[Series] Prosecuting War Crimes: Progress on Prosecuting Sexual Violence Crimes

“The determining feature for both conventional and non-conventional weapons to be characterized as weapons of war, is that they are used as part of a systematic political campaign which has strategic military purposes.”  ^[1]

The use of sexual violence as a tool of war can be seen throughout the world, and across much of history. The systematic rape of women and girls has been a tool used to conduct “ethnic cleansing”, which the United Nations defines as “rendering an area ethnically homogenous by using force”[2]  In 1992 the former communist state of Yugoslavia dissolved, during that time, an estimated 60,000 women were raped due to political, ethnic, and religious differences with the political majority Bosnian-Serbs. [3] In 1994, Rwandan President Juvenal Habyarimana was killed in a rocket attack. [4]The Hutu leader’s death was not the sole reason for the genocide, but it was the spark that caused the death of 800,000 Rwandans in the span of 100 days. During those 100 days, approximately 500,000 women and children were raped in Rwanda.[5]   As evidenced by its use in Bosnia and Rwanda Rape, is one of the most widely used weapons of mass destruction. It is not only a means of destroying lives, but it fractures families and communities that are unable to cope with the event.

Article 7(g) of the Rome Statute of the International Criminal Court declares rape or any other equivalent sexual violence committed in a widespread manner against a civilian population to be a crime against humanity. ^[6] Despite the condemnation from the international community, sexual violence is still used as an effective tool of war. Sexual violence remains such an efficacious tool of war primarily because there is little that can be done to prevent it in conflict zones. The International Court’s ability to prevent sexual violence in conflict zones is limited to deterrence. Deterrence by means of prosecuting those who perpetrated the crimes as well as the people who encouraged them. The nightmare of survivors is not only the assault itself, but the societal stigma that follows: survivors are often ostracized from communities, often forced to bear unwanted children, and infected with diseases like HIV/AIDS.

Prosecuting perpetrators proved to be extremely difficult until recent times. Due to the fact that international courts, such as The Hague, denounced rape but did not provide a sufficient definition. The prohibition of rape was an important step, but was not clear enough to combat the varied forms of sexual assault. In order to clarify what constituted sexual violence, the International Criminal Tribunal for Yugoslavia (ICTY) was given a set of statutes to abide by.[7] The International Criminal Tribunal for Rwanda (ICTR) was also given a set of statutes to operate under.[8] Both tribunals set precedents by relying on their respective statutes as well as customary international law (CIL). The use of customary international law was a stride in the right direction, as CIL’s allow tribunals discretion and flexibility when prosecuting these types of crimes. Both the ICTY and ICTR created good precedents for the prosecution of individuals who perpetrated sexual violence.

For the ICTY, the most influential  case was Prosecutor v. Tadic, a case in which it was never proven that the defendant had directly committed sexual violence but instead found him responsible for participation in a campaign of terror manifested by murder, rape, and torture. The tribunal effectively created an innovation aimed at influencing parties to curtail their brutality.

The ICTR’s chestnut case was prosecutor v. Akayesu, as it was the first case to define rape and sexual violence in a post-conflict context. Prosecuting sexual aggression was one of the chief objectives of the tribunal. The ICTR was also groundbreaking because it dealt almost entirely with internal armed conflict, and likened rape to the same level as torture under the Geneva convention.

Recently, former Central African Republic military commander, Jean-Pierre Bemba Gombo was sentenced to 18 years by the Hague for both war crimes and crimes against humanity (rape and murder). Mr. Gombo was a commander of a contingent of Mouvement de Libération du Congo (MLC) from October 26, 2002 until March 15, 2003.[9] Mr. Gombo’s conviction is groundbreaking because he was sentenced not only for his own crimes, but for the crimes of his subordinates, the first time that the doctrine of command responsibility was utilized in an ICC prosecution.

 

About the Author: Hojae Chung is a 2L at Penn State Law.

* This is the first part of a series on the progress on prosecution of war crimes.

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[1] Inger Skjelsbaek, Sexual Violence and War: Mapping Out a Complex Relationship, European Journal of International Relations Vol.7, no. 2 (June 1, 2001) http://file.prio.no/publication_files/prio/Skjelsbaek%202013.EJIR.pdf

[2] Definitions, Ethnic Cleansing, UNITED NATIONS OFFICE ON GENOCIDE PREVENTION AND THE RESPONSIBILITY TO PROTECT http://www.un.org/en/genocideprevention/ethnic-cleansing.html

[3] Michelle Lent Hirsch, Bosnia, WOMEN’S MEDIA CENTER (February 8, 2012) https://www.womensmediacenter.com/women-under-siege/conflicts/bosnia

[4] Rwanda: How the genocide happened, BBC.com (May 17, 2011) http://www.bbc.com/news/world-africa-13431486

[5] Binaifer Nowrojee, Sexual Violence during the Rwandan Genocide and its Aftermath, Human Rights Watch Women’s Rights Project (September 1996) https://www.hrw.org/reports/1996/Rwanda.htm

[6] Rome Statute of the International Criminal Court, International Criminal Court (July 1, 2002) https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf

[7] Statutes, UPDATED STATUTE OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA, United Nations (September 2009) http://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf

[8] Statutes, STATUTE OF THE INTERNATIONAL TRIBUNAL FOR RWANDA, United Nations (2007) http://legal.un.org/avl/pdf/ha/ictr_EF.pdf

[9] Background, Jean-Pierre Bemba Gombo, International Justice Monitor (2014) https://www.ijmonitor.org/jean-pierre-bemba-gombo-background