Rape As a War Crime: How Will the Inclusion of Rape Affect Nations at War?

Rape as a War Crime: How Will the Inclusion of Rape Affect Nations at War?

An undergraduate paper submitted in partial fulfilment of the requirements for Bachelors of Law Degree

Moza Ahmed Al Maktoum

Supervised By Dr. Shadi A. Alshdaifat

Table of Contents

Abstract ...... 3

Introduction ...... 4

Historical Background ...... 5

Is Rape a War Crime? ...... 6

Nuremberg Trials ...... 8

Rape as a Weapon of War ...... 13

International War Crime Trials ...... 17

The Akayesu Case ...... 21

The Democratic Republic of the Congo Civil War Case ...... 23

Conclusion ...... 25

Results ...... 26

Recommendations ...... 27

References ...... 28

Abstract

The purpose of this paper is to find how the inclusion of rape affect nations at war, and weather rape during war is considered a weapon of war. The answers to both the inclusion of rape affect nations at war and weather rape is considered a weapon of war is discussed in the paper. This paper discusses an essential topic for the reason that rape affects the entire society and particularly the victims, and there should be a harsh punishment to avert people from committing such gruesome crimes in the future. The main argument is to understand how the inclusion of rape affect nations at war and if it is considered a weapon of war. Rape is considered as a weapon of war and a tactic that humiliates the humanity at large, it is also a sign of victory to some. Throughout history, rape during warfare has always been an issue. Sexual violence in general is a greater issue, since it does not always have to be physical, it can be presented in many different forms, such as sexual abuse, incest, prostitution, forced abortion, forced marriage, and enforced sterilization.

Keywords: Rape, War Crimes, Weapon of War, The Democratic Republic of the Congo, Nuremberg Trials, The Akayesu Case.

Introduction

The term “rape” originates from rapere, meaning to snatch, grab, and carry off.1 According to WHO, the term “rape” is considered a type of sexual violence. Sexual Violence is defined as “any sexual act, attempt to obtain a sexual act, unwanted sexual comments or advances, or acts to traffic, or otherwise directed, against a person’s sexuality using coercion, by any person regardless of their relationship to the victim, in any setting, including but not limited to home and work”.2 For example, child marriage3 is a common form of sexual violence against children, and is considered to be customary in some countries to this day.4

Rape is both a crime against humanity and genocide, the elements of rape are: 1. The invasion of an individual’s body, 2. The invasion was committed forcefully, 3. Considered a systematic attack, 4. It is directed against a civilian population.5

According to WHO, factors increasing women’s vulnerability are: 1. Being young, two-thirds of the victims of sexual assault were under the age of 15. 2. Consuming alcohol or drugs, by consuming alcohol or drugs women are unable to protect themselves. 3. Having previous been raped or sexually abused, studies show that women who were previously raped are twice as likely to get raped in the future. 4. Education level, the more educated the women were more likely to be raped, while women with no education were less likely to be raped. 5. Poverty, poor women are at risk of rape compared to women better off.6 On the other hand, factors increasing men’s risk of committing rape are: 1. Alcohol or drug consumption, where it could increase the chance of clouding and impairing judgements. 2. Psychological factors, where violent men were more likely to rape victims.7

1 Saunders, Corrine, Rape and Ravishment in the Literature of the Medieval England, Boydell & Brewer, 20, 2001. 2 Krug, Eienne G., et al. “The World Report on Violence and Health”, 360, The Lancet, 9339, 149, 2002. 3 Child marriage is defined as a marriage between an adult and a child or youth under a certain age, typically under eighteen. 4 Krug, Eienne G., et al., supra note 2, 156. 5 Brown, Carly, Rape as a Weapon of War in the Democratic Republic of the Congo, 28, 2011. 6 Krug, Eienne G., et al., supra note 2, 158. 7 Id, 159. 4

Historical Background

Throughout history, rape has always been a common practice. Women were treated as property and even livestock.8 Rape has always been a weapon of war; however, it was neglected in terms of prosecuting. The first trial recorded was in 1996 when the International Criminal Tribunal for the former Yugoslavia took place. It was the first international war crimes trial held since Nuremberg and Tokyo. The court defined rape as a weapon of war for the first time, dating back to 28 June 1996.9

Sexual violence during conflict is considered an act of domination. It is commonly used with the intent to torture and humiliate people; it is also a form of punishment to a group or a community at large. Sexual violence is usually encouraged within armed groups, as this is thought to be an effective strategy to advance military objectives and clearing civilian population in certain areas.10

In World War II, rape was used by the Nazi’s, Soviets, Vietnamese, and the Japanese. Meanwhile, rape and sexual abuse has increased in the last decade, triggering an outbreak particularly in rape in warfare. Such countries include: Afghanistan, Uganda, Bangladesh, India and Pakistan. To this day, rape is still used in many countries such as the Congo as a weapon of war.11

Rapes were rarely reported due to embarrassment and trauma the victims suffered; hence rape trials were under-punished, meaning the defendants conviction rate was extremely low. Judges were heavily affected by stereotypes, do to them coming to a conclusion that there was consent and some even suggested that the victim deserved it.12

8 Aydelott, Danise. "Mass Rape during War: Prosecuting Bosnian Rapists Under International Law." Emory Int'l L.7,1993, 585. 9 Crimes of Sexual Violence, https://www.icty.org/sid/10312 (last seen on 26/02/2020). 10 Bastick, Megan, Grimm, Karen, Kunz, Rahel, Sexual Violence in Armed Conflict, Geneva Centre for the Democratic Control of Armed Forces, 9, 2007. 11 Clifford, Cassandra, and Stop Modern Slavery. "Rape as a Weapon of War and it’s Long-term Effects on Victims and Society." 7th Global Conference Violence and the Contexts of Hostility, Budapest Hungzry. 5, 2008. 12 Gruber, Aya, Rape, Feminism, and the War on Crime, 84 Wash, 599, 2009. 5

Is Rape a War Crime?

Why is rape widespread during many armed conflicts? It could be because the power of rape as a weapon of war to is used to dishonor, demoralize and emasculate the enemy. It could also be because rape can occur with the intention of genocide. Another reason why rape may occur is because rape provokes terror, the widespread rape affects whole communities acting to destabilize and disempower. Also, rape causes food insecurity, this occurs in societies where women are responsible for working the fields, collecting firewood and water. By raping women while they are working or while they are collecting firewood or water, the food supply for the entire community is disrupted.13

Rape has been a of weapon of war for centuries despite it being a crime. However, rape and sexual assault have always been trivialized during war, they were considered to be secondary in importance of other crimes, and they were considered to be an inevitable damage of war. Nonetheless, international law, in recent decades, prosecuted rape as a war crime and crime against humanity.14 Particularly after World War II, International Criminal Tribunals were established to prosecute political officials and militia for war crimes.15

International humanitarian law states that war crimes are violations to the law, since international humanitarian law deals with the conduct of any form of armed conflict, no matter if the war was international or national.16

“According to the Appeals Chamber of the ICTY in Tadic:

1. War crimes must consist of ‘a serious infringement’ of an international rule i.e. it must constitute a breach of a rule protecting important values. 2. The breach must involve grave consequences for the victim.

13 Fiske, Lucy and Shackel, Rita, Ending Rape in War: How Far Have We Come?, 6, Sydney Law School Research Paper 15/21, 3, 127, 2014. 14 Ghosh, Gitanjali, Tiwari, Shishir, The Evolving Jurisprudence of Rape as a War Crime, 1, International Journal of Law and Legal Jurisprudence Studies, 2, 2014. 15 Id, 5. 16 Id, 6. 6

3. The rule violated must either belong to the corpus of customary law or be part of an applicable treaty. 4. The violation must entail the individual criminal responsibility of the person breaching the rule.”17

During war, rape has multiple functions. It is used as a war tactic to express victory and to express the destruction of the enemy, also rape is used to alleviate and humiliate the troops and hurt the enemy’s pride by forced pregnancy as an attempt to wipe out the whole population. Women are targeted by the soldiers in inflicting gender-based violence, violence is legitimized during war; hence rape is a form of violence to achieve certain goals.18

Sexual violence and rape have been carried out often in armed conflicts. Previously, it was regarded as an ordinary spoil of war, and many have not been prosecuted properly as crimes against humanity or as a war crime. Meanwhile prosecuting war criminals has improved significantly since the late 20th century.19 Sexual violence in general is prohibited under the customs of war and earlier statutes, the violations undermine human dignity and family honor. Nevertheless, rape and sexual violence could have been prosecuted as war crimes, violations of the rules and customs of war, and crimes against humanity.20

17 Ghosh, Gitanjali, Tiwari, Shishir, supra note 14, 9. 18 Kaur, Supreet, Rape as a War Crime, 10, 2011. Available at SSRN 1802445. (Last seen on 28/03/2020). 19 Njoroge, Fraciah Muringi, Evolution of Rape as a War Crime and a Crime Against Humanity, 1, 2016. 20 Id, 3. 7

Nuremberg Trials

Following World War II, the Nuremberg Tribunals was set up to try war criminals. An agreement was entered on 8th August 1945 by several countries, the Tribunal’s operation was governed by the Charter drafted and annexed on the agreement. Article 6 of the Charter classified the crimes within the jurisdiction of the Tribunal into three categories, war crimes, crimes against humanity, and crimes against peace. Meanwhile, the Charter did not reference rape or sexual violence in its definition of what each category of crimes entailed.21

A total of 209 defendants were tried before the International Military Tribunal. 24 defendants, who were mainly political and military leaders of Nazi Germany were tried first, where the International Military Tribunal opened on 19 November 1945.22 23

The indictments for the 24 defendants mentioned above were for: 1. Common Plan or Conspiracy for the accomplishment of a crime against peace, 2. Planning, initiation and waging wars of aggression and other crimes against peace, 3. Participating in war crimes, 4. Crimes against humanity.24

Martin Bormann was found guilty on counts 3 and 4, he was sentenced to death. Karl Dönitz was found guilty on counts 2 and 3, he was sentenced to 10 years. Hans Frank was found guilty on counts 3 and 4, he was sentenced to death. Wilhelm Frick was found guilty on counts 2, 3, and 4, he was sentenced to death. Walter Funk was found guilty on counts 2,3, and 4, he was sentenced to life imprisonment. Hermann Göring was found guilty on all counts, he was sentenced

21 Njoroge, Fraciah Muringi, supra note, 19, 3. 22 The 24 defendants that were tried on 19 November 1945 are: Martin Bormann, Karl Dönitz, Hans Frank, Wilhelm Frick, Hans Fritzche, Walter Funk, Hermann Göring, Rudolf Hess, Alfred Jodl, Ernst Kaltenbrunner, Wilhelm Keitel, Gustav Krupp von Bohlen und Halbach, Robert Lay, Baron Konstantin von Neurath, Franz von Papen, Erich Reader, Joachim von Ribbentrop, Alfred Rosenberg, Fritz Sauckel, Dr. Hjalmar Schacht, Balder von Schirach, Arthur Syess-Inquart, Albert Speer, and Julius Streicher. 23 United States Department of State, The Department of State Bulletin, Vol 13, Forgotten Books, 595, 2019. 24 Linder, Douglas, The Nuremberg Trials, Famous World, Trials, Kansas City, Mo.: University of Missouri- Kansas City School of Law, 4, 2017. 8 to death. Rudolf Hess was found guilty on counts 1 and 2, he was sentenced to life imprisonment. Alfred Jodl was found guilty on all counts; he was sentenced to death. Ernst Kaltenbrunner was found guilty on counts 3 and 4, he was sentenced to death. Wilhelm Keitel was found guilty all on counts, he was sentenced to death. Baron Konstantin von Neurath was found guilty on all counts, he was sentenced to 15 years. Erich Raeder was found guilty on counts 1, 2, and 3, he was sentenced to life imprisonment. Joachim von Ribbentrop was found guilty on all counts; he was sentenced to death. Alfred Rosenberg was found guilty on all counts; he was sentenced to death. Fritz Sauckel was found guilty on counts 3 and 4, he was sentenced to death. Balder von Schirach was found guilty on count 4, he was sentenced to 20 years. Arthur Syess-Inquart was found guilty on counts 2, 3, and 4, he was sentenced to death. Albert Speer was found guilty on counts 3 and 4, he was sentenced to 20 years. Julius Streicher was found guilty on count 4, he was sentenced to death. No decision was made regarding Gustav Krupp von Bohlen und Halbach and Robert Lay. Dr. Hjalmar Schacht, Hans Fritzche and Franz von Papen were acquitted. 25

12 more cases were recorded in the Nuremberg Military Tribunals between 1946 to 1948. For example, the summaries of a few of the cases include: Case 1: US v. Karl Brandt et al. (Medical Case) 1946-1947. The indictments were for: 1. The common design or conspiracy, 2. War crimes, 3. Crimes against humanity, 4. Membership in criminal organizations. Count 1, between September 1939 and April 1995, all of the defendants committed war crimes and crimes against humanity as defined in Control Council Law No. 10, Article II, willfully and knowingly. All of the defendants planned to preform medical experiments upon concentration camp inmates and other humans without their consent, the medical experiments led to the defendants committing murder and torture and other inhumane acts. All of the defendants encouraged, aided, and participated in the subjection of people to murder, torture, and commit other inhumane acts with the nations that were at war with the German Reich at the time. Count 2, between September 1939 and April 1945, all of the defendants committed the following medical experiments, A. High altitude experiments, B. Freezing experiments, C.

25 Fray, William, Spar, Lisa, The Avalon Project at the Yale Law School: Documents in Law, History and Diplomacy. New Haven, Conn: The Avalon Project, 1996. 9

Malaria experiments, D. Lost (mustard) gas experiments, E. Sulfanilamide experiments, F. Bone, muscle and nerve regeneration and bone transplantation experiments, G. Seawater experiments, H. Epidemic jaundice experiments, I. Sterilization experiments, J. Spotted fever experiments, K. Experiments with poison, and L. Incendiary bomb experiments. 112 Jews were killed for the purpose of completing a skeleton collection, they ran tests, completed studies and conducted research using the victims. Their bodies were later sent to be de- fleshed. Tens of thousands of Polish nationals were exterminated and some were isolated in death camps due to them being infected with incurable tuberculosis, on the grounds of insuring the health and the welfare of the Germans in Poland. Count 3, between September 1939 and April 1945, the defendants committed crimes against humanity, by conducting medical experiments without consent, murdering German civilians, mistreating and murdering tens of thousands of Polish civilians. Count 4, the defendants were members of an organization declared to be criminal by the International Military Tribunal.26

Case 2: US v. Erhard Milch et al. (Milch Case) 1947-1948. The indictments for this particular case were for: Count 1, between September 1939 and May 1945, the defendants committed war crimes as defined by Article II of Control Council Law No. 10. The defendants took part in deportation and slave labor of the civilians in Austria, Czechoslovakia, Italy, Hungary, and other territories occupied by the German armed forces; where millions of people were enslaved, deported, ill-treated, tortured and murdered. The defendants ordered and abetted in murders, cruelties, ill-treatments and other inhumane acts against members of the armed forces of nations at war with Germany, who were in custody of the German Reich. In the execution of the plans, millions of people were subjected to forced labor and cruel treatment conditions which resulted in widespread suffering. At least 500,000 workers were deported to Germany. Foreign laborers and prisoners of war were exploited under inhumane conditions. Prisoners of war who attempted to escape were murdered. Count 2, the defendants ordered and took part in medical experiments without consent, upon members of the armed

26 Office of Military Government of Germany (US), Nuremberg Military Tribunals: Indictments, CreateSpace Publishing, Case 1, 5-12, 2018. Available at https://www.loc.gov/rr/frd/Military_Law/pdf/NT_Indictments.pdf. (Last seen on 28/03/2020). 10 forces and civilians of nations at war with the German Reich who were in custody, in the course of which experiments including high altitude experiments and freezing experiments were conducted, which resulted in murders and brutalities and tortures. Count 3, the defendants committed crimes against humanity involving slave labor, deportation of nationals, murders, and tortures. Medical experiments were also conducted without consent, while also committing murder, brutalities and other inhumane acts. The crimes against humanity were violations of international law, customs of war, and article II of Control Council Law no. 10.27

Case 3: US v. Josef Altstoetter et al. (Justice Case) 1947. The indictments for this case were for: Count 1, the common design and conspiracy. Between January 1933 and April 1945, all of the defendants did conspire and agree to commit war crimes and crimes against humanity as defined in Control Council Law No. 10 Article II. The defendants took a part in planning the commission of war crimes and crimes against humanity. The defendants participated in offenses against people and property, including murder, extermination, enslavement, deportation, unlawful imprisonment, torture and other inhumane acts against thousands. The defendants were part of the Gestapo, Schutzstaffel (SS), Sicherheitsdienst (SD), Sicherheitspolizei (SIPO) and Reichssicherheitshauptamt (RSHA) for criminal purposes, where they denied judicial and penal process, committed murders, tortures and other inhumane acts. The common design, conspiracy and plans used the judicial process as a weapon for the persecution and extermination of races. Count 2, war crimes. The defendants took part in the commission of offenses against people, property, murder, torture and other inhumane acts against thousands of people. The defendants used the courts for the purpose of suppressing political opposition to the Nazi regime, where civilians were abused, sentenced to pre-arranged sentences which resulted in murders, brutalities and other inhumane acts. Special courts subjected Jews to discriminatory laws and trials resulted in them to be worked to death in concentration camps, after completing their prison sentences. The concentration camps resulted in murder, torture and ill-treatment of thousands of people. The Ministry of Justice

27 Office of Military Government of Germany (US), supra note 26, 16-20. 11 participated in the sterilization of thousands of Jews. Count 3, crimes against humanity. The defendants committed murder, extermination, enslavement, illegal imprisonment, deportation and other inhumane acts against German civilians. The courts were used to suppress political opposition by the defendants, during the course of which German civilians were subjected to the murder, extermination, enslavement, illegal imprisonment, deportation and other inhumane acts. Through the courts, the Ministry of Justice aided the occupation of Czechoslovakia, Poland, and France. The Ministry of Justice granted immunity for prosecutions and convictions of the defendants for major crimes committed. The civilians from the occupied countries were secretly taken and handed over to the courts for a trial and punishment, the punishments were murder, torture, and illegal imprisonment. All Jewish properties were fortified and they were deprived of their citizenship. Count 4, membership in criminal organizations. The defendants were members of criminal organizations including Schutzstaffel (SS), Sicherheitsdienst (SD), and the Leadership Corps of the Nazi Party.28

28 Office of Military Government of Germany (US), supra note 26, 25-35. 12

Rape as a Weapon of War

Rape is a useful weapon and is the most violent and humiliating weapon used in war. Victims get raped to dehumanize and defeat the enemy. Since rape affects the victim’s entire surrounding, it serves as a constant reminder to those suffering tragedies of war, while many become pregnant and eventually give birth to the child.29 Many of the victims of rape either choose to or are forced to leave their country and seek refugee or asylum status.30

Women and girls are in constant fear of being victims of sexual violence by dominating their daily lives. The victims of rape are usually raped in front of their families. The constant fear they are in causes them to be in constant torment, which cases damage, particularly psychological. Unfortunately, victims are not just raped, they are often beaten and or physically mutilated; some of the victims even end up murdered.31

Prosecuting rape as a weapon of war and considering it a crime against humanity, requires the rape to be “part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial, or religious grounds”.32 Meanwhile, prosecuting rape as genocide requires the act of rape was “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.33 34

For decades, rape effected the survivors as well as their communities. All forms of sexual abuse survivors, including rape survivors have been part of written history due to their exploitation.35 Rape as a weapon of war refers to sexual violence, such as systematic rape that are not random, but are carried out as a calculated policy, and in some contexts, it is a political event.36 Even though rape

29 Clifford, Cassandra, and Stop Modern Slavery, supra note 11, 4. 30 Id, 9. 31 Id, 7. 32 ICTR Statue, Article 3. 33 Id, Article 2. 34 Buss, Doris, Rethinking ‘Rape as a Weapon of War’, 17, Feminist Legal Studies, 1, 6, 2009. 35 Ghosh, Gitanjali, Tiwari, Shishir, supra note 14, 10. 36 Buss, Doris, supra note 34, 5. 13 as a weapon of war is not a legal concept, it had significance by the Rwanda and Yugoslav Tribunals to prosecute rape as a weapon of conflicts in both regions. Rape is considered an instrument of armed conflict, and not merely a product of armed conflict.37 Thus, the concept of rape as a weapon of war laid groundwork for the legal recognition as a crime by both the Rwanda and Yugoslav Tribunals.38

War time rape leaves long-lasting consequences on the victim’s mental health and their families. The majority of victims suffer from both depression and social phobia, though not much data is available to find the relation between the trauma and its consequences.39 War time rape has been noted to be one of the most agonizing crimes against humanity. The act of aggression is rarely driven by the preparator’s sexual desire, since rape is used as a weapon of war to execute and humiliate the troops and hurt the enemy’s pride by inflicting injury upon the victim and her society. War time rape originated from traditional beliefs that women are property of men.40

Throughout history, rape and sexual assault has been regarded as an outcome of war. Rape during armed conflict is considered a vital component of the male war strategy. It is considered a weapon and tactic used to conquer and humiliate the enemy.41 Domination and demolition are values in militarized societies. The population of such societies accept the domination-submissive relationship between men and women. The ideology based on power legitimize and standardize marginalization and organized violence against women. Furthermore, the concept of manhood and the superiority in the social order are affected be the ideological structure or patriarchy and military values.42

Wartime rape has been committed by soldiers in different wars, regardless of their religious or racial background. Assaulting women arises from different motives

37 Buss, Doris, supra note 34, 4. 38 Id, 6. 39 Kaur, Supreet, supra note 18, 12. 40 Zawati, Hilmi, The Truimph of Ethnic Hatred and the Failure of International Political Will: Gendered Violence and Genocide in the Former Yugoslavia and Rwanda, The Edwin Mellen Press, 143, 2010. 41 Id, 145. 42 Id, 147. 14 including a war strategy and to humiliate the enemy’s pride and inflict terror and destruction on opponents.43

The United Nations Security Council Resolution 1820 was adopted unanimously on 19 June 2008. It stated that “rape and other forms of sexual violence can constitute war crimes, crimes against humanity or a constitutive act with respect to genocide”. In the resolution, sexual violence was considered a war crime and a weapon of war.44 45

43 Zawati, Hilmi, supra note 40, 148. 44 General Assembly Resolution 1820/2008, United Nations Action against Sexual Violence in Conflict, S/RES/1820 (2008) (19 June 2008), available from undocs.org/en/S/RES1820(2008). 45 The resolution stated the following: 1. “Stresses that sexual violence, when used as a tactic of war to target civilians or as a part of a widespread attack against civilian populations, can exacerbate situations of armed conflict, and may impede the restoration of international peace and security, affirms in this regard that effective steps to prevent and respond to such acts of sexual violence can significantly contribute to the maintenance of international peace and security, and expresses its readiness, when considering situations on the agenda of the Council, to, where necessary, adopt appropriate steps to address widespread or systematic sexual violence. 2. Demands the immediate cessation by all parties to armed conflict of all acts of sexual violence against civilians. 3. Demands that all parties to armed conflict immediately take appropriate measures to protect civilians, including women and girls, from all forms of sexual violence, which could include, inter alia, enforcing appropriate military disciplinary measures and upholding the principle of command responsibility, training troops on the categorical prohibition of all forms of sexual violence against civilians, debunking myths that fuel sexual violence, vetting armed and security forces to take into account past actions of rape and other forms of sexual violence, and evacuation of women and children under imminent threat of sexual violence to safety; and requests the Secretary-General, where appropriate, to encourage dialogue to address this issue in the context of broader discussions of conflict resolution between appropriate UN officials and the parties to the conflict, taking into account, inter alia, the views expressed by women of affected local communities. 4. Notes that rape and other forms of sexual violence can constitute a war crime, a crime against humanity, or a constitutive act with respect to genocide, stresses the need for the exclusion of sexual violence crimes from amnesty provisions in the context of conflict resolution processes, and calls upon Member States to comply with their obligations for prosecuting persons responsible for such acts, to ensure that all victims of sexual violence, particularly women and girls, have equal protection under the law and equal access to justice, and stresses the importance of ending impunity for such acts as part of a comprehensive approach to seeking sustainable peace, justice, truth, and national reconciliation. 5. Affirms its intention, when establishing and renewing state-specific sanctions regimes, to take into consideration the appropriateness of targeted and graduated measures against parties to situations 15

of armed conflict who commit rape and other forms of sexual violence against women and girls in situations of armed conflict. 6. Requests the Secretary-General, in consultation with the Security Council, the Special Committee on Peacekeeping Operations and its Working Group and relevant States, as appropriate, to develop and implement appropriate training programs for all peacekeeping and humanitarian personnel deployed by the United Nations in the context of missions as mandated by the Council to help them better prevent, recognize and respond to sexual violence and other forms of violence against civilians. 7. Requests the Secretary-General to continue and strengthen efforts to implement the policy of zero tolerance of sexual exploitation and abuse in United Nations peacekeeping operations; and urges troop and police contributing countries to take appropriate preventative action, including pre- deployment and in-theater awareness training, and other action to ensure full accountability in cases of such conduct involving their personnel. 8. Encourages troop and police contributing countries, in consultation with the Secretary-General, to consider steps they could take to heighten awareness and the responsiveness of their personnel participating in UN peacekeeping operations to protect civilians, including women and children, and prevent sexual violence against women and girls in conflict and post-conflict situations, including wherever possible the deployment of a higher percentage of women peacekeepers or police. 9. Requests the Secretary-General to develop effective guidelines and strategies to enhance the ability of relevant UN peacekeeping operations, consistent with their mandates, to protect civilians, including women and girls, from all forms of sexual violence and to systematically include in his written reports to the Council on conflict situations his observations concerning the protection of women and girls and recommendations in this regard. 10. Requests the Secretary-General and relevant United Nations agencies, inter alia, through consultation with women and women-led organizations as appropriate, to develop effective mechanisms for providing protection from violence, including in particular sexual violence, to women and girls in and around UN managed refugee and internally displaced persons camps, as well as in all disarmament, demobilization, and reintegration processes, and in justice and security sector reform efforts assisted by the United Nations. 11. Stresses the important role the Peacebuilding Commission can play by including in its advice and recommendations for post-conflict peacebuilding strategies, where appropriate, ways to address sexual violence committed during and in the aftermath of armed conflict, and in ensuring consultation and effective representation of women’s civil society in its country-specific configurations, as part of its wider approach to gender issues. 12. Urges the Secretary-General and his Special Envoys to invite women to participate in discussions pertinent to the prevention and resolution of conflict, the maintenance of peace and security, and post-conflict peacebuilding, and encourages all parties to such talks to facilitate the equal and full participation of women at decision-making levels. 13. Urges all parties concerned, including Member States, United Nations entities and financial institutions, to support the development and strengthening of the capacities of national institutions, in particular of judicial and health systems, and of local civil society networks in order to provide sustainable assistance to victims of sexual violence in armed conflict and post-conflict situations. 14. Urges appropriate regional and sub-regional bodies in particular to consider developing and implementing policies, activities, and advocacy for the benefit of women and girls affected by sexual violence in armed conflict. 15. Also requests the Secretary-General to submit a report to the Council by 30 June 2009 on the implementation of this resolution in the context of situations which are on the agenda of the Council, utilizing information from available United Nations sources, including country teams, peacekeeping operations, and other United Nations personnel, which would include, inter alia, information on situations of armed conflict in which sexual violence has been widely or systematically employed against civilians; analysis of the prevalence and trends of sexual violence in situations of armed conflict; proposals for strategies to minimize the susceptibility of women and 16

International War Crime Trials

Following World War II, international criminal tribunals were established by the allied governments to prosecute political officials and militia for war crimes and other crimes. France, the Soviet Union, the United Kingdom, and the United States set up the International Military Tribunals in both Nuremberg, Germany and Tokyo, Japan. The Tribunal in Germany was set up to punish the major war criminals, and the Tribunal in Japan was set up to punish the Eastern war criminals.46

The International Military Tribunal Charter outlined the tribunal’s constitution, functions and jurisdictions. The Charter provided the tribunal the authority to punish persons who have committed any of the following crimes:

1. Crimes against peace, including the common plan or conspiracy, violation of international treaties and the initiation of a war of aggression. 2. War crimes, including violations of customs of war, murder, ill-treatment and slave labor. 3. Crimes against humanity, namely murder, extermination, enslavement and persecution.47

The International Military Tribunal for the Far East48 was not created by an international agreement, unlike the International Military Tribunal, but it has emerged from international agreement to try Japanese war criminals. In July 1945, a Potsdam Declaration was signed by China, the United Kingdom, and the

girls to such violence; benchmarks for measuring progress in preventing and addressing sexual violence; appropriate input from United Nations implementing partners in the field; information on his plans for facilitating the collection of timely, objective, accurate, and reliable information on the use of sexual violence in situations of armed conflict, including through improved coordination of UN activities on the ground and at Headquarters; and information on actions taken by parties to armed conflict to implement their responsibilities as described in this resolution, in particular by immediately and completely ceasing all acts of sexual violence and in taking appropriate measures to protect women and girls from all forms of sexual violence. 16. Decides to remain actively seized of the matter.”

46 Ghosh, Gitanjali, Tiwari, Shishir, supra note 14, 5. 47 Id. 48 The IMTFE was a military trial convened on April 29 1946 to try the leaders of the Empire of Japan for joint conspiracy to start and wage war, conventional war crimes, and crimes against humanity. 17

United States, while the war in Japan was still containing and the war in Europe had ended, the Potsdam Declaration demanded Japan to surrender and stated that “stern justice shall be meted out to all war criminals”. In December of the same year at the Moscow Conference, the United Kingdom, the United States, and the Soviet Union agreed to a basic structure for the occupation of Japan. In January 1946, the Charter for the International Military Tribunal for the Far East was annexed to the declaration.49

To prosecute rape as a crime against humanity requires the act of rape to be “part of a widespread or systematic act against any civilian population of national, ethnical, racial or religious grounds”. Meanwhile, to prosecute rape as genocide requires the act of rape was “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.50

In 1994, the Rwanda Tribunal recognized rape was a crime against humanity and genocide. The Rwanda Tribunal disappointingly failed to charge individuals accused with sexual violence, or has not pursed them at trial. As of December 2008, the Tribunal has overseen 15 men whom went to trial out of 48. The Tribunal found only five guilty of rape related charges; all five were able to have their sexual violence charges dropped, in exchange for guilty pleas on other counts.51

Subsequently after the conflict in Rwanda between the Hutu and the Tutsi, an international tribunal was set up by a resolution of the United Nation’s Security Council to prosecute the persons responsible for violations of international humanitarian law. The Statute of the tribunal set forth the crimes; rape was explicitly included as a crime against humanity.52

Fortunately, the ICTR prosecuted allegations of sexual violence as an independent charge. The tribunal acknowledged that sexual violence does not always involve physical contact, but takes place in multiple forms. In the case of

49 Ghosh, Gitanjali, Tiwari, Shishir, supra note 14, 6. 50 Buss, Doris, supra note 32, 6. 51 Id, 7. 52 Id, 7. 18 the Prosecutor v Jean Paul Akayesu held that rape was a crime against humanity and genocide if it was with an intention to destroy a particular group.53

The International Criminal Court was established by the Rome Statute and came into force on 1st July 2002 after being ratified by sixty member states. Rape has been recognized under Article 6 of the Rome Statute, which set forth on the crime of genocide, where acts of sexual violence have been committed with an intent to destroy a whole group or a particular group. Article 7 of the Rome Statue additionally renders acts of sexual violence in conflict war crime. War crimes have been defined as “grave breaches of Geneva Conventions of 1949 setting as a crime against humanity”. Furthermore, rape in armed conflict is considered a war crime in Article 8. In particular, Article 8 of the Rome Statute identifies various forms of sexual violence in armed conflict, which include rape, sexual slavery, enforced prostitution, forced pregnancy, and enforced sterilization.54

In spite of international law claiming to have long offered protection to women against rape and offences against their honor. Rape was merely prosecuted in the ICTY and ICTR. The decision made by the ICTR was considered trailblazing in the Akayesu case in several respects. Apart from it being the first official conviction for sexual violence against women on the international stage, it was established that rape in the Rwandan genocide was used as part of a systemic attack that is considered to be widespread, the act of rape also took account for genocide and a crime against humanity. The definition of rape was then developed as “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive”.55

The ICTY additionally developed jurisprudence on rape in war through several other decisions. Notably it sought to establish specific elements of the crime of rape and considered the issue of consent. However, it also extended liability of officers for the conduct of their soldiers to impose a duty for officers to proactively investigate in order to verify whether offences were being

53 Id. 54 Buss, Doris, supra note 32, 7. 55 Fiske, Lucy and Shackel, Rita, supra note 13, 130. 19 committed.56 At the same time, recent efforts to coherent and prosecute sexual crimes against women is a desirable departure from both sexual violence as an offence against a woman’s honor and the historical hesitancy to prosecute.57

For rape to constitute a war crime, crime against humanity or genocide, the act of rape itself is deficient, it must be committed in particular circumstances or in the conditions of a particular connection between the woman's and the perpetrator’s ethnic or religious identities. Due to this effect, certain types of rape can be prosecuted. Women who are raped in circumstances that do not meet the legal definition, gain no benefit from recent advances in ICL. In 2004 the UN launched an investigation into sexual assaults by peace-keepers in the Democratic Republic of the Congo, leading to the suspension of 65 military personnel and 9 civilian staff of the United Nations Mission in the Democratic Republic of the Congo in 2005. Additionally, allegations have been made against UN peace keepers in Cambodia in the early 1990s and again in former Yugoslavia in the mid-1990s. In the early 2000s, reports from refugee camps in Sierra Leone, Guinea, and Liberia emerged of peace keepers and humanitarian workers seeking sexual favors from women and girls in exchange for food, water and medicine. Unfortunately, no charges were laid in any of these cases.58

56 Id, 131. 57 Fiske, Lucy and Shackel, Rita, supra note 13, 131. 58 Id, 133. 20

The Akayesu Case

An indictment was submitted by The Prosecutor of the Tribunal Against Jean Paul Akayesu on 13 February 1996 with the following charges: The Accused detained 8 men and order the militia to kill them with clubs, matches, small axes and sticks. The Accused ordered the militia to kill influential and intellectual people, they were killed with matches and agricultural tools. The Accused interrogated a 68-year-old woman and a communal hit the victim with a gun and sticks, they also bound her arms and kicked her in the chest, she was also threatened to be killed if she did not provide the information he sought by interrogating her. The Accused interrogated another female and forced her to lay on the road and threatened to run over her if she does not provide the information he sought. The Accused interrogated another female and forced the previous victim to beat each other.59

In accordance to the above, the Prosecutor charged Jean Paul Akayesu criminally responsible on 15 counts: Count 1: Genocide, Count 2: Complicity in Genocide, Count 3: Crimes against humanity (extermination), Count 4: Direct and public incitement to commit genocide, Count 5: Crimes against Humanity (Murder), Count 6: Violations of Article 3 common to the Geneva Conventions (Murder), Count 7: Crimes against Humanity (Murder), Count 8: Violations of article 3 common to the Geneva Conventions (Murder), Count 9: Crimes against Humanity (Murder), Count 10: Violations of Article 3 common to the Geneva Conventions (Murder), Count 11: Crimes against Humanity (Torture), Count 12: Violations of Article 3 common to the Geneva Conventions (Cruel treatment), Count 13: Crimes against Humanity (Rape), Count 14: Crimes against Humanity (other inhumane acts), Count 15: Violations of Article 3 common to the Geneva Conventions and of Article 2(2)(e) of additional protocol 2 (Outrages upon personal dignity in particular rape, degrading and humiliating treatment and indecent assault).60

59 The Prosecutor v. Jean Peal Akayesu, The Judgment, ICTR-96-4-T, 8, 1998. 60 Id, 9-11. 21

Jean Paul Akayesu was arrested in Zambia on 10 October 1995. On 22 November 1995, the Prosecutor of the Tribunal, requested the Zambian authorities to keep Akayesu in detention for a period of 90 days. The Indictment was confirmed and an arrest warrant, accompanied by an order for continued detention was issued on 16 February 1996. On Akayesu’s initial appearance, he pleaded not guilty to all 15 counts.61

The Chamber found Jean Paul Akayesu Guilty on 9 counts. Count 1: Guilty of Genocide, Count 3: Guilty of Crimes against Humanity (Extermination), Count 4: Guilty of Direct and Public Incitement to Commit Genocide, Count 5: Guilty of Crimes against Humanity (Murder), Count 7: Guilty of Crime against Humanity (Murder), Count 9: Guilty of Crimes against Humanity (Murder), Count 11: Guilty of Crimes against Humanity (Torture), Count 13: Guilty of Crimes against Humanity (Rape), Count 14: Guilty of Crimes against Humanity (Other Inhumane Acts). While rape has been defined in certain national jurisdictions as non-consensual intercourse, variations on the act of rape may include acts which involve the insertion of objects and/or the use of bodily orifices not considered to be intrinsically sexual. The Trial Chamber considers that rape is a form of aggression and that the central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts. The Trial Chamber defines rape as a physical invasion of a sexual nature, committed on a person under circumstances that are coercive. 62

61 The Prosecutor v. Jean Peal Akayesu, supra note 59, 14. 62 Id, 179. 22

The Democratic Republic of the Congo Civil War Case

In the Democratic Republic of the Congo, the human rights is recorded to be poor, due to the numerous abuses committed, including rape, torture, sexual abuses, forced labor, and murder. The Democratic Republic of the Congo has signed four international human rights treaties out of the 20 issued: 1. Convention on the Elimination of All Forms of Discrimination against Women,63 2. Convention on the Rights of the Child,64 3. Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict,65 and 4. Optional Protocol to the Convention of the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography.66

The Democratic Republic of the Congo has been described as the “Rape Capital of the World”, due to most of the violence being rape of women. The rate of sexual violence has particularly increased in the early 1990s. Rape has been described as a “weapon of war”, and officially in 2008, the United Nations has declared rape as a weapon of war.67

All armed parties in the Democratic Republic of the Congo, during the first and second conflicts have agreed to carry out a policy of genocide rape. The sexual assault victims were partially men and boys, whilst the majority of the victims were girls and women between the ages of 5 and 80. Within six months of the year 2006, 12,000 girls and women had been raped, in 2009 an estimated 1,100 rapes per month, in 2011 an estimated 400,000 rapes, and in 2013 at least 61 were raped. The rape has caused psychological trauma to the victims and well as health,

63 Convention on the Elimination of All Forms of Discrimination against Women, Dec. 18, 1979, 1249 U.N.T.S. 13; 19 I.L.M. 33(1980). 64 UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, 3. 65 UN General Assembly, Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 25 May 2000 66 UN General Assembly, Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: resolution / adopted by the General Assembly, 5 March 2009, A/RES/63/117 67 Peterman, Amber; Tia Palermo; Caryn Bredenkamp, Estimates and Determinants of Sexual Violence Against Women in the Democratic Republic of the Congo, 101, American Journal of Public Health, 6, 67, 2011. 23 social, and familial problems, causing long-term harm.68 Common health related issues include HIV, and the psychological trauma include anxiety and constantly being in fear.

In 2018 the number of cases related to sexual violence saw an increase in documentation, due to the non-State armed actors and military operations. The non-State armed actors as well as the military operations used sexual violence to enforce control and therefore, causing an exploitation of natural resources. “The United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO) documented 1049 cases of conflict related sexual violence against 605 women, 436 girls, 4 men and 4 boys”. 741 of the cases were attributed to the non-State armed actors, meanwhile 308 were attributed to the military. The incidents documented include, rape, gang rape and sexual slavery.69

According to the case of the Situation in the Democratic Republic of the Congo issued by the International Criminal Court, ICC-01/04-02/06, regarding the case of The Prosecutor v. Bosco Ntaganda, the charges that were made are the following: murder and attempted murder, intentionally attacking civilians, rape, sexual slavery, persecution, pillage, forcible transfer of population, conscription enlistment and use of children under 15, attacking protected objects, and destroying the advisory’s property.70 The Chamber found Mr Ntaganda guilty on all 17 counts.71

68 Whitman, Shelly, Natural Resources and Social Conflict: Towards Critical Environmental Security, Palgrave Macmillan, 128-150, 2012. 69 The Democratic Republic of the Congo, https://www.un.org/sexualviolenceinconflict/countries/democratic-republic-of-the-congo/ (last seen on 25/02/2020). 70 Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda, Judgement, No. ICC-01/04-02/06, 325-526, 2017. 71 Id, 535. 24

Conclusion

Rape during warfare has always been and is a current issue. Rape is used as a tactic and is used to humiliate the enemy. It tremendously affects both the victim and her entire society. Not just rape, but sexual violence in general is a greater issue, since it does not always have to be physical, it can be presented in many different forms. The fact that rape is not always considered a war crime and it is not prosecuted successfully is really unacceptable. Though, in 2008, the United Nations officially declared rape as a weapon of war.

The few cases mentioned in this paper are just the tip of the iceberg. There are deeper problems that need further research.

To answer the question mentioned in the title, how will the inclusion of rape as a war crime affect nations at war? Immediate cessation of rape will be implemented, hence leading to the protection of civilians from all forms of sexual violence. Appropriate measures against those who commit rape and sexual violence in armed conflict will be taken efficiently. It will prevent, recognize and respond to sexual violence immediately and effectively, thus heightening awareness and the responsiveness to protect civilians.

Results

1. Rape is considered both a crime against humanity and genocide, where the elements of rape consist of the invasion of an individual’s body, the invasion was committed forcefully, considered a systematic attack, and is directed against a civilian population.

2. Rape has always been a common practice. Rape has always been a weapon of war; however, it was neglected in terms of prosecuting. The first trial recorded was in 1996 when the International Criminal Tribunal for the former Yugoslavia took place. It was the first international war crimes trial held since Nuremberg and Tokyo.

3. Rape is a war crime; it has been a of weapon of war for centuries despite it being a crime. However, rape and sexual assault have always been trivialized during war, they were considered to be secondary in importance of other crimes, and they were considered to be an inevitable damage of war. Nonetheless, international law, in recent decades, prosecuted rape as a war crime and crime against humanity.

4. The Nuremberg Tribunals was set up to try war criminals. An agreement was entered on the 8th August 1945 by several countries, the Tribunal’s operation was governed by the Charter drafted and annexed on the agreement. Article 6 classified the crimes within the jurisdiction of the Tribunal into three categories, war crimes, crimes against humanity, and crimes against peace.

5. Rape is a useful weapon and is the most violent and humiliating weapon used in war. Victims get raped to dehumanize and defeat the enemy.

6. International criminal tribunals were established by the allied governments to prosecute political officials and militia for war crimes and others. The International Military Tribunals was wet up in Nuremberg, Germany and the International Criminal Tribunal for the Far East was set up in Tokyo, Japan.

Recommendations

1. Accurate statistics of rape should be published. 2. Rape victims need to be protected and feel assured to press charges. 3. Rape trials should be published, be it national or international. 4. Further research should be conducted to come to a solution on how to end rape during war. 5. Further action against those who commit rape during war should be taken.

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