With
the introduction of Common Article 3 in 1949, crimes against humanity in
non-international conflict became illegal under international law and were
therefore under the jurisdiction of international courts. However, sexual
violence, specifically rape, was not included as a crime against humanity
though it was acknowledged that even during World War II, all sides of the
conflict participated in forcible sexual violence. In 1998, the International
Criminal Tribunal for Rwanda (ICTR) set a precedent by convicting someone for
rape under a crime against humanity charge. This marked the first time rape was
a convictable offense in wartime rather than being considered a spoil of war to
which victors were entitled.
The
Fourth Geneva Convention, adopted in 1949, introduced common Article 3, which
applies to armed conflicts that are not international and that take place in
one country. Conflicts that are subject to Article 3 include civil wars,
internal armed conflicts that involve other states, or conflicts that garner
international support. Article 3 requires that any individual not participating
in the conflict, including those considered hors de combat due to injury or
other reasons is treated humanely and that those wounded in battle be properly
cared for. Additionally, it prohibits a variety of inhumane acts such as
torture, hostage taking, and failure to provide a trial before passing
sentencing.[1] Additional Protocol II was
introduced in 1977 and aims to offer further protections for victims of
non-international armed conflict. It works to clarify some of the ambiguities
in Article 3 and to ensure the sovereignty of states who might be experiencing
internal conflict. Protocol II states that,
Nothing in this Protocol shall be
invoked as a justification for intervening, directly or indirectly, for any
reason whatever, in the armed conflict or in the internal or external affairs
of the High Contracting Party in the territory of which that conflict occurs.[2]
The international community’s dedication to
national sovereignty also presents the issue of prosecution for crimes against
civilians and hors de combat in violation of Article 3 and Protocol II. As it
is a treaty and is not ratified or recognized by all nations, it is important
to note how it is that international criminal cases can be brought against
violators. In The Republic of Nicaragua
v. The United States, the International Court of Justice ruled, among other
decisions regarding sovereignty, that the U.S. had to comply with the decision
even though it objected to the proceedings. This, to many legal scholars,
indicates that states or parties being prosecuted had to comply, for “if a
state could only be sued when it wanted to be, a state would never be sued.”[3]
Rape
is one of the more overlooked and under talked about human rights violations in
conflict. For many centuries, rape was considered an inevitable outcome of war. Historically, armies considered the ability
to rape women on the opposing side of conflict a legitimate spoil of war.[4] Even
after World War II, neither of the courts set up in Nuremburg and Tokyo
recognized sexual violence as a war crime.
The International Criminal Tribunal for the Former Yugoslavia (ICTY) in
1992 included rape as a crime against humanity after sexual violence came to the
attention of the United Nations Security Council with the widespread rapes of
women in the former Yugoslavia.[5] In
addition to prosecuting rape as a crime, the ICTY also included sexual slavery
in the definition of slavery as a prosecutable crime against humanity.
In 2008 the United Nations passed UN Resolution 1820,
which formally described the act of rape as a “tactic of war and a threat to
international security.”[6] The
Resolution underscores the importance of acknowledging rape as a legitimate
threat and crime in conflict, both internal and international.
During the Rwandan
Genocide, between 250,000 and 500,000 women and girls were raped over three
months. Prosecutors Sara Darehshori and Pierre-Richard Prosper used this
information to argue that the act of rape was just as integral to the genocide
as the killing itself and worked to have rape prosecuted as a war crime under
the ICTR.[7] In Prosecutor v. Akayesu, the ICTR found that,
[…] In most cases, the rapes of Tutsi
women in Taba, were accompanied with the intent to kill those women. […] In
this respect, it appears clearly to the chamber that the acts of rape and
sexual violence, as other acts of serious bodily and mental harm committed
against the Tutsi, reflected the determination to make Tutsi women suffer and
to mutilate them even before killing them, the intent being to destroy the
Tutsi group while inflicting acute suffering on its members in the process.[8]
In the case of the Rwandan Genocide, rape was used
as both a tool for ethnic cleansing and as a form of torture before killing
victims. The Court defined rape as “a physical invasion of a sexual nature
committed under circumstances that are coercive.”[9] The ICTR
set a legal precedent for the prosecution of and conviction on the charge of
rape for the ICTY, which convicted someone of rape in 2001.
[1] “Geneva Conventions,” Council on Foreign Relations,
last updated February 2015, http://www.cfr.org/human-rights/geneva-conventions/p8778.
[2] “Protocol Additional to the Geneva Conventions of 12
August 1949, and relating to the Protection of Victims of Non-International
Armed Conflicts (Protocol II), 8 June 1977,” Treaties and Documents, International Committee of the Red Cross,
last updated August 2014, https://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=71FB1C6EEE672887C12563CD0051E768.
[3] Anthony D’Amato, “Nicaragua and International Law:
The Academic and The Real,” 79 American
Journal of International Law 657, 1985, http://anthonydamato.law.northwestern.edu/Adobefiles/A85d-nicar.pdf.
[4] “Background Information on Sexual Violence used as a
Tool of War,” Outreach Programme on the
Rwanda Genocide and the United Nations, United Nations Department of Public
Information, last updated 2015, http://www.un.org/en/preventgenocide/rwanda/about/bgsexualviolence.shtml.
[5] “Background Information on Sexual Violence used as a
Tool of War,” Outreach Programme on the
Rwanda Genocide and the United Nations, United Nations Department of Public
Information, last updated 2015, http://www.un.org/en/preventgenocide/rwanda/about/bgsexualviolence.shtml.
[6] “Rape: weapon of war,” United Nations Office of the
High Commissioner for Human Rights, http://www.ohchr.org/en/newsevents/pages/rapeweaponwar.aspx.
[7] Melissa Jeltsen, “A Look Back at the Trial That Made
Rape a War Crime,” The Washington Post,
July 29, 2014, http://www.huffingtonpost.com/2014/07/29/rwanda-genocide-rape_n_5602108.html.
[8] Count 13, Prosecutor
v. Jean-Paul Akayesu (ICTR-96-4-T), International Criminal Tribunal for
Rwanda, September 2, 1998, http://www.unictr.org/sites/unictr.org/files/case-documents/ictr-96-4/trial-judgements/en/980902.pdf.
[9] Nancy Sai, “Rwanda,” Women Under Siege, Women’s Media Center, February 8, 2012, http://www.womenundersiegeproject.org/conflicts/profile/rwanda.
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