Prosecuting Rape in Armed Conflict

By Nina Jones

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.

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[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.

The Controversy of Domestic Surveillance Programs

By Caitlin Barbas

Following the wake of the NSA leaks, the legality of the surveillance techniques of local and federal agencies throughout the United States have been questioned. Tracking of Americans has emerged as one of the most controversial areas of domestic surveillance. This essay will seek to analyze the arguments of the legality and illegality of these programs through the examination of the Federal license plate tracking program and the regional use of Stingray Surveillance.

Stingray Surveillance

            The Stingray Surveillance device allows the holder to track the location of a mobile phone by simulating a cell-tower. This simulation causes cell phones in the region to connect to the Stingray device and to transmit their information, such as phone numbers, unique electronic serial numbers, and phone and messaging logs, to the database of the Stingray.[1]

This technology is used throughout the United States by federal and local/state agencies. In particular, the perceived unchecked use of the device by local police has prompted the greatest backlash. The American Civil Liberties Union (ACLU) has taken the lead in opposition against the technology after requesting information from various Florida departments on the use of Stingray devices and the policies surrounding that use.[2] The secrecy of the technology has prompted many questions about the legality of the Stingray device. One of the main focuses of critics is that police departments frequently do not obtain a warrants or submit court filings before using the technology.[3] This is problematic because it contrasts the policies required for obtaining information from an actual cell-tower. A cell-tower will provide an approximate location (rather than the exact location produced with Stingray) and a warrant is required to obtain this lesser information on the phones from the companies controlling the cell-tower information.[4] In the instances that a warrant was obtained prior to the use of Stingray, critics argue that the wording of the warrant is too vague and does not provide judges with a full description of the information-collection procedures. Further complications emerge during the use of Stingray as the cell-phones of innocent persons in the area will also be recorded by the device.

License Plate Readers

A second case of concern in the United States is the use of License Plate Readers by the Drug Enforcement Administration. According to a report by the Wall Street Journal, “The primary goal of the license-plate tracking program, run by the Drug Enforcement Administration, is to seize cars, cash and other assets to combat drug trafficking.”[5] However, concerns have emerged as the program begins to grow. The massive database created by the DEA through their use of License Plate Readers is now being used by local and federal authorities handling cases outside of Southwest border-states and unrelated to DEA investigations, though access to the database is still controlled by the El Paso Intelligence Center (EPIC).[6] The lack of transparency into the program, has prompted criticism, as it is unclear whether the program is regulated by a court or by a set policy.[7]

These examples are two of many new surveillance-based information gathering procedures used by federal, state, and local authorities. While these new procedures may be efficient in apprehending criminals, the secrecy surrounding many of these practices has called their legality into question. Controversy emerges over the application of the Fourth Amendment to newer forms of technology, such as computers or cellular phones. The United States’ common law tradition relies on precedent and interpretation of society, however, this has left a distortion between defined constitutional rights and real-world practices. The law has not evolved quickly enough to the introduction of new technology. In order to rectify this problem, there must establishment of clear regulations and/or legislation governing these new procedures.

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[1] [1] Nakashima, Ellen. "Secrecy around police surveillance equipment proves a case’s undoing." The Washington Post. The Washington Post, 22 Feb. 2015. Web. 22 Feb. 2015. <http://www.washingtonpost.com/world/national-security/secrecy-around-police-surveillance-equipment-proves-a-cases-undoing/2015/02/22/ce72308a-b7ac-11e4-aa05-1ce812b3fdd2_story.html>.

[2] "Florida police used warrantless 'Stingray' surveillance over 1,800 times." RT America. RT, 24 Feb. 2015. Web. 24 Feb. 2015. <http://rt.com/usa/234875-aclu-florida-police-surveillance/>.

[3] Ibid.

[4] Nakashima, Ellen. "Secrecy around police surveillance equipment proves a case’s undoing." The Washington Post. The Washington Post, 22 Feb. 2015. Web. 22 Feb. 2015.

[5] Barrett, Devlin. "U.S. Spies on Millions of Drivers." The Wall Street Journal. The Wall Street Journal, 26 Jan. 2015. Web. 22 Feb. 2015. <http://www.wsj.com/articles/u-s-spies-on-millions-of-cars-1422314779>.

[6] Ibid.

[7] Lewis, Renee. "DEA program capable of tracking movements of millions, ACLU says." Aljazeera America. Aljazeera, 27 Jan. 2015. Web. 22 Feb. 2015. <http://america.aljazeera.com/articles/2015/1/27/license-plates-spying.html>.

Headscarf Bans in France and Religious Freedom

By William Reed

With Islamic extremism becoming more and more of a hot-topic in European politics and everyday life, the French headscarf ban debate has come under closer scrutiny.  In 2004, France outlawed all conspicuous religious symbols in the public space.  All Christian and Jewish symbols are also banned, but many critics believe the ban targets Muslim headscarves.  In July of 2014, the European Court of Human Rights upheld a French ban on all full-face veils in public, affecting specifically those women who wear a niqab or burqa.[1]  The ruling highlights the grey area concerning to what extent the state should be allowed to dictate the expression of its citizens, and how the state's rights interact with human rights.

                  The issue stems from the increasing visibility of Muslim identity across the globe and the Western view that headscarves are a symbol of gender oppression and extremism "forced onto women by a patriarchal religion."[2]  The obligation of Muslim women to wear headscarves comes from the Quran, the holy text of Islam.  Although there is no explicit reference to a headscarf use, the language of the text has been interpreted as such.  Thus, one side of the debate defends Muslims’ right to wear a headscarf as a legitimate expression of religion.  This view is protected not only by international human rights but also by many domestic state laws around the world.

                  Since wearing headscarves is assumed to be protected as a legitimate expression of religion, all international cases regarding headscarf bans must be analyzed based on whether or not the interference with that form of religious expression is justified.  This subjective analysis varies from country to country.  In France, there is a strong history of secularism, known as laïcité, whose sentiments lead the charge to outlaw all forms of religious expression in the public domain.  Further, France has tried to maintain a broad, inclusive, imagined national identity; some believe that overt religious expression undermines this identity.  However, religious freedom is guaranteed by the French constitution and is "limited only by restrictions in the interests of public order."[3]

                  There are a few reasons why governments decide to ban religious clothing, particularly the headscarf.  The first and most obvious reason is adherence to a strict division between church and state.  However, by banning certain forms of religious expression, governments may, paradoxically, become even more involved in religion.  Governments that impose such a ban justify the law based on morality in that they prevent women being coerced in to wearing headscarves.  The extent to which Muslim women are forced to wear headscarves is difficult to determine, but generally it is assumed that there is not much coercion and most women choose to wear hijabs or burqas for their own personal reasons.  Another argument follows that the state is protecting the equality of women.  The final argument is that headscarves can be seen as a symbol of terrorism and extremism and thus a threat.

                  The success of such goals is not easy to measure but can be analyzed to a certain extent.  First one must ask if women wearing headscarves are really contributing to the rise of global terrorism and religious extremism and if banning headscarves would thus reduce these threats.  Common sense points to the conclusion that sartorial choices are not a significant factor in the global war on terrorism and extremism.  Second, one must question whether Muslim women really need such drastic “rescuing” by Western governments from their oppressive religion.  Based on the guaranteed freedoms of expression and religion, women should be making the choice for themselves how they express their religion and governments should thus have no place judging the merits and morals of religions.[4] 

Additionally, Muslim women who wear headscarves are a minority within French Muslims and Muslims are a minority in France.  By removing such guaranteed freedoms, this already marginalized group is pushed even further away from mainstream society.  If bans are directed toward achieving equality, this is a step in the wrong direction.  Headscarf bans are extremely narrow, affecting a minority of a minority.  Similarly, such laws achieve no equality of religions because they are aimed at one religion only.[5]  While officially, the laws apply to all religious groups, they are clearly aimed at headscarves.[6]

Following the tragedies at Charlie Hebdo in France and other related incidents in the early part of 2015, the issue of religious control by the state will only become more prevalent in European politics.  The same incidents increase fear mongering and stereotyping in the West aimed toward Muslims.  The issue of the headscarf is a particularly heated argument, and France and court cases concerning the relationship between state control and human rights are gaining international publicity.  With recent developments, it seems that the headscarf issue can only become more divisive and contentious.  

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[1] Human Rights Watch. "France: Face-veil ruling undermines rights".  http://www.hrw.org/news/2014/07/03/france-face-veil-ruling-undermines-rights. Web.  July 3, 2014.

[2] Osman, F. "Legislative Prohibitions On Wearing A Headscarf: Are They Justified?." Potchefstroom Electronic Law Journal 17.4 (2014): 1318-1349. Academic Search Complete.

[3] Adrian, Melanie. "Laïcité Unveiled: A Case Study In Human Rights, Religion, And Culture In France." Human Rights Review 8.1 (2006): 102-114. Academic Search Complete. Web.

[4] Body-Gendrot, Sophie. "France Upside Down Over A Headscarf?." Sociology Of Religion 68.3 (2007): 289-304. Academic Search Complete. Web.

[5] Vickers, Lucy. "Religious Freedom: Expressing Religion, Attire, And Public Spaces." Journal Of Law & Policy 22.2 (2014): 591-611. Academic Search Complete.

[6] Thomas, Elaine R. "Keeping Identity At A Distance: Explaining France's New Legal Restrictions On The Islamic Headscarf." Ethnic & Racial Studies 29.2 (2006): 237-259. Academic Search Complete.