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In-Depth:
Justice for a Lawless World? Rights and reconciliation in a new era of international law
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 Download this in-depth report
Part I 6.36 MB
Part II 2.40 MB
- Professor Noam Chomsky
- ICC Chief Prosecutor Moreno Ocampo
- Samantha Power, Professor of Practice in Human Rights Policy
- Juan Mendez ,President of the International Center for Transitional Justice
- Justice Geoffrey Robertson Q.C.
- Dr Fanie du Toit, Programme Director for Educating for Reconciliation at the Institute for Justice and Reconciliation in South Africa
- Abdullah An-Na`im, Ph.D, Charles Howard Candler Professor of Law at Emory University, Atlanta, GA, USA
- Augustin Nkusi, the Director of the Legal Support Unit, National Service of Gacaca Jurisdictions, Rwanda
- Benjamin Gumpert, counsel representing Justin Mugenzi, who is currently on trial at the International Criminal Tribunal for Rwanda
- Hanny Megally, Director, Middle East and North Africa Program, International Center for Transitional Justice (ICTJ)
- Paul van Zyl, Country Programme Director at the International Center for Transitional Justice (ICTJ)
- Johnston Busingye, Secretary General of the Ministry of Justice in Rwanda
- Dennis McNamara (Special Adviser on Internal Displacement to the UN’s Emergency Relief Co-ordinator and Director of the OCHA Inter-agency Internal Displacement Division) on the rule of law
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GLOBAL: RAPE: Zero tolerance under international law
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Two Bosnian soldiers comfort a stunned Muslim woman in Bosnia in 1993. Those with her claimed she had been raped by Serbian troops some moments earlier. Tens of thousands of women were raped by Serb forces during the conflict.
Credit: Anthony Loyd |
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“If you looked, you could see the evidence, even in the whitened skeletons. The legs bent and apart. A broken bottle, a rough branch, even a knife between them. Where the bodies were fresh, we saw what must have been semen pooled on and near the dead women and girls. There was always a lot of blood. Some male corpses had their genitals cut off, but many women and young girls had their breasts chopped off and their genitals crudely cut apart. They died in a position of total vulnerability, flat on their backs, with their legs bent and knees wide apart. It was the expressions on their dead faces that assaulted me the most, a frieze of shock, pain and humiliation.”
The extract is from Shake Hands with the Devil, by Lt. Gen. Romeo Dallaire, Force Commander of the UN Assistance Mission to Rwanda, 1993-94.
The statistics that have emerged from recent conflicts give an indication of the extent of violent sexual abuse in warfare. Of a sample of Rwandan women surveyed in 1999, 39 percent reported being raped during the 1994 genocide. Seventy-two percent said they knew someone who had been raped. An estimated 23- to 45-thousand Kosovar Albanian women were believed to have been raped between August 1998 and August 1999.
Evidence collected in the last decade reveals the use of rape as a method of oppression in wars all around the world, ranging from the Democratic Republic of Congo to Chechnya, Bosnia, East Timor, Sierra Leone and Colombia. Its use as a form of torture has also been documented, revealing the lengths gone to in order to achieve the sexual degradation of those being interrogated: one torture chamber in General Pinochet’s Chile had a dog trained to perfiorm sexual acts upon female detainees.
“As a human rights issue, the effort to end violence against women becomes a government's obligation, not just a good idea.”
Charlotte Bunch
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The sexual violation and torture of civilian women and girls during periods of armed conflict has until recently been ignored. Recent efforts to collect data on the issue have revealed the extent and extreme brutality of this violence against women. Some argue that the statistics are only now bringing to light the size of a problem that has always existed; others that the very nature of warfare is changing, and there is a new emphasis on rape and sexual abuse in the conduct of war.
Against this background, there have been great leaps forward in the past decade in recognising rape, not only as a crime under international law, but also as a deliberate weapon of war.
Rapists at the ICTY
The following text is an extract from one of the indictments of Dragoljub Kunarac and Radimir Kovac before the International Criminal Tribunal of the former Yugoslavia (ICTY). The names given in the indictment have been changed to Woman 1 and Woman 2.
“Dragoljub Kunarac took Woman 1 and Woman 2 several times to his headquarters …. On or around 16 July 1992, Dragoljub Kunarac, together with his deputy [nick-named] "Gaga” took Woman 1 and Woman 2 to this house for the first time. When they arrived at the headquarters, a group of soldiers were waiting. Dragoljub Kunarac took Woman 2 to a separate room and raped her, while Woman 1 was left behind together with the other soldiers. For about 3 hours, Woman 1 was gang-raped by at least 15 soldiers (vaginal and anal penetration, and fellatio). They sexually abused her in all possible ways. On other occasions in the headquarters, one to three soldiers, in turn, raped her.”
This is just one example of the widespread sexual violence which occurred in the town of Foca, which was overrun by Serb forces in April 1992. The Serb forces rounded up some women and children from the Foca region and took them to sports halls or schools which served as detention centres. There they were repeatedly raped. Some women testified that they had been raped so many times that they were consequently unable to assess with precision the number of times they had been raped. Others were sold or rented. Girls as young as 12 years were taken.
In another indictment, Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, were accused of the abuse of women at what was effectively a rape camp in the Foca High School. Kunarac was the commander of a special reconaissance unit of the Bosnian Serb army in Foca. All three defendants were accused of crimes against humanity and violations of the laws and customs of war. Specifically, Kunarac was charged with rape, enslavement and torture, and committing outrages upon personal dignity; Kovac was charged with rape, enslavement and committing outrages upon personal dignity; and Vukovic was charged with torture and rape.
Bosnian Serb rapist Dragoljub Kunarac pleading guilty to rape at the ICTY in 1998. During these trials, in a landmark ruling, rape was, for the first time, officially recognised as a war crime.
Credit: Jerry Lampen/AFP
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In 2001, Kunarac, Kovac and Vukovic were found guilty of war crimes and crimes against humanity for acts that the presiding judge described as “a nightmarish scheme of sexual exploitation”. She commented that the defendants: “thrived in the dark atmosphere of the dehumanisation of those believed to be enemies.”
This is not the first example of the successful prosecution of rape under international law, but it was a landmark decision which developed international law pertaining to sexual violence and enslavement. It expanded the definition of crimes against humanity and applied war crimes standards to the acts of rape and sexual enslavement.
It also clarified the definition of rape. The Trial Chamber defined the act of the crime of rape in international law as: "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; where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim's free will, assessed in the context of the surrounding circumstances." It also defined the necessary intent as the intention to effect this sexual penetration and the knowledge that this occurs without the consent of the victim.
Former abductees recently freed or escaped from the Lord’s Resistance Army in Uganda. These girls would have been forced to work for the LRA as well as be sex-slaves and/or commanders ‘wives’. Many became pregnant and bore the children of their captors creating huge problems as they return to their communities.
Credit: Sven Torfinn/IRIN
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The defendants appealed the decision. Kovac in particular contended that the definition of rape required continuous or genuine resistance to provide notice to the perpetrator that the sexual intercourse was unwelcome. He argued that: “Resistance must be real throughout the duration of the sexual intercourse because otherwise it may be concluded that the alleged victim consented to the sexual intercourse.” He argued that such resistance had been lacking in the women who had been detained.
The appeal was denied. Kunarac received a sentence of 28 years, Kovac 20 years and Vukovic 12 years. Kunarac has been transferred to a prison in Germany, where he is serving his time; the other two are in prisons in Norway.
The Geneva Convention and rape
The prosecution for rape under international law is a recent development. Neither the Nuremberg nor Tokyo Trials addressed the issue of rape in war. However, they did issue convictions on the basis of enslavement, which the ICTY subsequently expanded to include sexual enslavement. This allowed the ICTY to give a ruling that enslavement, and consequently sexual enslavement, had become established parts of customary international law.
The Geneva Convention Relative to the Protection of Civilian Persons in Time of War came into force in October 1950. It was the first international law to state that: “Women shall be especially protected from any attack upon their honour, in particular against rape, enforced prostitution, or any form of indecent assault.”
Article 3 of this convention, which is also found in the three other Geneva Conventions, and so is often referred to as Common Article 3, lists prohibited acts which include:
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.
The ICTY ruled that the cases of rape in Foca constituted an outrage upon personal dignity, and thus a war crime. They also constituted crimes against humanity pursuant to Article 5 of the
“While I was still standing up he was taking off my shirt, and then he pushed me to the ground. I felt so much pain when he raped me. He just left me there.”
(11-year-old girl in Democratic Republic of Congo)
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ICTY enabling statute. Article 5 specifically states that the tribunal shall have the power to prosecute persons responsible for certain crimes committed during armed conflict, when they are directed against a civilian population, including rape, torture and enslavement.
The tribunal held that the actions committed by Kunarac and others were systematic attacks upon Bosnian Muslim women in Foca, and that they were intentionally directed against a civilian population.
The tribunal found that the accused: “…knew that one of the main purposes of that campaign was to drive the Muslims out of the region. They knew that one way to achieve this was to terrorise the Muslim civilian population in a manner that would make it impossible for them ever to return. They also knew of the general pattern of crimes, especially of detaining women and girls in different locations where they would be raped.
Rape, Genocide and the ICTR
Julie sits with her baby: a child of rape by a neighbour while she was living as a displaced person, with her mother, having fled the violence in Colombia. No charges we pressed against the perpetrator – the police declined to investigate.
Credit: Jennifer Szymaszek
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The International Criminal Tribunal for Rwanda (ICTR) was set up one year after the ICTY, in 1994. In a case that preceded the Kunarac case, the ICTR in 1998 convicted Jean-Paul Akayesu of genocide and crimes against humanity for his role in raping Tutsi women and encouraging others to rape Tutsi women.
Akayesu was the mayor of Taba, a small Rwandan village. He was charged with facilitating the commission of sexual violence, beatings and murders by allowing the sexual violence and beatings and murders to take place at the mayor’s offices. By virtue of his presence during the commission of the sexual violence, beatings and murders, and by his failure to prevent these acts, Akayesu was charged with encouraging these activities.
According to witness testimony, Akayesu incited men to rape with the words: “Don’t ever complain again that you don’t know what a Tutsi woman tastes like.”
The Akayesu case is a landmark decision. It was the first time that rape was legally found to be both a form of genocide and a crime against humanity. One sign of how dramatic the Akayesu judgment is in terms of international law is that, despite documentation of the widespread rape during the genocide in general and in his commune in particular, the charges of rape were only added to the Akayesu indictment mid-trial, following concerted pressure by NGOs.
The Trial Chamber was satisfied that the systematic sexual violations wreaked upon Tutsi women were done with genocidal intent. Many of the rapes were committed next to mass graves so that the women could be violated, mutilated, killed and then dumped in the pre-prepared graves. The judgment declared: "Sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and to the destruction of the Tutsi group as a whole."
Akayesu was found guilty on the basis of violation of: Common Article 3 of the Geneva Conventions; Article 2 of the enabling statute of the ICTR which echoed the Convention for the Prevention and Repression of the Crime of Genocide; and Article 3 of the enabling statute of the ICTR, under which an act constituting a crime against humanity must be committed as part of a widespread or systematic attack directed against a civilian population on discriminatory grounds.
"States should condemn violence against women and should not invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination. States should pursue by all appropriate means and without delay a policy of eliminating violence against women..."
Declaration on the Elimination of Violence Against Women, proclaimed by General Assembly resolution 48/104 of 20 December 1993, paragraph 4 |
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While previously rape was accepted as an unpleasant, but fairly inevitable, side effect of conflict, this is no longer the case. In recent years the law on sexual violence as an international humanitarian crime has developed at a startling pace. By virtue of a combination of statutory law and case law, rape can now be considered as a form of genocide, a war crime and a crime against humanity. The act of rape itself can qualify as torture.
Other cases
Only two cases have been mentioned here, but the cases of Hazim Delic, Anto Furundzija, Zdravko Mucic before the ICTY have all contributed to the development of sexual violence in international law. Delic, in the case known as the Celebici case after the name of the prison camp where the acts took place, was found guilty of torture for the rapes he committed. Mucic, in the same case, was found guilty for the command responsibilty of rape. It was held that rape by his subordinates in the camp was so widespread and notorious that he must have known about them. Furundzija was found guilty of violating the the laws of war. While he was interrogating a Bosnian Muslim woman the woman was anally, orally and vaginally raped by his subordinate.
Further and more detailed information is available on these topics at:
The official website of the ICTY: www.un.org/icty
The official website of the ICTR: www.un.org/ictr
Human Rights Watch: www.hrw.org
Amnesty International: www.amnesty.org
The Vanderbilt Journal of Transnational Law “The prosecution of rape under international law” by James R McHenry III: http://law.vanderbilt.edu/
ab/CMH/jmc
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