RAPE; A WAR CRIME OR JUST COLLATERAL DAMAGE OF WAR?

Rape had always been a bitter reality of every society but its recognition as a war crime
received enormous attention globally. Rape has always been used as a lethal weapon
during war and conflicts but was never solely discussed until the mid-1990s. Women
and girls are the primary victims of systematic rape but it also includes men and boys.
The most apparent consequences include unwanted pregnancy, adverse psychological
effects, sexually transmitted diseases, genital injuries, and ethnic cleansing. These
consequences have a dire and catastrophic result on the community as a whole.

Rape Under International Law

Rape is prohibited under International law but not many conventions and treaties
explicitly mention rape. They include rape under the umbrella of “violence to life and
person”, “harming one’s dignity” and “torture or cruel inhumane treatment” 1. A few
international treaties and conventions that mention rape as a crime include “the 1994
Inter-American Convention on the Prevention, Punishment, and Eradication of Violence
against Women, the 1993 UN Declaration on the Elimination of Violence against
Women, the Inter-American Commission on Human Rights, the Statute of the
International Criminal Court (ICC), and the International Criminal Tribunals for the
Former Yugoslavia and Rwanda”.
Geneva Convention of 1949 and its additional protocols of 1977 protect women from
persecution specifically rape, prostitution, or any form of assault 2.
Under the international humanitarian law 3 published in 2005 by the ICRC, rape is
prominently classified as a breach of humanitarian law in international and non-
international conflicts. Rape falls under the ambit of torture and inhumane treatment
hence is a grave breach of Geneva convention 4 regardless of gender and age. Systematic
rape carried during a conflict for terrorizing a whole community is considered to be a
valid ground for the recognition of refugees under the 1951 convention on refugees by
the UNHCR. ICTY recognized rape as a war crime in 1993 and under its Rule of

1Merger, S. (2011) “Rape in Contemporary Warfare: The Role of Globalization in Wartime Sexual Violence”,
African Conflict and Peacebuilding Review, Vol. 1, No. 1 available at
http://www.jstor.org/stable/10.2979/africonfpeacrevi.1.1.100
2Geneva Convention article.27, Additional Protocol 1 article.76 and Additional Protocol 2 article.4
3Rule.93
4Geneva Convention article.50, 51 and 130
Procedure and Evidence5 requires a light burden of proof in cases of sexual violence but
its jurisdiction is limited to the crimes committed in the former Yugoslavia 6.

Case study of Former Yugoslavia

The increase and acceleration in systemized rape cases in Bosnia and Herzegovina
instigated the international criminal tribunal for Yugoslavia to address the issue
transparently. After the division of Yugoslavia in the 1990s, the issue of rape in times of
war was brought up to the United Nations. The time of Bosnian and Kosovo war from
1991 to 1999 has been described as "especially alarming". During the Kosovo war,
thousands of Kosovan women and young girls were subjected to rape and gang sexual
assaults. Approximately 20,000 to 50,000 women were raped during these conflicts.
The majority of rape victims were Muslim women although men and young boys were
also subjected to sexual violence the number was far less than women. The first case in
ICTY where the offender was charged with rape and sexual violence was Prosecutor vs
Tadic. During the Kosovo war, women and young girls became a victim of brutal sexual
assault. Women were raped and assaulted in front of their families to traumatize them.
Ethnic cleansing was one of the major causes of war rape in Kosovo.

Democratic Republic of Congo

One of the gravest cases of rape as a war crime is reported in Congo. According to a
2010 study, almost 22% of men and 30% of women in Eastern Congo have been
subjected to sexual assault. Several social workers and commentators have described
the incident as a "weapon of war" and an effort to cleanse the whole community of its
roots. Congo has a total of 22% reported men victims of rape whereas the number
might be greater than this, many men do not come forward due to the fear of being
labeled as "homosexual" which is a crime in Congo and other 30 African countries.
Evidence of rape cases emerged when the UN moved its missions to restore peace in the
area. Tens and thousands of cases have been reported since forced pregnancy, Sexually
transmitted diseases, genital mutilation, and incontinence.
In 2010 after the peacekeepers of the UN were moved to protect and restore peace
more than 400 cases have been reported failing to serve the purpose.

5ICTY statute article. 5.g and Rule.96 of Rule of Procedure and Evidence
6Quitter, B. (2013), “Rape as a war crime. Prosecution of Sexual Violence in the International Community”,
available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2498208
Bridging the gap
Keeping all the facts and the figure provided above in view I would like to state that
women have always been used as pawns to climb the ladder till checkmate. Women
have been objectified throughout history. "Inter Arma Enim Silent Leges' ' during the
time of war law falls silent certainly Cicero highlighted the very truth of a conflict zone
but for years the oppression on women has gone unnoticed. For the past two decades,
the international community has been discussing and working on rape as a war crime
numerous cases are reported but only an extremely small number of offenders were
convicted. During the Rwanda genocide and Congo conflict, thousands of women were
subject to sexual assault in front of their families most of them carried through
unwanted pregnancies and some went for the unsafe abortion options. However,
international law has taken the first few steps in assuring protection to women and men
from the sexual assault but rape as a war crime should be mention explicitly. The
convention should be drafted solely to protect men, women, and young ones from
sexual assault at the time of war or any conflict. There should be a provision dealing
with the availability of psychological and physical medical care to conflict zones or
communities that have faced war or conflict.
A committee should be set up to discuss potential peace restoring policies and health
care facilities for areas like Congo, Rwanda those of which are still facing post-war
trauma.
In the words of Ms. Zainab Hawa Bangura,
"Sexual violence in conflict needs to be treated as the war crime that it is; it can no longer
be treated as unfortunate collateral damage of war".

My name is Ghazaal Ali Khan. I am a third year law student from NHLD Kinnaird College,
Lahore.