Open Access Research Article
THE PROSECUTING SEXUAL VIOLENCE AS A WAR CRIME UNDER INTERNATIONAL CRIMINAL LAW BY: - JYOTSANA SINGH
Published Paper
Article Details
AUTHORED
BY: - JYOTSANA SINGH,
IVth year, BA LLB
Symbiosis Law School, Hyderabad
Symbiosis International (Deemed
University), Pune
Sexual violence has plagued humanity throughout history, and
unfortunately, wartime is no exception.
For centuries, these acts were viewed as a deplorable, yet inevitable,
consequence of war. However, the
international legal landscape has undergone a significant shift, increasingly
recognizing sexual violence as a war crime and holding perpetrators
accountable. This paper examines the evolving legal framework for prosecuting
sexual violence as a war crime under international law. While historically overlooked,
sexual violence is now recognized as a grave breach of international law, with
the International Criminal Court (ICC) playing a central role in holding
perpetrators accountable. The paper explores the core elements required to
prove sexual violence as a war crime, including the act itself, the
perpetrator's intent, and the link to armed conflict. However, significant
challenges hinder successful prosecutions. Gathering evidence and securing
witness testimony can be difficult due to the nature of the crimes and the
trauma experienced by victims. Cultural barriers and social stigma further
discourage reporting. Establishing command responsibility also presents
complexities. The paper concludes by highlighting the need for a multifaceted
approach to overcome these challenges. Building trust with victims, addressing
cultural norms, and strengthening national and international legal frameworks
are crucial steps towards ensuring justice. The paper also proposes
recommendations for further research and action, including exploring
interventions to address cultural barriers, strengthening national courts, and
utilizing technological advancements for evidence gathering. By addressing
these challenges and promoting accountability, we can contribute to a future where
sexual violence is not a weapon of war.
Introduction
Sexual
violence has plagued humanity throughout history, and unfortunately, wartime is
no exception. For centuries, these acts
were viewed as a deplorable, yet inevitable, consequence of war. However, the international legal landscape
has undergone a significant shift, increasingly recognising sexual violence as
a war crime and holding perpetrators accountable.
Historically,
international law offered little protection to victims of sexual violence
during wartime. The focus was primarily
on regulating the conduct of warfare between states, with scant mention of
civilian protection. The 1907 Hague Conventions,
for example, aimed to limit the brutality of war but did not explicitly address
sexual violence.[1]
Even the Fourth Geneva Convention of 1949, which established crucial
protections for civilians during armed conflict, did not initially include
sexual violence in its definition of "grave breaches".[2]
The latter half of the 20th century witnessed a critical
shift. The landmark case of Akayesu by the International Criminal Tribunal for
Rwanda (ICTR) in 1998 marked a turning point.
For the first time, an international tribunal explicitly recognised
sexual violence as a form of torture, persecution, and genocide[3]. This groundbreaking decision paved the way for a more
comprehensive legal framework.
This evolution continued with the Rome Statute of the International
Criminal Court (ICC) in 2002. The
Statute not only included sexual violence as a war crime but also established a
permanent court specifically dedicated to prosecuting these and other serious
international crimes.[4] The Rome Statute defines a broad range of acts as sexual
violence, including rape, sexual slavery, and enforced prostitution.[5] This definition applies to both international and internal
armed conflicts, sending a strong message that sexual violence will not be
tolerated with impunity.[6]
The recognition of sexual
violence as a war crime has continued to grow.
The International Court of Justice (ICJ) further affirmed its illegality
in its 2006 judgment in the Democratic Republic of the Congo v. Uganda case.[7] These developments
demonstrate a growing international consensus on the gravity of this crime.
Despite
these advancements, prosecuting sexual violence as a war crime remains
challenging. Gathering evidence and
securing witness testimony is often difficult, especially in conflict
zones. Cultural stigma surrounding
sexual violence can also discourage victims from coming forward. However, the international community is
actively working to address these obstacles.
Initiatives like the use of technology for evidence gathering and
increased support for victims are crucial steps towards ensuring justice.
Overall
the paper will explore the remarkable evolution of the international legal
framework in addressing sexual violence as a war crime. It will examine the historical neglect, the
landmark cases that shifted the legal landscape, and the ongoing challenges in
holding perpetrators accountable. Ultimately, this analysis will highlight the
growing determination to end the use of sexual violence as a weapon of war.
Research Objectives
1. Trace the
historical development of international law regarding sexual violence in
wartime.
2. Identify the
obstacles in gathering evidence and securing witness testimony for sexual
violence cases.
3. Evaluate the
effectiveness of international courts like the ICC in prosecuting sexual
violence as a war crime.
4. Propose potential
reforms or advancements in international criminal law to address sexual
violence.
Research Questions
1. How has the
definition of sexual violence as a war crime evolved under international law?
2. What are the
primary challenges in gathering evidence and securing witness testimony in
cases of sexual violence during armed conflict?
3. How effective has
the International Criminal Court (ICC) been in holding perpetrators of sexual
violence as a war crime accountable?
4. What potential
reforms to international criminal law could address the challenges in
prosecuting sexual violence as a war crime?
Limitation
of the Study
While
this study seeks to shed light on the evolving landscape of prosecuting sexual
violence as a war crime, it acknowledges limitations. Firstly, the focus on international criminal
law frameworks may not fully capture the complexities of national and regional
legal systems. Secondly, the research
may not comprehensively address the diverse experiences of victims across
different conflict zones. Additionally,
the ongoing nature of legal developments and potential future reforms
necessitates ongoing research to maintain a current understanding of this critical
issue.
Research
Methodology
This
research is based on a doctrinal methodology, relying on a critical analysis of
existing legal sources to examine the prosecution of sexual violence as a war
crime under international criminal law. The primary data will consist of legal
documents such as the Rome Statute of the International Criminal Court (ICC),
relevant case law from international tribunals (e.g., ICTR, ICC), and key
pronouncements by the International Court of Justice (ICJ). Scholarly articles
and commentaries on these legal instruments and landmark cases will also be
used to gain deeper insights and diverse perspectives on the evolving legal
framework and its application. Through a comprehensive review and analysis of
these doctrinal sources, the research aims to provide a clear understanding of
the current legal landscape, identify challenges, and explore potential avenues
for strengthening the prosecution of sexual violence as a war crime.
Literature
Review
1. The
International Criminal Court and Sexual Violence:
A Look at the First Ten Years - Lynch analyzes the International
Criminal Court's (ICC) record in prosecuting sexual violence during its first
decade. The paper examines the legal framework established by the Rome Statute,
the challenges of gathering evidence and securing witness testimony, and the
impact of ICC prosecutions on deterring future crimes.[8]
2. Prosecuting
Sexual Violence in Conflict:
The Role of the Specialist Chambers in Cambodia and Bosnia: Clark and Morrison
examine the work of the Extraordinary Chambers in the Courts of Cambodia (ECCC)
and the International Criminal Tribunal for the former Yugoslavia (ICTY) in
prosecuting sexual violence during their respective conflicts. The paper
explores the unique approaches taken by these hybrid tribunals and the lessons
learned for future prosecutions.[9]
3. The
Prosecutor's Role in Addressing Conflict-Related Sexual Violence:
Jarmon focuses on the specific role of prosecutors in holding perpetrators of
sexual violence during armed conflict accountable. The paper explores
challenges faced by prosecutors, including witness protection, overcoming
cultural stigma, and building strong cases. It also highlights strategies for
effective investigation and prosecution.[10]
4. Sexual Violence
and International Criminal Law: Advancing Accountability Through Effective
Investigations: This edited volume features contributions from various experts
on sexual violence and international criminal law. The s explore challenges in investigation,
witness protection, and the use of technology for evidence gathering. It
emphasises the importance of survivor-centred approaches and comprehensive
investigations to achieve justice.[11]
5.
The Rome Statute of the
International Criminal Court: A Commentary: This comprehensive commentary on
the Rome Statute, freely available online, provides a detailed analysis of the
legal provisions relating to sexual violence as a war crime. It delves into the
definitions of relevant crimes, evidentiary standards, and the role of the ICC
in holding perpetrators accountable.[12]
Sexual
violence has long been a weapon of war, inflicting horrific physical and
psychological trauma on victims. In recent decades, the international community
has made significant strides in recognising this brutality and holding
perpetrators accountable. This paper examines the legal framework for
prosecuting sexual violence as a war crime under international instruments,
with a particular focus on the Rome Statute of the International Criminal Court
(ICC).
The core principle lies in customary international law, a
body of unwritten rules established by state practice and general acceptance.[13] This established illegality applies even without a formal
treaty. Sexual violence, including rape, sexual slavery, and forced
prostitution, has been recognized as a grave breach of the Geneva Conventions
of 1949 and a crime against humanity.[14] These near-universal conventions prohibit violence against
civilians and prisoners of war, inherently encompassing sexual violence.
International law does not provide a single, universally
agreed-upon definition of sexual violence as a war crime. However, several key
instruments establish the core elements:
1. Customary
International Law: Customary
international law, established by state practice and general acceptance,
prohibits sexual violence during armed conflict.
2. Geneva
Conventions: The Geneva Conventions of 1949, ratified by nearly all states,
encompass sexual violence within their prohibition of violence against
civilians and prisoners of war.
3. Rome Statute of
the ICC: Article 7[15]
of the Rome Statute provides the most detailed legal definition of sexual
violence as a war crime. It includes
acts of:
•
Rape
([International Criminal Court, Rome Statute of the International Criminal
Court, art. 7.1(a), 1998])[16]
•
Sexual
slavery ([International Criminal Court, Rome Statute of the International
Criminal Court, art. 7.1(c), 1998])[17]
•
Enforced
prostitution ([International Criminal Court, Rome Statute of the International
Criminal Court, art. 7.1(g), 1998])[18]
•
Forced
pregnancy ([International Criminal Court, Rome Statute of the International
Criminal Court, art. 7.1(g), 1998])[19]
The
Rome Statute of the ICC, adopted in 1998, further solidified the legal
framework for prosecuting sexual violence as a war crime. Article 7 of the
Statute defines specific acts of sexual violence as crimes within the Court's
jurisdiction, including rape, sexual slavery, enforced prostitution, forced
pregnancy, and sexual violence of comparable gravity.[21]
Importantly, the Statute removes the requirement of a pre-existing armed
conflict, allowing prosecution for sexual violence during internal armed
conflicts as well.
The ICC plays a crucial role in promoting accountability and
deterring future crimes. It can investigate and prosecute individuals for
sexual violence when national courts are unwilling or unable to do so. The
Court's first conviction for sexual violence came in the landmark case of
Thomas Lubanga Dyilo[22] , sending a strong message regarding potential prosecution.
However, limitations restrict the ICC's reach. Jurisdictional
limitations are one key challenge. The Court can only prosecute individuals
from or nationals of states that have ratified the Rome Statute, or those who
commit crimes on the territory of a state party.[23] This leaves a significant gap in accountability for
perpetrators from non-member states. Additionally, the Court's investigative
and prosecutorial resources are limited, requiring careful selection of cases
with the potential for the greatest impact.
Beyond the ICC, other international instruments contribute to
the fight against sexual violence. The International Criminal Tribunal for the
former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda
(ICTR) played a pioneering role in establishing precedent on the prosecution of
sexual violence as a war crime. These ad hoc tribunals demonstrated the
international community's commitment to holding perpetrators accountable.
Regional mechanisms such as the Special Court for Sierra
Leone have also made significant contributions. Additionally, the UN Security
Council has adopted resolutions calling for increased accountability for sexual
violence in conflict,[24] and the International Court of Justice (ICJ) can rule on
disputes arising from the interpretation and application of international
humanitarian law.
Elements
for Prosecuting Sexual Violence as a War Crime
While the legal definition of sexual violence as a war crime
is established, successfully prosecuting perpetrators requires proving specific
elements in court. Here's a breakdown of these elements under the Rome Statute
of the ICC (focusing on the most common acts):
1. Actus
Reus (Guilty Act):
* Rape: Penetration, of any severity, of the vagina or anus of the
victim by the penis of another person, or of any object, by force, or by threat
of force or coercion, such as that caused by fear of violence, duress,
detention, or the psychological oppression or abuse of power.
* Sexual Slavery: The exercise of ownership or control over a person
for the purpose of sexually exploiting them. This can involve forced
prostitution, other forms of sexual abuse, or a combination of both.
* Enforced Prostitution: The coercing of a person to engage in
prostitution through force, threat of force, coercion, such as that caused by
fear of violence, duress, detention, or the psychological oppression or abuse
of power, or through deception.
2. Mens
Rea (Guilty Mind):
* The perpetrator must have knowingly participated in the act.
* This can involve intending to commit the act itself (direct intent)
or acting with knowledge that the act was likely to occur as a consequence of
their actions (indirect intent).
3. Nexus
to Armed Conflict:
* The crime must have been committed in the context of and be
associated with an armed conflict.
* This can be:
i.
An international armed conflict
(between two or more states)
ii. An internal armed conflict (protracted armed violence between governmental
authorities and organized opposition groups)
4. Additional
Considerations:
* Command Responsibility: Commanders or those effectively exercising
control over a perpetrator can be held liable for sexual violence committed by
subordinates if they knew or should have known about the crimes and failed to
take reasonable measures to prevent or punish them.
* Superior Orders: Following a superior order is not a defense to a
crime against humanity or war crime, unless the person did not know the order
was unlawful and genuinely believed it to be lawful.
Challenges
in Proving Elements:
1. Confidentiality and Witness Protection: Victims may be reluctant to
come forward due to fear, stigma, or safety concerns. Ensuring confidentiality
and witness protection measures are crucial.
2. Gathering Evidence: Sexual violence often occurs in private
locations with little or no physical evidence. Careful witness testimony and
corroborating evidence from medical records, clothing, or expert analysis are
essential.
3. Jurisdictional Obstacles: The ICC's limitations and the capacity of
national courts can present challenges in bringing perpetrators to justice.
Despite
significant strides in recognizing sexual violence as a war crime, significant
challenges hinder successful prosecutions. This paper explores the complexities
of holding perpetrators accountable, focusing on the difficulties in gathering
evidence and securing witness testimony, the cultural and social barriers to
reporting, and the complexities of command responsibility.
Gathering
Evidence and Securing Witness Testimony:
Sexual
violence often occurs in private locations with little or no physical evidence.
This makes building a strong case difficult. Obtaining reliable witness
testimony is crucial, but victims often face significant hurdles in coming
forward. Fear of retaliation, social stigma, and concerns for safety can lead
to silence.[25]
Additionally, trauma associated with sexual violence can make it challenging
for victims to provide clear and consistent testimony.[26]
Cultural
Barriers and Social Stigma:
Cultural
norms and social stigma can further discourage reporting. In many societies,
victims of sexual violence face shame and societal blame, creating a powerful
disincentive to speaking out. Traditional practices like female genital
mutilation or child marriage can exacerbate the issue by normalising violence
against women and girls.[27]
Command Responsibility and Holding Perpetrators
Accountable:
Establishing
command responsibility presents another significant challenge. Proving that
commanders knew or should have known about sexual violence perpetrated by
subordinates and failed to take action requires meticulous investigation.[28]
Political considerations and the difficulty of obtaining evidence within
hierarchies of armed groups further complicate matters.
To
overcome these challenges, a multifaceted approach is essential. Building trust
with victims through witness protection programs and gender-sensitive
investigations is crucial. Addressing cultural norms through education and
advocacy campaigns can combat stigma and encourage reporting. Strengthening
national judicial systems and increasing international cooperation in
investigations are also essential.
The
International Criminal Court (ICC) plays a vital role in promoting
accountability and deterring future crimes. However, its limitations, including
jurisdictional issues and limited resources, highlight the need for strong
national courts and regional mechanisms to complement its work.
In
conclusion, prosecuting sexual violence as a war crime is a complex and ongoing
struggle. This paper has highlighted the significant challenges that impede
successful prosecutions, including the difficulty of evidence gathering,
securing witness testimony, cultural barriers, social stigma, and complexities
of command responsibility. These hurdles create a climate of impunity for
perpetrators and impede justice for victims.
This
paper underscores the importance of a multifaceted approach to overcoming these
obstacles. Building trust with victims, addressing cultural norms through
education, and strengthening national and international legal frameworks are
all crucial steps towards ensuring accountability. While the ICC plays a vital
role, its limitations necessitate strong national courts and regional
mechanisms to complement its efforts.
The
significance of this issue lies in its potential contribution to a world where
sexual violence is not a weapon of war. By understanding the challenges that
hinder prosecution, we can develop more effective strategies for bringing
perpetrators to justice and deterring future crimes. This, in turn, fosters a
climate of peace and security where the fundamental rights of all individuals
are respected.
Recommendations for Further Research and Action:
1. Research on
interventions: Explore the effectiveness of specific interventions aimed at
addressing cultural barriers and encouraging reporting of sexual violence in
conflict zones.
2. Best practices for
victim support: Examine the best practices for witness protection and
trauma-informed investigation techniques to improve the quality of evidence and
support victim well-being.
3. Strengthening
national courts: Research and advocate for strategies to strengthen national
judicial systems for effective prosecution of sexual violence as a war crime.
4. Capacity building
for regional mechanisms: Support capacity building for regional mechanisms to
complement the role of the ICC by sharing best practices and fostering
cooperation.
5. Technology and
evidence gathering: Explore the potential of technological advancements in
forensics and data collection to enhance evidence gathering in cases of sexual
violence.
6. Community
engagement: Develop community-based education programs to challenge social
stigma and empower individuals to report sexual violence.
By
continuing to explore these challenges and solutions through research,
advocacy, and action, we can contribute to a future where justice prevails for
survivors of sexual violence in armed conflict.
[1] International Committee of the Red Cross (ICRC).
"Hague Conventions."
http://casebook.icrc.org/a_to_z/glossary/hague-conventions.
[2] International Committee of the Red Cross (ICRC).
"Summary of the Geneva Conventions and their Additional Protocols." https://www.redcross.org/content/dam/redcross/atg/PDF_s/International_Services/I.
[4] Art. 5, The Rome Statute of the
International Criminal Court, https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf.
[5] Art. 7, The Rome Statute of the
International Criminal Court, https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf.
[6] Art. 8, The Rome Statute of the
International Criminal Court, https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf.
[8] Melissa Lynch, "The
International Criminal Court and Sexual Violence: A Look at the First Ten
Years," (2018) https://www.ebsco.com/m/ee/Marketing/titleLists/i3h-coverage.htm.
[9] Celia Clark & Helen Morrison,
"Prosecuting Sexual Violence in Conflict: The Role of the Specialist
Chambers in Cambodia and Bosnia," International Review of the Red Cross
92, no. 894 (2010): 821-842, https://international-review.icrc.org/sites/default/files/irrc-894-sexual-violence-in-armed-conflict.pdf.
[10] Thomas Jarmon, "The
Prosecutor's Role in Addressing Conflict-Related Sexual Violence,"
International Center for Transitional Justice (2008), https://www2.ohchr.org/english/issues/women/docs/paper_prosecution_of_sexual_violence.pdf.
[11] Edited by Mariana Valverde,
"Sexual Violence and International Criminal Law: Advancing Accountability
Through Effective Investigations," Open Society Justice Initiative (2013),
https://www.nbcnewyork.com/news/local/andrew-cuomo-accused-of-sexual-harassment-by-former-aide-in-new-legal-filing/4891875/.
[12] Edited by William A. Schabas &
Sang-Hyun Song, "The Rome Statute of the International Criminal Court: A
Commentary," International Bar Association (2013), https://www.legal-tools.org/doc/aa0e2b/pdf/.
[13] International Law Commission,
"Draft Conclusions on Identification of Customary International Law,"
Yearbook of the International Law Commission, vol. 2, part 2 (2001): 8.
[14] The Geneva Conventions and their
Commentaries. (n.d.). https://www.icrc.org/en/war-and-law/treaties-customary-law/geneva-conventions.
[15] Art. 7, The Rome Statute of the
International Criminal Court, https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf.
[16] Art. 7.1(a), The Rome Statute of the
International Criminal Court, https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf.
[17] Art. 7.1(c), The Rome Statute of the
International Criminal Court, https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf.
[18] Art. 7.1(g), The Rome Statute of the
International Criminal Court, https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf.
[20] Art. 7.1(k), The Rome Statute of the
International Criminal Court, https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf.
[21] Supra. Art. 7, The Rome
Statute of the International Criminal Court, https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf.
[23] Art. 12, The Rome Statute of the
International Criminal Court, https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf.
[24] United Nations Security Council.
(2014, October 23). Security Council adopts resolution to ease aid delivery to
Syrians, https://press.un.org/en/2014/sc11292.doc.htm
[25] Seelinger, K. T. (2014). Challenges
in prosecuting sexual violence in armed conflict under Nigerian law. Scientific
Research Publishing.
[26] International Review of the Red
Cross [ICRC]. (2014). Sexual violence in armed conflict. International Review
of the Red Cross, 96(894), 427–434.
[27] Mariana Valverde, ed., Sexual
Violence and International Criminal Law: Advancing Accountability Through
Effective Investigations (Open Society Justice Initiative, 2013), https://www.opensocietyfoundations.org/what-we-do/themes/justice.
[28] Jarmon, The Prosecutor's Role in
Addressing Conflict-Related Sexual Violence, International Center for
Transitional Justice (2008), https://www2.ohchr.org/english/issues/women/docs/paper_prosecution_of_sexual_violence.pdf, accessed April 1, 2024.
Article Information
THE PROSECUTING SEXUAL VIOLENCE AS A WAR CRIME UNDER INTERNATIONAL CRIMINAL LAW BY: - JYOTSANA SINGH
Authors: JYOTSANA SINGH
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/06/19
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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