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Wartime sexual violence is rape or other forms of sexual violence committed by combatants during armed conflict, war, or military occupation often as spoils of war; but sometimes, particularly in ethnic conflict, the phenomenon has broader sociological motives. Wartime sexual violence may also include gang rape and rape with objects. It is distinguished from sexual harassment, sexual assaults, and rape committed amongst troops in military service.[1][2][3]
During war and armed conflict, rape is frequently used as a means of psychological warfare in order to humiliate the enemy. Wartime sexual violence may occur in a variety of situations, including institutionalized sexual slavery, wartime sexual violence associated with specific battles or massacres, and individual or isolated acts of sexual violence.
Rape can also be recognized as genocide when committed with the intent to destroy, in whole or in part, a targeted group. International legal instruments for prosecuting perpetrators for genocide were developed in the 1990s, with the Akayesu case of the International Criminal Tribunal for Rwanda being widely considered as a precedent.[4] However, these legal instruments have so far only been used for international conflicts, thus putting the burden of proof in citing the international nature of conflict in order for prosecution to proceed.
The terms rape, sexual assault and sexual violence are frequently used interchangeably.[5] There is no universally accepted definition of "war rape".[citation needed] The Explanatory Note of the Rome Statute, which binds the International Criminal Court, defines rape as follows:
The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.[6]
The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.[6]
The concept of "invasion" is intended to be broad enough to be gender-neutral and the definition is understood to include situations where the victim may be incapable of giving genuine consent if affected by natural, induced or age-related incapacity.[7]
Prosecution of rapists in war crime tribunals was rare prior to the late 1990s. Askin argued that the lack of explicit recognition of war rape in international law or applicable humanitarian law can not be used as a defense by a perpetrator of war rape.[8] Laws and customs of war prohibit offenses such as "inhuman treatment" or "indecent assaults", adding to this domestic military codes and domestic civil codes (national law) may make sexual assault a crime.
In 1999, humanitarian law concerned the maltreatment of civilians and "any devastation not justified by military necessity".[9]
The ancient Greeks considered war rape of women "socially acceptable behavior well within the rules of warfare", and warriors considered the conquered women "legitimate booty, useful as wives, concubines, slave labor, or battle-camp trophy".[10] One of the first references to the "laws of war", or "traditions of war" was by Cicero, who urged soldiers to observe the rules of war, since obeying the regulations separated the "men" from the "brutes". Conquering the riches and property of an enemy was regarded as legitimate reason for war in itself. Women were included with "property", since they were considered under the lawful ownership of a man, whether a father, husband, slave master, or guardian. In this context, the rape of a woman was considered a property crime committed against the man who owned the woman.[10]
In the Middle Ages, the Catholic Church sought to prevent rape during feudal warfare through the institution of Peace and Truce of God which discouraged soldiers from attacking women and civilians in general and through the propagation of a Christianized version of chivalry ideal of a knight who protected innocents and did not engage in lawlessness.
In 1159, John of Salisbury wrote Policraticus in an attempt to regulate the conduct of armies engaged in "justifiable" wars. Salisbury believed that acts of theft and "rapine" (property crimes) should receive the most severe punishment, but also believed that obeying a superior's commands whether legal or illegal, moral or immoral, was the ultimate duty of the soldier.[11]
Rape and pillage were prohibited by some army codes as early as the 14th century because of the tendency to create strong hostility in civilian populations and the detrimental effects to army discipline.[12] Despite early efforts to systematize the laws of war, rape continued to be a problem in the 15th and 16th centuries. The influential writer Francisco de Vitoria stood for a gradual emergence of the notion that glory or conquest were not necessarily acceptable reasons to start a war. The jurist Alberico Gentili insisted that all women, including female combatants, should be spared from sexual assault in wartime. However, in practice war rape was common.[citation needed]
It is suggested that one reason for the prevalence of war rape was that at the time, military circles supported the notion that all persons, including women and children, were still the enemy, with the belligerent having conquering rights over them.[13] In the late Middle Ages, the laws of war even considered war rape as an indication of a man's success in the battlefield and "opportunities to rape and loot were among the few advantages open to... soldiers, who were paid with great irregularity by their leaders....triumph over women by rape became a way to measure victory, part of a soldier's proof of masculinity and success, a tangible reward for services rendered....an actual reward of war".[14]
During this period in history, war rape took place not necessarily as a conscious effort of war to terrorize the enemy, but rather as earned compensation for winning a war. There is little evidence to suggest that superiors regularly ordered subordinates to commit acts of rape.[15] Throughout this period of history war became more regulated, specific, and regimented. The first formal prosecution for war crimes did not take place until the late Middle Ages.[15]
Hugo Grotius, considered the father of the law of nations and the first to conduct a comprehensive work on systematizing the international laws of war, concluded that rape "should not go unpunished in war any more than in peace". Emmerich van Vattel emerged as an influential figure when he pleaded for the immunity of civilians against the ravages of war, considering men and women civilians as non-combatants.[16]
In the late 18th century and 19th century, treaties and war codes started to include vague provisions for the protection of women: The Treaty of Amity and Commerce (1785) specified that in case of war "women and children....shall not be molested in their persons". Article 20 of the Order No. 20 (1847), a supplement to the US Rules and Articles of war, listed the following as severely punishable "Assassination, murder, malicious stabbing or maiming, rape". The Declaration of Brussels (1874) stated that the "honours and rights of the family....should be respected" (article 38).[17]
In the 19th century, the treatment of soldiers, prisoners, the wounded, and civilians improved when core elements of the laws of war were put in place by nations who were signatories to treaties. However, while the customs of war mandated more humane treatment of soldiers and civilians, new weapons and advanced technology increased destruction and altered the methods of war.[18]
The Lieber Code (1863) was the first codification of the international customary laws of land war and an important step towards humanitarian law. The Lieber Code emphasized protection of civilians and stated that "all rape...[is] prohibited under the penalty of death", which was the first prohibition of rape in customary humanitarian law.[19]
During the 20th century, international legal procedures attempted to prevent and prosecute perpetrators of war rape. Similarly, individual states developed laws pertaining to war rape's victims and perpetrators.
The prohibition of rape was excluded from the grave breaches spelled out in the Geneva Conventions and was deliberately left vague by the Hague Conventions.[20] Article 46 of the Hague Conventions of 1899 and 1907 regarding Land Warfare required only that "[f]amily honour and rights [and] the lives of persons...must be respected" by the occupying powers.[19]
After World War I, the Commission of Responsibilities, set up in 1919 to examine the atrocities committed by the German Empire and the other Central Powers during the war, found substantial evidence of sexual violence and subsequently included rape and forced prostitution among the violations of the laws and customs of war. Efforts to prosecute failed.[21]
The Nuremberg and Tokyo Tribunals became the first international courts of real significance. The victorious Allied powers established them in 1945 and 1946 respectively to prosecute the major war criminals of the European Axis powers (in fact only Germans) and of Japan for crimes against peace, war crimes, and crimes against humanity. The possibility of prosecuting sexual violence as a war crime was present because of the recognition of war rape as serious violation of the laws of war in the Hague Conventions of 1899 and 1907 assertion that "[f]amily honour and rights [and] the lives of persons...must be respected."
While the Nuremberg Tribunals failed to charge Nazi war criminals with rape, witnesses testified about it occurring. Previous war crimes trials had prosecuted for sex crimes, hence war rape could have been prosecuted under customary law and/or under the IMT (International Military Tribunals) Charter's Article 6(b): "abduction of the civilian population....into slavery and for other purposes" and "abduction unjustified by military necessity." Similarly, it would have been possible to prosecute war rape as crime against humanity under Article 6(c) of the Nuremberg Charter: "other inhumane acts" and "enslavement". However, notwithstanding evidence of sexual violence in Europe during World War II, a lack of will led to rape and sexual violence not being prosecuted at the Nuremberg Tribunals.[22]
The International Military Tribunal for the Far East did convict Japanese officers "of failing to prevent rape" in the Nanking Massacre, which is known as the "Rape of Nanking".[23][24] The tribunal, in Tokyo, prosecuted cases of sexual violence and war rape as war crimes under the wording "inhumane treatment", "ill-treatment," and "failure to respect family honour and rights." According to the prosecution, in excess of 20,000 women and girls were raped during the first weeks of the Japanese occupation of the Chinese city of Nanking. The War Crimes Tribunal in Tokyo included accounts of sexual violence crimes in the trial testimonies as well as public records.[25] On a national level, a commander of the 14th Area Army, General Yamashita, was convicted for, inter alia, "rape under his command."[25] Some 35 Dutch comfort women brought a successful case before the Batavia Military Tribunal in 1948.[25]
It is well known that brutal mass rapes were committed against German women; both during and after World War II. According to some estimations over 100,000 women were raped by Soviet soldiers in Berlin during and after The Battle of Berlin.[26]
The phrase "from eight to 80" was used to describe potential victims of Soviet mass-rape. "Red Army soldiers don't believe in 'individual liaisons' with German women," wrote the playwright Zakhar Agranenko in his diary when serving as an officer of marine infantry in East Prussia. "Nine, ten, twelve men at a time – they rape them on a collective basis."[26] Rape was regarded by men in the Soviet army as a well-deserved form of punishment, whether the civilians had anything to do with the war or not. In total, historians estimate that over two million German women were raped.[27]
Marocchinate (Italian for "Moroccan' deeds") is a term applied to the mass rape and killings committed during World War II after the Battle of Monte Cassino in Italy. These were committed mainly by the Moroccan Goumiers, colonial troops of the French Expeditionary Corps (FEC), commanded by General Alphonse Juin, and targeted civilian women and girls (as well as a few men and boys) in the rural area between Naples and Rome. The incident is traditionally known in Italian as La Ciociaria.
The Italian Senate launched an investigation, reaching the conclusion that 2,000 women were raped, as well as 600 men:
Over 2,000 women were raped, the youngest at 11, the oldest at 86. Dozens died. Six hundred men suffered the same fate. Among them a young parish priest, who died two days after the torture suffered. Two sisters, aged 15 and 18, suffered the violence of 200 Moroccan soldiers.[28]
Common Article 3 of the 1949 Geneva Conventions provides that "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture" and "outrages upon personal dignity, in particular humiliating and degrading treatment" are prohibited under any circumstance whatsoever with respect to persons who are hors de combat or who are not taking part of direct hostilities in internal conflicts.
Article 27 of the 1949 Fourth Geneva Convention explicitly prohibits wartime rape and enforced prostitution in international conflicts.
The prohibitions outlined in the 1949 Geneva Conventions were reinforced by the 1977 Additional Protocols I and II to the 1949 Geneva Conventions.[8]
In 1998, the International Criminal Tribunal for Rwanda established by the United Nations made landmark decisions defining genocidal rape (rape intended to affect a population or culture as a whole) as a form of genocide under international law. In the trial of Jean-Paul Akayesu, the mayor of Taba Commune in Rwanda, the Trial Chamber held that "sexual assault formed an integral part of the process of destroying the Tutsi ethnic group and that the rape was systematic and had been perpetrated against Tutsi women only, manifesting the specific intent required for those acts to constitute genocide."[29]
Judge Navanethem Pillay, now the United Nations High Commissioner for Human Rights, said in a statement after the verdict: "From time immemorial, rape has been regarded as spoils of war. Now it will be considered a war crime. We want to send out a strong message that rape is no longer a trophy of war."[30] An estimated 500,000 women were raped during the 1994 Rwandan genocide.[31]
Professor Paul Walters in his April 2005 statement of support of her honorary doctorate of law at Rhodes University wrote:[30]
Under her presidency of the Rwanda Tribunal, that body rendered a judgment against the mayor of Taba Commune which found him guilty of genocide for the use of rape in "the destruction of the spirit, of the will to live, and of life itself."
The Akayesu judgement includes the first interpretation and application by an international court of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. The Trial Chamber held that rape (which it defined as "a physical invasion of a sexual nature committed on a person under circumstances which are coercive") and sexual assault constitute acts of genocide insofar as they were committed with the intent to destroy, in whole or in part, a targeted group, as such. It found that sexual assault formed an integral part of the process of destroying the Tutsi ethnic group and that the rape was systematic and had been perpetrated against Tutsi women only, manifesting the specific intent required for those acts to constitute genocide.[29]
In September 1999, the United Nations published a "Report of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring States between 1 January and 31 December 1994". The report states that on 2 September 1998, Trial Chamber I of the International Criminal Tribunal for Rwanda, composed of Judges Laïty Kama, Presiding, Lennart Aspegren and Navanethem Pillay, found Jean Paul Akayesu guilty of 9 of the 15 counts proffered against him, including genocide, direct and public incitement to commit genocide and crimes against humanity, murder, torture, rape, and other inhumane acts. The Tribunal found Jean Paul Akayesu not guilty of the six remaining counts, including the count of complicity in genocide and the counts relating to violations of Common Article 3 to the Geneva Conventions and of Additional Protocol II thereto.[29] On 2 October 1998, Jean Paul Akayesu was sentenced to life imprisonment for each of the nine counts, the sentences to run concurrently. Both Jean Paul Akayesu and the Prosecutor have appealed against the judgement rendered by the Trial Chamber.[29]
Rape first became recognized as crime against humanity when the International Criminal Tribun
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Wartime sexual violence - Wikipedia
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