Introduction
A very popular, yet grossly under recognised, feature and weapon of war is sexual violence.
Sexual violence, like artillery, is used to cause destruction through the terrorisation of a population or as an assertion of power by belligerent forces. Rape, when committed as part of a widespread attack, is also an effective tool for bringing about the destruction, in whole or in part, of a national, ethnical, racial or religious group – otherwise known as genocide.[1]
Despite both its existence and prevalence in every armed conflict (rape was previously viewed as a reward for troops[2]), the prosecution of sexual violence is a recent phenomenon. After World War II, at the Nuremburg Trials for example, not a single charge of sexual violence was prosecuted despite ample evidence of rape being used as a weapon of war by combatants.[3]
Rape in international law
Although there may not be a codified definition for rape in international law instruments, international criminal tribunal jurisprudence has identified two elements: (1) physical invasion of a sexual nature; and (2) the existence of coercive circumstances or the absence of consent.[4]
The first element of rape (a physical invasion of a sexual nature) was defined by the International Criminal Tribunal for Yugoslavia (“ICTY”) as the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator.[5] In Akayesu, rape was understood by the International Criminal Tribunal for Rwanda (“ICTR”) to include acts which involved the insertion of objects and/or the use of bodily orifices not considered to be intrinsically sexual.[6]
As for the second element of rape, it is arguable which of the two – coercive circumstances or a lack of consent – must exist in order for this element to be fulfilled. International Tribunals appear to be slanted towards an interpretation that this element concerns the violation of an individual’s sexual autonomy – i.e. the ability to freely agree (consent) or voluntarily participate in a sexual act (without threat, force or coercion).[7] The International Criminal Court (“ICC”) Elements of Crimes interprets the existence of coercive circumstances to automatically result in the absence of consent.[8] However given the nature of the international crime of rape – which falls under one of (or all) three categories[9] of international crimes linked to either armed conflict or widespread violence – the existence of coercive circumstances are invariably always present.[10]
Rape – along with sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and forced marriages (or ‘conjugal slavery’) – is a war crime (if committed during the existence of an armed conflict) or a crime against humanity (if committed as part of a widespread or systemic attack – even in the absence of an armed conflict).[11] The last category of international crimes under which these crimes of sexual violence may fall is possibly the most severe – the crime of genocide.
Rape as a weapon to commit to genocide
Genocide is the commission of certain prohibited acts with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group.[12] Two of these prohibited acts are: the causing of serious bodily or mental harm to members of the group[13] and another is the imposition of measures intended to prevent births within a group[14].
The ICTR in Akayesu found that acts of sexual violence and rape (in particular) formed an integral part of the process of destruction in the Rwandan genocide as they “were committed solely against Tutsi women, many of whom were subjected to the worst public humiliation, mutilated, and raped several times, often in public” and which “resulted in [the] physical and psychological destruction of Tutsi women, their families and their communities”.[15] In addition to the bodily and mental harm caused, rape was used as a weapon to alter the ethnic composition of the Rwandan population as “[i]n patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother's group. Furthermore, the Chamber notes that measures intended to prevent births within the group may be physical, but can also be mental. For instance, rape can be a measure intended to prevent births when the person raped refuses subsequently to procreate, in the same way that members of a group can be led, through threats or trauma, not to procreate.”[16]
Sexual violence as Crimes Against Humanity and War Crimes
In the absence of genocidal intent, sexual violence may be prosecuted as crimes against humanity, war crimes or both.
In one of the Yugoslav conflicts for example, Bosnian Muslim girls (one of whom was 12 years old) were enslaved, underfed and raped by Serb soldiers “with a regularity that is nearly inconceivable”.[17] These atrocious crimes of sexual enslavement and rape were committed based solely on the ethnicity of the girls.
Forced marriages, such as those that arose in the Sierra Leonean conflict, are another form of sexual slavery in armed conflict and are forms of sexual violence. In forced marriages or ‘conjugal slavery’ a soldier forcibly takes a civilian for a “bush wife”. She is forced to perform conjugal and household marital duties.
In both of the above cases the circumstances in which these international crimes are committed are so coercive that any possibility of consent is negated – as it is considered by the courts to be impossible to give it freely.[18] These crimes can be and were prosecuted as both war crimes[19] and crimes against humanity[20] (on the same set of facts)[21].
Treatment of sexual violence in International Courts
The special nature of rape was likened to torture by the ICTR. It stated that rape, in the Rwandan genocide, was “used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person”.[22] It went further to say that, “[s]exual violence [is] a step in the process of destruction…of the spirit, of the will to live, and of life itself.”[23] It was a tool used “to make…women suffer and to mutilate them even before killing them…”[24] The ICTY described rape as “one of the worst sufferings a human being can inflict upon another.”[25]
Because of the uniquely sensitive nature of sexual violence in armed conflict (in particular), when questioning victims, the ICC applies a specialised set of rules. Rule 72 of the ICC Rules of Procedure and Evidence, for example, regulates the admissibility of evidence on a victim’s consent. Unlike in domestic courts, such evidence (which is used as a defence by the accused) may not be adduced during the trial without warning. In terms of the Rules, notice must first be given to the Court, and must describe the substance of the evidence and its relevance.[26] To determine whether or not this evidence will be admissible, the Court must hear the views of the Prosecution, the defence, the witness/es and the victim in a closed hearing (public access is prohibited).[27] From there the Court is required to weigh up the degree of the probative value of the evidence against the prejudice it may cause.[28] If the evidence is found to be admissible, the Court states on record its reasons for deciding so.[29] Only then may such evidence be adduced at trial.
The ICC’s approach is markedly different to that followed in most (if not all) domestic jurisdictions around the world. Granted, armed conflict provides a special kind of setting with regard to consent, but don’t certain domestic settings as well? The South African Law Commission seemed to think so in 1999 when it stated that it was essential to redefine the definition of rape so as to rely on ‘coercive circumstances’ instead of the absence of consent. The Commission understood coercion to constitute more than just physical force or a threat thereof – it included “various other forms of exercise of power over another person: emotional, psychological, economical, social or organisational power.”[30] This suggested progressive reform was, sadly, overturned by the relevant portfolio committee of the South African legislature, and was resultantly never effected.
The ICC’s approach towards victims of sexual violence is something that the rest of the world would do well to take note of.
Lee-Anne Germanos
Legal Researcher
lee-anne@hsf.org.za
[1]Art 6(b) and 6(d) of the Rome Statute of the International Criminal Court.
[2]Cryer R, Friman H, Robinson D and Wilmshurst E, An Introduction to International Criminal Law and Procedure (Cambridge University Press, 2018) at page 287.
[3]Supra at page 288.
[4]Ibid fn2 at page 252.
[5]Kunarac, ICTY A. Chr., 12 June 2002 at para 127.
[6]Akayesu, ICTR T. Chr., 2 September 1998 at para 596.
[7]Kunarac, ICTY. T. Chr., 22 February 2001 at para 457
[8] Articles 7(1)(g)-1 and 8(2)(b)(xxii)-1 of the ICC Elements of Crimes.
[9]Genocide, Crimes Against Humanity and War Crimes.
[10]Ibid fn5 at para 130.
[11]Articles 7(1)(g), 8(2)(b)(xxii) and 8(2)(e)(vi) of the Rome Statute of the ICC.
[12]Article 6 of the Rome Statute of the ICC.
[13]Article 6(b) of the Rome Statute of the ICC.
[14]Article 6(d) of the Rome Statute of the ICC.
[15]Ibid fn6 at para 731.
[16]Ibid fn6 at paras 507-8.
[17]Ibid fn5 at para 132.
[18]Supra.
[19] War crimes are any acts that are grave breaches of the Geneva Conventions of 12 August 1949, and other serious violations of the laws and customs applicable in international and non-international armed conflict within the established framework of international law.
[20] Crimes against humanity include any number of acts listed in article 7 of the Rome Statute, which are committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.
[21]Crimes against humanity and war crimes.
[22]Ibid fn6 at para 597.
[23]Ibid fn6 at para 732.
[24]Ibid fn6 at para 733.
[25]Ibid fn7 at para 655.
[26]Rule 72(1) of the ICC Rules of Procedure and Evidence.
[27]Rule 72(2) of the ICC Rules of Procedure and Evidence.
[28]Rule 72(2) of the ICC Rules of Procedure and Evidence.
[29]Rule 72(3) of the ICC Rules of Procedure and Evidence.
[30]SALRC Project 107(1999) Discussion Paper 85 at 114.
