By Maria Chiara Parisi
Chiara is a third year student at U.C. Berkeley, School of Law. After graduating in the spring, she hopes to work in public interest or public service law.
“Rape in war is as old as war itself”(Baker, 2016). For centuries, rape and other forms of sexual violence have run rampant during times of armed conflict (see Askin, 1999; Chinkin, 1994; Mitchell, 2005). The consequences of these acts are immense, with effects that last beyond the pain, humiliation, and fear felt at the time of the attack. Sexual violence spreads incurable diseases such as HIV and the trauma severely impacts the mental health of the victims for years following the attack. Loss of virginity and infertility caused by mutilation make victims unmarriageable in certain communities. Unwanted children are often left behind, serving as a constant reminder of the brutal destruction that disrupted the mother’s life. Mass rape has even been used as a form of ethnic cleansing, with the objective of changing the ethnic makeup of a population by killing all of the males in a community and forcing women to bear children of “the enemy”. Further, once the attacks end, the needs of survivors post-conflict, including medical care, psychological support, and economic assistance, are seldom met (UN, 2014).
Although there are no precise statistics on wartime sexual violence due to inaccurate reporting and the unwillingness of victims to come forward, there is no doubt that sexual violence rates during times of war are shockingly high (Gottschall, 2004, p.130). Just in the 20th century, countries with reports of mass rapes include Belgium, Russia, Japan, Italy, Korea, China, the Philippines, Germany, Afghanistan, Algeria, Argentina, Bangladesh, Brazil, Burma, Bosnia, Cambodia, Congo, Croatia, Cyprus, East Timor, El Salvador, Guatemala, Haiti, India, Indonesia, Kuwait, Kosovo, Liberia, Mozambique, Nicaragua, Peru, Pakistan, Rwanda, Serbia, Sierra Leone, Somalia, Turkey, Uganda, Vietnam, Zaire, and Zimbabwe (Gottschall, 2004, p.130).
Despite the atrociousness of these acts, wartime sexual violence was largely ignored by international law for centuries, leaving victims with no methods of prevention or recourse. It was not until the last two decades that significant steps were taken to hold perpetrators legally accountable for sexual attacks during times of armed conflict. Abuses “in Rwanda, the former Yugoslavia, Sierra Leone, and the recent exposure of the mass rape and sexual enslavement of some 200,000 so called “comfort women” by Japanese military personnel during World War I clearly placed the issue of sexual violence on the international agenda” (Mitchell, 2005, p.233). After witnessing such large scale atrocities, the international law community recognized the need to prohibit crimes of sexual violence by establishing adequate legal authority (Mitchell, 2015, p.223).
This essay explores the evolution of international law addressing sexual violence during times of armed conflict and outlines the current legal framework that the International Criminal Court has set into place to confront these crimes.
The historical development of international law criminalizing sexual violence during armed conflicts
Although woefully un-enforced, the prohibition of sexual violence during times of war dates back to the first century (Koenig, Lincoln, and Groth, 2011).Prior to the 1800s, the prohibition of sexual violence laid within custom, warrior codes, and religious instruction (Askin, 1999). At that time, the prohibitions were not grounded in human rights concerns, but economic ones (Sellers, 2008, p.6). The laws were meant to guarantee that non-military segments of communities remained protected. Subsequently prohibitions against sexual violence were codified as part of international humanitarian law (Koenig, Lincoln and Groth, 2011, p.3). The ways in which these prohibitions against sexual violence have been defined and adjudicated has developed over time, with significant advances in enforcement not being made until the last two decades.
Early Codification Prohibiting Acts of Sexual Violence
In 1907, Article I of the Annex to the II Hague Convention of 1899 and Article I of the IV Hague Convention of 1907 warned aggressors to “conduct their operations in accordance with the laws and customs of war” and that “family honour … must be respected” (Sellers, 2008, p.7). At the turn of the twentieth century, a violation of “family honour” was generally understood to describe sexual assault” (Sellers, 2008, p.7). Subsequently, in the decade after World War I, the drafters of the 1929 Geneva Convention provided in Article 3, that, “prisoners of war have the right to have their person and their honour respected. Women shall be treated with all the regard due to their sex.” This portion of Article 3 was understood as a prohibition against rape and other forms of sexual violence (Chinkin, 2014). Notably, Article 3 shifts the language of “family honour respected” found in Article I to “their person and their honour respected.” This difference symbolizes a shift from the patriarchal notion that the rape of a woman is a violation against her family’s honour, to the view that rape is a violent act towards the woman herself (Chinkin, 2014).
The International Military Tribunal at Nuremberg and the International Military Tribunal for the Far East
After the atrocious suffering of millions during World War II, the world was left in shock and illusions of state protections were shattered. In addition to the extermination, torture, starvation, and slave labour of masses of innocent civilians, countless women and girls were sexually abused and forced into sexual slavery(Askin, 1999). At the conclusion of the war, the Allied powers drew up the Nuremburg and Tokyo charters which would govern adjudication before the International Military Tribunal at Nuremberg and the International Military Tribunal for the Far East in Tokyo.The tribunals were established to prosecute those most responsible for crimes against peace, war crimes, and crimes against humanity, although only Axis war criminals were subject to the tribunal’s trials and Allied war criminals were not (Askin, 1999). The legacy of the trials after World War II remains one of lack of attention to sexual violence, however, each military tribunal did in fact hold trials for charges of rape (Sellers, 2008, p.7).
The International Military Tribunal for the Far East (IMTFE) issued convictions to General Iwane Matsui, Commander Shunroku Hata, and Foreign Minister Hirota for “failure[s] to prevent atrocities at the command level” under the absorbed category of the war crimes of murder, rape, and other cruelties (Sellers, 2008, p.8) after the rape of prisoners and female nurses (Koenig, Lincoln and Groth, 2011, p.6). Under this theory of vertical liability, the commanders were found guilty because rapes were continuously committed by their troops while the commanders knew they were occurring and had the power to stop them (Koenig, Lincoln and Groth, 2011, p.6) Although the convictions for these rapes were commendable, the IMTFE Prosecution failed to pursue charges on behalf of countless women from Korea, Indonesia, China, Burma, and Japan who were placed in rape camps by the Japanese Army (Koenig, Lincoln and Groth, 2011, p.6).
The International Military Tribunal at Nuremburg did not specifically mention rape among its enumerated list of prohibited acts in its charter and no prosecutions for rape took place during the Nuremberg Trials (Koenig, Lincoln and Groth, 2011, p.5). However, Minor Axis criminals were tried for crimes of sexual violence in Allied military proceedings that followed the Nuremburg trials (Sellers, 2008, p.8). These subsequent trials prosecuted military personnel for rape as a war crime in the Asia-Pacific theatre (Sellers, 2008, p.8). In the European theatre, few, if any, crimes of sexual violence were prosecuted despite the common occurrence of sterilization experiments and castration by the Nazi regime (Sellers, 2008, p.8). Nonetheless, a framework to prosecute the crimes was made available under Control Council Law No. 10 as a crime against humanity (Sellers, 2008, p.8). Specifically, the law set forth three significant principles: “(1) that rape on a wide scale could be prosecuted as a war crime; (2) that crimes of sexual violence committed during peacetime could constitute crimes against humanity; and (3) that responsibility for such crimes could not be limited to military personnel and…liability could attach to persons occupying other key positions”(Koenig, Lincoln, and Groth, 2011, p.6). Although there were no convictions for rape in these subsequent trials using Control Council Law No. 10, they framework laid out in the law would lay the groundwork for subsequent law prohibiting sexual violence (Koenig, Lincoln, and Groth, 2011, p.5).
1949 Geneva Convention and the 1977 Additional Protocols
Due to the mass violence that occurred during World War II, it became apparent that the original Geneva Conventions lacked sufficient protections (Askin, 1999). Thus, the Geneva Conventions were amended with the universally ratified four Geneva Conventions of 1949 (Askin, 1999). Article 27 of the Fourth Geneva Convention of 1949 was “the first multilateral international agreement to both explicitly mention and prohibit rape”(Koenig, Lincoln, and Groth, 2011, p.7). The protections were made available not only to individuals participating in armed conflicts, but also those who were temporarily out of action and civilians who took not part in the hostilities (Koenig, Lincoln, and Groth, 2011, p.7). The Convention grants special protection to women, stating that “women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault” (Askin, 1999, p. 293). A notable omission, however, was the failure to explicitly include rape and other forms of sexual violence among the grave breaches, which would bind parties to “pursue and prosecute those persons within the territory of a contracting state who violate those specific prohibitions” (Chinkin, 2014, p.3; Koenig, Lincoln, and Groth, 2011, p.7).
In 1977, Additional Protocols I and II of the Geneva Conventions of 1949 entered into force, expanding on and making changes to the permitted methods of warfare. Additional Protocol I, regulating international armed conflicts, recognizes in Article 75(2)(b) “outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault” (Sellers, 2008, p.9). Furthermore, Article 76(1) states that women are especially protected from “rape, forced prostitution and any other form of assault,” and Article 77(1) that children are protected against “indecent assault.” Additional Protocol II Article 4, relating to non-international armed conflicts, forbids “outrages against personal dignity, rape, enforced prostitution and any form of indecent assault at any time and any place when committed against persons who do not take a direct part or have ceased to take part in hostilities”. However, unlike Additional Protocol I, Additional Protocol II is restricted in force due to the limited number of states that have ratified the treaty.
Thus, by the 1990s, International Humanitarian Law prohibited acts of sexual violence perpetrated against civilians, combatants, and prisoners of war, although the parameters of the law were ill-defined and actual prosecution of such crimes was tentative. Unfortunately, despite these increased codified protections, sexual violence during times of armed conflict continued to increase in the years to follow.
The International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia
Since the Additional Protocols of 1977, there have been no other international humanitarian law conventions addressing sexual violence and armed conflict. However, there has been considerable advancement of wartime sexual violence jurisprudence through the application of international humanitarian law in international criminal courts (Sellers, 2008, p.5). Established in the 1990s, the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) served as the driving forces behind the prohibition of sexual violence in international criminal law. Unlike the trials held in Nuremburg and Tokyo, where crimes of sexual violence were predominantly disregarded, in the ICTR and ICTY, various forms of sexual violence were successfully prosecuted against numerous perpetrators (McHenry III, JR, 2002, p.1269). The Security Council gave the ICTY and ICTR authority to “prosecute individuals accused of committing grave breaches of the Geneva Conventions of 1949 and violations of the customs of war, genocide, and crimes against humanity” (McHenry III, 2002, p.1279). These tribunals advanced the jurisprudence of acts of sexual violence by developing the legal doctrine under international humanitarian law and by zealously prosecuting these crimes (McHenry III, 2002, p.1279). With very little case law to rely on, thus no precise definitions for crimes of sexual violence, the tribunals struggled to establish legal doctrine and procedures, but were eventually able to define rape and sexual violence, listing specific elements that must be satisfied to prosecute the acts as crimes of genocide, war crimes, and crimes against humanity (Koenig, Lincoln, and Groth, 2011, p.9).
The International Criminal Tribunal for Rwanda (ICTR), established in 1994, prosecuted rape and other forms of sexual violence committed by military members against Tutsi women and girls during the Rwanda crisis. The first conviction for sexual violence in the ICTR was against a leader of the Taba commune, Jean Paul Akayesu. Akayesu was found guilty of instigating, ordering, and otherwise aiding and abetting acts of rape and sexual violence that were committed against Tutsi women. This verdict was ground-breaking because it was the first time that an international court found an individual guilty of rape as a crime of genocide (Obote-Odora, A. 2005, p.137).
The court held that “rape and sexual assault constituted acts of genocide insofar as they were committed with the intent to destroy, in whole or in part, the Tutsi ethnic group” (Koenig, Lincoln, and Groth, 2011, p.11). It further stated that “sexual violence could be done with the intent of killing members of a group, could constitute serious bodily or mental harm, could be comprised of measures intended to prevent births within the group, and could amount to forcibly transferring children of the group to another group” (Koenig, Lincoln, and Groth, 2011, p.11). Also, it was in this case that the court established the elements of rape and sexual violence for the first time in international law (Obote-Odora, 2005, p.137). Rape was defined as “a physical invasion of a sexual nature committed on a person under circumstances which are coercive” (Koenig, Lincoln, and Groth, 2011, p.11). On the other hand, sexual violence was more broadly defined as “any act of a sexual nature which is committed on a person under circumstances which are coercive” (Koenig, Lincoln, and Groth, 2011, p.10). This definition of sexual violence allowed for the prosecution of sexual acts that did not involve penetration or physical contact. The court did not allow the accused to raise the defence of consent in cases of sexually violent conduct where coercive circumstances were present. The trial chamber determined that “coercive circumstances need not be evidenced by a show of physical force. Threats, intimidation, extortion and other forms of duress that prey on fear or desperation may constitute coercion, and coercion may be inherent in certain circumstances, such as armed conflict” (Koenig, Lincoln, and Groth, 2011, p.10). Subsequently, several others were tried for acts of sexual violence in the tribunal using the legal framework that was developed in Akayesu’s case.
In 1992, following widespread and systematic detention and rape of women that took place during conflicts that arose due to the breakup of the former Yugoslavia, the UN Security Council established the International Criminal Tribunal of the former Yugoslavia (ICTY). Soon after the Akayesu judgment in the ICTR, Anto Furundziia, a commander of a military police unit of the Croatian Defence Council, was prosecuted in the ICTY for criminal sexual acts that he, along with other soldiers, committed against women. Furundziia was found guilty of interrogating a witness while holding a knife to her inner thigh and threatening to insert it into her if she did not answer truthfully (Koenig, Lincoln, and Groth, 2011, p.11). Further, Furundziia was found guilty of failing to intervene when several female witnesses were forced to perform sexual acts on each other by other military members. The ICTY created its own definition of rape, defining it as “(i) the sexual penetration, however slight, of the vagina or anus of the victim by the penis of the perpetrator; (ii) by coercion or force or threat of force against a victim or third person” (Koenig, Lincoln, and Groth, 2011, p.11). In comparison to the definition of rape created in the ICTR, the ICTY’s definition was narrower by limiting rape only to circumstances where the “penis” penetrated the “vagina or anus,” rather than any “physical invasion of a sexual nature.” Additionally, the ICTY’s definition of rape also required the element of coercion, creating an additional evidentiary burden for victims of wartime sexual violence. Nonetheless, using this definition, Furundziia’s trial was the first case in which an international court declared that rape could constitute torture as a war crime under common Article 3 of the Geneva Conventions (Koenig, Lincoln, and Groth, 2011, p.11). Subsequently, in Celebici, four military leaders were again charged with torture by means of rape in the ICTY, however, in that case the victims were male (Askin, 1999, p.322).
The ICTY also prosecuted and convicted Dragoliub Kunarac, Radomir Kovač, and Zoran Vuković for their part in a Serb military attempt to “cleanse” the municipality of Muslims. In an effort to effectuate the “cleanse,” the three men created a rape camp where women and girls as young as twelve years old were detained and routinely ganged raped, beaten, and killed (Koenig, Lincoln, and Groth, 2011, p.12). In this case, the Court departed from the ICTR’s notion that non-consent is implied in coercive circumstances and instead inquired into the whether the victim consented or not (p.12). Ultimately, however, the men were not only convicted of rape as a war crime, but also found guilty of the first ever conviction of rape as a crime against humanity (p.13).
In 2001, in the Kvoeka judgment, five male Bosnia Serbs were charged with crimes of sexual violence in the ICTY following the murder, torture, and rape of several women in the Omarska prison camp. Although all five men were charged, only two of the five had physically committed the crime. The other men were convicted through the theory of joint criminal enterprise. The court established liability for any “foreseeable, consequential, or incidental rape crimes when committed during the course [of a] joint criminal enterprise” (Askin, 1999, p. 341). Although three of the accused did not physically perpetrate crimes, create the camp, or have authority over abusive policies, they were still held liable for the acts because they knew crime was rampant at the camp and did nothing about it (p.341). The court held that “participants in a joint criminal enterprise, whether aiders and abettors or co-perpetrators, may be held liable for any natural or foreseeable crimes committed while they participate in the criminal enterprise” (p.341). Given the fact that sexual violence during times of war is so prevalent, the decision can be interpreted as imposing a responsibility on all individuals involved in detaining females to make certain that there are adequate protections preventing sexual abuse (p.443). The court also found the men guilty of sexual violence defining it as a “broad range of acts including rape, molestation, sexual slavery, sexual mutilation, forced marriage, forced abortion, enforced prostitution, forced pregnancy, and forced sterilization” (p.442).
In summary, the ICTR and ICTY significantly developed international jurisprudence criminalizing wartime rape and sexual violence. The cases mentioned above were only a few of the many convicting military members for sexually charged crimes in the tribunals. Overall, the tribunals helped wartime sexual violence gain prominence in international criminal law and increased the general discussion of these crimes worldwide. They developed critical elements for crimes of sexual violence, as well as establishing sexual violence as a crime of genocide, crime against humanity, and war crime. Furthermore, the tribunals set forth various forms of liability, including superior responsibility and joint criminal enterprise. As you will see in the following section, the developments that were achieved in the ICTR and ICTY laid the groundwork for the prosecution of sexual violence in the International Criminal Court (ICC).
The International Criminal Court
In the aftermath of the ad hoc tribunals, the push for the establishment of a permanent international criminal court has been accelerated. Thus, in 1998, “a diplomatic conference met in Rome to establish the framework for a permanent institution with authority to prosecute the most serious crimes of concern to the international community, including genocide, war crimes, and crimes against humanity” (Koenig, Lincoln, Groth 2011, p.16). In 2002, the Court’s founding treaty, the Rome Statute, was ratified by sixty-six states and the International Criminal Court (ICC) was formed. Upon its creation, the ICC was hailed for serving as a symbol of progress and intolerance for cruelty for the world to see. As this section of the paper will demonstrate, the ICC has implemented the strengths from the various past attempts to address sexual violence and created a permanent legal framework that represents the best hope for eradicating wartime sexual violence.
In order for a crime to be prosecuted in the ICC, several requirements must be met. First, the court must have jurisdiction to admit the case: the court “can only prosecute individuals accused of committing or assisting in the commission of genocide, crimes against humanity and/or war crimes” (Koenig, Lincoln, Groth 2011, p.18). Also, the individual on trial must be “a national of a country that has accepted the Court’s jurisdiction, or the crime must have taken place within the borders of a country that accepts the Court’s jurisdiction, or the U.N. Security Council must have referred the situation to the Court Prosecutor” (p.18).
Second, the court is not meant to replace domestic courts but supplement them. Thus, in order for the case to be tried in the ICC, the principle of complementarity needs to be met. The principle of complementarity cannot be satisfied if “the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable to carry out the investigation or prosecution” (p.19). Specifically, there is a twofold test that must be met. In the first prong you must consider “whether there are ongoing investigations or prosecutions or whether there have been investigations in the past for the person concerned” (p.19). Subsequently, if the prior questions are answered affirmatively, the court must ask “whether the nation under consideration is unwilling or unable to prosecute” (p.19). Only if both prongs are answered positively will the ICC have jurisdiction to prosecute.
Third, the case must be of “sufficient gravity” for ICC to be able to try the individual. “Sufficient gravity” can be established “both quantitatively and qualitatively,” therefore it can be met by the number of victims affected by the crime or by the intensity, nature, and impact of the crime (p.19). Together, these requirements make it so that the court will try few individuals, making national prosecution a continued essential component of addressing major crimes.
Substantive and Procedural Laws
The ICC refined the definitions of rape and sexual violence in order to provide for a wider range of accountability for victims. Building on the legal doctrine of the ad-hoc tribunals, the Rome Statute added “sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and other forms of sexual violence of equivalent gravity” (p.19). Further, the statute codified the holding in Akayesu recognizing rape as a form of genocide (p.20). The Rome Statute defines rape as:
“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 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 and 2) The invasion was committed by force, or by the 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” (Koenig, Lincoln, Groth 2011, p.20)
This advances the legal framework presented in Akayesu and Furundzija by “recognize[ing] that coercion can demonstrated where the individual who perpetrated the crime took advantage of coercive circumstances…signaling an additional step away from the historic assumption of implied consent by recognizing that in certain coercive situations, consent cannot be implied” (p.21).
Building on the tools that emerged in the ICTR and ICTY, the Rome Statute extends liability to more than just direct perpetrators by recognizing joint criminal enterprise and command responsibility claims. Article 25(3)(d) states: “a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible… [or that] (d) in any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose” (p.21). Moreover, Article 28 recognizes that the court can impose criminal responsibility on military commanders where they “knew or… should have known that their [subordinates] were committing or about to commit such crimes” and then “failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation or prosecution”. The codification of command responsibility in the Rome Statute is particularly important because it can be inefficient to prosecute each individual who committed an act of sexual violence when these crimes are committed is such large numbers and it is often difficult to gather sufficient evidence or testimonies to accuse specific parties.
The ICC also developed several procedural protections for its courtroom, with numerous laws detailing how to handle cases involving crimes of sexual violence. When drafting the Rome Statute, particular attention was paid to the involvement and protection of victims who participate in the trials to document the sexual harm they experienced. Rule 71 prohibits the introduction of prior or subsequent sexual conduct of the victim during trials (Koenig, Lincoln, Groth 2011, p.25). The court guarantees confidentiality in proceedings to shield victims from the public as it unlikely that most victims will testify without that protection in place. Furthermore, the ICC created the Gender and Child Unit in the Office of the Prosecutor “to help the prosecution adequately address issues faced by victims of sexual violence” (p.26).
Last, a significant advancement the ICC has set into place in its focus on victims is a broad reparations provision. Unlike in the ICTY and ICTR, which provide no reparations for victims, the ICC is able to determine the extent of damages suffered by victims, including restitution, compensation, and rehabilitation (p.23). The Trust Fund for Victims is responsible for implementing court orders and assisting victims in coordination and managing reparations awards (p.23).
Cases Tried at the International Criminal Court
To date, charges for crimes of sexual violence have been made towards several individuals in the ICC. In Northern Uganda, charges were sought against Joseph Kony, Vincent Otti and Dominic Ongwen for rape and sexual slavery. Similarly, charges have been sought against Omar Hassan Ahmad Al’Bashier, Ali Muhammad Ali Abdal-Rahman, Ahmed Harun, and Ali Kushayb for rape and other crimes committed in Darfur. In the Democratic Republic of Congo, charges were sought against Germain Katanga and Mathie Ngudjolo Chui for sexual slavery and rape, but Ngudjolo was acquitted in full in 2012, and Katanga partially acquitted of the sexual violence charges in 2014 (De Vos, 2016). Most recently, Dominic Ongwen, the Brigadier General of the Lord’s Resistance Army has been charged with 19 counts of sexual and gender-based crimes (Open Society, no date). Dominic Ongwen’s trial presents the first opportunity for the ICC to hear charges of forced pregnancy and forced marriage.
On March 21, 2016, in the first ever conviction for crimes of sexual violence under command responsibility in the ICC, Jean-Pierre Bemba Gombo, the Commander-in-Chief of the Movement for the Liberation of Congo, was found guilty of over 1,000 rapes of men and women that took place in the Central African Republic as war crimes and crimes against humanity (De Vos, 2016). The prosecutors claimed that Bemba “knew that the troops were committing crimes and did not take all necessary and reasonable measures within his power to prevent or repress their commission”(Bowcott, 2016). The large amount of publicity around the trial raised widespread awareness of the proceedings, resulting in the filing of over 1,000 applications by victims to participate at trial, the highest number in any case before the court (Redress, 2010). Ultimately, the trial lasted four years and held testimonies from seventy-seven witnesses (Bowcott, 2016). The court heard testimony about “rape in public, rape in front of family members and communities, gang rapes, and rape of young girls, some as young as 10 years old. Men were raped as well, including when trying to prevent their wives or daughter from being raped” (Bowcott, 2016). The conviction marks a historic moment in the ICC for victims of sexual violence. The only thing left to do by the court is to determine reparations and restitution for the victims which will likely provide compensation for medical and psychological support (Bowcott, 2016).
The International Criminal Court’s Shortcomings
Although the ICC has successfully codified progressive international criminal law standards in most respects, there are a few areas in which the court can further develop its legal framework. As mentioned above, the Rome Statute includes “[r]ape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity” as crimes against humanity and war crimes. The language requiring “other forms of sexual violence” to be “of comparable gravity” has been criticised because the ICC should ideally have unlimited jurisdiction over all sexual harms (Halley, 2009). Requiring other forms of sexual violence to be “of comparable gravity” to the other sexual acts that are mentioned will potentially limit the range of sexual violence and abuse that the ICC can punish, possibly implying that some amount of sexual violence is expected and tolerated in times of war (Halley, 2009, p.103). Also, the term “forced pregnancy” is defined as the “unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law.” The court has been criticized for making “confinement” a necessary element (p.104).
The complementarity requirement is also problematic in some respects. The ICC is not intended to replace national courts, but instead step in when states are unable or unwilling to investigate and prosecute crimes. Although this framework is not a cause for concern in theory, issues arise when analysing how complimentarity takes place in practice. First, the ICC Prosecution’s inquiry into a state’s willingness to prosecute crimes that would fall within the ICC’s jurisdiction is likely to be minimal (Sacouto and Cleary, 2009, p.7). For example, the ICC might determine that a State is capable and willing to prosecute international crimes in general and not look into whether the State is specifically investigating and prosecuting alleged crimes of sexual violence. Additionally, the ICC’s prosecution may determine that a State is investigating and prosecuting crimes of sexual violence specifically, however, the state’s laws, procedures, and policies governing the investigation of sexual violence crimes may be inadequate (p.7). Thus, in the second scenario, several perpetrators may escape liability not because the State is unwilling to investigate and prosecute sexual crimes in general, but because the State’s laws establish a low bar for accountability.
Moreover, complementarity analysis issues arise when a specific case against an individual is being considered. The Court has stated that “a case against a particular suspect is inadmissible if the national proceedings directed against the same person are for the same crimes that the ICC Prosecutor intends to pursue against that person” (Sacouto and Cleary, 2009, p.8). Thus, if the ICC’s prosecution has charged an individual with particular crimes, the state has no incentive to pursue that individual for any additional crimes or to pursue additional individuals not being investigated by the ICC (p.8). The ICC can only pursue a limited number of perpetrators, therefore, if national courts do not go beyond what the ICC requires it to pursue, several individuals will be left unaccountable for their actions.
For years, many victims of sexual violence during times of armed conflict were left without a place to seek justice and perpetrators lived without fear of punishment for their actions. As this paper has demonstrated, the road to the ICC and its legal framework to address crimes of sexual violence was long and challenging. The ICC has implemented the best aspects of the various past attempts to address wartime sexual crimes and created a solid and progressive legal framework (Chinkin, 2014, p.3). Although the Court is not without weaknesses, those weaknesses are outweighed by its strengths in what concerns the prosecution of sexual violence.
Aside from holding specific individuals accountable for their actions, the ICC serves as platform to try individuals for the world to see. Each conviction in the ICC has an impact that goes far beyond the actual verdict. The convictions hold a substantial and widespread deterrent value by sending a clear message to the world that sexual violence will no longer be tolerated. With the ICC as a complementary forum to pursue accountability for war crimes, with time the convictions have the power to significantly reduce wartime sexual violence.
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