Rape as a Crime under International Humanitarian Law

Name: Cut Zurraturrahmi

Humanitarian Law

Words: 2.966

Ilmu Hukum

Universitas Syiah Kuala

2021

1
Background

International humanitarian law (IHL) throughout most of its gestation evolved

separately from human rights law. Indeed, prohibitions against wartime sexual violence

enumerated in the Geneva Conventions or the Protocols to the Geneva Conventions pre-date

CEDAW and other modern human rights instruments or provisions that specifically address

gender discrimination. Trial chambers sitting in the recently created international criminal

courts, the ad hoc tribunals and mixed courts are challenged to deliver gender-competent

interpretations of humanitarian norms that govern war crimes, international crimes, and

doctrines of individual responsibility, such as command responsibility or procedural

safeguards of due process, especially in light of the plethora of evidence submitted by

witnesses recounting gender-based violence. In this light, the prosecution of rape, a core

violation of humanitarian law, serves as a measurement of the protection from gender-based

violence and of the right to equal access to judicial forum that is afforded women and girls.

As a result of the creation of judicial institutions and their co-existing international penal

jurisdictions, several definitions of the elements of rape as a crime exist. There is the

Gacumbitsi/Kunarac elements, from the ad hoc Tribunals for Rwanda and the Former

Yugoslavia (ICTR and ICTY respectively)1, the AFRC elements from the Special Court for

Sierra Leone (SCSL) and the Elements of the Crime of the International Criminal Court

(ICC). There are also the operative elements for rape from Special Panels for Serious Crime

Panels in East Timor (SPSC) and the Extraordinary Chambers of the Courts of Cambodia

(ECCC).

Swirling tension engulfs the these definitions and hence the adjudication of rape as an

international crime. Tension focuses on whether or not to include proof of the element of

“non-consent of the victim” in the definition of rape, and if included, how to legally and

1
ICTY,” The Prosecutor of the Tribunal Against Tihomir Blaskic”, online, http://un.org/icty/indictment.com, diakses
tanggal 02 Mei 2021

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factually interpret that element. Given that females, and increasingly girls, are the

overwhelming victims/survivors of rape in today’s armed conflicts. Rape is a violation of

personal dignity," and "Rape and sexual violence constitute one of the worst ways of harming

the victim as he or she suffers both bodily and mental harm 2." It is significant that the judges

referred to "he" as well as "she" because one of the horrible phenomena to come out of these

wars is the rape of men by men. For the first time in the history of humanitarian law, that

Chamber of the Rwanda Tribunal handed down a conviction for rape as a crime against

humanity, and they held further that the rapes, which had been condoned and encouraged by

Akayesu, also constituted the crime of genocide. To date, the Rwanda Tribunal has indicted

seventeen men and one woman for gender crimes, charging the suspects with genocide,

crimes against humanity, and war crimes 3. The Yugoslavian Tribunal sitting in The Hague

has convicted eight perpetrators of rape, has held sexual slavery to be a crime against

humanity, and more than half of its public indictments, including that of Karadzic 4, the

former head of the Republika Srbska, and Mladic, his army chief, incorporate gender

crimes5.

In the course of expanding the definition of torture within international humani-

tarian law, the Tribunal was required to reconsider the relationship between rape and torture for

the purposes of cumulative charging and conviction. The Tribunal held that rape and torture

could be cumulatively charged, on the implicit basis that rape does not inherently embody

gender discrimination as a constituent mental element. An instrumental feminist ‘re-order’

project will be ambivalent about this development, as treating rape and torture separately

2
Prosecutor v. Akayesu, Judgement, I.C.T.R., No. ICTR-96-4-T (1998), available at http://www.ictr.org/default.htm.

3
For information concerning the number and nature of the indictments issued by the Rwanda Tribunal, see generally
http://www.ictr.org.

4
Prosecutor v. Karadzic, Indictment, I.C.T.Y, No. IT-95-5/18 (1995), available at
http://www.un.org/icty/indictment/english/kar-ii951116e.htm.

5
For the number and nature of indictments issued by the Yugoslavia Tribunal, see generally http://www.icty.org.

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produces ‘more deterrence’ and ‘more retribution’ for crimes of sexual violence against

women. On a deeper level, however, Askin argues that defining the crime of rape as an

‘outrage on personal dignity’ makes the potential deterrence value of war crimes prosecutions

‘wholly useless’, as ‘the conduct being punished is termed vaguely, and the sexual nature of

the crime is indeterminable’.6

Sexual violence committed against women is deliberate (planned), systematic

violence and is not an incidental crime and tends to be used as part of a war strategy by the

disputing parties. In fact, in this case there have been violations of basic human rights,

especially those regulated by humanitarian law, which applies to armed disputes, namely that

every human being has the right to be free from violence, including women. Women have the

right to be free from violence, especially violence that is specifically directed against them,

regardless of the circumstances, including in a state of war. Therefore the importance of

enforcing rights For women to be free from violence is not only enforced during peacetime,

but also guarantees that protection should be carried out and enforced for women during

times of armed conflict.

Analyzes

 Rape as a War Crime

Rape is a violation of international law in general, and in particular of humanitarian

law, which applies during armed conflict. It is not always explicitly mentioned in most

international humanitarian law texts, but it is included in broader prohibited behaviors such as

“violence to life and person,” “outrages on personal dignity,” or “torture, or cruel, inhuman,

or degrading treatment or punishment.”

6
Askin, supra note 9, at 101 n. 31.

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Rape is a violation of personal dignity," and "Rape and sexual violence constitute one of the

worst ways of harming the victim as he or she suffers both bodily and mental harm." 7 It is

significant that the judges referred to "he" as well as "she" because one of the horrible

phenomena to come out of these wars is the rape of men by men.

Certain conventions and authorities that have explicitly recognized rape and sexual

violence as a form of torture include the1994 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 as explained further the

International Criminal Tribunals for the Former Yugoslavia and Rwanda (ICTY and ICTR).

The crime of rape has long existed under customary international law. The Leiber

Code listed rape as a specific offense, and made it a capital offense. The Hague Conventions,

World War II prosecutions, and the Geneva Conventions all reinforced the prohibitions on

rape and other sexual violence. Although it was not codified in their Charter, some evidence

of sexual violence was presented before the International Military Tribunals, after World War

II, most notably, before the International Military Tribunal for the Far East where rape was

first specifically referenced in the judgments.

Legal Protection of Women from Sexual Violence in the 1949 Geneva Conventions and

the 1977 Additional Protocols

The codification of sexually violent crimes, including wartime rapes, modestly

advanced in the late nineteenth and early twentieth centuries. This is termed the initial

modern period of IHL. Several military codes and treaties illustrate the progression. The 1863

Lieber Code, drew upon customary international law and forbade in Article 44, “all rape” and

7
Id. at 687 and 731.

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provided in Article 47 that “crimes such as rape are punishable.” 8 Article I of the Annex to

the II Hague Convention of July 1899 and Article I of the IV Hague Convention of 1907, and

admonished belligerents to “conduct their operations in accordance with the laws and

customs of war”9 that, sub silencio, prohibited all conventional war crimes, including rape. In

Section III, the Regulations to the IV Hague Convention of 1907, Article 46 states that during

periods of military occupation, “family honour must be respected.” In the decade after World

War I, the drafters of the 1929 Geneva Convention provided in Article 3, that, “Prisoners of

war have the right to have their person and their honour respected. Women shall be treated

with all the regard due to their sex,”10 a genteel phrasing of a prohibition against sexual

violence including rape.

If you look at the case that occurred in the Yugoslav conflict, violations of respect for

basic human values were neglected. In many cases of conflicts that occur, there are hardly

any conflicts that are free of human rights violations. This is because the parties to the

conflict are under control or low awareness, which results in violations easily occurring.

Security Council and the Secretary-General were giving specific attention to gender-

related matters. The suggestions were accepted, and the statutes of the two Tribunals set

important precedents in enumerating rape as a crime against humanity and entrenching

various procedural safeguards for the protection of victims and witnesses in sexual assaults.

The statute for the Rwanda Tribunal went even further than its Yugoslavian counterpart,

especially referring to "rape, enforced prostitution and any form of indecent assault" as

violations of Article 3 common to the 1949 Geneva Conventions.11

8
General Order 100, Instructions for the Government of the Armies of the United States by the Field by Order of the
Secretary of War, 24 April 1863 (“the Lieber Code”), Articles 44 and 47.
9
Convention Respecting the Laws and Customs of War on Land, and Annex to the Convention, Regulations Respecting the
Laws and Customs of War on Land (Hague IV), The Hague, 18 October 1907, 3 Martens (3rd) 461, 36 Stat. 2277, T.S. No.
59 (Hague Convention IV), reprinted in AM. J. Int’l. 90 51908, Supp. (The IV Hague Convention of 1907).444
10
Article 3 of the 1929 Geneva Convention Relating to Prisoners of War; the Victorian language of Article 3 permeated
several legal instruments, but did not occult the intent of the drafters to condemn sexual violence, including rape
11
Statute of the International Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations
of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide
and Other Such Violations Committed in the territory of Neighboring States, S.C. Res. 955, U.N. SCOR, 49th sess., 4353d

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 Specific provisions of the 1949 Geneva Conventions and their 1977 Additional

Protocols are meant to protect women from attacks on their honor, outrages on personal

dignity, humiliating and degrading treatment, and, in particular, rape, enforced prostitution,

or any form of indecent assault, in both international and non-international armed conflicts.

States Parties are also under the obligation, at any time and in any place, to ensure that

women are granted the fundamental guarantees provided by the Conventions, which prohibit

violence to life and person, in particular murder of all kinds, mutilation, cruel treatment, and

torture.

Special protection is given to women from all forms of sexual violence against them.

The protection referred to is expressly stated in article 27 of the second paragraph of the

convention, namely that: "a woman must be protected against every attack on her honor,

especially against rape, forced prostitution or any form of attack which violates morality."

there is a prohibition to take action / actions against women in armed disputes, especially in

relation to sexual violence. There are two actions that disputing parties are not allowed to

take against civilian women, namely:

(1) it is not allowed to commit acts / actions in the form of attacks on the honor of women, in

particular against rape and forced prostitution;

(2) it is not allowed to carry out any attacks that violate decency against women. The content

of the provisions in Article 27 of the second paragraph of the convention emphasizes more on

forms of sexual violence in the form of forced rape and prostitution.

Of course this is inseparable from the facts and experiences that occurred and experienced by

women during World War II as well as an implied recognition that women are indeed very

vulnerable to sexual violence in situations of armed conflict, especially rape. Even the ICRC,

in its People on War project, which operated in 1999 in countries that have been or are still

mtg., Annex, at art. 4, U.N. Doc. S/RES/955 (1994), 33 I.L.M. 1598

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experiencing war, revealed that of a number of women interviewed, reported that the

dominating case during the war was rape12.

 Rape and other forms of sexual violence as international crimes

Rape and sexual violence now have a firm foothold as specifically enumerated offenses under

international humanitarian law. Began in 1993 and 1994 after rape, and sexual violence, was

specifically codified for the first time as a recognizable and independent crime within the

statutes of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and for

Rwanda (ICTR). These two historic international instruments are now the foundation upon

which crimes of rape and sexual violence are punished.

And it all started quietly within the International Criminal Tribunal for Rwanda in the

case of the Prosecutor v. Jean-Paul Akayesu13. In that case, for the first time, rape and acts of

sexual violence were put on equal footing with all other offenses. The Akayesu decision also

held that rape or sexual violence can be prosecuted as genocide if the evidence shows that it

is accomplished with the intent to physically or psychologically destroy a group.

In the case of Delalic or Celebici camp which was decided by the ICTY in 1998, it

acknowledged that rape used as an interrogation tool was included in the context of torture

.These judgments recognized rape as a violation of the Laws and Customs of War and as a

basis of torture under the Geneva Conventions. The Trial Chamber of the ICTY held in

Celebici that it 3considers the rape of any person to be a despicable act which strikes at the

core of human dignity and physical integrity. The relationship between International

Humanitarian Law (HHI) and Human Rights (HAM) proves that the two can often be applied

12
Lindsey, Charlotte, Women Facing War, ICRC, Geneva, 2001, hlm. 52
13
Brouwer, Anne-Marie de. Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY
and the ICTR . Antwerp: Intersentia, 2005.

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equally and complement each other in situations of armed conflict, so that the basic rights of

every human being are increasingly guaranteed and protected.14

The International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda

(ICTR) as well as the International Criminal Court (ICC) have adapted their definition of rape

to include situations where rape is not an isolated and individual crime but is used on a large

scale as a method of war15. The Tribunals have also softened their requirements related to the

proof of non-consent of the victims, taking into account the impact of situations of massive

violence and war on legal and material requirements. A verdict on the perpetrator of sexual

violence is directly or indirectly declared to have committed war crimes and crimes against

humanity16.

Furthermore, the provisions contained in the ICC (International Criminal Court)

Statute, especially relating to the jurisdiction of the ICC, confirm that sexual violence is a

crime against humanity and war crimes. In detail, this provision is regulated in article 7 (1)

section (g) concerning crimes against humanity 17. This provision can of course be said to be

an improvement of the previous provisions, which are regulated in the ICTR Statute and

ICTY and also in the Geneva Conventions and at the same time reaffirming that sexual

violence is an act that is recognized as "The most serious crime", so that the ICC has the

jurisdiction to prosecute and punish any party (whoever) commits it. In addition, the

provisions of the ICC Statute indirectly indicate the protection of women from sexual

violence in any situation, especially in armed disputes.

Conclusion

14
Anne Sophie Gindroz, Hukum Humaniter : Suatu Perspektif, Pusat Studi Hukum Humaniter, Universitas Trisakti, Jakarta,
1997, hlm. 93.
15

16
Gardam, Judith. “Women, Human Rights and International Humanitarian Law.” International Review of the Red
Cross 324 (September 1998): 421–32.
17
See Anne-Marie L.M. de Brouwer, ‘Supranational Criminal Prosecution of Sexual Violence: The ICC and the
Practice of the ICTY and the ICTR’, p. 130.

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 Protection of women in armed disputes, especially in relation to sexual violence, has

been regulated in the Geneva Conventions IV 1949 and Additional Protocols 1977 in certain

articles. Apart from that, other legal instruments also act as complementary legal instruments,

including human rights legal instruments. In particular, the provisions of the ICTY and ICTR

Statutes also regulate and state that sexual violence committed in armed disputes is

categorized as war crimes and violations of the laws and customs of war as well as crimes

against humanity. It is more explicitly regulated in the ICC Statute, which clearly states

various forms of sexual violence as war crimes and crimes against humanity. Even the

inclusion of this provision as one of the jurisdictions of the ICC can be said to be a criticism

of humanitarian law which does not explicitly mention these crimes as grave breaches.

Furthermore, the provisions stipulated in it are based only on violations of the honor and

dignity of women and not as crimes against the physical and mental integrity of a person

(human). Sexual violence committed against women is deliberate (planned), systematic

violence and is not an incidental crime and tends to be used as part of a war strategy by the

disputing parties. In fact, in this case there have been violations of basic human rights,

especially those regulated by humanitarian law, which applies to armed disputes, namely that

every human being has the right to be free from violence, including women. Women have the

right to be free from violence, especially violence that is specifically directed against them,

regardless of the circumstances, including in a state of war.

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