Wartime Sexual Violence at the International Level Since Its Recognition Until ‘Its Work in Progress’

CHAPTER 1 Wartime Sexual Violence at the International Level Since Its Recognition Until ‘Its Work in Progress’

Wartime sexual violence has been one of history’s greatest silences.1

1 Introduction

Sexual violence during conflict could be synthesized as a collection of over- looked occurrences where mostly women, but also men and probably individuals with indeterminate sexual identities or third gender,2 have been sexually enslaved, forcibly impregnated, sexually mutilated, and subjected to other forms of sexual violence during periods of armed conflict, mass violence, occupation, resistance, post-conflict and transitional situations.3 Under international law, wartime rape takes place during different forms of international and internal armed conflict, and under different rationale aims based on religious, ethnic, political or nationalist grounds, or a combination of all these.4 Accordingly, victims of rape are violated by all sides of the conflict – both enemy and allied forces. It could also take place in order to satisfy the sadism of attackers. There are types of rape which fall outwith the current reg- ulatory framework of the icc. The wider issue here is due to the over elaborate language of the icc that now seems unfit for purpose and there is no need to take the broad, self-aggrandising approach to concepts of ‘humanity’ (and other references made in the preamble) ending in the icc as a simply court of last resort.

1 2008 Parliamentary Hearing at the United Nations, New York, 20–21 November, Session II (Retrieve from http://www.ipu.org/splz-e/unga08/s2.pdf) (Accessed December 2017). 2 Lara Stemple, ‘Male Rape and Human Rights’ [2008] Hastings LJ 60 605. Peletz, Michael G. (2007). Gender, Sexuality, and Body Politics in Modern Asia. Michigan: Association for Asian Studies. ISBN 9780924304507; Dustin A Lewis, ‘Unrecognized Victims: Sexual Violence Against Men in Conflict Settings under International Law’ 1 27 Wis. Int’l L.J. 1 2009–2010 Content 1. ‘Consortium on Gender, Security and Human Rights’, vol 24 (2012). 3 Theodor Meron, Henry’s Wars and Shakespeare’s Law, Perspectives on the Law of War in the Later Middle Ages (1993), Peter Karsten, Law, Soldiers and Combat (1978). 4 Christine Chinkin, ‘Symposium The Yugoslav Crisis: New International Law Issues Rape and Sexual Abuse of Women in International Law’, Law 5 Eur. J. Int’l L, 326.

Resultantly, this chapter will introduce the historical background of wartime sexual violence, and how it was treated, prosecuted, and analysed by different international tribunals, unsc Resolutions, the icc, and also how it was discussed by different observers. This chapter will provide a timeline of events, particularly during the 20th and 21st centuries, where international institutions and enforcement mechanisms have made it possible to officially acknowledge that the use of rape by armed and military groups was adopted as a means to destroy, demoralize, and devastate communities and their civil- ians. This chapter will also reflect on the pressing issue of wartime sexual violence against men and other third gender individuals, as a constituent element of international crimes, that often goes under noticed, under-prosecuted, and under-punished. The first section will provide a background narrative on how rape and other forms of sexual violence were ‘brushed under the carpet’ by international instruments and the wwii tribunals. The second section will look at unsc Resolutions and how these crimes acquired international attention. The third section will provide a brief introduction to the renowned ad hoc tribunals and their work to date. It will especially highlight how they recognized, for the first time in history, that wartime rape constituted a crime against humanity, war crime, and an element of genocide. The fourth section will analyse the work done to date by the icc and will provide with an overview of the Preparatory Committee (PrepCom) and the disputes between different representatives and delegates with regard to the inclusion of sexual violence as a crime under the Rome Statute. This chapter will thus illustrate the great efforts undertaken by scholars, activists, legal experts, and professionals in order to tackle these crimes. It will also conclude that this is still ‘work in progress’.

2 Background of the Volume

Historical reflection shows that sexual violence has been a consequence of war for millennia, and during the 20th century the international community awoke to the moral, legal, and social importance of taking measures to prevent and punish rape and other forms of sexual violence.5 The first part of this section will examine the different legal instruments and conventions that, in one way or another, considered rape as a violation of the laws and customs of war, and

5 C.A. Ward, ‘Significance of wartime rape’ Advances in Gender Research, Gendered Perspectives on Conflict and Violence: Part A (2013).