University of Nottingham

School of Law

Dissertation

"An examination of the usage of systematic sexual violence as a weapon of warfare and tool of repression in non-international armed conflicts."

"I hereby declare that I have read and understood the regulations governing the submission of LL.M dissertations, including those relating to length and plagiarism, as contained in the LL.M. Manual and that this dissertation conforms to those regulations."

6 October 2000 Robert M. Last

Supervisor: Mr. D. Kritsiotis

Acknowledgements

I would like to thank all of those who have contributed financially, emotionally or otherwise, in the recent and more distant past, without whose assistance I would not have been able to complete my Masters.  In particular my thanks to Mum, Dad and Grandma, all of whose help has often been left unmentioned but has been appreciated much more than they realise.

Authors Note

The text reproduced here is almost identical to that which I submitted for my LL.M. dissertation. I have made some minor alterations to correct the more embarrassing typographical errors which escaped my notice in the early hours of the morning of 6 October 2000.  David Arnott of the Online Burma Library has kindly updated the URL references to provide more useful links for online sources.

I have not, however, updated the content of this paper to take account of developments in international human rights law, international humanitarian law or international criminal justice. A highly impressive and comprehensive account of recent international, regional and national developments in the area of violence against women, including developments in the area of armed conflict, is to be found in Radhika Coomaraswamy’s report to the 59^th session of the UN Commission on Human Rights  (UN doc: E/CN.4/2003/75/Add.1).

Bob Last

9 September 2003

Introduction

In 1994, the United Nations Special Rapporteur on Violence Against Women stated, “[rape] remains, the least condemned war crime; throughout history, the rape of hundreds of thousands of women and children in all regions of the world has been a bitter reality.”[1] Despite the pervasiveness of sexual violence[2] during periods of armed conflict, rape and other forms of sexual violence have traditionally been mischaracterized as private acts, the unfortunate but inevitable behaviour of individual soldiers. [3] The revelations of the existence of ‘rape camps’ in Bosnia-Herzegovina, dramatically altered the awareness of systematic sexual violence against women[4] as a facet of warfare.  It has become recognised that sexual violence is not purely an unfortunate ancillary effect of armed conflict but rather a tool by which the civilian population is terrorized, dominated, driven from their homes and destroyed.  However, although the rapes in Bosnia-Herzegovina and Croatia have attracted a wealth of academic discussion and analysis, numerous other occurrences of widespread and systematic sexual violence have received comparatively little attention.  This paper will focus on the systematic use of sexual violence against women in situations of non-international armed conflict, due to both the prevalence of internal conflicts in recent history, and the relative lack of legal provisions of international humanitarian law which apply to conflicts of this nature. The discussion will focus on the use of sexual violence as both a weapon of warfare, i.e. in order to actively achieve a specific political or military objective, and as a form of heinous repression by which the civilian population is dominated, though in practice the distinction between the two concepts may be somewhat fine. It is of the utmost importance to recognise that sexual violence happens systematically. It is only through acknowledging and responding to the occurrence of organised and strategic sexual violence that senior political and military officials can be held accountable. The term systematic is not used to denote the invention of a new crime, but rather to describe certain forms of sexual violence which have been deliberately planned or officially sanctioned by senior military or government figures for the achievement of a specific objective.

Part One of the paper will detail the systematic use of sexual violence, in relation to internal armed conflicts and will outline the various purposes which sexual violence has been intended to achieve.  Particular emphasis will be given to the conflicts in Peru, Rwanda and Kosovo, though the conflicts in Kashmir Sierra Leone, Liberia and Chechnya are also particularly pertinent to the discussion. Although the characterisation of the conflict in the former Yugoslavia has been the subject of varying determinations by the International Criminal Tribunal for the Former Yugoslavia (ICTY) and is considered by several academics as having been both an international and a non-international conflict, the details of the mass rape which occurred in Bosnia-Herzegovina have been well documented and will not be discussed in depth.[5] Part One will also examine the factors which fuel systematic rape, with particular regard to the promulgation of gender and ethnicity based stereotypes and propaganda.

Sexual violence in situations of armed conflict amounts to a clear breach of international law. Part Two will consider the importance of the fact that sexual violence has occurred systematically for the characterisation of such acts as violations of international humanitarian law and international human rights law. In this respect, the adequacy of international humanitarian law in relation not only to the physical victims but also to the witnesses of sexual violence warrants analysis, as sexual violence of this nature is often intended to cause harm to those other than the physical victims. Part Two will also examine the characterisation of rape as a crime against humanity and will analyse the genocidal rape discourse which has evolved following the conflicts in the former Yugoslavia.

Part One. Systematic Sexual violence as a weapon of warfare and tool of repression

1.1 The functions and aims of systematic sexual violence

In an explanation of the meaning of rape in times of war, Ruth Seifert proposes five theses to identify the cultural models which influence the behaviour of individual perpetrators.[6] First, war is presented as a ritualised, finely regulated game. Violence against women in the conquered territory is conceded to the victor in the immediate post-war period as one of the ‘rules’ of this game.[7] Second, the abuse of women is perceived as an element of male communication. Seifert states,

 “Rape can be considered the final symbolic expression of the humiliation of the male opponent…it communicates from man to man…that the men around the women in question are not able to protect “their women”.[8]

Third, rapes result from the masculinity associated with armed forces, which is exaggerated in times of conflict.[9] Constructions of masculinity in armies become equated with power, and within this culture, an inclination to rape results.  Fourth, rapes aim at destroying the opponent’s culture. According to this theory, women assume especial significance in the existence of a community due to their central role in the mainstay of the family, through which continuity in the culture and the society is ensured.  By striking at the heart of the community structure, the attacking side destroys its opposition.[10] The final thesis argues that rape is a culturally-rooted contempt of women that is lived out in times of crisis[11] and thus rape results from a pre-existing animosity, which can be responded to with a high likelihood of impunity in times of war.

Whilst all of these theories help to explain the practice of rape as a method of warfare, it is the fourth thesis - rape as the destruction of the opponents’ culture- that is salient for the purposes of the present discussion. The predominant aim in all instances of systematic sexual violence is either to erode or destroy completely the well-being of not only the individual victim, but also of the group to which the victim belongs.[12] Brownmiller emphasises the use of rape to attack an enemy’s culture, “Rape is considered by the people of a defeated nation to be part of the enemy’s conscious effort to destroy them… men appropriate the rape of ‘their women’ as part of their own anguish of defeat.”[13] Although this involves an element of male communication, (the second of Seifert’s theses), the primary goal is the destruction of the group and not simply the humiliation of the male opponent.  In traditional societies, considerable social stigma is associated with rape.[14] An unmarried woman who has been raped is considered dirtied and may be unable to marry if it is known that she has been raped. Married women may be rejected by their husbands. Destroying women’s ability to fulfil their traditional role therefore results in the severe destabilization of that society.

The knowledge that sexual violence will have such a devastating effect on the civilian population has been used to achieve three broad aims which serve as a basis for discussion. First to ensure the compliance of the population with the demands of a particular military faction and consequently with that faction’s political ideology. Second, to instil terror among the victim group to such an extent that the group is driven from its home territory. Third, as a means of destroying the population of a certain area or a particular ethnic component within that population.  There is a strong degree of overlap between the latter two functions, particularly when the military objective is a combination of these aims. However, there is a significant difference between situations in which sexual violence occurs as part of a campaign to exterminate a group within the civilian population, as in Rwanda, and situations where the ultimate objective is to drive a section of the population from the area, as in Kosovo, even though mass killing was a primary way by which this aim was sought.

The focus on the ways in which sexual violence is strategically used against the civilian population is not intended to convey or reinforce any proprietary notions that are attached to women in traditional societies.  Furthermore, the fact that rape is used as a means of punishing and humiliating the entire civilian population should not be interpreted as suggesting that women are not the primary victims of sexual violence.  Whatever the motivation or context of its occurrence, sexual violence remains first and foremost a violent assault against an individual. The consequences of sexual violence are physically, emotionally and psychologically devastating for women victims.[15] As Seifert notes, “ A violent invasion into the interior of one’s body represents the most severe attack imaginable upon the intimate self and the dignity of a human being.”[16]

A recurrent problem, which has hampered all of the studies into the extent of sexual violence during the conflicts which are discussed below, is underreporting. In addition to the cultural stigma faced by victims of sexual violence, women do not report such incidents to the relevant authorities for fear of reprisals. Thus, in all probability, much of the empirical data contained in the studies which serve as a basis for discussion under-represent the extent to which sexual violence was perpetrated against female civilians, and in certain instances, vastly so.

1.2 Sexual violence as a means of ensuring compliance with a military faction.

Widespread atrocities committed against the civilian populations have been a defining characteristic of the internal conflicts in Peru, Kashmir, Liberia, Sierra Leone and Chechnya.  Although the circumstances and political motives surrounding the use of sexual violence in these conflicts differ dramatically, in each of these conflicts sexual violence has been widely and systematically used to ensure the dominance of a military faction in a particular region and force the population of that area to comply with the demands of that faction.

1

1.2.3        The perpetrators of systematic sexual violence.

In the conflicts in Peru, Kashmir and Chechnya, the main perpetrators of sexual violence have been State security forces and militia working alongside them. No conclusive evidence has been produced showing that rape was an official policy of the security forces of any of the States concerned.  Nevertheless, the widespread occurrence of rape strongly indicates its sanctioned and systematic usage. The U.S. State department noted in 1991 that reports of rape in Peru were so widespread that, “such abuse can be considered a common practice, condoned - or at least ignored - by the military leadership.”[17] In the same year Amnesty International (AI) concluded, “rape is widespread, a routine accompaniment to military incursions into peasant communities.”[18] Furthermore, testimonies provided by members of the security forces indicate not only official acceptance of rape but also of active encouragement by senior officers.[19] Indeed reports have been provided of soldiers being severely punished by officers for protesting against sexual violence.[20]

Throughout the conflict in Jammu and Kashmir, Indian Security forces, along with two paramilitary forces - the Central Reserve Police Force (CRPF) and the Border Security Force (BSF) - have deliberately targeted civilians as part of the effort to repress the demands of armed Muslim insurgents for independence or accession to Pakistan. Research by several human rights NGOs shows that these forces have been responsible for acts of sexual violence as part of this campaign. A study by Asia Watch and Physicians for Human Rights in 1992 noted the growth in reports of sexual violence by the security forces following the increase in efforts on the part of the government to repress militants in January 1990.[21] Only fifteen rapes were documented though it was estimated that a vast number of further incidents occurred in remote villages which were not possible to investigate. The findings of the study are supported by several subsequent reports which state that sexual violence has been, and continues to be, perpetrated both during military operations and against women in detention.[22]

Over the last two years, numerous reports of sexual violence by troops of the Russian Federation in Chechnya have been reported.[23] It is difficult to determine both the extent to which this has occurred, and to what degree these acts can be regarded as systematic rather than as isolated incidents, as studies which have been carried out have all been of a small scale. However, the continued occurrence of rapes throughout the conflict and the lack of action by the State to discover or punish the perpetrators, point towards the systematic use of sexual violence in Chechnya.

Sexual violence has also been committed by militia opposition forces in the conflicts in Peru and Kashmir[24], though this has been much less common. The relatively small number of documented cases of rape by Shining Path guerrillas in Peru has been attributed to the presence of women combatants amongst the ranks of the militia.[25]

Conversely, the vast majority of the sexual violence committed in the ten year internal conflict in Sierra Leone has been perpetrated by rebel forces, in particular the Armed Forces Revolutionary Council (AFRC) and the Revolutionary Front (RUF), during attacks on government controlled areas. AI note that sexual violence against girls and women by these forces has been systematic and widespread during this period.[26]

All parties to the conflict in Liberia were responsible for an extremely high number of rapes between 1989 and 1996. Sexual violence was committed by all parties to the conflict including The Armed Forces in Liberia (the national army), the Liberian Peace Council, the National Patriotic Front of Liberia and the United Liberation Movement for Democracy in Liberia.

1.2.2  Methods of domination through sexual violence.

The primary aim which the various military factions have sought to achieve through sexual violence in Peru, Kashmir, Liberia and Sierra Leone has been the creation of a widespread climate of terror such that the target group would comply with their demands and refuse to collaborate with opposition forces.  Within this context, sexual violence has been used to punish civilian populations for perceived sympathies with rival factions, and to demonstrate the dominance of the attacking group. This was particularly evident throughout the 15-year conflict in Peru.[27] During armed incursions in the Emergency Zones, especially in the southern highlands of Ayacucho and Huancavelica, women civilians were routinely rounded up and raped by members of the army or combined army-civil defence forces, shortly after guerrillas had been active in the area. Women were frequently gang-raped by as many as 20 men either in front of the male civilians or separated from them.[28] In 1993 the UN Special Rapporteur on Torture stated,

“abundant information was also received about the practice of rape and sexual aggression frequently undergone by women in the context of the security forces’ campaign against the insurgent groups…In the areas under state of emergency… rape seems to be used as a form of intimidation or punishment against groups of civilians suspected of collaborating with the insurgent groups.”[29]

In Kashmir, rape has occurred most often during cordon-and-search operations, during which security personnel identify the male civilians and search their homes.[30] Rape has been used in these operations to target women whom the security forces have accused of being militant sympathisers. Sexual violence has also frequently occurred during reprisal attacks on civilians following militant ambushes.[31] The acts of sexual violence perpetrated by pro-independence militant groups have occurred as a means of punishing other family members who are suspected of opposing the militants or supporting rival groups.[32]

Sexual violence has similarly been used in Sierra Leone to create a position of dominance for RUF rebels, especially in newly conquered areas. Such violence has reportedly been perpetrated against women of all ages, including very young girls.[33] The acts which have been committed include gang-rape, sexual mutilation and sexual slavery. Men have also been forced to rape members of their own family under threat of mutilation.[34] Between early 1998 and May 2000 the scale of atrocities against civilians in Sierra Leone reached unprecedented levels.[35] Following the ousting of the AFRC and the RUF from power by West African forces in February 1998, the scale of human right abuses committed by the deposed forces escalated dramatically and took on extremely barbaric and grotesque forms. Rebel forces waged a campaign of terror against the civilian population which they labelled ‘Operation no living thing.’ It is estimated that thousands of civilians were killed between April and October 1998 and approximately 4000 civilians are considered to have been the victims of mutilations.  Sexual violence was prevalent during this period. Since January 1999, acts of sexual violence have continued to occur with regularity in areas controlled by RUF forces and in attacks on government-controlled areas.  After rebel forces attacked Freetown on 6 January 1999 many residents reported the nightly rape of groups of girls and women both in public places in the centre of the capital and at an internally displaced people’s camp nearby.[36] In the following days, girls and women were rounded up in different areas of the city and forced to report nightly to rebel commanders. On 8 January in an area in the east of Freetown a rebel commander ordered all girls who were virgins to be examined by a woman colleague[37]. Those confirmed to be virgins were ordered to report nightly to the rebel commander or other combatants who raped or otherwise sexually assaulted them.   Further testimonies collected by Human Rights Watch (HRW) and AI detail a significant number of rapes during RUF operations in May 2000.[38] In many cases, victims, including children as young as ten, were taken to rebel bases or command centres and raped there.

In Liberia, sexual violence was inherent in the campaigns of terror which were conducted against local populations by all parties to the conflict. Of a sample of 450 women interviewed by the World Health Organisation in 1994, a third reported that they had been raped with the vast majority of attacks occurring during active fighting. [39] A subsequent survey by Liberian health workers noted that half of the women questioned were subject to at least one act of physical or sexual violence and that a large percentage witnessed a soldier raping someone else. [40] In a study conducted by a UN demobilisation team in 1994, eleven per cent of approximately 3500 fighters from all parties to the conflict who had volunteered to demobilize admitted to raping with violence more than ten times.[41] It is difficult to extrapolate accurate figures from these findings due to the likelihood of underreporting and the fact that the sample who agreed to demobilize were unlikely to be representative of the fighters that remained in the field.[42] It is also impossible to accurately determine to what extent these acts occurred as part of gang rapes and thus whether these acts occurred in the same incident. However, the findings of the study strongly indicate that forces from all sides raped a massive number of Liberian women, probably tens of thousands, over a seven-year period.[43]

The second major context in which sexual violence has occurred is during interrogation of suspected militant or sympathisers by State security forces. Although there are reports of gang-rapes by Russian soldiers in villages around Grozny between January and June 2000,[44] the majority of accounts which document sexual violence in Chechnya, suggest that this is most prevalent inside “filtration camps.” The reported incidents include the gang-rape of a male detainee by Officer members of a special detachment, at the order of a more senior officer, to make him sign a confession that he was a Chechen fighter. Further testimonies from male detainees indicate that women and girls detained in filtration camps have been routinely and systematically raped, though no female victim has yet given evidence to support these claims.[45]

In Peru, rapes and the threat of rape were widely used in conjunction with other forms of torture[46] against women in detention in order to obtain information about guerrilla activities. Rape has been routinely used against women in detention during police interrogations in Kashmir.[47]

1.2.3        Practical Impunity

In all of these conflicts, sexual violence has occurred with practical impunity. In Peru, special provisions in the emergency legislation which was in force during the conflict, served both to generate acts of sexual violence and protect the perpetrators.[48] Under state of emergency legislation, the military were given ultimate authority over certain defined regions. Anyone living in the region could be kept for up to fifteen days in incommunicado detention, typically the time when torture including sexual violence would occur.[49] Furthermore, according to the legislation, all offences committed by members of the armed forces were subject to military jurisdiction and the Code of Military Justice despite the fact that rape can hardly be considered an offence against a military code and ought rather to have been subject to the civilian penal code. Moreover, in the security zones, women were often bound and blindfolded or the men wore masks so that women did not see the men who raped them.[50] They were routinely threatened with death after being raped, and in many instances killed, to remove the possibility that they would report the incident.  Moreover, until 1991 rape was classified as a crime of honour under Peru’s civilian penal code. Thus, in order for a crime to have been committed, a woman had demonstrate that she was a ‘woman of honour’ before the attack, which normally required proof that she was a virgin prior to the rape.[51] For a variety of reasons, therefore, the vast majority of women did not report incidents of sexual violence during the conflict. [52]

It is, therefore, not surprising that few police officers and even fewer members of the security forces have been prosecuted for sexual violence.[53] In no instance during the conflict was an active member of the security forces punished for an act of sexual violence.[54] Indeed evidence suggests that both the police and the army actively protected the perpetrators and promoted them within their ranks.[55] Such indications of official acceptance further suggest that sexual violence was employed as a tactic by the most senior security force officers.

Similarly, although a small number of security force personnel have been reprimanded in connection with acts of sexual violence committed in Kashmir, there have been no custodial sentences as a result of investigations into these offences. [56]

The Lomé peace agreement of 1999 included a blanket amnesty for all activities undertaken in pursuit of the conflict in Sierra Leone, though the U.N. added a disclaimer to the agreement that the amnesty would not apply to crimes against humanity or war crimes.[57] The U.N. has since supported the establishment of a special court to try war criminals.[58] It remains to be seen whether the organisers and perpetrators of sexual violence will be brought to account.

No Liberians, have been investigated or prosecuted for rape cases during the war since the cessation of hostilities in 1997. [59] This is unsurprising given the collapse of the judicial system and the fact that all factions were indistinguishable in their conduct as to the perpetration of sexual violence.  The leaders of the factions have made no statement formally addressing the use of rape as a tactic of terror and the United Nations Observer Mission in Liberia has made no substantial effort to investigate or publicise its occurrence.[60]

Equally, the Russian federation has made no formal statement addressing the allegations of sexual violence which have been made by human rights organisations. The Council of Europe sent a delegation to investigate human rights abuses in Chechnya in September 2000, though it remains to be seen whether any individuals will be held accountable for acts of sexual violence.[61]

1.3 Sexual violence as a means of driving out the civilian population.

Different characteristics have been attributed to the phrase “ethnic cleansing”. The primary aim is to cause the entire ethnic group to disappear from the area either through the group’s destruction or through its removal, though the methods of achieving these objectives are diverse.[62] Sexual violence in Kosovo took place under the shadow of the mass rape in Bosnia.[63] Civilians in Kosovo were aware that sexual violence had been committed on a massive scale in Bosnia and fears of similar atrocities motivated many families to leave their homes in Kosovo.[64] Systematic sexual violence fulfilled three broad functions in this regard.  As had earlier occurred in Bosnia between 1992 and 1994, sexual violence was perpetrated in order to emotionally destroy the victim, to devastate the victim’s social group and to cause widespread terror so that people would flee from the area. In particular, the extensive occurrence of public and gang rapes were used to terrorize and subordinate the Kosovar Albanians while the Yugoslav / Serb forces assumed a superior position.

Both prior to and throughout the NATO bombing of the Federal Republic of Yugoslavia in April 1999, the level of hostilities between the Kosovo Liberation Army (KLA) and Serbian and Yugoslav government forces can be classified as amounting to a non-international armed conflict.[65] Throughout 1998 and early 1999 there was ongoing fighting between these forces that involved serious violations of humanitarian law by both sides. The majority of abuses were committed by Serbian and Yugoslav forces which included numerous incidents of sexual violence. Police, soldiers and paramilitaries raped women throughout Kosovo.  These rapes most commonly occurred in the victims’ homes, during flight from the country and while in detention.  Almost all of the rape testimonies collected describe gang rapes.  The identities of the perpetrators were difficult to establish, though it appears that paramilitaries perpetrated at least five of the rapes documented by HRW in Albania, Macedonia and Kosovo and that Yugoslav Army soldiers perpetrated two rapes reported to HRW by victims.[66] In total, HRW found ninety-six cases of sexual violence from victim or witness testimony.[67] Twenty-three further rapes committed by Serbian police and Yugoslav forces were documented by the Organisation for Security and Co-operation in Europe (OSCE) – Kosovo Verification Mission officers who were deployed in Kosovo from November 1998 to March 1999.[68]

Reports suggest that many further incidents of rape occurred.[69] However, documentation efforts were severely hampered by the fact that many women who were raped in certain villages were not from those areas and it thus proved difficult to identify possible victims from witness reports.[70] Furthermore, the cultural stigma attached to rape undoubtedly had a major impact on documentation efforts.  Numerous individuals throughout Kosovo reported seeing women taken away from refugee convoys by Serbian police or paramilitaries. Some who returned told relatives that they had only been interrogated.[71] Others reported that the Serbs forced them to “make coffee” which is believed to be a euphemism for rape.[72] Such cases were not corroborated by research.[73] However, the large number of women taken away suggests that many additional acts of sexual violence may have occurred. Indeed, it is estimated by the World Health Organisation that as many as 20 000 Kosovar Albanian women (4.4 % of the population) were raped in the two years prior to NATO’s entry into the territory.[74] HRW also report that sexual violence was widely used in Kosovo between March and September 1999 as weapons of warfare and instruments of systematic “ethnic cleansing” during the NATO bombing.[75]

1.4 Sexual violence as a tool of genocide.

It is somewhat of an oversimplification to categorise the atrocities committed during the Rwandan genocide in 1994 as having taken place in a non-international armed conflict. Although the genocide coincided with a conflict between the Front Armé Rwandais (FAR)[76], supported by groups of Hutu militia collectively known as Interahamwe, and the Rwandan Patriotic Front (RPF), the organisation and implementation of the genocide were quite distinct from the war effort.[77] Although the genocide was undoubtedly fuelled by exaggerating fears of the RPF amongst Hutu civilians, its purpose was the destruction of those categorised as being ethnic Tutsis.

During the genocide, Rwandan women were subjected to sexual violence on a massive scale.[78] These acts were perpetrated by members of the Interahamwe, by other civilians and by soldiers of the FAR. Some observers suggest that almost every Tutsi woman who survived the genocide was the victim of some form of sexual violence.[79] These acts included rape, gang-rape, rape with objects such as sharpened sticks or gun barrels, forced nudity, forced abortion, sexual slavery and sexual mutilation.[80] These acts frequently occurred as part of a pattern in which Tutsi women were raped after witnessing the torture and killings of their families and the destruction of their homes.[81] Numerous testimonies also describe women being killed and then ‘raped’.[82]

Since much of the sexual violence was perpetrated by the Interahamwe militia who were working in groups, Tutsi women were frequently subjected to gang rape. Those that were not killed afterwards were often subsequently gang raped by other groups of militia.[83] Often Tutsi women were held collectively by a militia group and subjected to gang rape in order to sexually service the group. Some of these women were forcibly taken into Hutu refugee camps after the genocide where they were held in sexual slavery for several years.[84] Other women were singled out to be held by members of the militia for their personal sexual service in so-called “forced marriages”.

The goal of both the killings and the sexual violence during the genocide was clear: the destruction of the Tutsi as an ethnic group.[85] According to the actions and statements of perpetrators, as recalled by survivors, acts of sexual violence were carried out with the specific aim of eradicating Tutsis.[86] HRW document numerous testimonies in which survivors recount how their rapists mentioned their intent to destroy them and their people and characterized sexual violence as a means of achieving this destruction.[87] Many victims died in the course of or soon after an attack, from the physical injuries which they sustained. In such cases sexual violence was a direct part of the killing.[88] Other women were told immediately after being raped that they would not be killed  so that they would die slowly from the emotional trauma which the attack would cause.[89] HRW conclude,

“ Taken as a whole, the evidence indicates that many rapists expected…that the psychological and physical assault on each Tutsi woman would advance the destruction of the Tutsi people.”[90]

The military and civilian authorities at national and local levels both directed and condoned rape and in numerous cases soldiers or policeman were responsible for committing rape and murder themselves.[91] Evidence attesting to the occurrence of systematic sexual violence was presented during the trial of Jean-Paul Akayesu in the International Criminal Tribunal for Rwanda (ICTR).[92] After the indictment was amended, following the filing of two amicus curiae briefs,[93] extensive testimony concerning rape and other forms of sexual violence was admitted as evidence. This evidence was used to confirm that sexual violence was an integral component in the genocide committed during the conflict.[94]

Following the NATO air strikes against Yugoslavia in 1999, accounts of “rape camps”, where Albanian women were being forcibly impregnated by Serbs, were reported in the international media. British Foreign Secretary Robin Cook stated that Serbian forces had opened such a camp near Djakovica.[95] Similar claims were made by officials from the U.S. and reported in the New York Times.[96] Research by HRW found no evidence to support these claims. Rather, it seems that these reports were used by NATO member states to justify their policies in Yugoslavia.[97] Nevertheless, it is estimated that hundreds of babies have been born as a result of the rapes which took place.  Under Muslim culture and Islamic law, the ethnicity of the father determines the ethnicity of the child. Although there are no verified accounts of women being subjected to forced impregnation and then forced maternity, it seems possible that one of the motivating factors behind some of the rapes may have been to make Kosovar Albanian women produce babies which were not of their own ethnicity. If this were the case, then such rapes would amount to genocide.[98] The necessary mental element would be extremely difficult to prove, but this might be possible with witness evidence attesting to comments made by rapists during the attack that their intention was the destruction of the Albanian ethnic group.

1.5 Factors which promote systematic rape.

In a philosophical inquiry into the factors which make war possible, Michael Gleven notes that war underscores the difference between one side, the we, and the other side, the they, almost to the point of equating war with the principle of ‘us versus them’.[99] He states, “The possessive pronoun becomes a principle of thought.  All of the normal and ethical values that support tranquillity are challenged by this curious authority of the we over the they.”[100] This theory helps to explain not only the motivation to fight in a conflict but also the extent to which individuals are willing to perpetrate atrocities as part of that war. A striking feature in many of the studies into large-scale occurrences of sexual violence is the casual and routine nature of the brutality involved. This is much more likely to occur if the victims of violence are ‘dehumanised’ such that violence no longer becomes perceived in terms of right and wrong but rather as a necessary act against those perceived in psychological terms as ‘the other’.  In order for sexual violence to be carried out on a massive scale, there is a corresponding need that the victim group against whom the violence is inflicted, is commonly perceived to be fundamentally different from the perpetrating forces.

In the internal conflicts in Peru, Rwanda and Kosovo, government controlled propaganda was widely used as a tool to objectify and dehumanise those against whom atrocities were perpetrated. In this propaganda, women were especially attacked through the dissemination of gender and ethnicity-based stereotypes. 

In Peru, the high level of active participation by women, particularly in leadership positions, among the guerrillas played a major role in fuelling the rape by government forces. In the press, women guerrillas were frequently portrayed as crazed killing machines and such fears were incorporated into police training courses.[101] A national training manual described women as, “more determined and dangerous than men, [having] extreme conduct [and] very severe.[102] Indeed sexual violence against female guerrillas was so accepted that women militants were told during their training to expect to be raped.[103] Furthermore, it is evident that there was a racial element in much of the sexual violence which occurred.  Rape was generally perpetrated down Peru’s racial ladder, with women identified as chola (Indian) being more likely to be gang-raped while women of mixed white and Indian blood being more likely to be raped individually. White women were much less likely to be the victims of any form of sexual violence. [104]

In Rwanda, sexual violence was directed primarily against Tutsi women because of both their gender and ethnicity. The rape of Tutsi women was fuelled by the extremist ‘Hutu Power’ propaganda which urged Hutus to commit the genocide.  This propaganda espoused ethnic stereotypes which had been disseminated during Belgian colonial rule and was widely used in the years preceding the genocide to maximize hatred and fear between Hutus and Tutsis.[105] Prior to and throughout the genocide, the main media for this propaganda were the Hutu extremist radio station, Radio Television Libre des Mille Collines (RTLM), which began broadcasting in August 1993, and the journal Kangura.[106] The propaganda insisted that the Tutsis were foreign conquerors of ‘Ethiopid’ origin who had subjugated the Hutu through cunning and ruthlessness.[107] Crucially, the propaganda also presented gender stereotypes and specifically identified the sexuality of Tutsi women as a means by which the Hutu were subjugated. Tutsi women, it was claimed, being more beautiful than Hutu women, were used to infiltrate Hutu ranks.  Hutu men were thus repeatedly warned by propagandists to beware of Tutsi women.[108] Indeed the first three of the Hutu ‘ten commandments’ – the doctrine of Hutu militancy first published in Kangura in December 1990 - warned Hutus to beware of subduing to their sexual desire for Tutsi women.[109] When the violence began in 1994, Tutsi women were targeted on the basis of this propaganda. Not only did sexual violence serve to punish the women for their role in subjugating the Hutu, but women were also targeted because of their gender stereotype as beautiful and desirable, but inaccessible, to Hutu men. Numerous testimonies describe how rapists mentioned ethnicity before or during the rape.[110]

Similarly, official propaganda in the years preceding the conflict served to dehumanise and stereotype Kosovar Albanian women. Serbian propaganda in the late 1980s and 1990s portrayed Albanian women as “stupid, uneducated women ready to have sex.”[111] The Serbian media also manipulated fears of Albanian population growth. The propaganda portrayed Albanian women as “baby makers”, labelled their offspring “biological bombs” and described Albanian life as “primitive and backward”.[112] Sevdije Ahmenti, a member of Kosovo’s transitional government noted,

 “Belgrade had, for yours, put out propaganda that the only thing Albanian women could do was produce like mice. So daughters were gang-raped in front of their fathers, wives in front of their husbands, nieces in front of their uncles, mothers in front of their children, just to dehumanise, just to degrade.”[113]

Although the Russian Federation’s obvious aim in Chechnya is the defeat of separatist insurgents, it has continually justified its destruction of the territory on the basis that it is a war against terrorism. In October 1999 one of Russia’s top military strategists stated that the aim of Russia’s offensive was to restore legal government on land freed from the terrorists and that terrorism and lawlessness had been responsible for a massive exodus from Chechnya since 1990. Chechen terrorist have been blamed for three bombs in Moscow, the first two of which on September 13 1999 were blamed on Chechen terrorists by the mayor of Moscow within minutes of occurring, without any investigation into their cause. President Putin has subsequently repeated that the war is being waged against terrorists[114].  Indeed the synonymy of Chechens with terrorism has become so accepted that the plots of two major Hollywood films now under production feature a kidnapping by Chechens and the involvement of the Chechen government in a present-day doomsday threat.[115]

However, many instances of sexual violence in Sierra Leone and Liberia have been caused not by the dehumanisation of the victims through propaganda but rather through the destruction of the perpetrators through drugs and alcohol.  Much of the sexual violence perpetrated by the RUF and the National Patriotic Front of Liberia rebels has been committed by child soldiers, who are not fully aware of their actions due to alcohol and hallucinogenic drugs.[116] This often results in severe trauma for perpetrators when they become aware of their actions and also, rather perversely, renders them victims of the acts which they have unwittingly committed.

Part Two. International legal provisions for prosecuting systematic sexual violence in non-international armed conflicts

2.1. The legal framework. 

The legal framework for prosecuting sexual violence has evolved from three different sources of law, namely international human rights law, international humanitarian law and international criminal law, each with different customary and treaty-based origins and historic precedents.[117] The punishment of perpetrators of sexual violence has historically been attributed only marginal importance in the drafting of the laws of warfare.  What is more, the insistence of states on maintaining maximum discretion in dealing with those who threaten their sovereign authority, has severely curtailed the scope of international humanitarian law to offer a comprehensive framework applicable to internal conflicts to equal that which operates in international armed conflicts.[118] Consequently the legal framework specifically relating to the occurrence of rape and other sexual violence in non-international armed conflicts is somewhat threadbare.  Recognising the historic lack of protection of women’s fundamental human rights, the World Conference on Human Rights, in the Vienna Declaration and Programme of Action emphasised that,

“[v]iolations of the human rights of women in situations of armed conflict are violations of the fundamental principles of international human rights and humanitarian law [and] require a particularly effective response.”[119]

The appropriate characterisation of these acts as violations of the Geneva Conventions, and as crimes against humanity, genocide, and torture, and the prosecution of these crimes are essential for the provision of an “effective response”.  In this regard, there have been significant recent developments as a result of judgements of the ICTY and ICTR. Furthermore, there would seem to be scope for seeking redress under international human rights law following the decision of the Inter-American Commission on Human Rights in Raquel Martí de Mejía v Peru.[120]

2.2 Systematic Sexual Violence as a War Crime

The judgements of the trial and appeals tribunals in the Tadić case have considerable importance for the prosecution of sexual violence in non-international armed conflicts.  Although the rape charges were withdrawn, the trial chamber found Tadić guilty of violations of the laws and customs of war under Count 10 (cruel treatment) for the physical and sexual violence inflicted against several men in Omarska camp in the Prijedor region of Bosnia. The chamber noted that cruel treatment includes “inhumane acts that cause injury to a human being in terms of physical or mental health or human dignity.”[121] Furthermore, the appeals chamber concluded that prosecutions for violations of the laws and customs of war need as war crimes need not be confined to international armed conflicts and that international law imposes individual criminal responsibility for such acts.[122]

In addition, each act of sexual violence inflicted by military forces in a situation of armed conflict is a violation of Common Article 3 to the Geneva Conventions. [123] This Article provides a minimum standard of behaviour that applies to both government and non-government forces in non-international armed conflict and is widely perceived to constitute customary international law. Prohibited actions include “violence to life and the person, in particular murder of all kinds, mutilation, cruel treatment and torture” as well as “outrages upon personal dignity, in particular humiliating and degrading treatment”. Sexual violence can clearly be understood to come within each of these terms. This was partially acknowledged by Article 4(e) of the Statute of the ICTR which expressly includes, “outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault.”[124] Additional Protocol II to the Geneva Conventions further prohibits,

“violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation” and “outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault,” as well as “slavery and the slave trade in all their forms.”[125]

A major limitation of the law applicable to internal armed conflicts generally is presented by the fact that neither Common Article 3 nor Additional Protocol II, take specific account of conflicts occurring in disintegrating or disintegrated states which may involve a proliferation of warring factions. However, it is the widely held view that Common Article 3 should apply in such conflicts.[126] However, Additional Protocol II specifies that a faction must be fighting against the government thereby excluding situations of conflict between non-governmental factions.  In this respect, the Rome Statute represents an advance for the prosecution of sexual violence. Paragraph 2(e) of the statute, which includes rape, sexual slavery, enforced prostitution and forced pregnancy in its definition of war crimes for non-international armed conflicts, applies when there is “protracted armed conflict” between armed groups, including situations when government forces are not involved in the fighting. [127]

Furthermore, the regime of grave breaches of the Geneva Conventions and Protocols, which applies in international armed conflicts, does not apply in conflicts of an internal nature. States are under an obligation to make grave breaches subject to the jurisdiction of their own courts. The regime has been severely criticised for not explicitly listing rape as a grave breach.[128] Although sexual violence can be considered as coming within “acts causing great suffering or serious injury to body or health”[129], which do constitute grave breaches, it would clearly be preferable for sexual offences to be specifically referred to.[130] Moreover, the Statute of the ICTY, which has jurisdiction for grave breaches, does not make this specific reference, which would have closed the possibility of contrary argument.[131] However, since grave breaches do not extend to non-international armed conflicts, even this unsatisfactory regime is not applicable. Thus national courts are generally considered not to possess jurisdiction in respect of violations of the laws of internal armed conflict, although the Appeals Chamber in the Tadić case did note that a Danish court appeared to have done so in one case arising out of the conflict in the former Yugoslavia.[132]

Neither Common Article 3 nor Additional Protocol II makes reference to any particular consequence of a prohibited act being carried out in a systematic way. However, the judgements of the ICTY in the Furundžija case,[133] and of the ICTR in Prosecutor v Akayesu[134], have particular relevance for the prosecution of acts of systematic sexual violence as a violation of Common Article 3 for several reasons. The classification of rape as torture by the Yugoslav and Rwandan tribunals was a highly progressive development for the prosecution of rape during armed conflict. Furthermore, torture has been defined more widely in three important respects: humiliation has been added to the list of purposes which the act in question was intended to achieve in order that such an act might amount to torture; non-physical perpetrators of rape may be guilty of co-perpetration; and witnesses of sexual violence may also be considered victims of torture.  In addition the judgements have widened the actus reus of rape. The ICTR trial chamber defined rape in the Akayesu Judgement as, “A physical invasion of a sexual nature, committed on a person under any circumstances which are coercive.” [135]

The ICTY in the Furundžija Judgement defined the objective elements of rape as,

 “(i) the sexual penetration, however slight:  (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator;  (ii) by coercion or force or threat of force against the victim or a third person.” [136]

This is the widest definition of the actus reus of rape which has been adopted by any legal body and has significance for the prosecution of all kinds of sexual violence in armed conflicts. Indeed, the adoption of this definition would be a highly progressive measure for many domestic legal systems.

Although the Furundžija case was tried by the ICTY, the judgement has direct relevance for non-international armed conflicts. Following the withdrawal of a charge of grave breaches by the Office of the Prosecutor (OTP), the two remaining charges were brought under Article 3 of the Statute for violations of the laws and customs of war. These were prosecuted as violations of Common Article 3 (Count 13; torture) and violations of Article 4(2)(e) of Additional Protocol II (Count 14; outrages upon personal dignity including rape). Most of the facts of the case were not disputed. The accused, who was a local commander of the Jokers, a special unit of the Croatian Defence Council (the HVO), was charged in connection with the interrogation of a Muslim Civilian woman (witness A) by himself and another HVO commander, referred to as “[REDACTED]” in the indictment.  The basis of the justifiable allegations involved a day long interrogation of witness A at the Jokers’ headquarters, conducted through the use of repeated acts of rape involving both vaginal and oral intercourse, which were carried out by [REDACTED] in the presence of Furundžija, an audience of soldiers and Witness D, an HVO combatant who was detained on suspicion of having betrayed the HVO to the Army of Bosnia and Herzegovina and who was beaten during his detention. Furundžija was present throughout the interrogation, but did nothing to stop or curtail the sexual violence, though it was never alleged that he himself physically carried out the rapes.

In rejecting the defence that Furundžija had not taken part in the interrogation, the Trial Chamber recognized the ability of persons who have experienced extreme trauma to testify reliably.  In so doing the trial chamber reversed inferences that people who may be suffering from either Post Traumatic Stress Disorder or Rape Trauma Syndrome are unable to properly recall a sexual attack, which arose from its decision to re-open the trial on the basis that documents relating to the possible rape-counselling of witness A had not been disclosed by the OTP. [137] It is to be hoped that victims receiving counselling will not be deterred from giving evidence in future cases.

The Trial Chambers in both Furundžija and Akayesu recognised that rape amounts to a violation of Common Article 3 as outrages upon personal dignity. Furundžija was convicted of outrages upon personal dignity, including rape, of witness A.  In contrast, Akayesu was found not guilty of committing sexual violence under the charge of ‘outrages upon personal dignity’, (in particular rape, degrading and inhuman treatment), as it was not adequately established that Akayesu had actively supported the war effort. This reasoning seems flawed since he was convicted of both crimes against humanity and genocide.

Furthermore, the Trial Chambers in both cases stated that rape could amount to torture. The ICTY Trial Chamber examined the prohibition of torture under both international humanitarian law and international human rights law. It acknowledged that torture has acquired the status of ius cogens and thus cannot be derogated from,[138] and that the prohibition upon torture imposes upon States obligations which are erga omnes.[139] The Trail Chamber stated that rape could constitute a form of torture if the other constituent elements of the crime were satisfied. This is consistent with the earlier judgement of the ICTY in the Prosecutorv v Delalic, Mucic, Delic & Landzo,[140] which specifically recognized rape as torture and with the judgement of the ICTR in the Akayesu case.

Furthermore, the Furundžija Trial Chamber developed the definition of torture as a war crime by stating that its infliction must aim at, “obtaining information or a confession, or at punishing, intimidating, humiliating or coercing the victim or a third person, or at discriminating, on any ground , against the victim or a third person”[141](my emphasis). By including humiliation, the Trial Chamber recognised that sexualised torture is frequently committed to humiliate and degrade the victim. Furthermore the Rwandan trial chamber in the Akayesu judgement noted that, “[l]ike torture, rape is used for such purposes as intimidation, degradation humiliation, punishment, control or destruction of a person”.[142] Thus the primary aims which systematic sexual violence has been used to achieve have been recognised.

Moreover, the ICTY Trial Chamber took account of the fact that sexual violence is used a means of punishing or discriminating against third persons, and recognised that this could amount to torture. This was partially applied in the judgement itself. In finding Furundžija guilty as a co-perpetrator of torture against Witness D, the Trial Chamber stated,

“the physical attacks on Witness D, as well as the fact that he was forced to watch sexual attacks on a woman, in particular a woman he knew as a friend, caused him severe physical and mental suffering.”

Thus the cumulative effect of being beaten and being forced to watch witness A being repeatedly raped amounted to torture. It is regrettable that the trial chamber did not state that being forced to watch the rape of Witness A could amount to torture without the physical beatings.  As discussed earlier, the primary ways in which systematic sexual violence occurs is through rapes in front of the victim’s family, or in a public place. In both instances gang rapes frequently occur. Being forced to witness such violence causes an extreme amount of mental suffering which is inflicted with the intention of either obtaining information from or punishing, humiliating or intimidating those affected. The mental effects are likely to be most severe when the witness is a close relative of the physical victim or victims, though being forced to watch an act of sexual violence being inflicted upon any person would be likely to cause long-lasting psychological damage to most people. Thus forcing another person to watch an act of sexual violence should be recognised as being a form of torture if this can be attributed to a state actor. 

A further progressive element of the definition of torture formulated in Furundžija  relates to the status of  the perpetrator or perpetrators.[143] The Trail Chamber stated,

“at least one of the persons involved in the torture process must be a public official or must at any rate act in a non-private capacity, e.g. as a de facto organ of a State or any other authority-wielding entity.”[144]

Thus the other “authority-wielding entity” is broader than a state-actor. This has direct relevance for systematic sexual violence, which is often perpetrated by non-state actors. Furthermore, even though he did not physically commit the rape, the Trial Chamber determined that Furundžija was guilty of outrages upon personal dignity including rape and of co-perpetration of torture by means of rape, rather than aiding and abetting, through a creative articulation of the definition of co-perpetration.[145] The Trial Chamber stated that a co-perpetrator, “partakes of the purpose behind the torture” such that they act with the intent to obtain information, a confession, to punish, intimidate, coerce or discriminate.[146] It is unclear why humiliation was omitted from the list of purposes. In any case, the fact that the defendant was found individually criminally responsible for co-perpetration of rapes which he did not physically commit has huge importance for the practice of systematic sexual violence. The trial serves as notice to low-level military figures that they too may be held individually accountable for rapes and sexual assaults committed against the civilian population, even if these crimes do not amount to genocide or crimes against humanity, if they order or oversee the perpetration of sexual violence by non-State actors. [147]

2.3 Systematic sexual violence as a crime against humanity.

The category of crimes against humanity was added to Nuremberg charter because it was feared that under the traditional formulation of war crimes, many of the defining acts of the Nazis would go unpunished. The criminality of such acts, “Whether or not in violation of the domestic law of the country where perpetrated” confirmed that citizens are under the protection of international law even when they are victimised by their compatriots.  According to Article 6(c) of the Nuremberg Charter, crimes against humanity, which specifically included rape, [148] were punishable when committed on a mass scale against a civilian population, but only if they had a nexus to war.[149] Although Article 5 of the Statute of the ICTY similarly gives the Tribunal the power to prosecute persons responsible for such crimes only when committed in armed conflict against any civilian population,[150] in the Tadic case both the Trial and Appeals Chambers held that no nexus with war crimes or with an armed conflict of any character was required by modern international law.[151] Furthermore neither Article 3 of the Statute of the ICTR[152] nor Article 7[153] of the Rome Statute of the International Criminal Court make the requirement that crimes against humanity are committed in a conflict. In the absence of the war nexus, the application of international jurisdiction is justified on the basis of both the existence of an attack on a civilian population and the mens rea requirement that the defendant was aware that the act(s) in question would contribute to this attack.[154]

In contrast to the Nuremberg and ICTY Statutes definitions, the ICTR Statute requires that such crimes were committed “as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds.” To prosecute crimes against humanity under the ICTY statute it is required to show only that the crimes listed were “directed” against any civilian population[155] and thus the ICTR definition is more restrictive. Fortunately, this additional element was omitted from the Rome Statute, which defines crimes against humanity with reference only to the existence of a widespread attack against a civilian population and the mental state of the individual defendant.[156]

The judgement of The trial Chamber in the Tadic case made a significant contribution to explaining the definition of crimes against humanity by applying the characteristics of “widespread” or “systematic” to the prevailing attack rather than to the individual acts themselves.[157] Thus,

“A single act by a perpetrator taken within the context of a widespread or systematic attack against a civilian population entails individual responsibility.”[158]

Therefore proof of not only systematic rape, but also an individual act of sexual violence may be sufficient to constitute a crime against humanity, if this single act occurred as part of a systematic attack, as long as the individual perpetrator had knowledge of the attack.[159]

Moreover, the trial Chamber in the Akayesu case did not confine sexual violence to acts of rape for the purposes of prosecuting crimes against humanity.[160] Akayesu was found guilty of crimes against humanity for rape and other forms of sexual violence, charges as rape (Count 13) and other inhumane acts(Count 14). For the purposes of crimes against humanity, the Chamber defined rape and sexual violence as “a physical invasion of a sexual nature, committed in a person under circumstances which are coercive” which must be committed (a) as part of a widespread or systematic attack, (b), on a civilian population and (c) on the discriminatory grounds referred to above.[161] The Chamber found that there was sufficient evidence that Akayesu ordered, instigated, aided and abetted sexual violence against Tutsi women and girls on or near the Taba Bureau commune and found him guilty of rape as a crime against humanity.  In going beyond the definition of sexual violence offered by the Prosecutor, the trial Chamber stated, “[s]exual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact.”  The Chamber noted as an example an incident in which Akayesu ordered the Interahamwe to undress a student and force her to do gymnastics naked before a crowd.[162] Although the Rome Statute extends the list of prohibited crimes beyond rape to include sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and “ any other form of sexual violence of comparable gravity”, this does not go as far as the trial Chamber’s definition in Akayesu.[163] Thus, while each of the rapes perpetrated in the conflicts described in Part One satisfy the ICC definition of crimes against humanity this is not necessarily the case for all of the acts of sexual violence described.

As a consequence of the removal of the war nexus requirement, following the Tadic decision and the definitions of the statutes of the ICTR and the International Criminal Court, it will be possible to prosecute crimes against humanity in situations not amounting to an armed conflict once the ICC beings to operate. Given that there is no universally recognised threshold to define the level of hostilities needed for a non-international armed conflict to arise, this is a very welcome development. Thus numerous incidents of sexual violence which have occurred in the recent past, if repeated, would fall within the definition of crimes against humanity without requiring any argument as to whether these abuses occurred within a situation of armed conflict, in order that those responsible may be held internationally criminally responsible.  Indeed such instances raise the question of the utility of preserving the need for an armed conflict in internal situations, as humanitarian motivations certainly favour the broadest possible application of the provisions of international humanitarian law.

2.3.1 Systematic sexual violence as crimes against humanity in situations of internal strife

Following the military coup d’état against President Aristide in Haiti in 1991, the military authorities and paramilitary forces operating either at the instigation or with the consent of the army were responsible for many cases of politically motivated rape, massacres and forced disappearances.[164] The United Nations has repeatedly made reference to the “situation” in Haiti, but has never deemed this to amount to a conflict.[165] The exact number of women victims of political rape, which was most common in the period 1991-1994 is not known, though the Truth and Justice Commission estimate that it is close to 1680 cases.[166] The Commission found that rape constituted a political weapon, an instrument to intimidate and punish women as a result of their direct or indirect links with those opposing the coup d’état and held that the acts of rape could be characterised as a crime against humanity.[167]

Hundreds of women are also thought to have been raped in Zimbabwe during the pre-election violence perpetrated by “war veterans” and Zanu-PF gangs between April and July 2000.[168] Sexual violence was reportedly used as political intimidation against supporters of the Movement for Democratic Change party and their families. Systematic sexual violence may also occur through more insidious means. In Iraq, pictures of female relatives being subjected to sexual violence have been sent to individuals suspected of opposing the ruling regime as a form of intimidation and coercion.[169] In all three of these cases, the acts of sexual violence fall within the International Criminal Court’s definition of crimes against humanity.

In addition, it has been suggested that the large-scale gang rape and sexual assault of Chinese women during the riot in Jakarta in mid-May 1998 was an act of political control, carried out at the instigation of the government in order to terrorise the population and create a climate of fear in Indonesian society.[170] The exact number of victims is unknown, though The Tim Relawan, an Indonesian humanitarian NGO, reported 168 gang-rape victims[171] and the U.N. Special Rapporteur on Violence against Women found that rape during the riot was widespread.[172] The riot was incited by a group of unknown highly mobile individuals with access to communications technology who travelled around Jakarta and the surrounding areas, causing the rioting to spread.[173] The identity of the provocateurs and rapists remains unknown, though one victim reported that some rapists were dressed in army uniform at the time of the attacks.[174] According to James Siegel, the riot was engineered by members of the Indonesian middle class who supported the regime of President Suharto with the aim at destroying support anti-Suharto factions.[175] He suggests that the riot was used to produce widespread fear amongst the population, and to destabilize society in order to make it easy for the government to maintain power.  Thus, the gang-rapes were a form of terror directed toward the anti-Suharto middle class. Chinese women were targeted, due to the economically privileged position of the Indonesian-Chinese and because they were not permitted any political rights. Their position, both socially and politically ,was therefore extremely vulnerable.[176] If it is accepted that the riot was part of the power struggle of the Indonesian political elite and that the attacks on members of the Chinese civilian population were orchestrated by the ruling regime, then the sexual violence clearly falls within the most recent definitions of crimes against humanity.

There is a strong degree of overlap between crimes against humanity and genocide. As is the case with genocide, the definition of sexual violence within concept of crimes against humanity is open to the feminist criticism that the crime becomes regarded as an attack on the community, and the violence committed against the victims becomes rendered less significant. This argument will be discussed in relation to the classification of rape as genocide, where it applies with equal force.

2.4 Systematic sexual violence as genocide.

In addition to finding the defendant guilty of crimes against humanity the Trial Chamber of the ICTR also convicted Akayesu of genocide. The Trial Chamber recognised that sexual violence was an integral part of the genocide in Rwanda and found the accused guilty of genocide for crimes that included sexual violence. The Chamber found that the defendant had “ordered, instigated and otherwise aided and abetted sexual violence” and emphasised the connection between Akayesu’s crimes and systematic sexual violence throughout the conflict. [177] The Chamber stated,

“[Rape crimes] constitute genocide in the same way as any other act as long as they were committed with the specific intent to destroy, in whole or in part, a particular group as such…Sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destructions and to the destruction of the Tutsi group as a whole.”[178]

Whilst this finding has been hailed as a major advance in the prosecution of wartime rape by some leading commentators, others have been highly critical of categorising sexual violence as genocide.

Under the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention), genocide is distinguished from other international crimes by the mens rea requirement that the perpetrator, in committing a specific act or acts, did so with “the intent to destroy, in whole or in part, a national, ethnic racial or religious group.”[179] According to Article 2 of the Convention, the following acts can constitute genocide if this mens rea requirement is fulfilled,

(a)  Killing members of the group,

(b)  Causing serious bodily or mental harm to members of the group,

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d)  Imposing measures intended to prevent births within the group;

(e)  Forcibly transferring children of the group to another group.

Neither the Genocide Convention nor the ICTR Statute defines the meaning of these social categories, and thus this task fell to the trial Chamber in the Akayesu case. The chamber defined each of the social categories and concluded that the Tutsi-Hutu distinction did not fit any of these definitions. The chamber noted that the Tutsi belong to the same religious and national group as the Hutu. Both groups share the same language and culture, and any physical differences have been removed by intermarriage.[180] Nevertheless, the Chamber considered that the intention of the drafters was to protect any “stable and permanent group” and concluded that genocide had occurred. By adding “stable and permanent group” to the list of categories, the Chamber expanded the kinds of populations protected by the Convention.[181]

Furthermore, it is difficult to see how the acts of sexual violence which occurred in any of the internals conflicts discussed, besides those in Rwanda, can be categorised as genocide. It has been suggested that the forced movement of a group can be considered as genocide, given that it can be expected that a significant number of people will inevitably die whilst fleeing.[182] It is also possible to argue that the intentional destruction of a part of a group in order to make the rest of that group flee from a territory, as occurred in Kosovo, satisfies the definition of the Genocide Convention.  However, the gravity with which the concept of genocide has traditionally been regarded militates against the classification of genocide as an instrument of war. Indeed the indictment against Slobodan Milosoveic and other senior Yugoslav figures in connection with the abuses in Kosovo does not include the charge of genocide.[183] Furthermore, in the first war crimes trial in Kosovo, a charge of genocide was rejected against a Serb defendant, though he was conceived of “war crimes against civilians” for killing an ethic Albanian man, ordering the killing of another, and raping and ethnic Albanian woman.[184] Thus, while the Akayesu judgement is extremely welcome, the categorisation of rape as genocide has no direct relevance for the prosecution of sexual violence in any conflict besides that in Rwanda.

Catherine Mackinnon has been a major exponent of the view that mass rape should be classified as genocide, with particular focus on the rapes in Bosnia. She states that what occurred in Bosnia was first and foremost a genocide.  The conflict was an instrument of the genocide and the rapes an instrument of the war.[185] She argues that since rape was specifically carried out with the intent of the physical and social destruction of Bosnian Muslims through enforced pregnancy, forced exile and severe physical and emotional injury including death by rape, it should appropriately be classified as genocide.[186]

Systematic sexual violence can be considered to fall under each of the first four of the functions specified by the Genocide Convention. Paragraphs (b) and (c) most readily lend themselves to the classification of rape of genocide.  Rape can also be considered to amount to genocide under paragraph (d) since rape is frequently committed with the purpose of causing women to become either unable to marry or rejected by their husbands, thereby preventing births within that groups. Indeed, imposing measures intended to prevent births within the group could be achieved by harming the female gender, as only females are capable of producing offspring.[187] Acts of sexual mutilation which prevent births can also amount to genocide under paragraph (d) In addition, cases of death caused by the injuries sustained in rapes, can fall within paragraph (a).

Amongst those who advocate the definition of rape as genocide, considerable debate has focused upon whether forced impregnation is necessary for rape to be categorised as genocide.  Beverley Allen notes that in Bosnia it was the pregnancies and not the rapes alone which were the major weapon of genocide and thus it is primarily forced impregnation that makes rape genocidal.[188] However, whilst forced impregnation was certainly crucial in drawing attention to the rapes in Bosnia and consequently constructing rape as genocidal, it is overly restrictive to deny that rapes which did not involve forced impregnation can not be genocidal.  Indeed, according to Dinstein’s interpretation of the Genocide Convention, a single act of sexual violence could constitute genocide, if it occurred as part of a series of acts designed to destroy the group to which the victim belonged.[189]

The categorisation of sexual violence as both genocide and crimes against humanity has been criticised by several feminist writers. Brownmiller emphasises the fact that every publicised occurrence mass rape has always been labelled “unprecedented” and suggested that attention paid to the rapes in Bosnia was purely for propaganda value, with little concern for women victims.[190] Copelon writes that defining mass rape as genocide implies that it is worse than other forms of rape committed both during war and in peacetime and argues that the classification of rape as genocide is dangerous as it obscures the horror of ‘normal’ rape.[191] She further argues that the world took notice of the mass rape in Bosnia because of its association with ethnic cleansing. Thus the mass rape was not seen in terms of harm to women but harm to the Muslim and Croatian societies.[192] This serves to perpetuate patriarchal notions of women as cultural objects, and rape as a crime against the family and the nation’s honour, rather than a crime of violence.[193]

However, this analysis does not take account of the specific purpose of systematic sexual violence. These rapes invariably occur within traditional patriarchal societies, where the aim is to cause harm to the entire community.  Thus the women who are subjected to sexual violence are victimised not only on the basis of gender, but on the basis of being a member of the group or community to which they belong. The propaganda used against women illustrates this by attacking them on the basis of ethnic stereotypes, as well as on account of the fact that they are women. Indeed Copelon recognises the importance of religion and ethnicity as a motivating factor in the rapes in Bosnia.[194] Thus, prosecuting sexual violence as genocide or as a crime against humanity recognises the crucial motivation behind the sexual violence, whether it is the destruction of the group, or to cause severe damage to it. However, this does not necessarily demand that the harm done to the individual woman be overlooked. The problem is not the categorisation of rape as either genocide or crimes against humanity, but the traditional lack of attention paid to the condemnation of rape as a violation of the Geneva Conventions.  As discussed earlier, it is to be hoped that the Furundžija judgement will prove to be a watershed in the prosecution of sexual violence committed during periods of armed conflict. The prosecution of rape as torture recognises the severe harm done to the individual. Thus in the future, systematic sexual violence in internal conflicts should be prosecuted as a violation of Common Article 3, as torture, as a crime against humanity and, where appropriate, genocide.  The harm done to the individual may additionally be recognised as a consequence of victims of sexual violence seeking redress for such acts as violations of international human rights law.

2.5 Systematic sexual violence as a violation of international human rights law

The focus of human rights law is almost exclusively on individual rights.[195] For definitional purposes, therefore, with the notable exception of genocide, international human rights law takes no account of large-scale or systematic violations, and massive human rights abuses are characterised in terms of the effects on each of those individuals rather than on the civilian population as a whole. Nevertheless, acts of sexual violence which have been committed by State security forces may give rise to responsibility under international human rights law, if it can be proved that these abuses resulted as a result of either a deliberate practice promoted by the state or as a result of the failure of the state to prevent the occurrence of such crimes.

In Raquel Martí de Mejía v Peru,[196] the inter-American Commission of Human rights found Peru accountable for the rape of a woman, Raquel Mejía by a member of the state security forces as part of the campaign of repression against civilians who were suspected of supporting the Shining Path militia. Mrs Mejía was raped twice by the same individual, first at the time of her husband’s disappearance, and then shortly after his abduction. In the absence of any disagreement or discussion of the facts by the Peruvian Government, the Commission presumed the facts as presented by the petitioners to be true. The Commission considered that the credibility of the petitioner’s version of the facts was corroborated by the substantial documentation by non-governmental organisations of instances of sexual violence as an aspect of the campaign against insurgent groups.[197] Thus the existence of a campaign of sexual violence may have considerable value as presumptive evidence in individual cases. 

The Commission classified the rapes as torture within the definition of the Inter-American Convention to Prevent and Punish Torture,[198] and found a violation of Article 5 (the right to human treatment) of the American Convention on Human Rights.[199] Significantly, the Commission found a violation of article 25 (the right to an effective remedy) despite the fact that Mrs. Mejía did not report the rapes to the police or submit a petition to the domestic courts. The Commission acknowledged the impunity with which sexual violations were carried out in the emergency areas and presumed the non-existence of effective recourse that would permit remedies for the human rights suffered by the petitioner.[200] Thus the inadequacy of a national legal system to respond to systematic crimes against women may give rise to international responsibility without requiring that the individual victim reports the offence.

The Mejía case builds upon the jurisprudence of the Inter-American Court of Human Rights in Vélásquez Rodriguez v Honduras.[201] The Court found that Honduras had violated Articles 4, 5 and 7 of the American Convention on Human Rights as a result of the detention and disappearance of Manfredo Vélásquez, a Honduran national. The Court recognised that a practice of disappearances carried out or tolerated by Honduran officials existed between 1981 and 1984 and that Vélásquez disappeared at the hands of or with the acquiescence of those officials within the framework of that practice.  The Court stated,

“Disappearances are not new in the history of human rights violations. However, their systematic and repeated nature and their use not only for causing certain individuals to disappear,…but also as a means of creating a general state of anguish, insecurity and fear, is a recent phenomenon.”(My italics) [202]

In the Mejía case, the Commission acknowledged that sexual violence can equally be used as a means of creating a state of insecurity and fear.

Furthermore, the Vélásquez decision sets forth the standard of State responsibility for non-State paramilitary actors.  The State is under a due diligence standard to prevent, prosecute and punish offenders, whether they are acting as agents of the state or as paramilitaries. This has clear relevance for the establishment of State responsibility for the massive number of acts of sexual violence perpetrated by paramilitary groups.

The capacity of international human rights law to provide redress for the victims in terms of compensation and the prosecution of the actual perpetrators of violations is largely dependent upon two factors. First, on the availability of a right of individual petition to either a regional or international human rights treaty body and second, on the willingness of the State concerned to co-operate with the finding of such a body.[203] However, even without any action by a State found to be in violation, the proclamation that a State was responsible for a practice of systematic sexual violence may have tremendous significance for victims seeking to have the abuse committed against them recognised, and may act as an important incentive to that State to address these abuses.

Conclusion

Systematic sexual violence has been used against women to achieve various ends in a significant number of internal conflicts which have occurred in the last decade. The primary purpose of the violence has been the creation of a climate of terror such that the target group will comply with the demands of those responsible for these crimes. The fear of sexual violence has additionally been harnessed in order to drive the ethnic Albanian civilian population from Kosovo. In Rwanda, sexual violence was an integral part of the genocide.  The overwhelming majority of individual perpetrators have not been punished and this will remain so, while the surviving victims will continue to bear the severe physical and mental damage inflicted upon them.

A number of extremely alarming issues emerge from the present discussion. The fact that the condemnation of the sexual violence in Bosnia failed to prevent the occurrence of a further campaign of strategic sexual violence by Yugoslav forces in Kosovo is particularly disturbing. Furthermore, the lack of international condemnation of campaigns of sexual violence which continue to occur in Kashmir and Chechnya are a cause for alarm.

Nevertheless, there is some room for optimism. Despite the limited protective scope of the Geneva Conventions in relation to internal armed conflicts, crimes of sexual violence have been charged in the ICTR and ICTY as violations of Common Article 3 and Additional Protocol II, violations of the laws and customs of war, crimes against humanity and as genocide. In the Furundžija  case, the recognition that rape can constitute torture as a violation of Common Article 3 and the conviction of the defendant for rape despite the fact that he was not the physical perpetrator are particularly encouraging. Furthermore, the judgement presents the possibility of prosecuting individuals for torture as a result of forcing others to witness acts of sexual violence being perpetrated against friends or relatives. In the Akayesu case, the recognition that rape can amount to genocide also represents a major advance for the prosecution of sexual violence as a tool of warfare. 

In addition, the recognition that rape can constitute torture under international human rights law presents a method of holding states accountable for violations which have been officially sanctioned or tolerated.  The Mejía case indicates that States may be held responsible for campaigns of rape against civilian populations. Furthermore, the Vélásquez finding shows that States may be deemed accountable for campaigns of sexual violence conducted by paramilitary groups.

Perhaps most significant, however, is the prosecution of sexual violence as a crime against humanity by both the ICTY and the ICTR. The broadening of crimes against humanity from rape to other forms of sexual violence and the removal of the war nexus requirement presents the opportunity for the prosecution of a wide variety of forms sexual violence, which extends beyond periods of armed conflict to situations of internal repression and strife.

It is imperative that the decisions in Tadić, Akayesu and Furundžija are utilised and built upon in the future, especially by the International Criminal Court. Significantly, there has so far not been any case heard by either the ICTY or ICTR in which the defendant has been charged only with crimes of sexual violence. Furthermore, the two most important judgements for the prosecution of sexual violence have only come about as a result of the indictments being amended by amicus curiae briefs submitted by women’s rights organisations. This points to a lack of willingness to charge those suspected of sexual offences on the part of the Office of the Prosecutor. It is to be hoped that such reluctance will be overcome in future cases, and that the judgements of the ICTY and the ICTR will prove to be vital in helping to ensure that rape does not continue to remain the ‘least condemned war crime’

Bibliography

B. Allen, Rape Warfare, the Hidden Genocide in Bosnia Herzegovina and Croatia (Minnesota: University of Minnesota Press (1996)

Amnesty International, 'Peru: Human Rights in a Climate of Terror' (London: Amnesty International) (1991)

Amnesty International, 'Human Rights are Women's Right' (London: Amnesty International)
(1995)

Amnesty International, 'Torture and deaths in custody in Jammu and Kashmir' (London: Amnesty International) (January 1995)

Amnesty International, 'India: High Time to put an end to impunity in Jammu and Kashmir' (London: Amnesty International) (May 1997)

Amnesty International, 'Sierra Leone 1998 - a year of atrocities against civilians'

Amnesty International Report' AFR/ 51/22/98 (London: Amnesty International) (November 1998)

Amnesty International, 'Sierra Leone: Rape and other forms of Sexual Violence Against Girls and Women' (London: Amnesty International) (March 2000)

Amnesty International, 'Rape and torture of children in Chernokozovo "filtration camp "' (London: Amnesty International) (March 2000)

Amnesty International, 'Real scale of atrocities in Chechnya: New evidence of cover up' (London: Amnesty International) (March 20000

Amnesty International, ' Voices of human rights abuses from Sierra Leone' News Release AFR 5 l/043/200(London: Amnesty International) (June 2000)

Amnesty International, 'Continuing torture and rape in Chechnya' News Release EUR 46/36/00 (London: Amnesty International) (June 2000)

Amnesty International, 'Sierra Leone: Ending Impunity - an opportunity not to be missed" AFR 51/60/00 (London: Amnesty International) (July 2000)

Asia Watch & Physicians for Human Rights, 'Rape in Kashmir: A Crime of War' (New York: Asia Watch & Physicians for Human Rights) (1993)

K.D. Askin, War Crimes Against Women Prosecution in International Tribunals (London: Kluwer Law International) (1997)

K.D. Askin, 'Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status' 93 American Journal of International Law 97-123

K. D. Askin, 'The International War Crimes Trial of Anto Furundzija: Major Progress Toward Ending the Cycle of Impunity for Rape Crimes' 12 Leiden Journal of International Law 933-955

I. Baranivski, 'Mob Rule in Moscow' The Guardian, 12 June 1992 24

S. Brownmiller, Against our will, Men Women and Rape (New York: Simon and Schuster) (1975)

S. Brownmiller, 'Making Female Bodies the Battlefield' in A. Stiglmayer (ed) Mass Rape: The War Against Women in Bosnia Herzegovina. (Lincoln: University of Nebraska Press) (1994)

K.L. Cain, 'The Rape of Dinah: Human Rights, Civil War in Liberia and Evil Triumphant' (1999) 21 Human Rights Quarterly 265-278

H. Charlesworth, 'Feminist Methods in International law' 93 American Journal of International Law 379-399

C. Chinkin, 'Women: The Forgotten Victims of Armed Conflict?' in H. Durham and T.L.H. McCormack (eds.) The Changing Face of Conflict and the Efficacy of International Humanitarian Law (London: Kluwer Law International) (1999)

C. Chinkin, 'Rape and sexual Abuse of Women in International Law' (1994) 5 European Journal of International Law 326

R. Coomaraswamy, 'Report of the Special Rapporteur on Violence against women, its causes and consequences' UN. Doc E/CN.4/1998/54

R. Coomaraswamy, 'Report of the Special Rapporteur on Violence Against Women, Its Causes and Consequences: Addendum Report on the Mission to Haiti: Rape, Sexual Abuse and Harassment' U.N. Doc E.CN.4/2000/68/Add.3

R. Coomaraswamy, 'Report of the Special Rapporteur on Violence Against Women, Its Causes and Consequences: Addendum. Mission to Indonesia and East Timor on the Issue of Violence Against Women' U.N. Doc E.CN.4/1999/68/Add.3

R. Copelon, 'Surfacing Gender: Reconceptualizing Crimes against Women in Tune of War' in A. Stiglmayer (ed), Mass Rape: The War Against Women in Bosnia Herzegovina. (Lincoln: University of Nebraska Press) (1994)

L. Despouy, 'Eighth annual report and list of States which, since 1 January 1985, have extended or terminated a state of emergency' U.N Doc E/CN.4/Sub.2/1995/20

Y. Dinstein, 'International Criminal Law,' in H. J. Steiner and P. Alston (eds), International Human Rights in Context, Law, Politics, Morals (Oxford: Clarendon Press, 1996)

H. Durham and T.L.H. McCormack (eds.), The Changing Face of Conflict and the Efficacy of International Humanitarian Law (London: Kluwer Law International) (1999)

Folnegovic-Smalc, 'Psychiatric Aspects if the Rapes in the War against the Republics of Croatia and  Bosnia-Herzegovina' in A. Stiglmayer (ed) Mass Rape: The War Against Women in Bosnia Herzegovina. (Lincoln: University of Nebraska Press) (1994)

K. Galbraith, 'Moving People; Forced Migration and International Law' Georgetown Immigration Law Journal Summer 1999

J. Gardam, Humanitarian Law (Aldershot, Dartmouth: Ashgate) (1999)

Gleven, War and existence: A philosophical Enquiry (University Park: Penn State University Press) (1994)

C. Greenwood, 'International Humanitarian Law and the Tadic Case' (1996) 7 European Journal of International Law 265-283

P. Gourevitch, We wish to inform you that tomorrow we will be killed with our families: Stories from Rwanda (London, Picador) (1998)

Human Rights Watch Untold Terror: Violence Against Women in Peru's Armed Conflict (New York: Human Rights Watch) (1992)

Human Rights Watch/Americas, Human Rights Watch/Women's Rights Project & National Coalition for Haitian Refugees, Rape in Haiti: A Weapon of Terror (Washington: Human Rights Watch)(1994)

Human Rights Watch / Africa Human rights Watch / Women's Rights Project/ Federation International Des Ligues Des Droits De L'Homme, Shattered Lives: Sexual Violence during theRwandan Genocide and its Aftermath (New York: Human Rights Watch) (1996)

Human Rights Watch, "Behind the Kashmir conflict" (New York: Human Rights Watch) (1999)

Human Rights Watch, 'Rape and Torture in Doda Kashmir' (New York: Human Rights Watch) (1999)

Human Rights Watch, 'Kosovo: Rape as a weapon of "Ethnic Cleansing"   (New York: Human  Rights Watch Vol. 12 No. 3 (d)) (2000)

Human Rights Watch, 'Rape Allegations Surface in Chechnya' (New York: Human Rights Watch)  (January 2000)Human Rights Watch, 'Hundreds of Chechens Detained in "filtration camps"' (New York: Human Rights Watch) (February 2000)Human Rights Watch, 'More Evidence of Rape by Russian Forces in Chechnya' (New York: Human Rights Watch) (March 2000)

Human Rights Watch, 'New Testimony of Rape Committed by Sierra Leone Rebels: RUF fighters rape women and children in Makeni and other towns' (New York: Human Rights Watch) (June 2000)

Human Rights Watch, 'February 5; A day of Slaughter in Noyve Aldi' (New York: Human Rights Watch) (June 2000)

Human Rights Watch, 'U.N. Action on Sierra Leone Court Welcomed' (New York: Human Rights Watch (August 2000)

Human Right Watch, 'India's Secret Army in Kashmir; New patterns of Abuse Emerge in the Conflict (New York: Human Rights Watch) (May 1996)

C. A. MacKinnon, 'Crimes of war, crimes of peace' in S. Shute and S. Hurley (eds.,) On Human Rights, The Oxford Amnesty Lectures (New York: Basic Books) (1993)

C. A. MacKinnon, 'Rape, Genocide and Women's Human Rights' in A. Stiglmayer (ed.) Mass Rape: The War Against Women in Bosnia Herzegovina. (Lincoln: University of Nebraska Press) (1994)

P.Magnarella, 'Some Milestones and Achievements at the International Criminal Tribunal for Rwanda: The 1998 Kamabanda and Akayesu Cases' 11 Florida Journal of International Law 517-537

A. Meldrum, 'Mugabe heads for defeat at the polls' The Observer 18 June 2000

J. Meritus, 'Women in Kosovo: Contested Terrains' in S. Ramet, (ed.), Gender Politics in the Western Balkans: Women and Society in Yugoslavia and the Yugoslav Successor States (University Park: Pennsylvania State University Press, 1999)

T. Meron, 'War Crimes in Yugoslavia and the Development of International Law,' (1994) 88 American Journal of International Law. 84-87

T. Meron 'International Criminalization of Internal Atrocities' 89 American Journal of International

Law 554-577

T. Meron, 'Classification of Armed Conflict in the Former Yugoslavia Nicaragua's Fallout' (1998) 92 American Journal of International Law 236-242

T. Meron, 'The Humanisation of Humanitarian Law' (2000) 94 American Journal of International Law 2'39-270

R. Primariantari, 'Women, Violence and Gang Rape in Indonesia' 7 Cardozo Journal of international and Comparative Law 245-276

S. Ramet, (ed.), Gender Politics in the Western Balkans: Women and Society in Yugoslavia and the Yugoslav Successor States (University Park: Pennsylvania State University Press) (1999)

N.S. Rodley, 'Report of the Special Rapporteur on Torture' U.N Doc. E/CN.4 1994/31

R Seifert 'War and Rape: A Preliminary Analysis' in A. Stiglmayer (ed) Mass Rape: The War Against Women in Bosnia Herzegovina.(Lincoln: University of Nebraska Press) (1994)

J. Siegel, In Suharto's shadow http://www.thebookeryxom/Bookpress/article.cfrn/8.6/33.Sigel7201

S. Shute and S. Hurley (eds.) On Human Rights, The Oxford Amnesty Lectures  (New York: Basic Books) (1993)

H. Smith, 'News Investigation: Kosovo's tragic Victims' The Observer\6 April 2000, 8

J. Steele, 'War crime trial convicts Serb of murder and rape' The Guardian 21 September 2000

B. Stephens 'Humanitarian Law and Gender Violence: An end to Centuries of Neglect?' (1999) 3 Hofstra Law and Policy Symposium 87

A. Stiglmayer, Mass Rape. The War against Women in Bosnia-Herzegovina (Lincoln: University of
Nebraska Press) (1994)

S. Swiss and P.J. Jennings, 'Violence against Women During the Liberian Civil Conflict' Journal of the American Medical Association 25 February 1998

B. Van Schaack, 'The definition of Crimes Against Humanity: Resolving the Incoherence' 37
Columbia Journal of Transnational Law 787-850

D. Walsh, 'Rapes by Zanu-PF thugs bring new threat of AIDS' The Independent 4 July 2000 15

A. K. Wing & S. Merchane 'Rape, Ethnicity and Culture: Spirit Injury from Bosnia to Black America' (1993) 25 Columbia Human Rights Review 1

Radio Free Europe/Radio Liberty, 'Chechnya: Council of Europe Delegation to Review Human Rights Compliance' http://www.rferl.org/nca/special/chechnya/index

U.S. State Department report, "Ethnic Cleansing in Kosovo: An Accounting"

http://www.state.gov/www/global/human rights/kosovoii/op.htrnl

'Hollywood looks to Chechnya for new bad guys' Guardian Unlimited 24 July 2000. http//www.ne wsunlimited. ore

'Preliminary report submitted by the Special Rapporteur On Violence against Women, its Causes and Consequences,' Commission on Human Rights, U.N Doc. E/CN.4/1995/42

'Situation of Human Rights in Haiti': E/CN.4 RES/199/77 'Human Rights in Haiti': A/RES/54/187

'The Prosecutor of the tribunal against Slobodan Miolsevic, Milan Utinovic, Nikola Sainovic, Dragoljub Ojdanicvlajko Stojiljkovic'. Indictment Available http://www.un.org.icty/ind-e.htm

The Nuremberg Charter, as amended by the Berlin Protocol, 59 Stat. 1546, 1547 (1945), E.A.S. No. 472, 82 U.N.T.S. 284

Convention Relative to the Protection of Civilian Person in Time of War, adopted at Geneva 12 Aug. 1949. 6 UST 3516, U.N.T.S. 287

Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277

[European] Convention for the Protection of Human Rights and Fundamental Freedoms, (ETS No.5) 213 U.N.T.S 222

Optional Protocol to International Covenant on Civil and Political Rights G.A. Res. 2200A U.N. Doc A/6316

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts 1125 U.N.T.S.

American Convention on Human Rights, O.A.S. Treaty Series No. 36, 1144 U.N.T.S.

Statute of the International Tribunal for the Prosecution of Persons responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991 U.N. Security Council Res. 827 (1993)

Statute of the International Tribunal for Rwanda, U.N.Doc. ITR/3/REV.1 (1995),

Rome Statute of the International Criminal Court, U.N. Doc. A/CONF. 183/9

Cases

Aydin v Turkey Case Available at http://www.dlihcour.co.fr/hudoc   (Hudoc ref: 00001221)

Prosecutor v Anto Furundzija, Decision, Case No. IT-95-17/1-T, 16 July 1998.

Prosecutor v Anto Furundzija Case No IT-95-17/1, 21 July 2000

Prosecutor v Dusko Tadic Case No. IT-94-1-T, 7 May 1997

Prosecutor v Dusko Tadic, Case No. IT-94-1-A, 15 July 1999 reprinted in (1999) 38 ILM 1518

Prosecutor v Delalic, Mucic, Delia & Landzo IT-96-21-T, 16 Nov. 1998   Prosecutor v Akayesu, Case No. ICTR-96-4-T, 2 Sept. 2 1998.

Raquel Marti de Mejia v Peru  Case   10.970,  (1996)  Report No.   5/96,  Inter-Am.  h.H.R, OEA/Ser.L/V/II.91 Doc 7 at 157

Velasquez Rodriguez v Honduras Inter-American Court of Human Rights. Judgement of July 29, 1988 Series C, No. 4, 28 I.L.M 294(1989)

Websites

http://www.amnesty.org

http://conventions.coe.int

http://www.dhlicour.co.fr/liudoc

http://www.lirw.org

http://www.newsunlimited.org

http://www.osce.org

http://www.state.gov

http://www/global/humanrights/kosovoii/op.html

http://www.un.org

http://www.un.org./icty

http://www.un.org./ictr

http://www.unhchr.ch

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[1] ‘Preliminary report submitted by the Special Rapporteur On Violence against Women, its Causes and Consequences,’ Commission on Human Rights, Un Doc. E/CN.4/1995/42 at para 263 http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/75ccfd797b0712d08025670b005c9a7d?Opendocument

[2] The term sexual violence includes but is not limited to rape. The term also includes sexual assault and sexual mutilation, i.e. of the breasts and vagina.  Rape is defined according to the definition of the ICTY in Prosecutor v Furundžija which defined the objective elements of rape as (i) the sexual penetration, however slight:  (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator;  (ii) by coercion or force or threat of force against the victim or a third person. Prosecutor v Anto Furundžija, Decision, Case No. IT-95-17/1-T, 16 July 1998, para 185.http://www.un.org/icty  para 185 See infra 28-29

[3] For an account of rape in war over the centuries see S. Brownmiller Against our will, Men women and rape (Simon and Schuster, 1975)

[4]Rape, forced prostitution and forced sterilization are increasingly committed against men in armed conflicts. However, the focus here is on acts of sexual violence committed against women, which constitute the vast majority of acts of sexual violence.

[5]Regarding the characterisation of the conflict, in Prosecutor v Duško Tadić the Appeals Chamber considered that the conflict had both internal and international characteristics Case No IT-94-1-T, 7 May 1997 para. 77. In Prosecutor v v Delalic, Mucic, Delic & Landzo(Čelebići Case), the trial Chamber of the ICTY stated that an international armed conflict existed in Bosnia and Herzegovina in May 1992. Case no. IT-96-21-T 16 Nov. 1998 Both cases at http://www.un.org/icty  See also C. Greenwood, ‘International Humanitarian Law and the Tadic Case’ (1996) 7 European Journal of International Law  265-283. http://www.ejil.org/journal/Vol7/No2/art8.html and T. Meron, ‘Classification of Armed Conflict in the Former Yugoslavia Nicaragua’s Fallout’ (1998) 92 American Journal of International Law 236-242:  For a discussion of the rape in Bosnia see A. Stiglmayer (ed). Mass Rape: The War against Women in Bosnia-Herzegovina (University of Nebraska Press, 1994)

[6] R. Seifert  ‘War and Rape: A Preliminary Analysis” in A. Stiglmayer op cit., supra n. 4.

[7] ibid. at 58

[8] ibid. at 59

[9] ibid. at 59-62

[10] ibid. at 62-64

[11] ibid. at 65-66

[12] V. Folnegovic-Smalc, ‘Psychiatric Aspects if the Rapes in the War against the Republics of Croatia and Bosnia-Herzegovina’ in A. Stiglmayer op cit., supra, n. 4 at174-5

[13] S. Brownmiller op cit., supra n.4 at 38

[14] B. Stephens, ‘Humanitarian Law and Gender Violence: An End to Centuries of Neglect?’ (1999) 3 Hofstra Law and Policy Symposium 87 at 89-90

[15] R. Coomaraswamy, ‘Report of the Special Rapporteur on Violence against Women, its Causes and Consequences’ UN. Doc E/CN.4/1998/54 http://www.unhchr.ch/Huridocda/Huridoca.nsf/(Symbol)/E.CN.4.1998.54.En?Opendocument

[16] R. Seifert loc. cit., supra n. 5 at 55

[17] U.S. Department of State, Country Reports on Human Rights Practices for 1990 and 1991,Washington, DC, February 1991.cited ibid.

[18] Amnesty International, ‘Peru: Human Rights in a Climate of Terror’ Amnesty International 1991 at 7

[19] Human Rights Watch, ‘Untold Terror: Violence Against Women in Peru’s Armed Conflict’ (Human Rights Watch, 1992) 18-19

[20] ibid. at 19

[21] Asia Watch & Physicians for Human Rights, ‘Rape in Kashmir: A Crime of War’ (Human Rights Watch, 1993)

[22] See, for example, Amnesty International, ‘Torture and deaths in custody in Jammu and Kashmir” (Amnesty International, January 1995), Available http://www.amnesty.org  and Human Rights Watch, ‘Behind the Kashmir Conflict’ (Human Rights Watch 1999)  http://www.hrw.org/reports/1999/kashmir/

[23] See, for example Human Rights Watch, ‘Rape Allegations Surface in Chechnya’ (Human Rights Watch, January 2000) http://www.hrw.org/press/2000/01/chech0120.htm  Amnesty International, ‘Rape and torture of children in Chernokozovo “filtration camp”. Amnesty International, March 2000)http://web.amnesty.org/library/Index/ENGEUR460192000?open&of=ENG-2U4

[24] Asia Watch & Physicians for Human Rights, loc. cit., supra n 21 at 14-17 NB Twelve major militant organisations operate in Kashmir which are roughly divided between those who support independence and those who favour accession to Pakistan.

[25] Human Rights Watch, loc. cit., supra, n. 19 at 4

[26] Amnesty International, ‘Sierra Leone: Rape and other forms of Sexual Violence Against Girls and Women’ (Amnesty International, June 2000.) http://web.amnesty.org/library/Index/ENGAFR510482000?open&of=ENG-SLE

[27] Human Rights Watch, loc. cit., supra, n. 19 at 1 

[28] Human Rights Watch, loc. cit., supra, n. 19 at 1

[29] N.S. Rodley, ‘Report of the Special Rapporteur on Torture’ U.N Doc. E/CN.4 1994/31, paras. 431-432 http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/f4bf07785300574d802567310054966f?Opendocument

[30] Asia Watch & Physicians for Human Rights, loc. cit., supra n. 21 38

[31] Amnesty International, ‘India: High Time to put an end to impunity in Jammu and Kashmir’ (Amnesty International May 1997) http://web.amnesty.org/library/Index/ENGASA200241997?open&of=ENG-IND

[32] Asia Watch & Physicians for Human Rights, loc. cit., supra n. 21 at 14-17

[33] ibid.

[34] Amnesty International, loc cit., supra n.26

[35] For a review of 1998 see ‘Sierra Leone 1998 – a year of atrocities against civilians’ Amnesty International Report November 1998 AFR/ 51/22/98 (Amnesty International, November 1998)Available http://www.amnesty.org

[36] ibid.

[37] ibid.

[38]Amnesty International, ‘Voices of human rights abuses from Sierra Leone’ –News Release AFR 51/043/200 21 June 2000. See also Human Rights Watch, ‘New Testimony of Rape Committed by Sierra Leone rebels: RUF fighters rape women and children in Makeni and other towns’ (Human Rights Watch, June 2000) http://www.hrw.org/press/2000/06/sl0605.htm . NB More than one dozen testimonies from women victims of sexual violence were provided to Human Rights Watch , most of whom witnessed  rapes perpetrated against friends and relatives.

[39] K. L. Cain ‘The Rape of Dinah: Human Rights, Civil War in Liberia and Evil Triumphant’ (1999) 21 Human Rights Quarterly 265-308 at 275-278

[40] 205 women were interviewed in four types of setting in Monrovia; high schools, markets, displaced persons camps and urban communities. Sexual violence here includes being strip-searched. 15% were victims of rape or attempted rape.

S. Swiss and P.J. Jennings, ‘Violence against Women During the Liberian Civil Conflict’ Journal of the American Medical Association 25 February 1998

[41] K. L. Cain loc. cit., supra. n 38 at 278-280

[42] ibid.

[43] ibid. at 276-277

[44] Amnesty International, ‘Rape and torture of children in Chernokozovo “filtration camp”’(Amnesty International March 2000), http://web.amnesty.org/library/Index/ENGEUR460192000?open&of=ENG-2U4 ‘Real scale of atrocities in Chechnya: New evidence of cover up’ (Amnesty International, March 2000) http://web.amnesty.org/aidoc/ai.nsf/6e57ed407c06502580256d57004ab6c1/5ea053fef9648156802568b2002bfacc/$FILE/EUR4602000.pdf ;‘Continuing torture and rape in Chechnya’ (Amnesty International, June 2000) http://web.amnesty.org/library/Index/ENGEUR460362000?open&of=ENG-RUS ; Human Rights Watch, ‘Rape Allegations Surface in Chechnya’ (Human rights Watch, January 2000)  http://www.hrw.org/press/2000/01/chech0120.htm ; ‘Hundreds of Chechens Detained in “filtration camps”’ (Human Rights Watch,  February 2000), http://www.hrw.org/press/2000/02/chech0218.htm ; ‘February 5; A day of Slaughter in Noyve Aldi’ (Human Rights watch, June 2000)  http://www.hrw.org/reports/2000/russia_chechnya3/

[45] Human Rights Watch, ‘More Evidence of Rape by Russian Forces in Chechnya’ (Human Rights Watch, March 2000) http://www.hrw.org/press/2000/03/chech0330.htm

[46] Rape has been classified as torture. infra p 26

[47] N.S.Rodley, ‘Question of the Human Rights of all persons subjected to any form of detention or imprisonment, in particular: torture and other cruel, inhuman or degrading treatment or punishment: Report of the Special Rapporteur’. UN Doc E/CN.4/1997/7 (India) http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/4ec3a246424e954c80256658003c2c7b?Opendocument See also, Human Right Watch, ‘India’s’ Secret Army in Kashmir; New patterns of Abuse Emerge in the Conflict’ (Human Rights Watch, May 1996) http://www.hrw.org/reports/pdfs/I/INDIA/INDIA965.PDF

[48] Human Rights Watch, loc. cit., supra, n. 19 at 19-20

[49] ibid. at 20

[50] ibid. at 25

[51] ibid. at 11-12

[52] Human Rights Watch state that less than one per cent of women reported acts of sexual violence ibid. at 26

[53] ibid.

[54] Human Rights Watch note that from 1985 to 1990, 10 police officers were dismissed from the force for rape. Most cases involved officers who committed rape while off-duty and in circumstances unrelated to a detention or counterinsurgency operation. ibid. at 10

[55] ibid .at 3

[56] Asia Watch & Physicians for Human Rights, loc. cit., supra n. 21 at 4

[57] Amnesty International, ‘Sierra Leone: Ending Impunity – an opportunity not to be missed’ AFR 51/60/00 (Amnesty International, July 2000) http://web.amnesty.org/library/Index/ENGAFR510642000?open&of=ENG-SLE

[58] Human Rights Watch, ‘U.N. Action on Sierra Leone Court Welcomed’ (Human Right Watch, August 2000) http://www.hrw.org/press/2000/08/sl0814.htm

[59] K. L. Cain, loc. cit., supra n.38 at 278

[60] ibid.

[61] Radio Free Europe/Radio Liberty, ‘Chechnya: Council of Europe Delegation to Review Human Rights Compliance’ http://www.rferl.org/nca/features/2000/09/F.RU.000918101203.html

[62] K.D. Askin, War Crimes Against Women Prosecution in International Tribunals  (Kluwer Law International, 1997) 260-263

[63] Human Rights Watch ‘Federal Republic of Yugoslavia (Kosovo): Rape as a weapon of “Ethnic Cleansing”’ Vol. 12 No. 3 (d) (Human Rights Watch, March 2000) at 31.http://www.hrw.org/reports/2000/fry/

[64] ibid.

[65] ibid.

[66] ibid. at 11

[67] ibid. at 12

[68] Kosovo/Kosova ‘As seen, As Told’ The human rights findings of the OSCE Kosovo Verification Mission,  1998-1999 , OSCE 1999 http://www.osce.org/kosovo/documents/reports/hr/

[69] Human Rights Watch, loc. cit., supra n 63

[70] ibid.

[71] ibid.

[72] ibid.

[73] ibid.

[74] H.Smith, ‘News Investigation: Kosovo’s tragic Victims’ The Observer 16 April 2000, 8

[75] Human Rights Watch, loc. cit., supra n 52 at 14-23 [THE PERU REFERENCE

[76] NB the RPF Resumed its conflict less than 24 hours after the death of former president Haby]arimana. Roadblocks had been erected and people were being killed on the roads of Kigali within one hour of his death. P. Gourevitch, We wish to inform you that tomorrow we will be killed with our families: Stories from Rwanda 113-114” (Picador, 1998)

[77] ibid.

[78] Human Rights Watch / Africa Human rights Watch Women’s Rights Project, Fédération Internationale Des Ligues Des Droits De L’Homme, Shattered Lives: Sexual Violence during the Rwandan Genocide and its Aftermath (Human Rights Watch, 1996) http://www.hrw.org/reports/1996/Rwanda.htm

[79] ibid. at 24

[80] Sexual mutilation included mutilation of the breasts, vagina and pelvic area with machetes, knives sticks, boiling water and in one case, acid. ibid. at 62-65

[81] ibid at 1

[82] ibid. at 49

[83] ibid. at 42-48.

[84] ibid. at 52-53

[85] ibid. at 1

[86] ibid. at 35

[87] ibid. at 35

[88] ibid. at 36

[89] ibid. at 1

[90] ibid. at 35

[91] ibid. at 48

[92] Prosecutor v Akayesu, Judgement No. ICTR-96-4-T Sept. 2 1998. For the legal implications of the decision see infra 27-34

[93] see A. Lyth ‘The development of the legal protection against sexual violence in armed conflicts- advantages and disadvantages’ available at http://www.iktk.se/publikationer/rapporter/pdf/development.pdf

[94] K.D. Askin, ‘Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status’ 93 American Journal of International Law 97 –123 at 106

[95] ‘Britain Says Kosovo Women Raped in Military Camp’ Reuters, 13 April 1999

[96] U.S. State Department Report, ‘Ethnic Cleansing in Kosovo: An Accounting’ http://www.state.gov/www/global/human_rights/kosovoii/op.html

[97] Human Rights Watch loc. cit. supra n. 63]

[98] For a discussion of the characterisation of rape as genocide see infra 37-40

[99] Michael Gleven, War and existence: A philosophical Enquiry (Penn State University Press, 1994) at 7-10

[100] ibid. at 7-8

[101] Human Rights Watch, loc. cit., supra, n. 19 at 16

[102] ibid. at 18

[103] ibid.

[104] ibid. at 18-19

[105] Gourevitch, P. op. cit. supra., n. 76 at 57

[106] ibid. at 88-100

[107] ibid. at 54-56

[108] ibid. at 87-88

[109] ibid. at 88

[110] Human Rights Watch, loc. cit. supra, n. 76 at 18-19

[111] Human Rights Watch loc. cit,. supra n. 52 at 10

[112] J. Meritus, ‘Women in Kosovo: Contested Terrains’ in S. Ramet, (ed)., Gender Politics in the Western Balkans: Women and Society in Yugoslavia and the Yugoslav Successor States (Pennsylvania State University Press, 1999) 178

[113] H. Smith, loc. cit. supra., n. 76

[114]‘Bebitsky’s War’ Channel Four Documentary. 4 September 2000

[115] ‘Hollywood looks to Chechnya for new bad guys’ Guardian Unlimited Monday 24 July 2000.See also I. Baranivski, ‘Mob Rule in Moscow’ The Guardian, 12 June 1992 24 Available athttp//www.newsunlimited.org

[116] Amnesty International, ‘Sierra Leone: Childhood – a casualty of conflict’ AFR 51/069/200 (Amnesty International, August 2000) http://web.amnesty.org/library/Index/engAFR510692000?OpenDocument&of=THEMES%5CCHILDREN+JUVENILES  K. L. Cain, loc. cit., supra n. 38 at 278

[117] R. Coomaraswamy, loc cit. supra., n. 15 at para. 34

[118] T. Meron ‘International, Criminalization of Internal Atrocities’ 89 American Journal of International Law554-577 at 554.

[119] Vienna Declaration and Programme of Action. U.N. Doc A/CONF.157.23 at Part II para 38 http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/A.CONF.157.23.En?OpenDocument

[120] Case 10.970, (1996) Report No. 5.96, Inter-Am. Ch.H.R, OEA/Ser.L/V/II.91 Doc 7 at 157

[121] Prosecutor v Tadić, Case No.: IT-94-1-T (7 May 1997) at para. 243

[122] Prosecutor v Tadić, Case No.: IT-94-1-A (15 July 1999) reprinted in (1999) 38 ILM 1518

[123] Common Article 3 is used to designate the identical language of Article 3 found in each of the four 1949 Geneva Conventions. See, e.g., Convention IV Relative to the Protection of Civilian Persons in Time of War, (adopted at Geneva 12 Aug. 1949). 6 UST 3516, UNTS 287 http://www.icrc.org/ihl.nsf/0/6756482d86146898c125641e004aa3c5?OpenDocument

[124] C. Chinkin ‘Women: The Forgotten Victims of Armed Conflict?’ in H. Durham and T. L.H. McCormack (eds.). The Changing Face of Conflict and the Efficacy of International Humanitarian Law, 23-44 at 29 (Kluwer Law International, 1999)

[125] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, 1125 UNTS (hereinafter Additional Protocol II),  Art 4(2)(a) & (e) http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/d67c3971bcff1c10c125641e0052b545?OpenDocument

[126] See, e.g. L. Despouy, ‘Eighth annual report and list of States which, since 1 January 1985, have extended or terminated a state of emergency’ U.N Doc E/CN.4/Sub.2/1995/20 at para 11 http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/9d7acccdf228e4a3802566bf00556e7f?Opendocument

[127] Rome Statute of the International Criminal Court, Article 7 U.N. Doc. A/CONF.183/9 (July 17, 1998) http://domino.un.org/UNISPAL.NSF/0/26d5982060c2d2ad85256b3b0074f5f8?OpenDocument

[128] C. Chinkin, ‘Rape and sexual Abuse of Women in International Law’ (1994) 5 European Journal of International Law 326 at 332 http://www.ejil.org/journal/Vol5/No3/art2.html

[129] Geneva Convention IV loc cit, supra, n. 121 Article 147

[130] C. Chinkin, loc cit., supra n. 124 at 26

[131] ibid.

[132] C. Greenwood, loc. cit supra., n. 5 at 282

[133] Prosecutor v Anto Furundžija, loc. cit supra., n. 2

[134] Prosecutor v Akayesu loc cit, supra., n 92

[135] ibid.

[136] Prosecutor v Anto Furundžija, loc. cit supra n.2 at. para 185

[137] K. D. Askin, ‘The International War Crimes Trial of Anto Furundžija: Major Progress Toward Ending the Cycle of Impunity for Rape Crimes’ (1999) 12 Leiden Journal of International Law 935-955 at 936. NB this finding has subsequently been upheld by the Appeals Chamber Prosecutor v Anto Furundžija Case No IT-95-17/121 July 2000

[138] Prosecutor v Furundžija, loc. cit supra n.2  at  paras 153-156

[139] ibid. at para 151. Thus the prohibition of torture is an obligation owed towards all the other members of the international community, each of which then has a correlative right.

[140] Prosecutorv v Delalic, Mucic, Delic & Landzo (Čelebići Case) Case no. IT-96-21-T 16 November 1998 http://www.ejil.org/journal/Vol10/No4/sr1.html http://ejil.org/journal/Vol8/No1/sr1-02.html

[141] Prosecutor v Furundžija, loc. cit supra n.2  at para 162.

[142] Prosecutor v Akayesu loc cit, supra., n 92 at para. 597

[143] K. D. Askin, loc. cit. supra. n. 133 at 946

[144] Prosecutor v Furundžija, loc. cit supra n.2 at para 162

[145] K. D. Askin, loc. cit. supra. n. 133 at 948-951

[146] Prosecutor v Furundžija, loc. cit supra n.2  at para 252

[147] K. D. Askin, loc. cit. supra. n. 133 at 936-937

[148] Article 6 (c) states that crimes against humanity are “Atrocities and offences, including but not limited to murder, extermination, enslavement, deportation, imprisonment, persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal whether or not in violation of the domestic law of the country where perpetrated.” The Nuremberg Charter, as amended by the Berlin Protocol, 59 Stat. 1546, 1547 (1945), E.A.S. No. 472, 82 U.N.T.S. 284 http://www.derechos.org/nizkor/nuremberg/judgment/ncharter.html

[149] T. Meron, “War Crimes in Yugoslavia and the Development of International Law,”(1994) 88 American Journal of International Law  no.1, 84-87

[150]Statute of the International Tribunal for the Prosecution of Persons responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991 U.N. Security Council Res. 827 (1993) Article 5 http://www1.umn.edu/humanrts/peace/docs/statute.html

[151] C. Greenwood, loc. cit. supra., n. 5 at 282

[152] Statute of the ICTY, loc. cit. supra n. 146 Article 3

[153] Rome Statute of the International Criminal Court,  Article 7. U.N. Doc. A/CONF.183/9 (July 17, 1998) http://domino.un.org/UNISPAL.NSF/0/26d5982060c2d2ad85256b3b0074f5f8?OpenDocument

[154] B.Van Schaack, ‘The definition of Crimes Against Humanity: Resolving the Incoherence’ 37 Columbia Journal of Transnational Law 787-850 at 836-7.

[155] Statute of the ICTY, loc cit. supra n. 146 Article 5

[156] Rome Statute of the International Criminal Court, loc cit. supra., n. 149

[157] B. Van Schaack, loc cit. supra., n. 150at 835.

[158] Prosecutor v Tadić, loc. cit. supra. n. 5 at para 649

[159] Rome Statute of the International Criminal Court, loc cit. supra., n. 149

[160] Prosecutor v Akayesu loc cit, supra., n 92

[161] ibid. at para 690

[162] ibid. at para 599

[163] Rome Statute of the International Criminal Court, loc cit. supra., n. 149 Art 7(2)(g)

[164] Human Rights Watch & National Coalition for Haitian Refugees, ‘Rape in Haiti: A Weapon of Terror’ (Human Rights Watch, July 1994) http://www.nchr.org/reports/rape_in_haiti_1994.pdf

[165] See, for example, ‘Situation of Human Rights In Haiti’:  E/CN.4 RES/1999/77, ‘Human Rights in Haiti’, http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/1d1709eca241266980256766004dbdb3?Opendocument A/RES/54/187 http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/016ca0248f38e27b802568a9005db6a5?Opendocument

[166] R. Coomaraswamy , ‘Report of the Special Rapporteur on Violence Against Women, Its Causes and Consequences:  Addendum Report on the Mission to Haiti: Rape , Sexual Abuse and Harassment’ UN Doc E.CN.4/2000/68/add.3 at para 40. http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/1961657f6bc303f9802568ba004b4b3b?Opendocument

[167] ibid. at paras. 58-59

[168] A. Meldrum, ‘Mugabe heads for defeat at he polls’ The Observer 18 June 2000 23. See also  D. Walsh “Rapes by Zanu-PF thugs bring new threat of AIDS” The Independent 4 July 2000 p15

[169] Radio 4 report. 24 July 2000

[170] R. Primariantari, “Women, Violence and Gang Rape in Indonesia” Cardozo Journal of International and Comparative Law Vol. VII No. 2, 245-276

[171] ibid. at 265-266

[172] R. Coomaraswamy, ‘Report of the Special Rapporteur on Violence Against Women, Its Causes and Consequences: Addendum. Mission to Indonesia and East Timor on the Issue of Violence Against Women’ U.N. Doc E/CN.4/1999/68/add.3 at para 71 . http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/1961657f6bc303f9802568ba004b4b3b?Opendocument

[173] R. Primariantari, loc cit. supra n.170 at 260

[174] ibid. p266

[175] J. Siegel, “In Suharto’s shadow” http://www.arts.cornell.edu/newsletr/spring99/suharto.htm

[176] R. Primariantari, loc cit. supra n170 at 260

[177] Prosecutor v Akayesu loc cit, supra., n 92 at para 453

[178] ibid. at paras. 733-734

[179] Convention on the Prevention and Punishment of the Crime of Genocide, Dec 9, 1948 78 U.N.T.S 277 http://www1.umn.edu/humanrts/instree/x1cppcg.htm NB The prohibition against Genocide is also part of customary international law and has achieved jus cogens status.

[180] P. Magnarella, ‘Some Milestones and Achievements at the International Criminal Tribunal For Rwanda: The 1998 Kamabanda and Akayesu Cases’ 11 Florida Journal of International Law 517 at 530

[181] ibid. at 531

[182] K. Galbraith, “Moving People; Forced Migration and International Law” Georgetown Immigration Law Journal Summer 1999

[183]  ‘The Prosecutor of the tribunal against Slobodan Miolsevic, Milan Utinovic, Nikola Sainovic, Dragoljub Ojdanicvlajko Stojiljkovic’. Indictment Available http://www.un.org/icty/indictment/english/mil-ii990524e.htm

[184] J. Steele, ‘War crime trial convicts Serb of murder and rape’ The Guardian 21 September 2000 17 http://www.unmikonline.org/press/wire/im210900.html

[185] C. A. MacKinnon, ‘Rape, Genocide and Women’s Human Rights’ in A. Stiglmayer op cit., supra n. 4 at187

[186] C. A. MacKinnon, ‘Crimes of war, crimes of peace’ in S.Shute and S.Hurley, (eds) On Human Rights , The Oxford Amnesty Lectures 1993 at 83. This view is supported by Askin. See K. D. Askin, loc. cit. supra. n. 133 at 341

[187] K. D. Askin, loc. cit. supra. n. 133 at 341

[188] B. Allen, Rape Warfare, The Hidden Genocide in Bosnia Herzegovina and Croatia (University of Minnesota Press, 1996) at 91

[189] Y. Dinstein, ‘International Criminal Law,’ in H. J. Steiner and P. Alston (eds), International Human Rights in Context, Law, Politics, Morals (Clarendon Press, 1996) p1028

[190] S. Brownmiller, ‘Making Female Bodies the Battlefield’  in A. Stiglmayer op cit., supra n. 4 at187

[191]R. Copelon, “Surfacing Gender: Reconceptualizing Crimes against Women in Times of War’“ in A. Stiglmayer op cit., supra n. 4 at 198

[192] ibid.

[193] H. Charlesworth, ‘Feminist Methods in International law’ 93 American Journal of International Law 379 at 387

[194] R. Copelon loc. cit supra. n. 188

[195] NB Although ‘ third generation ’ rights such as the rights to self determination and the right to development  are expressed in terms of group rights, the emphasis of international human rights law is very much upon the rights of the individual. 

[196] Case 10.970, (1996) Report No. 5/96, Inter-Am. Ch.H.R, OEA/Ser.L/V/II.91 Doc 7 at 157

[197] ibid. Part V

[198] ibid. The Commission stated that for torture to exist, three elements are required 1.an intentional act(s) through which physical and mental pain and suffering is inflicted on a person; 2. the act(s) must be committed with a purpose; 3. the act(s) be committed by a public official or private person acting at the instigation of the former.

Rape by an agent of the state has subsequently been characterised as a form of torture by the European Court of Human Rights in Aydin v Turkey for the purposes of Article 3 of the Convention.[European] Convention for the Protection of Human Rights and Fundamental Freedoms, (ETS No.5) 213 U.N.T.S 222  (1998) Human Rights Law Journal vol. 19, No.”2-4 p68 at para 8

[199] American Convention on Human Rights, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. http://www1.umn.edu/humanrts/oasinstr/zoas3con.htm

[200] ibid.

[201] Inter-American Court of Human Rights. Judgement of July 29, 1988 Series C , No. 4, 28 I.L.M 294(1989)

[202] ibid. at para 149

[203] NB The Russian Federation and Sierra Leone are parties to the Optional Protocol to the International Covenant on Civil and Political Rights (Optional Protocol to ICCPR adopted 16 Dec 1966 G.A. Res. 2200A UN Doc A/6316) which allows a rights of individual communication to the Human Rights Committee http://www.unhchr.ch/html/menu3/b/a_opt.htm The Russian Federation is also a party to the European Convention on Human Rights which allows individual complaints to be heard by the European Court of Human Rights http://conventions.coe.int/treaty Peru and Haiti are parties to the American Convention on Human Rights and have both recognised the competence of the Inter-American Court (http://www.oas.org)