Vivienne O’Connor of the Irish Centre for Peace and Justice, put it: ‘there
were no pencils.”73 The situation in Rwanda was similar, By the end of
the genocide, Rwanda counted only twenty judges and only nineteen lawyers.74
Toward a Legal Solution
The solutions to the horrors of rape as a war crime are not found easily. The war
crimes tribunal established following the war in Bosnia many men were prosecuted for
rape and other sexual abuses. The tribunal establish a number of international norms for
the prosecution of rape cases during wartime. The experience in Rwanda was
disappointing. After only a few successful prosecutions, crimes of rape were given a
lower priority and moved to community gacaca courts. Concerns of a lack of procedural
fairness and a lack of privacy protections have kept victims away from the gacaca courts.
Following the end of the apartheid era, the government of South Africa, lead by
Nelson Mandela, established the Truth and Reconciliation Commission. The aim of the
Commission was: “to promote reconciliation in South Africa’s divided society through
truth about its dark past.”75 The Commission did not prosecute crimes, but instead
provided amnesty for those who were willing to tell the truth about their involvement in
crimes. The Commission was chaired by the highly respected Archbishop Desmond Tutu.
During the hearing 21,000 victims testified and over 7,000 applications for amnesty were
considered.76
73
Canadian Council on International Law, Annual Conference, Ottawa Ontario, October 27, 2005.
Human Rights Watch, Struggling to Survive: Barriers to Justice for Rape Victims in Rwanda, Vol. 16,
No. 10(A), P.13
75
BBC News, South Africa Reconciled?, October 30, 1998, online
<http://news.bbc.co.uk/1/hi/special_report/1998/10/98/truth_and_reconciliation/142673.stm>.
76
BBC News, TRC: The Facts, October 30, 1998, online:
<http://news.bbc.co.uk/1/hi/special_report/1998/10/98/truth_and_reconciliation/142369.stm>.
74
19
Amnesty in exchange for truth is based on the assumption that the telling of, and
listening to, the truth has healing effects on both individuals and society as a whole.77 By
exposing the trauma of an entire nation, truth commissions help victims to locate their
experience in a broader context of political violence.78 However, the healing effects can
only take place when the process is supported by the society as a whole, particularly by
those at the highest level. Fortunately for South Africa, the truth commission was
championed by Nelson Mandela and Desmond Tutu who were models of the benefits of
reconciliation. Without this level of acceptance and support, the public airing of brutal
crimes can bring shame, trauma and fear to the victims, as was the case with the public
gacaca courts in Rwanda.
The Irish Centre for Peace and Justice has taken a different approach to
addressing justice in failed states. The Centre, in Galway Ireland, has established a model
code project. The project has developed a compendium of laws consisting of four
annotated bodies: a draft penal code, a draft procedural code, a code addressing pre-trial
detention and imprisonment, and a draft police act. The codes are specifically designed to
be used in a post conflict environment and are compliant with international law.79 These
codes can be used to quickly reestablish a legal framework for criminal prosecutions
following a conflict. This could allow a rebuilding nation to prosecute war crimes locally
while reestablishing a domestic legal system. Using this approach, the state would retain
local control of the prosecutions and in the best case scenario the victims could be
provided with community support. The model codes however, are only a partial solution,
77
Doris Buss and Ambreena Manji, International Law Modern Feminist Approaches, (Portland:Hart
Publishing, 2005) at 291.
78
Ibid.
79
Vivienne O’Connor, Model Codes For Post Conflict Criminal Justice, online:
<http://www.nuigalway.ie/human_rights/Projects/model_codes.html>.
20
they do not address the need for basic resources, infrastructure and trained personnel
required to establish a system of justice.
Ultimately, rape as a war crime will only stop when we address the underlying
cause, that women are marginalized and devalued in society. Removing barriers to
women and allowing them to be of the legal, political and public institutions in society
will make more difficult for this women to be marginalized and victimized during times
of war.
If women become equal participants in our societies, these brutal acts would bring
outrage rather than shame. These women would no longer be seen as the property of the
combatants. A root cause of this marginalization is poverty and a lack of education for
women. Those in our society who are able must support women both financially and
through education “in a manner which allows women to be full participants in the
communities they choose.”80 It is only when women have their place at the table that the
atrocity of rape in wartime will stop.
Conclusion
Rape has been used as a weapon of war since the time of Homer and continues to
be used in may conflicts today. Recent conflicts in Bosnia, Rwanda, the Democratic
Republic of Congo and Sudan have all been marred by the mass rape of women,
perpetrated by all sides in the conflicts. Since the establishment of the United Nations in
1949 a wide body of international and humanitarian law has developed to protect women
Radhika Coomaraswamy, “Violence Against Women and Crimes of Honour” in Lynn Welchman and
Sara Hossain, ed., Honour: Crimes Paradigms and Violence Against Women (London: Zed Books, 2005)
at xiii.
80
21
and girls from these brutal crimes. For example, both Geneva Conventions and the
Convention Against Torture explicitly prohibit inhumane and degrading treatment.
However, these legal instruments have not been effective tools for women. The
victims of rape during a time of war are some of the world’s most vulnerable people.
They are damaged both psychologically and physically and are suffering from severe
injuries and often the ravages of HIV/AIDS. The demands of daily living, the need to get
food, to provide for their children and to find medical care, take priority over the need for
justice. The failed states which have resulted from these conflicts have no justice systems
to which these women can turn.
The use of truth commissions or working to rebuild the justice systems using
model legal codes , provide some procedural mechanisms to begin to provide justice for
the victims. Ultimately, rape as a war crime will only stop when we address the
underlying cause, that women are marginalized and devalued in society.
22
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