This post is a continuation of “Conflict-related sexual violence: what are we talking about? (Part 1),” posted yesterday morning.
III. …and took time to be prosecuted as a crime against humanity and a war crime.
For centuries, CRSV crimes did not preoccupy international tribunals. While sexual violence had been committed during World Wars I and II, impunity for such crimes was considered as normal before the Nuremberg or Tokyo tribunals. Rape was assimilated to bad treatments committed against civilians, and sexual violence in conflict was perceived as a collateral damage. If none of CRSV crimes were prosecuted at that time, it is because these crimes did not exist under international law. Pursuant to the principle of legality, developed by Cesare Beccaria in the 18th century and also known as nullum crimen, nulla poena sine lege, no one can be convicted of a criminal offence in the absence of a clear and precise legal text.
The first major step in the criminalization and recognition of sexual violence in conflict was the four Geneva Conventions of 1949. Common article 3 does not expressly mention rape nor other forms of sexual violence, but bans “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture,” and “outrages upon personal dignity, in particular humiliating and degrading treatment.” Article 27 of the Fourth Geneva Convention holds that “women shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution or any form of indecent assault.” In addition, rape is expressly mentioned in article 4§2 of Additional Protocol II of 1977, which states that outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault are and shall remain prohibited at any time and any place.
The NGO We ARE Not Weapons of War notes that, in 1992, the issue of the mass rape of women in former Yugoslavia came to the fore at the United Nations Security Council, which declared that the mass, organized, and systematic detention and rape of women, in particular Muslim women, persecuted in Bosnia and Herzegovina constituted “an international crime that was not to be ignored.”
A few years later, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) were the first tribunals whose Statutes explicitly included CRSV crimes. Article 5 of ICTY Statute and Article 3 of ICTR Statute included rape as a crime against humanity, alongside other crimes such as torture and enslavement. In 1998, the ICTR became the first international tribunal to consider the acts of sexual violence as constituting genocide. In its judgment against a former Rwandan mayor, Jean-Paul Akayesu, it considered rape and sexual assault to be acts of genocide insofar as they were committed with intent to destroy a protected group, in whole or in part.
Since 2002, the International Criminal Court (ICC) allows to hold accountable perpetrators of CRSV crimes. Pursuant to the Rome Statute, rape can constitute both as a crime against humanity (article 7) and a war crime (article 8). Nevertheless, the Rome Statute of the ICC also criminalizes sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and any other form of sexual violence of comparable gravity (article 7).
The Security Council Resolution 1820, adopted in 2008, summarizes the previous developments made by the ICTY, ICTR and ICC, reasserting that rape and other forms of sexual violence can constitute a war crime, a crime against humanity, or a constitutive act with respect to genocide.
Despite Rome Statute’s legal provisions about CRSV, the ICC’s first cases reflected failures of both prosecutors and judges to fully capitalize on it. As the NGO International Federation for Human Rights pointed out, in situations where sexual and gender-based violence is massively and systematically committed, the ICC has often failed to confirm charges (such as in the Lubanga case), secure arrest warrants (Lubanga case), and convict individuals with respect to the full range of CRSV crimes (Lubanga or Gbagbo and Blé Goudé cases). The Office of the Prosecutor’s early investigation plans also showed a lack of prioritization of sexual and gender-based violence. In addition, the Office has sometimes been forced to drop specific charges for rape and sexual violence, such as in the Katanga case. Furthermore, despite the development of the OTP 2014 Policy Paper on Sexual and Gender-Based Crimes, the lack of ICC judges’ expertise and sensitization regarding sexual and gender-based violence may also be one of the reasons for the small number of convictions related to sexual and gender-based violence charges.
This trend has recently changed with the Bosco Ntaganda’s judgement of early November 2019. So called Congolese “Terminator” had been convicted on 18 counts including rape and sexual slavery making him the first militia leader to be convicted of the latter crimes by the Court. While impunity has for too long remained the rule, and justice, the rare exception, we can regret that this trend has not yet radically changed. We will continue to learn more on the scourge of sexual violence in conflict in the next blogpost, developing on the consequences of CRSV crimes on victims and survivors’ needs.
This blogpost and the author’s attendance to the 18th Assembly of States Parties to the International Criminal Court are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.