Sexual violence in conflict – what use is the law?

Through conflict after conflict, sexual violence persists, not just as individual crimes but as a weapon of war, from the Balkans to the Congo, from Liberia and Sierra Leone to present day Iraq. It persists, says Madeleine Rees, the secretary general of the Women's International League for Peace and Freedom, because it’s effective.

“It works in conflict,” she told a meeting at London's Chatham House, “because it helps destroy and tear apart communities. And the reason it works to tear apart communities is to do with our social mores. It does work and if you want to win a war, then you do it.”

Working to prevent it and cope with its effects is a dauntingly wide-ranging task, which entails tackling deep-seated attitudes at the core of societies, as well as the provision of medical help, emotional support and legal advice to the victims.

When a woman – or a man – has been raped, legal redress may not be the first thing she feels she needs, but many victims do feel passionately that their abusers should not go unpunished. Ending impunity also plays a role in preventing such violence in the future.   Legal tools are there, and the London meeting explored how they can be used, and how, once the legal instruments exist, courts can develop and extend their scope.

Margaret Purdasy is legal counsellor at the UK Mission in Geneva, and as such she has been involved with a British initiative on preventing sexual violence in conflict, launched in 2012 by the then UK foreign secretary William Hague and actress Angelina Jolie. She says, “There are several different strands of international law, and actually understanding the different strands is really important, and how they interact together and how they can be complementary to each other.”

Humanitarian Law is always the starting point

Purdasy described international humanitarian law as always being the starting point. The Geneva Conventions and Protocols specifically prohibit rape and also serious sexual assault. It's less clear cut, she says, whether they might constitute “grave breaches” of the Geneva Conventions, a designation which obliges states to seek out and prosecute, under the principle of universal jurisdiction, anyone suspected of committing such acts, regardless of their nationality or of the country where the crime was committed.

While not specifically identified as grave breaches in the Conventions, rape and other acts of sexual violence could, according to Purdasy, fall under the umbrella of “torture or inhumane treatment”, which is so listed.

Such an interpretation was upheld by the International Criminal Tribunal for the former Yugoslavia for instance, although it is not accepted by all states. Moreover, a strict reading of the Conventions would limit the applicability of the grave breaches – and by extension, universal jurisdiction – to international armed conflicts, to the exclusion of civil wars, the most common type of conflict today. (The jury is still out on this point, however.)

Then there is international human rights law, as enshrined in various conventions. The UN Convention on the Rights of the Child, or the Council of Europe Convention on Action against Trafficking in Human Beings, for instance, might prohibit some of these acts. But these too have their limitations, since they bind states, not individuals, and many of the worst perpetrators are “non-state actors”, such as rebel groups.

So what of criminal law, national or international? Rape and serious sexual assault are both considered war crimes by the Rome Statute, which underpins the International Criminal Court, and have also been prosecuted by a range of other international tribunals.

 “They've made interesting contributions to the development of the law. Courts have to interpret the law, that's part of their power. For instance, evidence of rape: that has been adjudicated on by the Yugoslav tribunal, the Rwanda Tribunal [which established rape could be an act of genocide], the Special Court for Sierra Leone, all developing the law on what constitutes rape and evidence of sexual violence. There have been ground-breaking judgements on particular issues.”

She added: “All the strands of law have their limitations and their setbacks, but they are not the same limitations; one helps to plug the gaps in the other.”

The Chatham House meeting also looked at the issue of so-called “soft law”, the kind of declarations and protocols which nations sign up to, but which are not binding and which have no enforcement mechanisms. These can stimulate discussion, establish best practice, and give civil society a baseline of standards which their governments should meet.

The UK's former Attorney General, Baroness Scotland, said soft law can also serve a practical purpose in court. “Protocols are also used by courts as a powerful, creative tool, not just with state parties but with other institutions which are involved in delivering solutions. You can ask them, 'So what is your response to the provisions of this protocol? What are you doing? How are you responding?' And it doesn't matter that it's not binding. It is persuasive.”

Breaking the silence

A fundamental problem with all this is that laws and courts exist within society as it stands. Where women – the most frequent victims – are discriminated against, that is reflected in their experience with the law. Rees says it comes down to the different relationships of men and women to the structures of power, particularly in the context of transitional justice, where national courts will eventually take over from international tribunals.

In the former Yugoslavia, she says, “We still had the flawed interpretation of law coming from the national courts feeding in to the international court. So look at rape. Rape is one of the most badly prosecuted crimes; the statistics are horrifying. And the reason for that is because it is coming from a particular standpoint, a particular view of women and their sexuality.

“One woman, who was sixteen at the time of her rape, was cross examined for several days on the issue of her consent to having sex with one of the commanders...and that had an enormous impact on women in Bosnia. They wanted to withdraw because they said, 'We are not going to be subjected to this sort of denigration in a court of law when we are the ones seeking justice.' The case was won... but still it caused damage.”

The International Committee of the Red Cross works on these issues, both with victims and with potential perpetrators. Its diplomatic advisor, Anne-Marie La Rosa, stresses the need to address the whole range of issues.  “You need to strengthen institutions.  You have to make sure you have courts who have jurisdiction over those who are susceptible to sexual violence, in particular weapons-bearers.  You have to have investigative bodies with forensic capacity.

“But addressing seriously sexual violence is not just about putting into place good facilities and skilled professionals,” she said.

“It is also about breaking the silence and fighting against taboos. You can only do this if the victims are in an environment with a person they trust.  And to achieve this it's vital that any work that we do is combined with community-based approaches.”