Rape as a War Crime: State Sanctioned Degradation of Women

Posted: January 29, 2011 in Uncategorized
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By Peter Tonge

Student, Robson Hall Faculty of Law

University of Manitoba Winnipeg, Manitoba Canada R3T 2N2

 

Introduction

In his book Shake Hands with the Devil[1], Lieutenant General (LGen.)  Roméo Dallaire details the horrors of the Rwandan genocide which took place while he was the commander of the United Nations peace keeping force in that country. Some of the most striking parts of his account deal with the mass rape of civilian women and girls during the conflict. As he vividly recounts:

“For a long time I completely wiped the death masks of raped and sexually mutilated girls and women from my mind as if what had been done to them was the last thing that would send me over the edge….

 

…They died in a position of total vulnerability, flat on their backs, with their legs bent and their knees wide apart. It was the expressions on their dead faces that assaulted me the most, a frieze of shock, pain and humiliation.”[2]

 

LGen. Dellaire’s writing and his decision to speak publicly about the devastating effects his experiences had on his own life, brought the issues of genocide and rape as a weapon of war to the forefront in Canada and around the world. However, the use of rape in war is not new. In the epic poem the Iliad, written in the fifth century B.C., Homer refers to the possession of women during the Trojan War.[3] In the twentieth century, the use of rape in war was documented in both WWI and WWII. The practice continued during the Vietnam War and in civil war between Pakistan and Bangladesh during the 1970’s.

Rape as a weapon of war continues today. The rape of women and girls has been a brutal part of recent conflicts in Bosnia-Herzegovina, the Democratic Republic of Congo, Rwanda and Sudan and in too many other regions to fully enumerate here. The brutality took place despite the development and ratification of wide range international human rights instruments designed to address such degrading treatment both during peace time and in times of war.

This paper will review some of these human rights instruments and consider the obstacles that women and girls face when seeking justice for the crimes perpetrated against them. The effectiveness of a purely legal remedy will be evaluated and other possible solutions will be discussed.

Rape as a Weapon of War

 

Rape has been used as a weapon of war for thousands of years. In the epic poem the Iliad, written in the fifth century B.C., Homer refers to the possession of women during the Trojan War.[4] In the twentieth century, the use of rape in war was documented. In a 1937 incident which became known as the “Rape of Nanking”, the  invading Japanese forces raped and killed thousands of Chinese women.  The incident did not come to light until during the post WWII war crime tribunals. The Military Tribunal of the Far East heard testimony on the incident and  found that 20,000 acts of rape had occurred at Nanking.[5] During WWI the German armies used rape as a part of the battle plan during the invasions of Belgium and of France.  As constitutional law professor J.H. Morgan explains: “outrages upon the honour of women by German soldiers have been so frequent that is is impossible to escape the conviction that they have been condoned and indeed encouraged by German officers.”[6] The trials at Nuremberg following WWII documented the use of rape as a weapon of war during that conflict. For example, the record described the German invasion of Russia this way:

“Women and young girls are vilely outraged in all the occupied areas. In the Ukrainian village of Borodayevka, in the Dniepropetrovsk region, the fascists violated every one of the women and girls. In the village of Berezovka, in the region of Smolensk, drunken German soldiers assaulted and carried off all the women and girls between 16 and 30.”[7]

 

 

When the front lines later shifted, the Russian army perpetrated the same crimes on the German women. War historian Cornelius Ryan tells us: “Hordes of Russian troops … demanded the rights due the conquerors: the women of the conquered.[8]

It has also come to light that during WWII the Japanese army established front line brothels to service the Japanese Imperial Army. These 80,000-200,000 Asian women were sex slaves and were known as “comfort women”[9]

The practice continued during the Vietnam War. United States court martial statistics for rape and related charges during the conflict totaled 86 charges with 50 convictions.[10]

Rape is used as a weapon because it is extremely effective. As one writer bluntly put it:  “When I rape your woman ,… I will destroy your property. I will insult you. I will humiliate you. If I rape all your women, I defile an entire generation. And if I force your women to bear my children, I pollute your race.”[11]

When rape is used to violate the women in a society, it not only damages the women, but creates shame and fear in the society as a whole. As one doctor from the United States explains: “It (rape) produces a sense of inadequacy on the part of the collective heart of the race, a sense of worthlessness.”[12] This is particularly true in certain cultures, for example the Muslim culture. “For Muslim women, virginity is divine, incredibly precious… Once it is lost an unmarried women will not be accepted. A married woman who is raped may not be accepted by her husband.”[13] The brutality of rape leaves the women severely damaged. Perpetue, a young Rwandan woman, described her ordeal this way:

“…two Interahamwe watched over us while the others went to kill. The two were complaining they were feeling tired from all the killing. Then, one of them sharpened the end of the stick of a hoe. They held open my legs and pushed the stick into me. I was screaming. They did it three times until I was bleeding everywhere. Then they told me to leave. I tried to stand up, but I kept falling down. Finally I crawled outside. I was naked crawling on the ground covered in blood. I tried to ask someone on the road for help, but they thought I was a madwoman and just ignored me.” [14]

 

Sadly, the full effects of the use of rape in war goes far beyond the victimization and demoralization of the enemy and goes in fact to destroying the culture. As one writer on the use of rape in the Bosnia-Herzegovina conflict explained:

If husbands are never able to embrace again wives whom they know to have been violated, if women so violated recoil from sexual contact, if families reject daughters twice victimized, by violence and then by the strictures of a culture that esteems virginity – then it is possible that the rape policy  will help wipe out the Bosnian Muslims.” [15]

 

The impact of rape during war on a culture has become deadly with the spread of HIV and AIDS. Raping soldiers infect women with HIV, giving a death sentence not only to the woman, but to the children she may have as well. Causing these deaths has the effect of diminishing the culture and its ability to reestablish itself even further.

It is also important to note that in the conflicts discussed, rape has been used as a weapon, not by one side, one nation, or one people, but by all sides. Reports on some conflicts have shown that as the battle lines move in a conflict the same people are repeatedly victimized by whichever army, militia or faction who passes through the area. For example in Kimbombo in the Democratic Republic of the Congo : “The town changed  hands a half-dozen times, and each time, the soldiers of the new force would go on systematic campaigns of rape, designed to establish their control and to punish the women, who were accused of supporting the losers.”[16]

Rape in Current Conflicts

 

Bosnia-Herzegovina

 

The country of Yugoslavia was formed in 1918 with the merging of the Kingdom of Serbia and Montenegro with Croatia and Slovenia.  Cultural tensions existed between the four founding groups throughout Yugoslavia’s history. The tensions remained calm during the rule of Josip Tito, but began to rebuild following Tito’s death in 1980. In 1991,  Croatia and Slovenia seceded from Yugoslavia. Bosnia’s Muslim and Croatian majority also voted to secede from the Serbian dominated Yugoslavia. This vote prompted violent rebellion by Bosnian Serbs.[17] The Bosnian Serbs wished to create a “Greater Serbia” by clearing Bosnia of all non-Serbs.

Reports of human rights abuses, including rape as a weapon of war, were well documented during the conflict. Tadeusz Mazowiecki, the UN Human Rights Commission’s special envoy to Yugoslavia reported in 1993 that Serbian “ethnic cleansing does not appear to be the consequence of the war but rather its goal…This goal, to a large extent, has already been achieved through killings, beatings, rape, the destruction of houses and threats.”[18] A confidential European Community report  on the conflict estimated that 20,000 Muslim women had been raped as part of a deliberate pattern of abuse aimed at driving Muslims from the area.[19] These findings were confirmed by an Amnesty International investigation which found that although soldiers in each of the three warring factions have raped and abused women, Muslim women were the chief victims and the Serbs were the chief perpetrators.[20] Amnesty did not conclude that rape was used for genocide, but did conclude:

“[s]uch incidents would seem to fit into a wider pattern of warfare, involving intimidation and abuses against Muslims and Croats which have lead thousands to flee or to be compliant when expelled from their home areas out of fear of further violations”[21]

 

Human Rights Watch went much further. Following their investigation, that group published a report which stated: “[w]hat is taking place in Bosnia-Hercegovina is attempted genocide-the extermination of a people in whole or in part because of their race, religion or ethnicity.”[22] Faced with these reports from various international agencies and increasing pressure from the international community, The United Nations Security Council voted unanimously to establish a war crimes tribunal under Chapter 7 of the UN Charter. The report on the tribunal, produced by the UN Secretary General, outlined the terms of reference for the tribunal:

“The tribunal will hold high ranking persons individually responsible for giving unlawful orders to commit war crimes as well as for failing to prevent the unlawful behavior of their subordinates.”[23]

 

Importantly, the tribunal was given the power to prosecute war crimes “crimes against humanity” and genocide . The definition of “crimes against humanity” are rape, torture, and enslavement.[24]

Through the Yugoslavia Tribunal many men were successfully prosecuted for the crimes of rape, sexual slavery and sexual based torture. The tribunal established many international standards on the crime of rape including: the objective elements of rape,[25] the equal responsibility of all those involved in an incident,[26]that rape of a single individual may constitute a crime against humanity[27] and the elements of the offence of sexual slavery.[28]

Rwanda

 

From April to July 1994 the majority Hutu in Rwanda committed a genocide on the minority Tutsi people. As a major component of the genocide, Members of Hutu militias known as Interahamwe, civilians, and the Rwandan Armed Forces (Forces Armées Rwandaises, FAR) targeted Rwandan women and girls in a genocidal campaign of mass sexual violence.[29] The U.N. Special Rapporteur to Rwanda estimated that at least 250,000 women were raped during the conflict. Women and girls contracted sexually transmitted diseases, including HIV/AIDS; faced unwanted pregnancies, and health complications resulting from botched abortions; and suffered sexual mutilations and other injuries[30]

The Interahamwe and other Hutu groups were not the only perpetrators of rape. Human Rights Watch field research has documented rape and forced marriage by advancing soldiers of the Rwandan Patriotic Army (RPA)—the military arm of the Rwandan Patriotic Front (RPF), the majority Tutsi rebel group that defeated the genocidal government in 1994 and proceeded to form the new Rwandan government—against Tutsi women whom they had “rescued” from perpetrators of the genocide.[31]

LGen. Roméo Dallaire  was the commander of the United Nations peace keeping force in Rwanda at that time . In a book which won the Governor General’s award for Literature, LGen. Dallaire  details the horror of the Rwandan genocide.   Some of the most striking parts of his account deal with the mass rape of civilian women and girls during the conflict. As he describes the experience:

“For a long time I completely wiped the death masks of raped and sexually mutilated girls and women from my mind as if what had been done to them was the last thing that would send me over the edge….

 

…They died in a position of total vulnerability, flat on their backs, with their legs bend and their knees wide apart. It was the expressions on their dead faces that assaulted me the most, a frieze of shock, pain and humiliation.”[32]

 

LGen. Dellaire’s experiences had a devastating impact on his own life. Upon his return he struggled with alcoholism, depression and post traumatic stress syndrome. With medical and physiological help, LGen. Dallaire has managed to rebuild his life and has become a world leader, speaking about peace, on Rwanda and on genocide. In a recent interview on CBC television’s Hot Type he explained that he still carries daily guilt over not being able to stop the Rwandan genocide and that he holds himself personally responsible.[33]

As was the case in Bosnia-Herzegovina, the United Nations security council established The International Criminal Tribunal for Rwanda (ICTR) to prosecute crimes which took place during the genocide. The tribunal has jurisdiction over genocide, crimes against humanity, and violations of international humanitarian law committed in Rwanda and neighboring states.[34] The ICTR has tried twenty-three defendants in its ten-year history.[35]

The Tribunal’s decision in Prosecutor v. Akayesu.[36] was a landmark decision . In that case, the court recognized that rape can be a constitutive act of genocide under international law. Prosecution of other rape cases by the tribunal have been disappointingly rare.

By the end of the genocide period, Rwanda was a failed state. The country counted only 20 judicial personnel responsible for criminal investigations and only 19 lawyers.[37] The non existent Rwandan justice system was faced with prosecuting  more 120,000 people accused of genocide related crimes. In response the overwhelming task, the Rwandan government established four categories  of offenders subject to prosecution: category one for organizers or leaders of genocide, notorious killers, and persons who committed “acts of sexual torture”, category two for murderers or accomplices to murder or serious attacks, category three for persons who committed serious attacks without the intent to cause death, and category four for those responsible for property damage.[38] Persons convicted of category one crimes are eligible for life imprisonment or the death penalty. In addition to the establishment of both military and provincial courts, the Rwandan government established a community conflict resolution mechanism, known as gacaca, to deal with genocide prosecutions.

Persons accused of genocide or related crimes in categories two, three, and four are eligible for considerable reduction of their sentences through plea-bargaining in accordance with the provisions of the gacaca law. Category one offenders who confess may also have their sentences reduced.[39]

The large volume of cases, the complex judicial structure and the difficulty in reestablishing the shattered Rwandan justice system have led to long delays in prosecuting rape cases and in a growing reluctance for victims to come forward to pursue their cases.   These and other obstacles to justice for the women and girls victimized will be discussed in more detail later in this paper.

Democratic Republic of Congo

 

Violence in this region began in 1994 following the Rwandan genocide. Hutu militia the Interahamwe fled into neighbouring Zaire. The were pursued by Tutsi led Rwandan forces.[40] The conflict escalated in May 1997 when rebel forces took over Kinshasa, the capital of Zaire. The rebel leader Laurent-Désiré Kabila renamed the country the Democratic Republic of Congo and named himself President.[41] Since 1988  Congolese and Rwandan forces have continued to battle with the new regime.  In September 1999 The United Nations Security Council established a peace keeping force in the country, The UN Mission in the Democratic Republic of Congo (MONUC).[42] The force remains in the country, so far unable to stop the racially based violence. In January 2005 the Security Council increased both the size of the peacekeeping force and its mandate in an effort to stem the violence.

As was the case in Rwanda, this conflict has been rampant with sexual violence against women and girls. Amnesty International described the situation this way:

Tens of thousands of women and girls, and also men, have been raped at gunpoint by weapons-bearers, individually or collectively, in private or in public. The rape of boys is apparently on the increase. The rapes are often accompanied by other acts of extreme violence, including bayonet or gunshot wounds to the genitals of the victim. Many women have testified that they were raped after seeing their husbands and sons gunned down at point blank range: the rapes were then committed next to the corpses of their loved ones. The victims are left physically ravaged and emotionally traumatised, and many thousands suffer devastating long-term effects[43]

The rapists were indiscriminate attacking girls and women of all ages, included those injured or disabled. One young woman with a disability described her experience:

The entire population fled into the forest but because of my leg, I couldn’t leave. Three soldiers came into my hut and raped me, one after the other. After that, another group of three soldiers came and raped me. After I was raped, my disability became worse and now, I can’t look after my three-year-old. As the community looks down on us, we hide away.”[44]

Women and girls were also kidnapped and kept as sexual slaves. One 17 year old told Amnesty International:

“In 2002, I was abducted by an interahamwe soldier. When I arrived at their camp, they took away all my clothes, just to humiliate me. As I was naked, I had to find animal skins to cover myself. I had to live in the bush with them. The combatants kept lots of girls and women like me. Almost every day, I was raped by soldiers.”[45]

The long-term effects truly are devastating. Many of the  victims were so brutalized, raped using machetes, gun barrels and bayonets , that they are left with torn genitals or fistula – torn vaginal walls. These injuries leave the victims incontinent. Unable to afford medical care, the girls and women are driven from their communities because of the constant incontinence.[46] HIV and AIDS pose an even more serious threat. Aid agencies believe one third of the rape victims have been infected.[47] Some estimates suggest that several million people in the country are infected with HIV or AIDS.[48]

There have also been serious allegations of sexual abuse and exploitation by members of the United Nations Peace keeping force. The allegations included instances of rape and prostitution of minors. The victims were mainly women and girls at camps for internally displaced persons. [49] In response to this the United Nations has established a Conduct and Discipline unit within the MONUC. To date the unit has conducted 111 investigations[50]. No results of these investigations have been released.

Sudan

 

The Darfur region is in western Sudan near the borders with Chad and Libya. In recent years the region has suffered because of extended periods of drought, and increased competition for scarce resources. The fight over resources has resulted in on-going clashes between  local guerrilla groups and government  backed militia know as the  Janjawid.[51] The forces appear to have adopted a strategy of asset stripping: killing, looting villages, destroying wells, farming operations and other means of earning a livelihood.[52]

There have been reports of wide spread rape as the armed forces move from village to village. One man described the attack on his village:

“When we tried to escape they shot more children. They raped women; I saw many cases of Janjawid raping women and girls. They are happy when they rape. They sing when they rape and they tell that we are just slaves and that they can do with us how they wish.”[53]

 

Some rapists are particularly brutal, breaking limbs so that the women are unable to escape:

“The Janjawid were inside the houses and the soldiers outside. Some 15 women and girls who had not fled quickly enough were raped in different huts in the village. The Janjawid broke the limbs (arms or legs) of some women and girls to prevent them from escaping.”[54]

 

The destruction has forced as many as 1.88 million displaced people to flee to refugee camps.[55] Several refugee camps have been established in  Darfur and Chad by the United Nations High Commissioner for Refugees (UNHCR). Rapes have also been occurring in and around the refugee camps. United Nations observers have reported:

“The women unequivocally stated their great fear of living in this location (Kailek) due to the daily and nightly harassment and sexual abuse of the Janjawid in town. They expressed how they feel ‘imprisoned’ and how the women and girls have been raped and sexually abused when leaving the IDP setting … the women identified several of the rapists and abusers among the present group of armed elements. They explained how the perpetrators use to come to the setting during the night to abduct girls, bringing them to the nearby wadi where they would be raped.”[56]

 

Observers from UNICEF have also reported cases of public rape and gang rape in and around the camps. Women appear to be particularly vulnerable when they leave the camps to collect firewood. [57] This conflict has attracted little international attention. While tensions appeared to be lessening in the late summer of 2005, a more recent report from the UNHCR suggest that the conflict may be about to escalate. In an October 25, 2005 press release António Guterres stated:

“The security situation has deteriorated tremendously within the past six weeks, especially in West Darfur, with ambushes, hostage-taking and attacks on villages as well as on the Aro Sharow camp for displaced people …’[58]

Human Rights Protections

 

Since the United Nation’s Universal Declaration of Human Rights in 1949 many legal instruments have been developed to protect human rights. This section will review some of the human rights instruments that may be used to protect women from the crime of rape during wartime.[59]

The fourth Geneva Convention provides protections for civilians under enemy control in a conflict zone. Article 3(1) explicitly prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment.”[60] The treatment of girls and women that has been described in this paper are indeed outrages upon personal dignity and would therefore violate the Geneva Conventions.

The International Covenant on Civil and Political Rights applies to all persons who are within the territory of a country. Customary international law accepts that territory is claimed by a nation via armed occupation. This was confirmed in a recent case at the International Court of Justice Legal Consequences of the Construction Of A Wall In the Occupied Palestinian Territory[61]. In that case the court found that Israel was bound by the provisions of the ICCPR based on its” territorial jurisdiction as an occupying power.” [62]Following this logic, occupying forces who commit acts of rape would be in violation of article 7 of the ICCPR which states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”[63]

Similarly,  the Covenant Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment prohibits the intentional infliction of severe mental or physical pain on another. The application of the Covenant is clear: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”[64] Simply put,  a state cannot torture and must take measures to prevent torture. There are no exceptions, not even by public authority, or in a time of war. By any standard the brutal rapes of girls and women are torture. The perpetrators and their superiors are in violation of the Covenant Against Torture.

The genocide which occurred in Rwanda was racially based. The majority Hutu took advantage of a period of political instability to try to eliminate the minority Tutsis who had held power. The massacre which took place was driven, at least in part, by racist radio broadcasts. These broadcasts spread fear amongst the Rwandan populace, urged participation in the killing, shamed those who sought not to participate, and in many cases, specifically named and provided the whereabouts of those to be killed.[65] These activities are prohibited under the International Convention for the Elimination of All Forms of Racial Discrimination.  Article 4 provides that states: “Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race…”[66]

The Convention on The Elimination of All Forms of Discrimination Against Women (CEDAW) provides protection for women in two ways. First, Article 6 of the Convention requires parties “to suppress all forms of traffic in women and exploitation of prostitution of women”[67]. More importantly the Convention requires parties to remove barriers to women becoming involved in the legal, political and public institutions in society. As women become more involved in the power bases of society, it will become more difficult for this women to be marginalized and victimized during times of war.

The Human rights instruments discussed here as well as several others not outlined, provide a framework of legal human rights protections under public international law. While these instruments are an important means of identifying and condemning human rights violations, they are only effective legal tools for those who have access to them.

Obstacles to Justice for the Victims

 

The girls and women who are the victims of rape during wartime are some of the world’s most vulnerable people. They are damaged both psychologically and physically and are suffering from severe injuries and often the ravages of HIV/AIDS. During the conflict that brought rape upon them their husbands and families were all too often killed, leaving the girls and women alone to care for themselves and their children. These victims are not simply alone in terms of family or community supports, they find themselves living in failed states. States were there is no access to health care, counseling, housing, basic infrastructures or a justice system.

Daily survival, rather than a search for justice is the priority for many of these women. In Darfur the years of drought and the scorched earth policies of  warring factions means that food is in short supply. As a result the women are preoccupied with finding food and fetching water and firewood.[68]

Healthcare is also a predominant issue. Many of these women have been mutilated, but have little or no access to medical care. In Rwanda  for example, the genocide destroyed many medical facilities, particularly in rural areas. UNICEF estimates that 88 percent of women in Rwanda must walk more than

one hour to reach a health care center[69] In addition HIV and AIDS is rampant.  For example, an estimated 60 percent of the combatants in the war in the Democratic Republic of Congo have HIV. Aid agencies believe that a third of the women raped are infected.[70]

Shame and a lack of community support create huge barrier for women who might otherwise wish to report the crimes perpetrated against them.  In  the Muslim culture for example, once virginity is lost an unmarried women will not be accepted. A married woman who is raped may not be accepted by her husband.”[71] In Rwanda, rape prosecutions were transferred to community resolution courts know as gacaca courts in an attempt to relieve the overburdened upper court system. Sadly, the system discouraged women from testifying. Under the 2001 Gacaca Law, a rape victim who chose to

report rape to a gacaca court could testify orally or in writing before the general

assembly, which is composed of a minimum of 100 community members.[72] The judge was also required to read any written testimony aloud to those assembled. This of course was very traumatic to those already victimized, driving both witnesses and victims away from justice.

In most cases there simply was no justice system for these women turn to. Following the war in Bosnia there were no courts, no judges, no lawyers and no law books. As Vivienne O’Connor of the Irish Centre for Peace and Justice, put it: ‘there were no pencils.”[73] The situation in Rwanda was similar, By the end of

the genocide, Rwanda counted only twenty judges and only nineteen lawyers.[74]

Toward a Legal Solution

 

The solutions to the horrors of rape as a war crime are not found easily. The war crimes tribunal established following the war in Bosnia many men were prosecuted for rape and other sexual abuses. The tribunal establish a number of international norms for the prosecution of rape cases during wartime. The experience in Rwanda was disappointing. After only a few successful prosecutions, crimes of rape were given a lower priority and moved to community gacaca courts. Concerns of a lack of procedural fairness and a lack of privacy protections have kept victims away from the gacaca courts.

Following the end of the apartheid era, the government of South Africa, lead by Nelson Mandela,  established the Truth and Reconciliation Commission. The aim of the Commission was: “to promote reconciliation in South Africa’s divided society through truth about its dark past.”[75] The Commission did not prosecute crimes, but instead provided amnesty for those who were willing to tell the truth about their involvement in crimes. The Commission was chaired by the highly respected Archbishop Desmond Tutu. During the hearing 21,000 victims testified and over 7,000 applications for amnesty were considered.[76]

Amnesty in exchange for truth is based on the assumption that the telling of, and listening to, the truth has healing effects on both individuals and society as a whole.[77] By exposing the trauma of an entire nation, truth commissions help victims to locate their experience in a broader context of political violence.[78] However, the healing effects can only take place when the process is supported by the society as a whole, particularly by those at the highest level. Fortunately for South Africa,  the truth commission was championed by Nelson Mandela and Desmond  Tutu who were models of the benefits of reconciliation. Without this level of acceptance and support, the public airing of brutal crimes can bring shame, trauma and fear to the victims, as was the case with the public gacaca courts in Rwanda.

The Irish Centre for Peace and Justice has taken a different approach to addressing justice in failed states. The Centre, in Galway Ireland, has established a model code project. The project has developed a compendium of laws consisting of four annotated bodies: a draft penal code, a draft procedural code, a  code addressing pre-trial detention and imprisonment, and a draft police act. The codes are specifically designed to be used in a post conflict environment and are compliant with international law.[79] These codes can be used to quickly reestablish a legal framework for criminal prosecutions following a conflict. This could allow a rebuilding nation to prosecute war crimes locally while reestablishing a domestic legal system. Using this approach, the state would retain local control of the prosecutions and in the best case scenario the victims could be provided with community support. The model codes however, are only a partial solution, they do not address the need for basic resources, infrastructure and trained personnel required to establish a system of justice.

Ultimately, rape as a war crime will only stop when we address the underlying cause, that women are marginalized and devalued in society. Removing barriers to women and allowing them to be of  the legal, political and public institutions in society will make  more difficult for this women to be marginalized and victimized during times of war.

If women become equal participants in our societies, these brutal acts would bring outrage rather than shame. These women would no longer be seen as the property of the combatants. A root cause of this marginalization is poverty and a lack of education for women. Those in our society who are able must support women both financially and through education “in a manner which allows women to be full participants in the communities they choose.”[80] It is only when women have their place at the table that the atrocity of rape in wartime will stop.

Conclusion

 

Rape has been used as a weapon of war since the time of Homer and continues to be used in may conflicts today. Recent conflicts in Bosnia, Rwanda, the Democratic Republic of Congo and Sudan have all been marred by the mass rape of women, perpetrated by all sides in the conflicts. Since the establishment of the United Nations in 1949 a wide body of international and humanitarian law has developed to protect women and girls from these brutal crimes. For example, both Geneva Conventions and the Convention Against Torture explicitly prohibit inhumane and degrading treatment.

However, these legal instruments have not been effective tools for women. The victims of rape during a time of war are some of the world’s most vulnerable people. They are damaged both psychologically and physically and are suffering from severe injuries and often the ravages of HIV/AIDS. The demands of daily living, the need to get food, to provide for their children and to find medical care, take priority over the need for justice. The failed states which have resulted from these conflicts have no justice systems to which these women can turn.

The use of truth commissions or working to rebuild the justice systems using model legal codes , provide some procedural mechanisms to begin to provide justice for the victims. Ultimately, rape as a war crime will only stop when we address the underlying cause, that women are marginalized and devalued in society.

 

 

 

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[1] Roméo A. Dallaire, Shake Hands with the Devil (Toronto: Random House, 2003).

[2] Roméo A. Dallaire, Shake Hands with the Devil (Toronto: Random House, 2003) at 430.

[3] Homer, The Iliad (New York: Viking Penguin, 1990) at 81.

[4] Homer, The Iliad (New York: Viking Penguin, 1990) at 81.

[5] China News Digest, The Tokyo War Crimes Trials, online: <http://cnd.org/mirror/nanjing/NMTT.html&gt;.

[6] Susan Brownmiller, Against Our Will: Men, Women and Rape 38 (1975) at 42.

[7] Trial of the Major War Criminals Before the International Tribunal 456 (1947).

[8] Cornelius Ryan, The Last Battle 26 (1966).

[9] Danise Aydelott, Mass Rape During War: Prosecuting Bosnian Rapists Under International Law, Emory International Law Review.

[10] Susan Brownmiller, Against Our Will: Men, Women and Rape 38 (1975) at 97-99.

[11] Dianna Marder, Once Again, Rape Becomes a Weapon of War, Atlanta Journal and Constitution, February 17, 1993 at A1

[12] Statement of Dr. Stanley Ducharme, Boston University Medical Centre. Nightline: Rape as a Weapon of War Against Bosnian Muslims (ABC television broadcast, Jan 14, 1993).

[13] Leslie Sowers, Angered into Action; Use of Rape as a War Tactic in the Bosnian Conflict Has Prompted Muslim Women to Unite In Rare Public Protest, Houston Chronicle, June 8, 1993 at 1.

[14] Human Rights Watch, Shattered Lives: Sexual Violence During the Rwandan Genocide and its Aftermath, online:< http://www.hrw.org/reports/1996/Rwanda.htm&gt;.

[15] Anna Quindlen, Is Rape of Bosnians a Sophisticated form of Genocide?,  Dallas Morning News, March 17, 1993 at 27A.

[16] Stephanie Nolan, The War on Women, The Globe and Mail, November 27, 2004 at D1

[17] Danise Aydelott, Mass Rape During War: Prosecuting Bosnian Rapists Under International Law, Emory International Law Review at 600.

[18] UN Human Rights Envoy Presents Report on Croat and Muslim “War Crimes”, BBC;Summary of World Broadcasts, May 23, 1993 at C1.

[19] Danise Aydelott, Mass Rape During War: Prosecuting Bosnian Rapists Under International Law, Emory International Law Review Vol. 7, 1993 at 604.

[20] Amnesty International, Bosnia-Herzegovina: Rape and Sexual Abuse by Armed Forces 4 (1993).

[21] Ibid at 4.

[22] Brendan Murphy, Murder, Mayhem, Malice – The Evidence Mounts in Bosnia, San Diego Union Tribune, May 2, 1993 at G4.

[23] Report of the Secretary Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704, May 3, 1993.

[24] Report of the Secretary Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704, May 3, 1993, at 49.

[25] Askin, Kelly, Prosecuting War Time Rape and Other Gender Related Crimes Under International Law: Extraordinary Advances, Enduring Obstacles, 21 Berkeley J. Int’l L. 390 p.23.

[26] Ibid. at 24.

[27] Ibid at 23

[28] Ibid at 26.

[29] Human Rights Watch, Struggling to Survive: Barriers to Justice For Rape Victims in Rwanda, Vol. 16, No, 10(A) at 7.

[30] Ibid at 8.

[31] Ibid at 8.

[32] Roméo A. Dallaire, Shake Hands with the Devil (Toronto: Random House, 2003) at 430.

[33] CBC Newsworld, Hot Type, February 2005.

[34] Human Rights Watch, Struggling to Survive: Barriers to Justice for Rape Victims in Rwanda, Vol. 16, No. 10(A) at 9.

[35] Ibid.

[36] Prosecutor v. Akayesu, Case No. ICTR-96-4-T (Trial Chamber) September 2, 1998.

[37] Human Rights Watch, Struggling to Survive: Barriers to Justice for Rape Victims in Rwanda, Vol. 16, No. 10(A) at 13.

[38] Genocide Law Article 2.

[39] Organic Law No. 16/2004.

[40] Stephanie Nolan, The War on Women, The Globe and Mail, November 27, 2004 at D1.

[41] United Nations, United Nations Mission in the Democratic Republic of Congo Chronology, online: <http://www.monuc.org/news.aspx?newsID=884&gt;.

[42] Ibid.

[43] Amnesty International, Democratic Republic of Congo: arming the east AFR 62/006/2005, July 5, 2005

[44] Amnesty International, Democratic Republic of Congo: Mass Rape – time for remedies AFR 62/018/2004, October 2004 at 18.

[45] Amnesty International, Democratic Republic of Congo: Mass Rape – time for remedies AFR 62/018/2004, October 2004.

[46] Stephanie Nolan, The War on Women, The Globe and Mail, November 27, 2004 at D1

[47] Ibid.

[48] Amnesty International, Democratic Republic of Congo: Mass Rape – time for remedies AFR 62/018/2004, October 2004.

[49] Amnesty International, Democratic Republic of Congo: Mass Rape – time for remedies AFR 62/018/2004, October 2004 at 15.

[50] United Nations, United Nations Mission in the Democratic Republic of Congo Conduct, online: <http://www.monuc.org/news.aspx?newsID=855&gt;.

[51] UNICEF, The Effects of Conflict on Health and Well-being of Women and Girls in Darfur,  online: <http://www.unicef.org&gt; at 8.

[52] Ibid.

[53] Amnesty International, Sundan-Darfur: Rape as a weapon of war: sexual violence and its consequences, July 19, 2004.

[54] Ibid.

[55] UNICEF, The Effects of Conflict on Health and Well-being of Women and Girls in Darfur,  online: <www.unicef.org> at 8.

[56] United Nations. Inter-Agency Fact Finding and Rapid Assessment Mission. Kailek Town, South Darfur. 25 April 2004. at 4.

[57] UNICEF, The Effects of Conflict on Health and Well-being of Women and Girls in Darfur,  online: <www.unicef.org> at 20.

[58] UNHCR, Situation in Darfur seriously degenerating, online: <http://www.unhcr.ch/cgi-bin/texis/vtx/news/opendoc.htm?tbl=NEWS&page=home&id=435d130e4&gt;.

[59] This paper looks at the issue of rape as a weapon of war globally, rather than during one particular conflict. Therefore, the parties to the various Conventions are not considered here.

[60] Fourth Geneva Convention, International Committee of the Red Cross, online: <http://www.icrc.org&gt;.

[61] [2004] I.C.J. No. 131.

[62] Ibid at 112.

[63] United Nations Office For the High Commissioner For Human Rights, International Covenant on Civil and Political Rights, online:< http://www.unhchr.ch/html/menu3/b/a_ccpr.htm>.

[64] United Nations Office For the High Commissioner For Human Rights, International Covenant Against Torture Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 2(2), online: <http://www.ohchr.org/english/law/cat.htm&gt;.

[65] William Ferroggiaro, The U.S. and the Genocide in Rwanda 1994, August 20, 2001, online: <http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB53&gt;

[66] United Nations Office For the High Commissioner For Human Rights, International Convention on the Elimination of All Forms of Racial Discrimination, online: <http://www.unhchr.ch/html/menu3/b/d_icerd.htm&gt;.

[67] United Nations Division for the Advancement of Women , Convention on the Elimination of All Forms of Discrimination Against Women, online: <http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm&gt;.

[68] UNICEF, The Effects of Conflict on Health and Well-being of Women and Girls in Darfur,  online: <www.unicef.org> at 16.

[69] UNICEF, Rwanda: Facts and Figures,  April 23, 2004, online: <http://www.unicef.org/infobycountry/20289_20292.html&gt;.

[70] Stephanie Nolan, The War on Women, The Globe and Mail, November 27, 2004 at D1.

[71] Leslie Sowers, Angered into Action; Use of Rape as a War Tactic in the Bosnian Conflict Has Prompted Muslim Women to Unite In Rare Public Protest, Houston Chronicle, June 8, 1993 at 1.

[72] Human Rights Watch. Struggling to Survive: Barriers to Justice For Rape Victims in Rwanda (2004) 16 Human Rights Watch No. 10(A).

[73] Canadian Council on International Law, Annual Conference, Ottawa Ontario, October 27, 2005.

[74] Human Rights Watch, Struggling to Survive: Barriers to Justice for Rape Victims in Rwanda, Vol. 16, No. 10(A), P.13

[75] BBC News, South Africa Reconciled?, October 30, 1998, online <http://news.bbc.co.uk/1/hi/special_report/1998/10/98/truth_and_reconciliation/142673.stm&gt;.

[77] Doris Buss and Ambreena Manji, International Law Modern Feminist Approaches, (Portland:Hart Publishing, 2005) at 291.

[78] Ibid.

[79] Vivienne O’Connor, Model Codes For Post Conflict Criminal Justice, online: <http://www.nuigalway.ie/human_rights/Projects/model_codes.html&gt;.

[80] Radhika Coomaraswamy, “Violence Against Women and Crimes of Honour” in Lynn Welchman and Sara Hossain, ed., Honour: Crimes Paradigms and Violence Against Women (London: Zed Books, 2005)  at xiii.

 

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