Rape in Conflict: Battling the Impunity That Stifles Its Recognition as a Jus Cogens Human Right
| Citation | Vol. 15 No. 1 |
| Publication year | 2012 |
I. Introduction............................................................................... 66
II. History and Effects................................................................... 67
A. The Historical Use of Rape as a War Tactic............................ 68
B. Rape in Current Conflicts..................................................... 70
C. Effects on the Individual and the Community......................... 71
III. Current International Legal Tools......................................... 72
A. The Fourth Geneva Convention............................................. 73
B. The International Criminal Courts Rome Statute.................... 74
C. UN Security Council Resolutions 1325 and 1820.................... 74
D. Resolutions 1889 and 1888................................................... 75
E. The Convention on the Elimination of All Forms of Discrimination Against Women 76
IV.
A. The Prevention of Genocide as aJus CogensHuman Right...... 78
B. Rape as a Crime Against Humanity, Genocide and Torture....... 79
V. Protection from Rape in Conflict as a Separate,
A. Protection from Rape as a Separate Human Right................... 80
B. The International Communitys Tendency Towards Impunity and How to Combat It 83
C. A Convention Defining and Addressing Rape as a Weapon of War 85
VI. Conclusion................................................................................ 86
The first section of this paper willprovide anoverview of the history of rape in conflict areas, the reasons for its prevalence, and the effects it has on women and communities. Part III will discuss the legal tools currently available in the international legal field to combat rape in conflict areas. This section will also discuss the lack of womens involvement in crafting international jurisprudence and the resulting gendered approach that this has caused. Part IV will establish genocide as a
For centuries, the use of rape as a weapon of war has been an all-too-common travesty of conflict, and legal tools were developed centuries ago to combat this problem. As far back as 1385 rape by soldiers duringwartimewas recognized as a crime, and in some instances it carried a penalty of capital punishment.(fn2) The military codes of Richard II in 1385 and Henry V in 1419 are two examples of early military codes which punished rape by soldiers during wartime with capital punishment.(fn3) More recently the Lieber Code, publishedby Francis Lieberin 1863, was the earliest attempt by the west to codify the law of war and slate rape as a capital crime.(fn4)
Historically, war was waged over territory. Upon one partys defeat, the disputed land and all things on it belonged to the victor.(fn5) This was often the context in which rape and war became synonymous.(fn6) Women wereviewed aslittle more than property and the victors took possession of them as easily as they took the land.(fn7)
Today, rather than being a byproduct of the times, rape is used as a weapon of war. Places like Sudan, the Democratic Republic of Congo, Bosnia, Sierra Leone, Chad, Rwanda, and Libya are just the beginning of the list of countries where rape has become a battle tactic.(fn8) Even with advanced weaponry and interrogation tactics rape is a tool employed to fulfill political and military objectives.(fn9) Rape has been used in conflict to extract information and in such situations is a form of torture, humiliation, intimidation, and punishment.(fn10) Rape, genital mutilation, and intentional HIV transmission are techniques specifically inflicted on women to advance the goal of ethnic cleansing.(fn11) "Sexual violence has become a tactic of choice for armed groups" because it is cheap, effective, and the "least condemned war crime."(fn12)
During World War II,rape was used against women in Europe and Japan alike. Nazi soldiers systematically raped, tortured, and killed girls and women in ghettos and concentration camps.(fn13) In these situations, soldiers used rape to dehumanize and demoralize the enemy as well as to decimate the population.(fn14) The International Military Tribunal at Nuremberg (Nuremberg Tribunal) was established following the war to address crimes against humanity; rape was not included.(fn15)
In Japan, military forces adopted the "comfort women" system, which involved the procurement of women to serve as sexual slaves for the Japanese military.(fn16) Overall, between 120,000 and 200,000 women were forced to work as sex slaves for Japanese soldiers during World War II.(fn17) Following the end of the war, subsequent Japanese War Criminal Tribunals saw virtually no prosecution for these crimes, aside from a single trial involving the rape of Dutch "comfort women" during Japans wartime occupation of the Netherlands Indonesian colony.(fn18)
Another example of using rape as a war tactic occurred during the conflicts in Bosnia and Herzegovina in the 1990s, where estimates show that as many as 50,000 women were raped.(fn19) Women were raped in their homes by traveling soldiers, as well as soldiers from their own villages.(fn20) Women were raped as prisoners in detention centers,(fn21) andevenimprisoned in buildings to make them easily accessible to soldiers for the purpose of rape.(fn22)
The organized attacks of Serbian soldiers raping Muslim women have beenrecognized as a form of ethnic cleansing.(fn23) The United Nations reported on the use of rape as a tool to terrorize villages and force ethnic groups to flee.(fn24) Inthiscontext, rape was viewed as channeling hostility against the "enemy" and was justified by the "notion that it is for Serbia."(fn25)
Similarly, during the 100-day Rwandan Genocide of 1994, officials and soldiers of the former government raped thousands of women.(fn26) Some estimates put the total number of female rape victims as high as 500,000 in a mere 100 days.(fn27) These widespread attacks on women were not detected until nine months later when Rwandan women began giving birth in unprecedented numbers.(fn28) As many as 20,000 children were born as a result of these attacks.(fn29)
No discussion of rape in conflict is complete without mention of the atrocities currently taking place in the Democratic Republic of Congo (DRC) .Nearly one million refugees fled from the Rwandan Genocide and crossed the border into the DRC.(fn30) Some experts estimate that approximately two million Hutus crossed the border into the DRC when the new Tutsi government was established in Rwanda.(fn31) The Rwandan Hutus quickly allied themselves with the DRC government and began attacking the DRCs Tutsi population.(fn32)
Although much of the fighting was declared to have ended in 2003, the eastern part of the DRC continues to remain incredibly unstable and is still the site of most of the rape currently reported in the media.(fn33) Margot Wallstrom, the UN Special Representative on Sexual Violence in Conflict, has termed the DRC "the rape capital of the world."(fn34) The continued fighting and conflict in the DRC has caused some to label eastern Congo "the most dangerous place in the world to be a woman or girl... "(fn35)
In May 2011, The American Journal of Public Health published a study estimating that approximately two million women have been raped in the DRC.(fn36) According to that study, women in the DRC are victimized at a rate of nearly one woman raped every minute.(fn37) In a National Public Radio interview, Congo expert and scholar Jason K. Stearns addressed the worlds failure to intervene in the DRC.(fn38) In light of recent rape statistics, Stearns commented, "When Congo... pop[s] up on the radar, the suffering seems to be anonymous with an equally anonymous perpetrator."(fn39) Stearns arguedthat the conflict in the DRCcontinues to have such dire consequences for women in part...
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