Sexual violence

Essential Question: How is sexual violence interpreted and prosecuted, and why can it be considered a crime against humanity?

This chapter provides instructors with the tools to discuss sexual violence as it relates to war crimes and international law. The chapter will also encourage dialogue about sexual violence when it occurs outside the definition of war crime. The Crimes of War chapters referred to above may help in highlighting rape, sexual enslavement, and systematic rape in relation to genocide and crimes against humanity.

Sexual violence has been a tool of subjugation for centuries. Only within the 20^th century have rape, sexual enslavement and sexual violence been highlighted as elements of genocide or crimes against humanity and prosecuted as such. The conflicts in Rwanda and Bosnia have given new meaning and visibility to rape as a crime of war and highlighted the intentionality of its use as a strategic tactic in conflict.

Article 27 of the Fourth Geneva Convention of 1949 clearly states that "women shall be protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault." International courts have been relatively slow to engage prosecution of rape as a crime against humanity. The International Criminal Tribunal for Rwanda (ICTR), in a ground-breaking decision, convicted Jean Paul Akayesu, mayor of Taba Commune, of using rape as a crime against humanity and an instrument of the genocide in Rwanda. Akayesu was convicted on September 2, 1998 of encouraging and in some instances, ordering others to rape, murder and sexually abuse Tutsi women. Rwandan witnesses spoke of witnessing women being gang-raped and murdered while Akayesu watched.

The court concluded that the rape and sexual violence attributed to Akayesu and his command "was systematic and was perpetuated against all Tutsi women and solely against them." The trial chamber's decision considered the rape and sexual violence committed against the Tutsi women as demonstrating the intent to destroy a protected group in whole or in part and as such constituted "genocide in the same way as any other act." The court expressed its belief that Akayesu had systematically targeted Tutsi women in an attempt to destroy the Tutsi tribe as a whole.

This was a critically important international legal decision because it recognized the severity of crimes of sexual violence, most often committed against women. Many international organizations, such as the Coalition on Women's Human Rights in Conflict Situations, contend that a long-standing prejudice concerning crimes such as rape has existed in military and political institutions, which viewed it as a private crime or the act of "bad apple" individuals. In other cases, crimes of sexual violence have been overlooked simply because they are so commonplace. Creating severe legal consequences for such actions is essential to ensure that sexual violence is no longer a routine by-product of conflict.

Rape is presently regarded by the international community as a serious crime of war, crime against humanity, and a tool of genocide. Rape has successfully been prosecuted as a form of torture, a means of persecution and enslavement. It is regarded as torture when a public official directly inflicts, instigates or consents to the rape. The Akayesu trial is a landmark case and is now the cornerstone of future genocide and crimes against humanity prosecutions. The hope is that international courts and tribunals will continue to uphold this precedent. Providing adequate witness protection, proper training for investigators and the addition of more women on investigator teams is essential to securing the safety of women who seek to defend their right to a life free from sexual violence.

In late 1998, the International Criminal Tribunal for the former Yugoslavia (ICTY) ruled in the cases of Celebici, Furudzija, and Delalic that rape is a violation of the Laws and Customs of War and is a form of torture under the Geneva Conventions. In the Celebici case, the Trail Chamber considered the rape of any person to be a despicable act which strikes at the core of human dignity and physical integrity. The case of Furudzija was equally important because it was the first case to consist exclusively of rape charges. In the Delalic case, the Trial Chamber adopted the Akayesu definition of rape as a physical invasion of a sexual nature committed on a person under circumstances which are coercive.

Sexual enslavement is a particular classification of crime within the general terms of "sexual violence" and slavery. The ICTY also issued an indictment against eight Bosnian Serb soldiers for the enslavement and rape of Muslim women in the eastern Bosnian town of Foca during 1992 and 1993. The prosecution's focus was on various forms of sexual violence committed against women and girls in Foca during that period. This decision was significant for being the first sexual slavery prosecution in an ICTY's judgment. The Slavery Convention defines slavery as "the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised." Slavery in all of its forms, is a crime under international law, regardless of whether or not it is linked to combat situations or rape.

The crime of systematic rape does not exist within the established body of international law. Specifically defining rape as systematic, meaning as part of the tactics or tools to eliminate a population, helps to establish it as a crime of genocide, whose definition is narrowly defined. A necessary condition for establishing a crime against humanity is that acts of rape are either systematic or widespread. If not, the rape remains a criminal act and a crime of war.

1. It wasn't until 1998 that rape was successfully prosecuted as a crime against humanity and an instrument of genocide. What were the events that brought global attention to sexual violence during war? Why do you think that it took these events to make the world take notice?

2. In Thom Shanker's article "Sexual Violence" it says that, "civilians in non-international conflicts are protected by Article 3 common to the four Geneva Conventions of 1949. Civilians in both international and non-international conflicts are given further protection under the 1977 Additional Protocols to the Geneva Conventions."[1] Do you think that the international community has the right to intervene in non-international conflicts when rape is concerned? What conditions would have to exist to merit the intervention of the international community into the affairs of a sovereign state?

5. How did you feel after reading about Mirsada's story in the Crimes of War chapter "Sexual Violence: Enslavement" by George Rodrigue? Why do you think she never contacted the victims-rights attorneys to bring a separate civil lawsuit against her offender?

6. Were you aware that rape is considered a crime of war before reading the relevant chapters in Crimes of War and discussing in class? Why do you think it is important for people to know about this legislation? How do you think more people could become aware of this legislation?

7. Do you think that the international laws and conventions that define rape as a crime of war, crime against humanity, and instrument of genocide are sufficient to prevent rape from being used as a weapon of war? If so, why? If not, what additional laws, conventions, etc. must exist in order to stop rape from being used systematically as a weapon of war?

8. What definitions of slavery are provided in the Slavery Convention and in the International Criminal Court's statute? Do you agree with them? If not, what would you add to them?

9. Discuss the historical precedents for rape/sexual violence as a crime of war.

10. What are the current definitions of crimes of sexual violence and their corresponding legal prohibitions?

11. How is slavery defined by the statute of the International Criminal Court? What implications does this have for gender policy?

Read the account below, taken from a female refugee from a village in West Darfur interviewed by Amnesty International delegates in Goz Amer camp for Sudanese refugees in Chad, May 2004.[2]

I was sleeping when the attack on Disa started. I was taken away by the attackers, they were all in uniforms. They took dozens of other girls and made us walk for three hours. During the day we were beaten and they were telling us: "You, the black women, we will exterminate you, you have no god." At night we were raped several times. The Arabs(1) guarded us with arms and we were not given food for three days.

As a class, discuss who is involved (both local and international actors), why they are involved, and what is currently being done to address issues of rape and sexual slavery. To help with this discussion, students might read the rest of the Amnesty Report Summary: Women of Sudan (see footnote).

2. Divide the class into small groups. Using this chapter and the articles in Crimes of War, ask students to predict what will happen to the women in Sudan and to their perpetrators based on historical precedent and existing international laws, conventions, and protocols.

3. As a class, ask the group to share their predictions and discuss their differences.

1. Divide the class into small groups. Using the three chapters on sexual violence in Crimes of War, have each group create a timeline of the legal development of sexual violence and rape as crimes of war.

2. Once each group has completed their timeline, distribute discussion questions. Some questions to include are: What other legislation do you think might pass in the future to prevent and punish sexual violence and rape as crimes of war? What legislation do you think is most important to end sexual violence in times of war? Does it surprise you that only recently rape has been considered a crime of war? Why or why not?

3. When each group has finished discussing the questions in their small groups, have the students share their answers with the rest of the class.

April is Sexual Assault Awareness Month. More information about the Awareness Month can be found at www.nsvrc.org/saam.

Have students organize events for the month of April based on what they have learned about sexual violence and rape as a crime of war. Encourage students to organize skits and presentations or even distribute ribbons for students and staff to wear throughout the month of April. (Create your own school awareness campaign if activities in April are not possible.)

Calling the Ghosts: A Story About Rape, War and Women, directed by Mandy Jacobson and Karmen Jelinci (Bowery Productions, 1996). This documentary film explores the systematic use of rape during the war in the former Yugoslavia.

Rape: A Crime of War, directed by Shelley Saywell (National Film Board of Canada, 1996). Four women tell their stories of forced confinement, rape and degradation in Bosnia. Interviews and archival footage of war crimes hearings in Nuremberg, Nanking, Bosnia and Rwanda are included.

[1] Shanker, Thom. "Sexual Violence." Crimes of War. Eds. Roy Gutman, David Rieff and Anthony Dworkin. W.W. Norton & Company: New York, 2007.
[2] Women of Sudan from Amnesty International Country reports. Full report available at: www.amnesty.org/en/library/asset/ACT77/084/2004/en/1358d0af-d55f-11dd-bb24-1fb85fe8fa05/act770842004en.pdf.