Thesis: Wartime Rape

THE SILENT WAR

A JURISPRUDENTIAL HISTORY OF WARTIME RAPE

© 2010 by Chelsea Markey Rice. All Rights Reserved.

All armies have committed rape, nearly without exception. Whether as a result of military strategy or general lawlessness, women have been raped in unprecedented numbers during war, and afterwards received no recourse for their suffering. Without a prosecutorial outlet for women to air their grievances, wartime sexual violence has been met with a determined silence; victim’s stories have become part of a forgotten history. As a result of the historical legacy of institutionalized discrimination and prosecutorial indifference, present-day militaries continue to commit and condone mass rape with relatively impunity. In fact, wartime rape is being committed with a startling regularity in current conflicts. In 2008 alone, twenty-three ongoing conflicts were described as having, “numerous reports of rape, sexual assault or sexual abuse by security forces, which were routine, common, widespread, systematic, or reported repeatedly.”[1] Further research found that another two cases existed in which, “rape, sexual assault, or sexual abuse by security forces was used as a tool of war or a systematic weapon of war.” [2] The juxtaposition of rape jurisprudence against the growing human rights establishment of the latter half of the twentieth century renders rape impunity all the more striking. One question resounds: why does rape still “remain the least condemned war crime” throughout history?[3] As this essay will demonstrate, rape impunity was at first the result of inadequate legal mechanisms. This explanation is no longer valid for our current status. Even with the proper judicial framework and legal precedent in place, however, rape still goes unpunished. This senior thesis will attempt to explain the current status of rape under international law, through a thorough and nuanced illustration of rape jurisprudence from antiquity through present day. It is through the elucidation of rape’s historical legacy that the current status of wartime rape can be best understood. Susan Brownmiller aptly writes: “Critical to our study is the recognition that rape has a history, and that through the tools of historical analysis we may learn what we need to know about our current condition.”[4]

The first section of this essay will recount the evolution of rape jurisprudence, from antiquity through the end of the Cold War, demonstrating a pattern of institutional indifference and global impunity. The second section of this essay will chronicle a historical disjuncture in rape jurisprudence, resulting from the surging global human rights movement of the latter half of the twentieth century and the hallmark prosecution at the International Criminal Tribunal for Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR). The second section will also discuss the establishment of the Rome Statute for the International Criminal Court and examine the impact of rape jurisprudence in its formation. The final section of this essay will critically analyze modern cases of wartime rape, in light of past jurisprudential issues, and highlight the conceptual shortcomings in the current international framework for rape prosecution.

            Section I: Institutional Indifference from Antiquity through the Cold War

For the first millennia of human civilization, domestic laws did not prohibit rape. When rape began to be codified under law, it was regarded primarily as a crime against a man’s property and familial honor rather than a violent crime against the woman. According to ancient Babylonian and Mosaic Law, rape of an unwed virgin constituted a “theft of virginity, an embezzlement of his daughter’s fair price on the market.”[5] As recourse, the father of a raped virgin was permitted to seize and rape the wife of the rapist, as part of blood-vengeance justice. Furthermore, the rapist was forced to monetarily compensate the victim’s father for the investment that the father had lost as a result of his daughter becoming “damaged goods.”[6] If a married woman was raped, however, it was considered adultery and both partners would be bound and thrown into the river. In either scenario, the only legal victim was the father. The sexual violence committed against the woman was not of legal relevance.

The first writings on rape and punishment under English law are equally archaic. According to Henry Bratton, a scholar who lived and wrote about Saxon legal institutions during the thirteenth century, the punishment for raping a virgin included being blinded and then castrated.[7] This specific punishment had metaphorical intentions: the castration removed the physical member that committed the rape and the gauging of the eyes removed the physical faculties that motivated the rape. Furthermore, upon conviction, the man’s property and estate would be transferred to the victim’s family as compensation.

It wasn’t until 1275 that rape was acknowledged as an issue of state concern. King Edward I decreed in the First Westminster Statute that if a sexually assaulted virgin did not report her rape to the English court within forty days, the right to prosecute would automatically pass to the crown.[8] This regulation recognized rape as more than just a family misfortune and began to regard it as an issue affecting the stability and wellbeing of the state. This critical development in rape jurisprudence was later amended in the Second Statute of Westminster, which widened the scope of potential prosecution from only virgins to any “married woman, dame or damsel.”[9] Under this statute, rape become a felony under the law of the Crown, and was punishable by death.

In this instance, however, King Edward I was comparatively progressive for his time. For four centuries following the Statute of Westminster, very little progress was made elsewhere. Heroditus Grotius, considered the intellectual father of international law, went as far as to remark in 1646 that rape violated “the law not of all nations, but of better ones.”[10] In fact, rape still existed as a commonly accepted form of pillage within warfare throughout King Edward’s reign and through the late seventeenth century. The historical roots of wartime rape were just too deep for one man to counter.

Rape has accompanied armed conflict since time immemorial. Scholars as far back as Homer, Herodotus, and Livy have documented the existence of rape within warfare.[11] During ancient wars, rape was regarded as a “socially acceptable behaviour well within the rules of warfare.”[12] Following sieges or battles, the victorious army would kidnap women as “legitimate booty, useful as wives, concubines, slave labour or battle-camp trophy.”[13] By the Middle Ages, the rape and enslavement of women acted as inducements to war, such that the anticipation of unrestricted sexual access to conquered women was used as an incentive to capture a town.[14] Furthermore, rape served as a hallmark of success in battle. As Susan Brownmiller writes, “rape by a conquering soldier destroys all remaining illusions of power and property for men of the defeated side… vivid proof of victory for one and loss and defeat for the other.”[15] While this brutal practice began to lose popularity in the late seventeenth century, it was not codified under international law for another two centuries.

The U.S. Lieber Code of 1863 marked the first prohibition of rape under military law, classifying rape as a crime of “troop discipline,” under the U.S. Army Regulations on the Laws of Land Warfare.[16] The Lieber Code effectively created a template for future codes of warfare, in which rape could logically be a part. The Lieber Code provided substantial legal precedent for the drafting of the 1907 Hague Conventions and Regulations, which briefly and vaguely prohibited sexual violence in war, with the declaration that, “family honour and rights, the lives of persons, and private property…must be respected.”[17] The words “rape” or “sexual assault” are conspicuously absent. While vague, the prohibition cited in Article 46 serves as the first time rape is considered a prosecutable offense under international law. It is important to note, however, that even in 1907, as rape became legally codified, the emphasis was still placed on the injury against “honour” suffered by the victim’s family, rather than on the injury suffered by the victim herself.  Not only is the categorization of rape as a crime of honor factually dubious, it also uses highly engendered rhetoric.  Generally, the word honor “implies dignity and esteem, but concerning women, it also alludes to chastity, sexual virtue and good name.”[18]  These connotations effectively perpetuate the characterization of women as private objects, affecting family honour, rather than public subjects in law. David S. Mitchell argues, however, that although Article 27’s prohibition of sexual violence is increasingly vague and rhetorically archaic, it could have been used to prosecute WWI and WWII criminals for rape, if the will to prosecute had been present.[19]

The First World War

The 1907 Hague Conventions seemed to have little relevance at the outbreak of WWI, as advanced weaponry and unconventional military strategies caused unprecedented destruction and civilian casualties. As the Germans invaded Belgium in August 1914, the German Army tore through villages, burning homes, raping women and killing civilians at random. These atrocities were highly propagandized in the west and became commonly known as “The Rape of Belgium.” The Germany Army continued its deliberate campaign of terror throughout the first three months of its French campaign, raping and plundering villages from Liège to Louvain, according to British historian Arnold Joseph Toynbee.[20]  At the end of 1914, however, German atrocities appeared to have ceased. This change can be attributed to the transition of the German military operations from a war of movement to stationary trench warfare. With the German Army entrenched in their battle positions, there was far less access to the civilian population and thus, less opportunity to rape.

In response to the atrocities committed during WWI, the Allied powers created the 1919 War Crimes Commission, whose job it was to investigate and make recommendations on how to prosecute suspected war criminals. The report listed thirty-two, non-exhaustive violations of the laws and customs of war, in which “rape” and “abduction of girls and women for the purpose of forced prostitution,” were included. This report was the first international instrument to identify rape by its proper name, as a crime under international law.

Following the report of the War Crimes Commission, the Allies established the Permanent Court of International Justice in 1922. This institution seemed unconcerned with prosecuting human rights atrocities, however, and instead focused on prosecuting the heads of states for violations of international law. As Geoffroy Robertson describes,

It dawned on no political leader, even after the carnage of the First World War, that international institutions might tell states how to treat their nations—the League of Nations and the Permanent Court of International Justice were untroubled by ‘human rights’ until Hitler rendered them irrelevant. At this point, the individual had no rights in international law, which dealt with treaties and agreements between states and was completely inaccessible to their citizens.[21]

While human rights prosecution following WWI was politically untenable, as Robertson suggests, the 1907 Hague Conventions and the 1919 War Crimes Commission did recognize rape as a legitimate crime of war, although no prosecutorial efforts were made.

The Second World War

Determinations on what constituted honorable or legitimate warfare were given little heed by militaries during WWII. Despite rape being deemed both uncivilized and worthy of prosecution under international law, rape was committed by nearly all warring states, Axis and Allies alike. Rape was committed on an unprecedented scale throughout the war, arguably the result of its incorporation into specific, military policies, though these claims cannot be proven. As this essay will establish, the frequency with which rape is committed throughout WWII would ultimately force a redefinition of the crime as more than just coincidental to war.

Germany, certainly the most infamous human rights offender during WWII, held a unique stance on the use of rape within warfare. The Nuremberg Race Laws of 1935 strictly forbade Germans of pure, Aryan blood from having sexual intercourse with Jews. As such, for a German or Nazi soldier to rape a Jew was to participate in “Racial Defilement,” which was strictly punished. [22] The soldiers adapted their methods of sexual torture to adhere to the race laws, however. Sala Pawlowicz, an inmate of the Bergen-Belsen concentration camp, relates her sexual torture:

I was in a small office and the German had a long heavy whip in his hand. “You don’t know how to obey… I’ll show you. But I can’t have you, scum, because you’re Jewish, and filthy. What a shame!” He swung the whip across my breasts. “Here’s what you can have for being a dirty Jew—instead of me—this!” He lashed the whip again and again and I fainted.[23]

The issue of racial defilement became even more problematic to enforce, however, when large groups of Nazi troops were stationed in foreign territories. To combat the possibility of Nazi soldiers raping ‘inferior peoples,’ the SS established a chain of military brothels within the concentration camps. In the Mauthausen concentration camp, the SS created the Sonderbauten, a camp brothel for soldiers and high-level prisoners. The SS would recruit non-Jewish women to work in the brothels through a process of indirect coercion. In Mauthausen and Auschwitz, the SS would ask for volunteers from females working very difficult Kommandos (work squads) to enroll in the brothels. This voluntary enlistment was a choice between life and death and thus, constituted coerced enlistment. A young Polish woman, imprisoned in Auschwitz, justified her choice to join the brothel, exclaiming, “winter is coming and I work in the fields!”[24] This woman knew that to work outside in below freezing temperatures during winter meant certain death.

Not all German soldiers were able to use these brothels or adhered to the Race Laws, however. In fact, there are numerous reports of mob rape during the riots of Kristallnacht (night of the broken glass) in November 1938.[25] Furthermore, the invading Nazi army and the Einsatzgruppen (mobile killing units) used rape as a form of suppression and humiliation. When looking at Nazi and Polish records, a pattern appears: When the German Army would first arrive in a Polish town or village, they would immediately loot the homes of the Jewish residents and then rape the Jewish women, often in front of their families, as an act of dominance and suppression.[26] Resistance would be met with public beatings, rape and executions. These acts of retribution created an atmosphere of helplessness among the Jews, which would later facilitate the rounding up and deportation of Jews to nearby concentration camps.

The Soviet Army is infamous for its use of rape, unlike the German Army, whose sexual offense are less known. When the Soviet Army occupied East Germany and Berlin in late April and early May 1945, an estimated 95,000-130,000 German women were raped, translating to 6% of the female population. It is estimated that 100,000 women were raped by Soviet troops in Berlin in the last two weeks of the war alone. Although women of many different ethnicities were raped during this occupation, German women were especially targeted as a form of retribution for German atrocities committed against Russians during the course of WWII. As is indicative of rapes as a form of terror and retribution, these rapes often occurred in public and especially in front of the victim’s family and neighbors. Gang rapes were also very prevalent during this occupation. While the Red Army cannot be definitively accused of perpetuating a systematic policy of rape, it can be accused of having encouraged retribution more generally and tolerating the existence of mass rape within Berlin. The Red Army posted propaganda along the marching route towards Berlin that encouraged its soldiers to take revenge on all Germans, not just the German military. One such propaganda ploy, written by Ilya Ehrenburg, wrote, wrote: “Kill! Kill! In the German race there is nothing but evil! … Use force and break the racial pride of the Germanic women. Take them as your lawful booty… you gallant soldiers of the Red Army!”[27] [28] Moreover, Stalin responded to complaints of civilian atrocities and mass rape with, “we lecture our soldiers too much. Let them have some initiative;” and “in every family there is a black sheep. I will not allow anyone to drag the reputation of the Red Army in the mud.”[29] The sexual violence began to subside when the occupation was stabilized and the Soviet authorities realized the harm it was causing to its postwar political project and began to enforce strict rules on fraternization.[30]

Mass rape was also committed on the Pacific Front of the war. During a period of eight weeks, beginning in December 1937, the Japanese Army raped and murdered an estimated 20,000 to 80,000 Chinese women in the captured city of Nanjing.[31] Women were gang-raped and killed in broad daylight and in public, as is common among rapes meant to terrorize. The raping of women often accompanied the slaughter of entire families. [32] According to Irish Chang, the Japanese Army was “systematic in their recruitment of women. In Nanking Japanese soldiers searched for them constantly as they looted homes and dragged men off for execution. Some actually conducted door-to-door searches, demanding money and hua gu niang—young girls.”[33] This eight-week period also included male sexual violence, such as the forcing of men to have sex with family members and the forcing of celibate men to perform sexual acts. Age was of no relevance; girls as young as seven and women as old as eighty are documented to have been raped.[34] In some cases, “the Japanese sliced open the vaginas of preteen girls in order to ravish them more effectively.” [35]

These widespread rapes began to garner too much negative attention, however, and began to hurt the military and political campaign of the Japanese.[36] To combat this, the Japanese created an extensive, militarized brothel system for its soldiers. Through this brothel system, Japanese officials sought to, “prevent anti-Japanese sentiments from fermenting [sic] as a result of rapes and other unlawful acts by Japanese military personnel against local residents in the areas occupied… by the Japanese military.”[37] More than 200,000 women from across East and Southeast Asia were abducted and sent to these brothels to serve as on-call prostitutes, later termed the Japanese “Comfort Women.”[38] These abducted women were subject to immediate violence or the threat of death if they resisted.  According to the Korean Council for the Women Drafted for Sexual Slavery by Japan, one third of these Comfort Women died during the course of the war.[39] These women have yet to be given justice or compensation by the Japanese government or any other international institution. In fact, women in both the Pacific and Europe who were raped during WWII received practically no justice at all.

World War II: War Crimes Prosecution

Following WWII, the Allies established the International Military Tribunal of Nuremberg (IMT or the Nuremberg Tribunal) and the International Military Tribunal of the Far East (IMTFE or the Tokyo Tribunal) to prosecute the Axis leaders for crimes of aggression, war crimes and crimes against humanity. This marked the first time that individuals were held legally accountable for crimes on an international level. Furthermore, the Nuremberg Charter constituted the first time that “crimes against humanity” appeared in an international instrument of jurisprudence and was used to indict Nazi and Japanese leaders. This new category of offense was created to address a new type of punishable crime: punishing state campaigns of mass violence committed against its own civilians, akin to the crimes committed by the Japanese and Nazi leaders, rather than crimes committed against enemy military personnel. Geoffroy Robertson, a human rights scholar, explains this hallmark development:

For the first time, it could be said that individuals had a ‘right’ to be treated with a minimum of civility by their own governments, which ‘right’ all other governments had a correlative duty to uphold by trying the torturers who fell into their hands, or else by setting up international courts to punish them.[40]

The enumeration of crimes against humanity serves as a landmark achievement in international jurisprudence in that it subordinates national sovereignty to the rights of civilians to find safety from their own governments. While the inclusion of “crimes against humanity” in the Charter established individual culpability for commission of civilian atrocities during war, wartime rape was not specifically identified as belonging to this category and was thus relegated to the periphery of international law.[41]

          While outside the Nuremberg Charter, rape did become criminalized as the result of World War II. The German Council Law No. 10, adopted by the four occupying powers in Germany in 1945, was established to uniformly prosecute lesser war criminals in German courts. In December 1945, this German Council Law constituted the first time rape was mentioned as a specific crime under “crimes against humanity.” The word ‘rape’ is consciously used here, however, because other forms of sexual violence and sexual mutilation were not prosecutable under the charter.

Crimes of sexual violence were not specifically prosecuted during the Nuremberg Trial, even though ample evidence of mass rape had been presented to the Tribunal.[42] In fact, while the transcripts of the Nuremberg Trials spanned forty-two volumes and contained a 732-page index, neither “rape” nor “women” was included in any heading or subheading of either collection.[43] The Allies did establish a commission to investigate allegations of the mass rape of Belgian and French women, but it could hardly be described as a “serious initiative.”[44] The absence of any serious investigation or prosecution of rape crimes by the Allied forces is partially attributed to their own culpability of said crimes. The Russians, undoubtedly one of the worst offenders of rape during WWII, were in a position of authority at the Tribunal and were thus able to direct the investigation away from its own culpability towards the Germans. For instance, Soviet Foreign Minister, V.M Molotov submitted a report as early as January 1942, that documented mass rape during the German invasion in 1941. Molotov wrote that, “Women and girls are vilely outraged in all the occupied areas.”[45] The Molotov Note, as it came to be called, documented no less than eight separate incidents of mass rape during the German invasion in 1941.

Although the Molotov Note was included in the Tribunal as Soviet Exhibit 51, the tribunal expressly refused to prosecute these crimes. Instead, when evidence of mass rape was presented at the IMT, it was neatly placed into pre-existing categories of war crimes and atrocities, such as torture or aggression. The Nuremberg Judgments explicitly recognized sexual violence as a form of torture. The Nuremberg indictment reads:

Many women and girls in their teens were separated from the rest of the internees… and locked in separate cells, where the unfortunate creatures were subjugated to particularly outrageous forms of torture. They were raped, their breasts cut off…To the physical pain, the sadism of the torturers added moral anguish, especially mortifying for a woman or a young girl, of being stripped nude by her torturers.[46]

It is important to recognize that rape was not recognized as a crime in of itself. Rape was only punishable by the court if it was part of a larger crime. The Tribunal’s consideration of rape as a form of torture did, however, inform later legal precedent during the Yugoslavia Tribunal and thus, was as an important legal victory.

Like the Nuremberg Tribunal, the Military Tribunal of the Far East did not list rape as a “greater crime” or a “crime against humanity.” This meant that rape could not be prosecuted unless it coexisted with other violations of war crimes or crimes against humanity. The Tokyo Tribunal did however classify rape as “inhuman treatment,” “mistreatment,” and a “failure to respect family honour and rights.” Furthermore, the Tokyo Tribunal did prosecute rape crimes, even though its statute did not explicitly criminalize rape.

While rape was included in cases heard before the Tribunal, serious trial errors occurred. For instance, while rape was part of the indictments of Japanese leaders, no women were called to testify. That being said, however, there was ample evidence of the widespread and gruesome nature of the rapes that had occurred. For instance, an excerpt from American Missionary, James McCallum’s diary was entered into evidence:

Never have I heard or read of such brutality. Rape! Rape! Rape! We estimate at least 1,000 cases a night, and many by day. In cases of resistance… there is a bayonet stab or a bullet. We could write up hundreds of cases a day.[47]

While the amount of concrete evidence and statistics submitted to the tribunal was sparse, the judgement of the Tribunal found that “approximately 20,000 cases of rape occurred within the city during the first month of occupation.”[48] The tribunal continued in its summation that,

Even girls of tender years and old women were raped in large numbers throughout the city, and many cases of abnormal or sadistic behavior in connection with the rapings occurred. The barbarous behavior of the Japanese army cannot be excused as the acts of a soldier which had temporarily gotten out of hand when at last a stubbornly defended position had capitulated—rape, arson and murder continued to be committed on a large scale for at least six weeks after the city had been taken.[49]

The IMTFE held General Iwane Matsui, Commander Shunroku Hata, and Foreign Minister Hirota were criminally responsible for a series of war crimes and crimes against humanity, including rape committed by soldiers under their authority.[50] It is important to note, however, that the sexual enslavement of an estimated 200,000 comfort women was never mentioned in the trial, nor has it been indicted or compensated for since. This is a glaring omission when put in contrast with a later 1948 conviction of twelve Japanese army officers by a Dutch military court in Batavia, Indonesia, for the sexual enslavement of thirty-five Dutch women.[51]

The most crucial development to come out of WWII in regards to rape jurisprudence, however, was the prosecution of Japanese General Tomoyuki Yamashita. General Tomoyuki Yamashita, commander of the 14^th Area Army of Japan, was the first person charged on an international level for committing or facilitating rape as a war crime.[52] Yamashita was not being charged under the auspices of the Tokyo Tribunal, however. Because he was never charged with “waging a war of aggression,” he fell outside the jurisdiction of the Tribunal.

Instead, Yamashita was tried and convicted by the U.S. Military Commission of Manila. What is striking about this particular case is that Yamashita was not found guilty for rapes he had committed himself. Instead, he was found responsible for failing to make an effective attempt to discover and control the criminal behavior of his subordinates.[53] As such, the military commission convicted Yamashita for command responsibility for the acts of, “torture, rape, murder and mass executions of very large numbers of residents of the Philippines, including women and children.”[54] The Yamashita Case constituted a crucial development in rape jurisprudence: it established that “leaders who have a duty to prevent, halt or punish crimes committed by their subordinates can be held criminally responsible for abrogating this duty.”[55]

International Institutions for the Promotion of Human Rights

As the Allied states pursued legal justice through the Nuremberg and Tokyo Tribunals, a coalition of Western states attempted to establish a global framework for the promotion and protection of human rights. Western agitations for such a global framework culminated in the passing of the UN Charter in San Francisco, on June 26, 1945. The UN Charter asserted its chief purpose, “to achieve international co-operation in solving international problems… and in promoting and encouraging respect for human rights.”[56] The global human rights movement became further instantiated in international rhetoric with the passing of the 1948 Universal Declaration of Human Rights, the 1949 Geneva Conventions, and the 1951 Genocide Convention. These developments constituted a high point for the global human rights movement, achieved only through the exceptional perseverance and hard work of a handful of pioneering states.

            It is within these revolutionary conventions that rape would, for the first time, be codified under international law. The 1949 Geneva Convention Relative to the Treatment of Prisoners of War rectified rape’s shaky status as a war crime through its enumeration of sexual violence as a prohibition of the laws and customs of war.[57] Article 27 of the 4^th Geneva Convention states that women “shall be especially protected against any attack on honour, in particular against rape, enforced prostitution, or any other form of indecent assault.”[58] Article 26 of Protocol I, applying to international, armed conflicts, further enumerates that “women shall be the object of special respect and shall be protected in particular against rape, enforced prostitution, or any other form of indecent assault.”[59]  Additionally, the 1977 Protocol II Additional to the 1949 Geneva Convention, applying to non-international, armed conflicts, similarly defines rape as “outrages upon personal dignity.”[60]

These achievements should not be overstated, however. It is striking that out of 429 articles that comprise the four Geneva Conventions on international war, only one sentence of one article (IV, Art. 27) explicitly prohibits rape and one other line can be vaguely interpreted as including sexual violence. Furthermore, while rape was specified as a war crime, rape failed to be included as one of the “grave breaches,” and was thus unable to gain universal jurisdiction. Moreover, the specific elucidation of rape within the Geneva Convention and its Additional Protocols only serves to perpetuate the subordinated status of women under international law. The continued categorization of rape as a crime of honor within these conventions “enforces the gendered need to ‘protect’ women as ‘the object of special respect’… suggest[ing] that, “women are perceived as objects of law rather than subjects in law.”[61] While the female was the object of the crime, the offense was against the honor and dignity of the family name, the ethnicity or the nationality. The notion that women are objects rather than subjects in armed conflict is reinforced through the historical exclusion of women in combat roles and is results in the assumed loss of personal and political agency.  Furthermore, the use of the word honor is highly engendered and dichotomized. As Gardam and Jarvais assert, honor for men connotes bravery, fortitude and self-reliance, but for women, it infers chastity, modesty and dependence. Even in this instance in which women began to gain rights under international law, the issue was treated in such a way as to reaffirm archaic gender representations. Beyond basic syntactical issues, however, these three conventions would prove unable to have sufficient legitimacy or force to overcome Great Power politics and curb human rights atrocities during the Cold War.

The Effects of the Cold War on the Human Rights Movement

From the very outset of the Cold War, the UNs illustrious goals of international cooperation and the promotion of human rights—which had commenced so determinedly in the passing of these three conventions—were subordinated to individual state interests and the inviolability of state sovereignty. The two superpowers utilized a strategy of brinkmanship, advocating its own self-interests while attempting to restrain itself in encroaching on the interests of the other. Soviet-US politics dominated the Security Council and ultimately paralyzed the UNs institutional capacity to promote, prevent and enforce human rights atrocities. For instance, out of the thirteen peacekeeping missions authorized by the Security Council during the Cold War, six were deployed in the Middle East.[62] This is not an indication of a violent Middle East in contrast to a relatively peaceful Africa/Asia/Europe. Instead, the Middle East dominance reflects the large effect of US-Soviet politics on Security Council decision-making, seeing as many of the proxy wars between the two superpowers were in this region.

Worse still, Cold War politics served as justification for the Great Powers to commit human rights atrocities, as an inevitable result of their proxy wars within the Global South. Kenneth Roth asserts:

The evolutionary process for international human rights law, commenced so confidently, was frozen almost to a standstill by the Cold War. The power blocs did not deny the idea of universal human rights—with shameless hypocrisy, the contentedly signed convention after convention on the subject—so long as no meaningful enforcement action could ever be taken. ‘Human rights’ became a phrase incorporated into insults traded between the Great Powers, as they secretly vied for the support of dictatorships which comprehensively violated them.[63]

As a result of this paralysis, for the next five decades large-scale human rights atrocities would be met with institutional indifference; “dictators, despots, and warlords around the world would wage war on innocent civilians without facing a legal reckoning.” [64] The following section will follow three separate conflicts during the Cold War—Vietnam, Bangladesh, and Cambodia—each of which is infamous for committing mass rape, among other human rights atrocities, with relative impunity.

Mass Rape in Vietnam

Rape was committed on a mass scale during the Vietnam War, not by the North Vietnamese Army or the Vietcong, who exercised relative restraint, but by American troops during its occupation of Vietnam from 1950 to 1973. American “grunts,” or drafted, non-career military personnel, were the worst offenders. American “grunts” had nothing to gain in the war but had everything to lose. Peter Arnett, an Associated Press correspondent in Vietnam, describes a soldiers’ justification for rape to be as simple as, “I’m gonna get screwed tonight—this may be my last.”[65] Through the repetition of stories like these, it quickly becomes apparent that rape in Vietnam was fundamentally opportunistic.

At the very outset of America’s involvement in the war, military authorities established a network of brothels along the outskirts of the Army bases to mollify the soldiers. These brothels, known as “Boom Boom parlors” or “Disneyland,” gave American soldiers an outlet for their sexual frustration in a safe and sanitary environment.[66] These “Boom Boom Parlors,” were not entirely effective: some soldiers simply preferred to rape.  A Vietnam veteran states bluntly: “You don’t want a prostitute. You’ve got an M-16. What do you need to pay the lady for? You go down to the village and you take what you want.”[67] Estimates of how many were raped vary dramatically. U.S. military statistics do very little to counter this: only thirty-eight cases of rape were ever tried in front of a U.S. court martial during the course of the Vietnam War. The U.S. Federal investigation into the massacre of My Lai and its subsequent Peers Report does, however, hint towards the massive scale on which rape was perpetrated. According to the Peers Report, between March 16^th and March 19^th, no less than nine women in three nearby villages—in My Lai, Binh Tay, and a small sub hamlet 400 meters north of My Lai—were raped or gang raped by soldiers belonging to one battalion-sized unit. These statistics are for one unit, in a three-day period, and in one village and its immediate surroundings. If we were to transpose this information to the whole of Vietnam during the course of the war, from 1950 to 1973, the estimated number of raped would be astronomical.

Everyone in Vietnam knew of the widespread rapes but journalists nevertheless neglected to write about it. CBS correspondent Dan Rather, who had been assigned to Vietnam in 1965, explained why he never published a rape story:

My average story was shooting, shelling and bombing. I never did a rape story, and if you had been doing my job I don’t think you would have, either. Everywhere you looked there was a horror and a brutality. When you see women crying, and you see the universal look of bitterness and anger, you find out about the rape. My own limited experience led me to conclude that everybody who passed through a village did it—steal a chicken and grab a quick piece of ass, that sort of thing… Vietnam was a loosely organized gang war, and the women caught it from all sides.[68]

The rapes and atrocities committed by the U.S. Army did not go completely unheard, however. At the 43^rd session of the Vietnam peace talks in Paris, the Vietcong delegation accused U.S. troops of widespread rape and other atrocities during its occupation. Duong Dinh Thao, spokesman for the Provisional Revolutionary Government, circulated an undated letter authored by an eyewitness account of the massacre at Sun My on March 16, 1968 by U.S. Forces. This letter describes “the rape of village women, the burning alive of children and the bayoneting of pregnant mothers.”[69] In response, the U.S. government released a statement that they would “look into” the claims, from which nothing concrete was produced. In the absence of judicial progress, the status of wartime rape regressed, with an unprecedented number of Bengali women being raped for the purposes of ethnic cleansing.

Bangladesh

In March of 1971, the predominantly-Punjabi, Pakistani military initiated a genocidal campaign against Bengalis in Eastern Pakistan, “ostensibly to suppress a Bengali nationalist movement.”[70] Within the next eight months, thirty million Bengalis were displaced and an estimated one-to-three million Bengalis were killed. An estimated 200,000 to 400,000 Bengali women were raped during this conflicted period.[71] Hundreds of women were imprisoned in military barracks, where they were kept naked so they could not flee, and were subjected to numerous instances of rape and gang rape on a nightly basis.[72] The Pakistani government systematically raped middle-class women as “a means to ‘improve the genes of the Bengali Muslims’ and to populate Bangladesh with a new breed of ‘pure’ Pakistanis.”[73] In December of 1971, India intervened and, with Bengali forces, forced Pakistani troops to surrender.

Shortly thereafter, East Pakistan became recognized as its own independent country, Bangladesh. Within the first three years after the genocide, the Bangladesh government “mounted an extensive campaign to ‘rehabilitate’ rape victims by declaring them national heroines, endorsing abortions and international adoptions, and attempting to instate them into marriage or traditional forms of labor.”[74] These government initiatives were quickly abandoned, however. After 1973, the issue of mass rape was “relegated to oblivion in government and journalistic consciousness.”[75] Feminist scholar, Yasmin Saika explains the Bangladeshi government’s apparent suppression: “Perpetrators were the Pakistani ‘others,’ so the state tells people in Bangladesh. It is an easy, uncomplicated story, until we start investigating. Then the picture becomes convoluted, murky and muddy.”[76] Survivor testimonies reveal, in some cases, that Bengali women were raped, not by Pakistani forces, but by Bengali men from their own communities, for the purposes of revenge and aggression. Saika continues, “The enemy was within, not outside. This is why women have been forced to remain silent.”[77] While this instance of mass rape was relatively well known by the global policy makers and media outlets, ultimately promoting humanitarian intervention, the mass rapes in Cambodia, by contrast, were determinedly kept secret through the late nineties.

Khmer Rouge in Cambodia

The ruling Communist Party of Kampuchea (Khmer Rouge) employed a widespread campaign of social engineering and genocide in Cambodia 1975-1979. While the atrocities of the Khmer Rouge are relatively well known, only recent scholarship has begun to unearth the mass rapes that occurred during this tumultuous period. Witness testimony has shown that Khmer forces systematically raped women who, considered an enemy of the regime, had been sent to the killing fields to be executed. What is striking in this case is that the Angkar, the regime’s “faceless but terrifying ruling machine, banned romance, forced many men and women into mass marriages and tortured or killed all those who engaged in unsanctioned sexual relations.”[78] The possibility of torture or execution, if caught, did not stop some soldiers, however. According to Youk Chhang, Director of the Documentation Center of Cambodia, the soldiers would evade these prohibitions by accusing a woman of being an enemy to the regime so she could be subject to rape and execution. Tang Kim, the only woman thus far to testify on camera, explained that the military forces “raped all those who were sent to be killed. They would never rape a woman otherwise. They would only rape those condemned to die. If they were caught—both the rapist and the victim would be executed.”[79] Tang Kim was raped after her husband and her were deemed enemies of the state and were sent to be executed. Tang Kim recalls: “three days after they took my husband, they came for me.” She and eight other women were sent to the nearby killing fields and brutally gang raped. After the soldiers tired of each woman, they would drag her into the fields to be killed. Tang Kim recounts her story:

[Three of them] pulled me way like animals tearing at their prey. They raped me so violently that I was bleeding profusely… The soldiers then went to see their friends cut open the pregnant woman’s abdomen, but left the first soldier to guard me… I knew I was next and had to escape…[80]

Tang Kim’s story is not unique. In fact, preliminary investigations show that rape was extensively committed under these same conditions. Yet very few women have come forward to formally testify to the fact, from fear of social stigmatization or retribution. Furthermore, it was extremely difficult for international media to gain any information on the atrocities being committed by the Khmer Rouge during its reign. This secrecy compounded with the underreporting of rape helps to explain why these rapes failed to receive any international attention.

A Growing Women’s Rights Movement and its Advisaries

What is striking about these cases of wartime rape, in Vietnam, Bangladesh, and Cambodia, is that they were committed during a period of exponential growth for the global women’s rights movement. The women’s rights movement of the sixties and seventies, however, tragically failed to incorporate wartime rape into its feminist cause. In the case of Vietnam, the US anti-war movement and the feminist movement failed to coalesce under one, broader human rights agenda. In protests across the US, marchers held signs stating, “Stop the Rape of Vietnam,” but they referred to the defoliation of the land rather than the abuse of women. Why did the anti-war movement and the women’s movement fail to come together under this unifying cause? Susan Brownmiller, whose work is cited extensively in this essay, was a feminist agitator during the Vietnam War. She tries to answer these troubling questions: “Communications between feminist groups and antiwar groups were tense as they sought to raise our consciousness and we sought to raise our own. I am sorry that we in the women’s movement, struggling to find our independent voices, could not call attention to this women’s side of the war by ourselves. The time was not right.”[81]

With no political or public interest in the issue of sexual violence, it comes to no surprise that wartime rape failed to be included in intergovernmental legislation during this period. For instance, when the UN published its Declaration on the Protection of Women and Children in Emergency and Armed Conflict in 1974, the document gave included no mention to rape, enforced prostitution or sexual violence. Only one statement within the document could be interpreted to include sexual violence: “women are too often victims of inhuman acts.” This is a glaring omission in light of the specificity of the topic and within the context of the mass rapes that were committed in Vietnam and Bangladesh during the drafting of the Declaration.

To be fair, the women’s movement evolved into a formidable force only after the end of the Vietnam War, gaining a considerable following and making substantial headway in equalizing women’s rights. As is typical of any historical trend, the increase in women’s rights was met with a conservative backlash. In this case, the women’s movement was threatened by a growing fundamentalist movement among Islamic states to curtail the universal rights of women as set forth in the Universal Declaration of Human Rights. At the 36^th UN General Assembly in 1981, the post-revolutionary Iranian representative—Said Rajaie-Khorassani—initiated a movement against the Universal Declaration of Human Rights, arguing that it represented a “secular understanding of the Judeo-Christian tradition,” incompatible with Islamic Shari’a law. Forty-five Islamic states, Iran included, convened the 19^th Islamic Conference of Foreign Ministers in 1990 in attempt to rectify this perceived western bias.[82] Islamic state delegates aimed to draft a declaration of human rights that would conform to Islamic Shari’a law. The Conference was convened in early summer and on August 5, 1990, adopted the Cairo Declaration on Human Rights in Islam States.

The most fundamental change in the Cairo Declaration is its assertion that Shari’a law serves as “the only source of reference” for the protection of human rights in Islamic countries. No longer universal, specific human rights are subject to its position within the Qur’an. Women, for instance, are not afforded the same rights of men. Article 6(a) of the Cairo Declaration states, “woman is equal to man in human dignity and has rights to enjoy as well as duties to perform.”[83] While women are equal to men in dignity, they are not equal to men in law. It is interesting that this article references both “equality to men” but also specific “duties to perform,” thus subordinating women to men from the very outset.

The Cairo Declaration ultimately justifies violations of human rights, as enumerated in the Universal Declaration, if the violation is allowed in shari’a law. For instance, because of the historical inferiority of women under shari’a law, it is justified that the testimony of one Muslim man is equal to the testimony of two Muslim women. Controversially, a female victim of rape can be punished for participating in fornication.[84] This practice made international headlines as recently as October 2008, when thirteen-year old Aisha Duhulowa, who had been gang-raped in Somalia by three adult men, was detained by the state for fornication when her family tried to report the rape. She was found guilty and was “forced into a hole, buried up to her neck then pelted with stones until she died in front of more than 1,000 people.”[85] While this case is extreme, it serves as a reminder to be cognizant of the heady forces working against the feminist movement and the establishment of rape jurisprudence. The nineties, however, would prove to break through these formidable barriers of prejudice as the result of two, highly publicized genocides in which rape was fundamentally a part: Bosnia and Rwanda.

Section II: The Critical Disjuncture in Rape Jurisprudence

Bosnia and Herzegovina

As the Socialist Federal Republic of Yugoslavia broke apart in January of 1990, its eight federal units—Slovenia, Croatia, Bosnia and Herzegovina, Macedonia, Montenegro, Serbia, and autonomous Kosovo and Vojvodina—were catapulted into a series of violent, separatist and ethnic conflicts.  One of the most hard-hitting conflicts occurred in Bosnia and Herzegovina, in which ethnic cleansing played a large role, between the Serbs on one side and the Bosnians and Croats on the other. Between 1992 and 1995, 97,000 people were killed. Of the document civilian casualties, 83% were Bosnian, indicative of its genocidal character.[86]

Mass rape was committed on a widespread and systematic scale during this conflict. According to a European Union investigation, approximately 20,000 women were raped within Bosnia-Herzegovina during 1992 alone.[87] The Bosnian Ministry of the Interior estimates that 20,000 to 50,000 women were raped throughout the entirety of the conflict.[88] Rapes were often the result of direct targeting of “non-Serb civilians, the vast majority being Muslims,” by Bosnian Serb forces.[89] Directly following the military occupation of towns through Bosnia and Herzegovina, Serbian forces would make a show of publicly gang-raping Muslim women in front of the assembled population. These public rapes served to punish any attempts at resistance, as well as to reinforce attitudes of submission.

Women were also imprisoned in various detention facilities, wherein they were repeatedly raped and gang raped by Serbian forces over an extended period of time.[90] Soldiers were allowed to enter into these detention centers at night and individually choose women to rape; women later testified to having been raped multiple times per night, sometimes for weeks on end. These rape camps, as they came to be known, also served the insidious purpose of forced impregnation. Non-Serbian women were repeatedly raped until they became pregnant and would only be released when abortion was no longer an option. The Serbian soldiers, in effect, occupied the womb of the Bosnian woman so as to make her unable to bear a child of her own religion.[91] However, mass rape and enforced impregnation only formed constituent elements of a larger campaign of ethnic cleansing undertaken by the Serbian Army throughout Bosnia and Herzegovina. The Serbian army attacked civilians on all sides, set up concentration camps, and ultimately killed 200,000 civilians throughout the former Yugoslav states.

International pressure for intervention steadily began to grow throughout 1992, as “televised images of emaciated detainees behind barbed wire fences demonstrated that horrific crimes were again happening on European soil, evoking reminders of promises after the Holocaust that ‘never again’ would such acts be allowed to happen.”[92] Throughout the first half of 1992, the UN Security Council repeatedly passed resolutions demanding that, “all military forces in Bosnia and Herzegovina immediately cease and desist from all breaches of international law,” including “mass killings and the continuing practice of ethnic cleansing.”[93]  Furthermore, the Security Council passed Security Council Resolution 780 in October of 1992, establishing a commission of experts to examine and analyze the evidence of human rights violations, “with a view to providing…conclusions on the evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law.”[94] In specific regard to rape, Theoder Meron—acting ICTY president—asserted in 1993 that the “indescribable abuse of thousands of women in the territory of former Yugoslavia… shock[ed] the international community into rethinking the prohibition of rape as a crime under the laws of war.”[95]

This developing perception of rape as a legitimate war crime was not immediately incorporated into the tribunal framework. Instead, the inclusion of rape as a war crime was slow to develop, only being prosecuted with great difficulty and, initially, with relatively little success. Nevertheless, based on the preliminary findings of the UN investigative committee and “amid accounts of widespread violations of humanitarian law and fundamental human rights in the conflicts engulfing the former Yugoslavia,” the UN Security Council established, under its powers of Chapter VII of the UN Charter, the International Criminal Tribunal for the former Yugoslavia (ICTY) to “deter the commission of crimes, bring those responsible to justice, and contribute to the restoration and maintenance of peace.”[96] The Statute for the ICTY was unanimously approved in Resolution 827 on May 25, 1993.

Rwanda

Less than a year after the Security Council established the ICTY, a genocidal conflict engulfed Rwanda. Between the months of April and July 1994, between 500,000 and 1,000,000 Rwandan Tutsis and moderate Hutus were slaughtered in a genocidal campaign carried out by an extremist faction of the Hutu majority. This genocidal campaign, lasting nearly one hundred days, became the most efficient episode of killing in recorded history.[97] While all Tutsis, men, women, and children, were killed as part of the genocide, women were especially targeted for crimes of sexual violence, including rape and gang rape, sexual slavery, torture, mutilation, and forced marriage. In an attempt to estimate the number of women raped during the genocide, the UN extrapolated estimates based on the number of recorded pregnancies. According to a UN Report published in January 1996 by the UN Special Rapporteur on Rwanda, Rene Degni-Segui:

Rape was the rule and its absence the exception . . . According to the statistics, one hundred cases of rape give rise to one pregnancy. If this principle is applied to the lowest figure [the numbers of pregnancies caused by rape are estimated to be between 2,000-5,000], it gives at least 250,000 cases of rape and the highest figure would give 500,000, although this figure also seems excessive.[98]

The mass rape of Tutsi women was irrefutably a large component of the genocidal campaign. One survivor has even claimed that, “most women were raped, if they are still alive.”[99] Women were often discovered and raped at checkpoints, or pulled away from mass graves to be raped before being killed. Women were also abducted and held in sexual slavery for extended periods of time by Hutu forces. Women were often raped after they had witnessed the looting of their homes and the torture and killing of their relatives. Furthermore, the rapists often used derogatory and racial epithets during and after the rape, reflecting the longstanding resentment of Tutsis for their elite position under Belgium colonialism, with rape survivors recounting comments such as: “a certain girl was too proud-so we raped her and then killed her;”[100] “we wanted to see how Tutsi look. We want to see the buttocks of a Tutsi;”[101] “the pride of the Tutsi is going to end today;” and “we want to see how sweet Tutsi women are.”[102] Furthermore, rape often was accompanied by sexual mutilation, including “having arrows, spears or other objects pushed into their vaginas [and] being shot in the genitals.”[103] Many victims of sexual mutilation were left unable to be sexually productive, let alone have children. It is even reported that the Hutu militia went as far as to have HIV infected soldiers solely rape Tutsi women.[104] Perpetrators often told their rape victims that instead of killing them, they would let them die of shame or sadness. Rape served to further the genocide not only through physical harm but psychological harm, with rape being characterized as the “humiliation of women”; and the “disfigurement of women, to make them feel undesirable, used.”[105]

In response to the growing international awareness of the atrocities, the UN Security Council adopted Resolution 935, thereby establishing a UN Commission of Experts to investigate allegations of “systematic, widespread and flagrant violations of international humanitarian law.”[106]. The consequent investigations only confirmed the allegations of widespread atrocities and underscored the need for UN response. As such, the Security Council, acting under its powers of Chapter VII of the UN Charter, established the International Criminal Tribunal for Rwanda for the “prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwanda citizens responsible for genocide and other violations committed in the territory of neighboring states, between 1 January 1994 and 31 December 1994.”[107]

Tribunal Prosecution of War Crimes

The ICTY and ICTR have subject-matter jurisdiction over grave breaches of the 1949 Geneva Conventions (Article 2), violations of the laws or customs of war (Article 3), genocide (Article 4), and crimes against humanity (Article 5).[108] The ICTY Statute only cites rape once in its Statute: rape as a crime against humanity.[109] The ICTR followed its predecessor (The ICTY) by listing rape as a crime against humanity in its Statute. The ICTR Statute widened its subject-matter jurisdiction, however, to include “rape, enforced prostitution, and any form of indecent assault” as outrages upon personal dignity, and hence as war crimes.[110] The fact that these Statutes do not include any further enumeration of rape crimes is the direct result of the absence of any communicable effort by the international community to criminalize rape under international humanitarian law prior to 1993. This senior essay has clearly proved this point. The Yugoslavia Tribunal, together with the Rwanda Tribunal, would ultimately be forced to expand on existing interpretations of humanitarian law in order to prosecute rape and sexual violence. Furthermore, both the ICTY and ICTR have developed a majority of their cases on the basis of customary international law, which allows the tribunals to “draw upon a wider frame of reference beyond their prescribed Statutes, adding a level of flexibility necessary for adjudicating crimes of sexual violence.”[111] What follows are largely considered the most important judgments heard by either of the tribunals in regards to the evolution of rape jurisprudence.

Prosecutor v. Tadić

The ICTY opened its first case under its international jurisdiction on May 7, 1996. Duško Tadić, a former café owner and low-ranking officer at the Omarska concentration camp, was the first person to be tried in an international war crimes trial since the Nuremberg and Tokyo Tribunals. In the original indictment, Tadić was charged with, among other crimes, rape as a war crime and crimes against humanity. However, while many observers believed that Tadić would be the first person convicted of rape as an individual crime, the charges had to be dropped when the witness became too frightened to testify. [112] The Trial Judgment ultimately convicted Tadić on eleven counts—one count of persecution and ten counts of inhumane acts, including beatings, sexual assaults, torture, and executions—and acquitted him on twenty other counts. [113] 

Although subsumed in the larger category of crimes against humanity, Tadić was eventually convicted of the sexual assault and mutilation of two male prisoners, as a constituent part of a systematic attack of persecution. Through its summation, the Trial Chamber categorically stated that to prosecute rape as a crime against humanity, it only needs to be shown that it rape was a constituent part of a broader, systematic attack on a civilian population; rapes would not have to be systematic or widespread in and of themselves. [114] Furthermore, the Tadić judgment elaborated on the Yamashita precedent of command responsibility. The Trial Chamber found that Tadić’s position of authority as a low-level officer at the Omarska Camp gave him superior responsibility for crimes committed by his subordinates. Not only did this judgment reaffirm the theory of command responsibility first proscribed in Yamashita, but it also opened the door for other low-ranking military officers to be prosecuted under similar conditions. [115]

Prosecutor v. Akayesu

Before the Tadić Trial Chamber had rendered its verdict, another indictment of rape was already underway. On February 13, 1997, the ICTR charged Jean-Paul Akayesu, former bourgmestre (mayor) of the Taba commune, with twelve counts of war crimes, crimes against humanity, and genocide, for torture, cruel treatment, murder and extermination for crimes committed by individuals under his authority at the Taba commune. Interestingly enough, the original indictment made no references to sexual violence or rape. During the trial proceedings, however, eyewitness and personal testimony repeatedly referenced incidents of individual and gang rape committed at the Taba commune. In tandem with these testimonies, the Coalition for Women’s Human Rights in Conflict Situations filed an amicus curiae brief, urging the court to include charges of sexual violence within the Akayesu indictment.[116] In response, Judge Navanethem Pillay, the only female presiding judge at the ICTR, requested a postponement of the trial on June 16, 1997, so that the prosecutors could investigate the allegations of gender crimes more fully.[117] When the trial resumed in October, the prosecutor amended the indictment to include charges of individual and superior responsibility for rape and other inhumane acts as crimes against humanity, as well as subsuming rape in the genocide charges.[118] What was to follow in the Akayesu Trial would later be hailed as the, “most groundbreaking decision advancing gender jurisprudence worldwide.”[119]

The Akayesu Trial proceedings were marked by significant legal developments, including the adoption of a broad and progressive definition of rape, as well as the enumeration of evidentiary requirements for obviating victim consent. Akayesu attempted to articulate for the first time in international jurisprudential history how to define rape and sexual violence under international law. The Trial Chamber chose to deviate from a definition based on non-consensual intercourse, which would require evidence of physical violence, found in many national jurisdictions, and defined rape instead as, “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive.”[120] Significantly, the Trial Chamber found that “coercive circumstances need not be evinced by a show of physical force” if it can be shown that coercion was “inherent in certain circumstances,” such as armed conflict or ongoing genocide.[121] Furthermore, the Trial Chamber made the distinction between rape and sexual violence, the latter of which was “not limited to physical invasion of the body” and could constitute “any act of a sexual nature which is committed on a person under circumstances which are coercive” as a crime against humanity.[122] To date, the Akayesu case serves as the most detailed examination of the intersection of gender and genocide in international jurisprudence.

            In one of the most crucial jurisprudential developments in history, Jean-Paul Akayesu was convicted of rape and sexual violence as genocide, constituting “serious bodily or mental harm,” under Article 2(b) of the ICTR Statute.[123] The Akayesu Judgment asserted that rape and sexual violence “constitute genocide in the same way as any other act as long they are committed with the specific intent to destroy, in whole or part, a particular group, targeted as such.”[124]

            Passing its judgment on September 2, 1998, the ICTR found Jean-Paul Akayesu guilty of nine counts of crimes against humanity and genocide. Akayesu was convicted of crimes against humanity for facilitating, instigating, aiding and abetting in a systematic attack of rape and sexual violence against Tutsi women living in the Taba commune. Furthermore, the Trial Chamber found that “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,” thus constituting genocide.[125] The Akayesu conviction, constituting more generally the first successful conviction for rape crimes in international jurisprudential history, also set legal precedent by finding rape to be constituent elements of the larger crimes against humanity and genocide. Since this hallmark indictment, three other defendants have been tried for acts of sexual violence and rape as constituents of genocide at the ICTR.[126] The ICTY has never prosecuted sexual violence crimes as genocide, although various scholars attest that sufficient evidence exists to indict as such.[127]

Prosecutor v. Čelebići

The ICTY issued its first conviction of sexual violence crimes just two months after the Akayesu judgment, on November 16, 1998. After having heard a total of 122 witnesses over a period of eighteen months, the Trial Chamber convicted three out of the four accused—Esad Landzo, Zdravko Mucic and Hazim Delić—for Grave Breaches of the Geneva Conventions and violations of the laws or customs of war. While the conviction did not explicitly charge the defendants with sexual violence crimes, the Judgment held the defendants responsible for torture by means of rape committed under their command. 

            The accused Dravko Mucic, de facto commander of the Čelebići prison camp, was found guilty on eleven counts for his superior responsibility for torture, murder, inhumane acts, and causing great suffering or serious injury. The Trial Chamber, in its summation, declared that Mucic “was clearly derelict in this duty [as commander of the prison camp] and allowed those under his authority to commit the most heinous of offenses, without taking any disciplinary action.”[128] The court emphasized that command responsibility not only encompasses military commanders in a position of de jure authority, but also civilians holding positions of de facto authority. This judgement constitutes the first elucidation of the concept of command responsibility by an international judicial body since the Nuremberg and Yamashita Tribunals following WWII.[129]

The second accused, Hazim Delić, was convicted on thirteen counts: two counts of murder, two counts of torture and rape, one count of causing great suffering or serous injury, and eight counts of inhumane acts involving the use of an electrical device and inhumane conditions. Significantly, Delić was convicted of two counts of torture for repeated incidents of forcible intercourse with Witness A and Grozana Cecez, committed for the purposes of gaining information, punishing the women for belonging to the enemy group, as well as for discriminatory reasons. The Trial Chamber, furthermore, found these rapes to inflict severe physical and psychological suffering, as a violation of the Geneva Conventions. In its summation, the Trial Chamber voiced its opinion that, “rape of any person to be a despicable act which strikes at the very core of human dignity and physical integrity.” In addition, the Chamber found Mucic criminally responsible for incidents of inhumane acts committed under his authority, “including forcing persons to commit fellatio with each other” and placing a “burning fuse cord around the genital areas” of two male detainees. [130] The Trial Chamber noted, additionally, that if the war crimes charge forced fellatio had been charged as rape instead of inhumane treatment, the Court would have convicted Delić for the former. The distinction that rape could be prosecuted as an individual war crime rather than subsumed under charges of inhumane treatment, significantly built a legal foundation for the first successful conviction of rape, as a crime in and of itself, under international law.

Prosecutor v. Furundžija

In December 1998, the ICTY heard the first case ever to be prosecuted exclusively on crimes of sexual violence before an international tribunal.[131] Anto Furundžija, local commander of a special military police unit of the Croatian Defence Council (HVO), was convicted of two counts of rape as a violation of the laws or customs of war, as a as a co-perpetrator of torture and as an aider and abettor of outrages upon personal dignity. The court found that rape caused severe physical and psychological pain to the victim, along with public humiliation amounting to outrages upon her personal dignity and sexual integrity, as protected by Protocol II common to the 1949 Geneva Conventions. Furundžija’s guilty verdict marks the first time that rape charges were brought under the standard set in Protocol II of the 1949 Geneva Conventions as outrages upon personal dignity, to include “humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault.”[132]

Prosecutor v. Foča

The indictments of Radomir Kovač, Dragoljub Kunarac and Zoran Vukovic in the Foča Trial marked the ICTYs first successful convictions of rape, enslavement, and torture as constituting crimes against humanity. This benchmark ruling, given in 2001, “transformed private acts of terror into public acts for which accountability can be sought,” and redefined “what constitutes war and war crimes.”[133] A Press Release from The Hague, declared the indictment “the first time that sexual assaults have been diligently investigated for the purpose of prosecution under the rubric of torture and enslavement as a crime against humanity.”[134] A New York Times article hailed the indictment, “of major legal significance because it illustrates the court’s strategy to focus on gender-related crimes and give them their proper place in the prosecution of war crimes.”[135]

The Trial Chamber found that Muslim women had been subject to a “brutal regime of gang rape, torture and enslavement by Bosnian Serb soldiers, policemen and members of paramilitary groups after the takeover of the city in April 1992.”[136] As such, Kovač, Kunarac and Vukovic were convicted of rape as a crime against humanity; Vukovic and Kunarac were convicted of rape and torture as violations of the laws or customs of war; and Kovač and Kunarac were convicted with sexual enslavement as crimes against humanity. The successful indictments of Kovač and Kunarac for enslavement marked the first time in the history of international criminal law in which convictions for sexual enslavement as crimes against humanity were rendered.

The Chamber found Kunarac and Kovač both guilty of rape and enslavement; their conduct virtually constituting sexual enslavement by holding women captive for extended periods of time, subjugating them to repeated rapes, and lending or selling the women to other rapists, in one case for a box of washing powder. Witness 95 recalled being taken with her two young daughters to a detention center in Foča: “Over the course of twenty days at the school, she thought, she was raped about 150 times. ‘You, you, and you, come out.’ The order echoed through her testimony. ‘I was taken out every night and every day.’”[137]

The successful prosecution for enslavement is all the more striking when put into context of the whole milieu of military practices of enslaving women as a form of pillage heretofore described. Prior to the Foča Case, enslavement had been defined solely on the powers of ownership. The Trial Chamber redefined enslavement, however, as, “the exercise of any or all powers attached to the right of ownership over a person,” including control of movement, forced labor, and control over sexuality.[138] Peggy Kuo, one of the four members of the prosecution team, argues that the Foča Case finally “clarifies and gives concrete meaning to those abstract terms. It makes clear that slavery is not only forced labour but can also be sexual in nature."[139]

Prosecutor v. Nyiramasuhuko

Pauline Nyiramasuhuko, former Minister of Rwandan Family Affairs, has become the first woman to be charged with genocide and incitement to rape at an international tribunal. Although judgment has yet to be issued in what has become the longest running trial in ICTR history, having begun in 2001, this case has called into question previous conceptions of rape as an all-male sport. In her former life, Pauline was employed as a social worker, offering lectures on female empowerment and AIDS prevention throughout the Rwandan countryside. During the genocide, however, she replaced her business attire with army fatigues, toting a machine gun across her shoulder, and commanding the Hutu militia in her hometown of Butare. Pauline has been accused of luring thousands of Tutsi women to a sports stadium in Butare, before commanding Hutu soldiers to “rape them” and then “kill them.” This indictment illustrates that no person is immune to rape prosecution, male or female. It also irreversibly undermines the ‘men will be men’ justification for wartime rape. Biological explanations for wartime rape, depending on heightened levels of testosterone, are thus rendered futile. The indictment of a woman for sexual violence proves, “once and for all, that a uterus is not a substitute for a conscience.”[140]

The International Criminal Court is Conceived

In tandem with the ICTR and ICTY, the UN and other multinational institutions began to address the need to create a singular instrument of international enforcement that could investigate and prosecute grave offenses of humanitarian law, something more concrete and universal than the ad-hoc tribunals of Rwanda and Yugoslavia, whose creation was based on an unanimous vote from the Security Council. The concept of an international court was nothing new, however. One of the founders of the International Committee of the Red Cross—Gustav Moynier—advocated for the creation of an international court as early as 1872, for the purposes of prosecuting crimes committed during the Franco-Prussian War.[141] Following WWI and the Paris Peace Conference, the issue was again raised, this time by the Commission of Responsibilities. Decades later, the League of Nations held a fifteen-day conference on the issue, in November 1937, but no concrete consensus was made.[142] Following WWII and the completion of the Nuremberg and Tokyo Tribunals, the United Nations confirmed the need for a permanent, international court, and thus requested the International Law Commission to draft a preliminary statute towards that end. The completed rough draft was soon abandoned, however, as Cold War politics made the establishment of such a court highly unrealistic.[143] Finally in 1989, the Prime Minister of Trinidad and Tobago began to agitate for the creation of the ICC to fight the illegal drug trade that had become rampant in the late eighties.[144] As a result of this final proposal to establish such an international mechanism, the International Legal Commission began to undertake the task of drafting a Statute for the approval of the members of the UN in early 1992. Throughout the next six years, the Ad Hoc Committee on the Establishment of an International Criminal Court, along with the ILC, attempted to consolidate legal precedent and previous humanitarian laws into one, concise statue for the proposed ICC. 

Rape Jurisprudence in Context of the Nineties

It is important to acknowledge the unparalleled importance of the larger global human rights movement upon the jurisprudential developments that have been the focus of this essay. As discussed earlier, the developments in human rights accountability born out of the Nuremberg and Tokyo Tribunals were ultimately rendered obsolete as a result of the Cold War. This rendering would be overturned, however, with the fall of the Berlin Wall in 1989. The end of the Cold War freed the Security Council from the ideological deadlock of the great powers. No longer hindered by the Cold War stalemate, the UN began to reinvent once again its global role in the enforcement of human rights.

            This “newly emerging international system” would actively enter into ongoing conflicts and would be willing to use force to protect universal human rights. Only two years after the Cold War, the UN would implement these principles and find its voice in relation to Saddam Hussein’s invasion of Kuwait. Hussein’s invasion of Kuwait was condemned by all major powers and was the subject of twelve UN resolutions, demanding the cessation of hostilities and reasserting the sovereignty of Kuwait. In January of 1991, a UN-authorized/US-led coalition invaded Kuwait, defeated Hussein’s forces, and reinstated Kuwait’s sovereignty. This militarized intervention into Kuwait, arguably the first of its kind, signified the creation of a ‘New World Order,’ in which human rights would finally take center stage.

            The successful invasion of Kuwait would have lasting effect on the UNs interventionist and enforcement policies. John Terence O'Neill and Nicholas Rees describe this effect as one of “euphoria after the successful use of force in the Gulf Crisis,” in which the Security Council would be “increasingly prepared… to use Chapter VII of the Charter” to authorize interventions into human rights atrocities.[145] As a result, the next decade would declare human rights universal and inviolable, and would justify military action, even when violating state sovereignty, for the protection of human rights. The UN and its principles of universal human rights reached its climax in the mid-to-late nineties, undertaking a total of forty-two humanitarian interventions, including those in Somalia, Rwanda, Yugoslavia, East Timor, Sierra Leone, as well as the NATO bombing of Kosovo. It is this climactic period in which the global human rights movement gains momentum and reaches its climax that the two ad hoc tribunals for Rwanda and Yugoslavia begin to function and the ICC Statute is drafted and adopted.

Furthermore, as a result of ongoing rape jurisprudence and the growing human rights movement, wartime rape and gender human rights finally begin to enter into intergovernmental legislation in the mid-nineties.  At the June 1993 World Conference on Human Rights in Vienna, the attending states asserted that “violations of the human rights of women in situations of armed conflict are violations of the fundamental principles of international human rights and humanitarian law.”[146] Later that year, the UN General Assembly adopted the Declaration on the Elimination of Violence Against Women, recognizes the “long-standing failure to protect and promote… freedom in relation to violence against women” and calls all states to “investigate and punish acts of violence against women, whether those acts are perpetrated by the State or by private persons.”[147] The UN Commission on Human Rights called for “intensified effort at the international level to integrate the equal status of women and the human rights of women into the mainstream of United Nation system-wide activity.” The Fourth World Conference on Women in Beijing (1995) also took a stance on the need for gendered post-conflict justice, committing governments to “integrating a gender perspective” in the resolution of armed or other conflicts and foreign occupation.[148] The combined effect of all of these declarations is in pronounced contrast to the prior decades wherein women’s rights were resolutely ignored.

In fact, the evolution of the ICC Statute is representative of the formative change in human rights law and practice throughout the nineties. The original draft of the Statute, prepared by the International Law Commission (ILC) beginning in 1989, gave no mention to any gender issues or sex crimes. This first draft, however, was prepared prior to and concurrent with the extraordinary developments discussed heretofore, namely the Beijing and Vienna Conferences and the establishment of the ICTY and the ICTR. The final drafting of the ICC Statute provided an opportunity address these omissions, which came at precisely the right time for gender issues to be officially recognized.

The Drafting of the Rome Statute

In February 1997, the UN established a preparatory committee (PrepCom) to flesh out the proposed statute, already outlined by the ILC, to be presented at the Rome Diplomatic Conference in July 1998. Throughout the first few months of the drafting process, it became clear to women’s human rights activists that the ILC draft neglected gender issues as applicable crimes under international law. In response, twelve women established the Women’s Caucus for Gender Justice (WCGJ) to agitate for the inclusion of a more gendered perspective within the Statute. The WCGJ closely monitored the Statute negotiations, distributed gender-relevant information to allied countries and NGOs worldwide, and helped to facilitate parallel activities of similar organizations. 

By the time the Rome Diplomatic Conference convened in July of 1998, the WCGJ had increased its support base from twelve persons to nearly two hundred NGO’s from all regions of the world. The WCGJ’s work was only starting, however, as they attempt to rectify gross omissions of sex crimes in the Rome Statute. The WCGJ had very few allies prepared to fight for the rights of women, however. Out of 160 countries in attendance, only nine states actively agitated for gendered inclusion, namely Canada, New Zealand, Samoa, the United States, Australia, Portugal, Switzerland, Belgium and Liechtenstein.

The WCGJ’s movement to incorporate gendered perspectives into the Statute was met with staunch opposition by an unlikely alliance of the Vatican and a core group of Islamic states. This group of opponents forcefully disagreed with the WCGJ on two issues: the inclusion of “forced pregnancy” as a crime as well as the use of the word “gender” as opposed to “sex.” The Vatican condemned the inclusion of forced pregnancy, based on the faulty logic that it would universally legalize abortion. The Holy See, in attempt to compromise on the issue, acceded to the specific criminalizing of forced impregnation solely for the purposes of ethnic cleansing, though this too was later rejected because it severely limited the judicial scope compared to present realities of the crime. Furthermore, both the Vatican and the Islamic states opposed the term “gender,” as it thought to connote sexual orientation as opposed to biological differences. Furthermore, the Rome Delegation were reticent to alter the definition of genocide, as set out in the 1949 Convention on the Prevention and Punishment of Genocide, to include constituent acts such as rape. The common consensus was that the 1949 definition of genocide had achieved jus cogens status[149] under customary international law and thus, should be copied verbatim. It was argued that the constituent act of causing serious bodily or mental harm would be sufficient to prosecute genocidal rape, and the Akayesu precedent would only reaffirm that assessment. Other inclusions of sexual violence were met with surprisingly little opposition, no doubt the result of the tumultuous turn of events throughout the decade, namely the rape jurisprudence of the ICTY and the ICTR.

Section III: Enduring Obstacles Amidst Success

The Establishment of the International Criminal Court

After five weeks of negotiations, the Rome Statute was adopted by a 120-7 vote on July 17, 1998, marking an extraordinary development in the history of rape jurisprudence.[150] The Rome Statute for the International Criminal Court includes rape, enforced prostitution, sexual slavery, enforced sterilization, forced pregnancy, sex trafficking, and “other crimes of sexual violence” under the crimes against humanity (Article 7) and war crimes provisions (Article 8). [151] The Rome Statute stands as an extraordinary development in rape jurisprudence by codifying rape as a crime of violence, serving as a clear departure from previous treatises that characterized rape as a crime of property or a crime of honor. David Mitchell iterates the importance of language in prohibiting rape:

Rape has a unique stigma because of its general perception as a specifically sexual violation, which tends to subsume its violent nature and gravity as a gender-specific offense. In [this] resolution, however, sexual violence is reclassified as an individual crime of violence with particular gender implications.[152]

Furthermore, the inclusion of a variety of sexual violence crimes beyond just rape, further serves as a hallmark development in rape jurisprudence. The Rome Statute is the first international treaty to codify the crimes of forced pregnancy, sexual slavery and gender-based persecution. In addition, the Rome Statute adds ‘gender’ as a basis for persecution, one of the constituent elements of crimes against humanity. This enumeration corrects the precedent set out by the ICTY and ICTR, which determined that persecution on the basis of gender was, “less prevalent—or less important—than persecution on other grounds.”[153] All of these constituent elements were given jus cogens status following the sixtieth ratification of the Rome Statute, having occurred much sooner than expected, on July 1, 2002.

Jus Cogens Status

It can be argued that rape has finally achieved jus cogens status in international humanitarian law through its successful prosecution at both the ICTY and ICTR; with its inclusion, however vague, in the 1907 Hague Conventions, the 1949 Geneva Conventions and 1977 Additional Protocols; through its explicit codification within the ICC Rome Statute; and with its inclusion in various UN Declarations throughout the last two decades. The ICC Rome Statute especially serves to raise the crime of rape to jus cogens status, in its virtually universal representation by member states and its increasingly innovative codifications of sexual violence as representing general norms of customary international law.[154] Kelly Askin asserts that, “sexual violence, at the very least rape and sexual slavery, has risen to the level of a jus cogens norm.” She further explains the importance that this entitlement would have: “Such an attribution provides increased means of protecting women and girls, bolsters efforts in enforcing violations of the laws, and challenges traditional stereotypes of gender crimes being less grave or important.”[155] The question then becomes: what effect does jus cogens statuses have on present day or future wartime rape? Lamentably, the prestigious title of jus cogens does little to correct the continued misunderstanding of the nature of wartime rape and has proven to have little effect on curbing the continued perpetration of mass wartime rape. Let us address these two hinderances, respectively.

The Current Status of Wartime Rape

Since the ICC began its substantive work in 2003, the Office of the Prosecutor has opened investigations in four conflict situations—Central African Republic, Darfur, Eastern Democratic Republic of Congo, and Northern Uganda—and has requested authorization to investigate its fifth case in Kenya. [156]. In total, the OTP has provided evidence for the prosecution of sixteen individuals for the crimes of genocide, crimes against humanity and war crimes. Of those indicted, eight individuals are currently facing charges for crimes of sexual violence. While this is indicative of substantial progress in rape jurisprudence, it does not obviate success. The ICC and rape prosecution must still address fundamental concerns in the way in which rape is perceived and prosecuted.

            Sexual violence crimes are now deeply imbedded into the international legal structure as a result of the prosecutorial efforts of the nineties. As mentioned previously, it has arguably even achieved jus cogens status. These developments should not be understated. However, the existence of a formative prosecutorial framework does not connote sufficient and successful investigations and prosecutions. In fact, while the prosecutorial framework is expansive and fully capable of prosecuting rape crimes, very little progress has been made in current rape jurisprudence because of the lack of binding enforcement mechanisms, as well as insufficient political will to establish said enforcement mechanisms. Insufficient political will results from a conflict of interests, mainly, the subordination of state sovereignty to universal human rights, or visa versa. While this is true for every state, and constitutes one of the main reasons the US did not sign the Rome Statute. Some states, however, have argued that there can be no such things as universal human rights, and instead be replaced with region or religion specific declarations of rights. The negative potential for human rights based on cultural or religious relativism becomes all too visible in the Cairo Declaration on Human Rights and the unfair stoning of thirteen-year old, Aisha Duhulowa.

            Further, current rape prosecution is beginning to falter as the result of a communal failure to understand the crime of wartime rape. Rape is first and foremost a crime of sexual violence against a woman, yet international law continues to perceive and prosecute wartime rape as a collective trauma against an ethnicity, nationality or religion. How do we explain this prosecutorial bias? This essay is built on the premises that the history of rape jurisprudence has a collective meaning, and that the specific codification of rape in international law has created a unique legacy that affects our current condition. The current complexities, achievements, and downfalls in rape prosecution are ultimately founded in this historical legacy. Ashley Dallman explains further:

The shift and literal transfiguration in the politicized bodies of women—as evinced by the legal prosecution of sexual violence and the effort to institutionalize gender equality within an international judicial body—has changed the landscape on which sexual violence is fought.[157]

The idea of such a legacy compels us to readdress the ways in which rape was codified under international law, at the helms of the ICTY and ICTR, one last time. Let us begin in the midst of the Yugoslav Crisis. When reports of mass rape and other human rights violations began to make headlines, and demands for intervention gained followers among the inner circles of the UN, the question became for feminists: on behalf of whom do we intervene? Throughout all of the Yugoslav states, women were being raped, no matter their ethnicity, by all sides of the war. How then does one choose which side is most culpable? Some did choose a side to advocate for, however, finding the mass rapes of Bosnian Muslims uniquely systematic and genocidal thus warranting an extraordinary response. Other feminists disagreed with this assessment, arguing that to categorize Bosnian rapes genocidal would be to classify it as exceptional, thereby obscuring the extent in which all women are victimized in all wars. Rhonda Copelon, one of the feminist leaders involved in the debate, asserted:

To emphasize as unparalleled the horror of genocidal rape is factually dubious and risks rendering rape invisible again… women are targets not simply because they ‘belong to’ the enemy… they are targets because they too are the enemy … because rape embodies male domination and female subordination.[158]

This feminist debate was put aside with the creation of the tribunal, however, with the two opposing groups, “putting aside their disagreements so as to play a formative role in the creation and operation of a major international institution.”[159] While this debate never found closure, one side came out victorious. Upon reviewing the case law of the ICTY and the ICTR, it becomes immediately apparent that genocidal rape was classified as more heinous, and more worthy of prosecution, than non-genocidal rape.

            The first case of sexual violence successfully prosecuted at the ICTY, known as the Celibici Trial, brought charges against Muslim defendants for raping Serbian women, when most of the focus had been on the genocidal rapes committed by the Serbs against Muslim women. Further, the second rape prosecution, known as the Furundžija Trial, was against Croat defendants, not Serbs. It is striking, then, that newspapers heralded the third conviction, the Foča Trial, as unprecedented, a hallmark achievement, and a development of the utmost importance. The Foča Trial was elevated in importance because it proved part of a widespread and genocidal attack against Bosnian Muslims. This is a troubling development. As Pratt and Fletcher assert:

The fact that ethnic rape raised such international press attention, where other similar, equally pervasive and brutal rapes did not, raises disturbing issues… The media’s focus on the ethnic aspect of the rapes perpetrated the adjunctive role of women by implying that if the rapes had been understood primarily as injuring the women upon whom they were perpetrated, they would not have seemed so egregious.[160]

The ICTY’s unparalleled focus and monetary investment in the Foča Case perpetuated this idea of genocidal rape as more egregious than other types of rape. The successful conviction of Kunarac for sexual violence crimes as crimes against humanity further asserted that the rapes of Bosnian Muslims were qualitatively different than the other rape cases previously heard at the tribunal. The rapes of Bosnian Muslim women were found to be systematic perpetrated against an ethnicity, constituting a crime against humanity. Rapes against other ethnicities, though arguably widespread, were absent from any such indictment. The judgement of the Foča Case ultimately displaces the focus from rape to ethnicity, emphasizing the harm done to women because they are Muslim and connecting the harm to the systematic attack on civilian men and women.

In this light, it seems striking, and yet understandable, that the first ever successful prosecution of sex crimes on an international level is in the conviction of Jean-Paul Akayesu for rape as genocide, again reinforcing the uniqueness of genocidal rape rather than systematic, non-ethnic rape. The perceived importance of the Akayesu and Foča Trials testify to the subordination of ordinary rape to ethnic rape, which constitutes a sexual attack on women and an attack of honor and potency on men.  MacKinnon asked legal scholar whether rapes would ever be regarded as human rights abuses; his response: “possibly, and if so, probably because they are ethnic, hurting a group that includes men.”[161] This legal scholar’s assumption has regrettably, proven to be true for the nineties and beginning to ring true for the 21^st century.

By calling rape genocidal, the issue of wartime rape was finally able to gain recognition and be elevated in perceived importance, based on the assertion that genocidal rape is extraordinary and thus, deserves an extraordinary response. It is these “extraordinary responses” that have developed the jurisprudential legacy of rape; this is a legacy, however, that renders, “the gendered aspect of the rapes invisible and prevents rape which did not encompass an ethnic component from being recognized as an intentional act on women.”[162] Non-ethnic rapes, committed for the purposes of terror, revenge, domination, or simply as the result of opportunity, have yet to be prosecuted. Catherine MacKinnon enumerates:

Nowhere does international law address the fact that women are often as vulnerable to personal attack from ‘friendly’ as well as ‘hostile’ forces. When women experience violence from their community in times of armed conflict, it is too often treated as a ‘private’ matter, or seen as an acceptable feature of the spoils of war.[163]

Through this prosecutorial bias towards ethnic rapes, the individual suffering of women has again been forced into silence. The last century has witnessed astounding developments in rape jurisprudence, and yet its legacy reaffirms archaic beliefs of women as objects of law rather than objects in law through its prosecutorial bias. Mass rape should not be prosecuted because of the effect it has on a race or male counterparts; it should be prosecuted because it constitutes a violent and degrading act against a woman.

            The struggle to find justice for victims of ongoing rape is ongoing. Rape continues to be rampant in a great majority of current conflicts. Even today, after all the progress that has been made, rape continues to carry a unique stigma. It is still perceived as either an unfortunate consequence of war or strictly a weapon used by militaries. The suffering of women as the victims of rape is grossly ignored. Mass rape may have achieved jus cogens, but until concrete changes begin to apply to the actual prosecution of wartime rape, rape will continue (unheard) as one of the worst human rights crises in all of history.

The ICC has a unique opportunity to finally curb rape impunity through its open investigations in the Democratic Republic of Congo (DRC) and Sudan. Both are characterized by mass rape. Only one is genocidal: Sudan. The DRC, in which rapes are fundamentally opportunistic or are used for the purposes of terror rather than ethnic cleansing, constitutes a great opportunity for the ICC to accurately prosecute rape as a persecution of gender, not of ethnicity.  Rape does not have to be ethnic to be widespread or traumatic. For instance, the DRC is the most dangerous place in the world to be a woman; 15,996 new cases of sexual violence were reported in 2008 alone.[164] In a study undertaken by Human Rights Watch, 69% of respondents reported being gang raped; 65% of those victim respondents were children; and 10% of respondents were under ten years old.[165] These statistics are haunting and should promote action. Only time will tell if the ICC will finally respond to victim’s cries for help. Let me end with one such plea from a Congolese rape survivor, to President Barack Obama, recorded only one month ago: “We suffer because we live in chaos. We are raped in the forest. then our husbands reject us, then we are even abandoned by society. We want peace. Give us peace.”[166]

“Count up the results of fifty years of human rights mechanisms, thirty years of multibillion dollar development programmes and endless high-level rhetoric and the general impact is quite underwhelming… this is a failure of implementation on scale that shames us all.”

--Mary Robinson, UN Human Rights Commissioner, December 10, 1998.
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Appendix A: Abbreviations

CAR: Central African Republic

DRC: Democratic Republic of Congo

ICC: International Criminal Court

ILC: International Legal Commission

IMT: International Military Tribunal of Nuremberg

IMTFE: International Military Tribunal of the Far East

ICTR: International Criminal Tribunal of Rwanda

ICTY: International Criminal Tribunal of Yugoslavia

UN: United Nations

WCGJ: Women’s Coalition for Gender Justice

NATO: North Atlantic Treaty Organization

NGO: Non-governmental Organization

REPLACE WITH APPENDIX A TABLE
Appendix C

Relevant Excerpts from International Conventions

Rome Statute of the International Court: July 17, 1998.

Article 6: Genocide

For the purpose of this Statute, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

         (a) Killing members of the group;

         (b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

         (d) Imposing measures intended to prevent births within the group;

         (e) Forcibly transferring children of the group to another group.

Article 7: Crimes Against Humanity:

For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

Article 8: War Crimes:

The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.

(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

 (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:

(xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;

(d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.

(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:

(vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions; 

3. For the purpose of this Statute, it is understood that the term "gender" refers to the two sexes, male and female, within the context of society.  The term "gender" does not indicate any meaning different from the above.

Article 42: Office of the Prosecutor

9. The Prosecutor shall appoint advisers with legal expertise on specific issues, including, but not limited to, sexual and gender violence and violence against children.

Article 43: The Registry

6. The Registrar shall set up a Victims and Witnesses Unit within the Registry.  This Unit shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counselling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses.  The Unit shall include staff with expertise in trauma, including trauma related to crimes of sexual violence.

Article 54: Duties and Powers of the Prosecutor with respect to investigations:

1. The Prosecutor Shall:

(b) Take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court, and in doing so, respect the interests and personal circumstances of victims and witnesses, including age, gender as defined in article 7, paragraph 3, and health, and take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children;

Appendix D

Overview of Charges of Sexual Violence at the International Criminal Court

--Democratic Republic of Congo--

Germain Katanga and Mathieu Ngudjolo Chui. (6/25/07).

Charges sought by the Office of the Prosecutor:

• Sexual Slavery Constituting a Crime Against Humanity

[Article 7(1)(6)]

• Sexual Slavery Constituting a War Crime

[Article 8(2)(b)(xxii)]

• Rape Constituting a Crime Against Humanity

[Article 7(1)(g)]

• Rape Constituting a War Crime

[Article 8(2)(e)(vi)

--Central African Republic--

Jean-Pierre Bemba Gombo. (5/9/08).

Charges sought by the Office of the Prosecutor:

• Rape Constituting a Crime Against Humanity

[Article 7(1)(g)]

• Rape Constituting a War Crime

[Article 8(2)(e)(vi)

• Torture Constituting a Crime Against Humanity

[Article 7(1)(f)]

• Torture Constituting a War Crime

[Article 8(2)(c)(i)]

• Rape and Other Acts as an Outrage Upon Personal Dignity Constituting a War Crime

[Article 8(2)(c)(ii)]

--Northern Uganda--

Joseph Kony, Uganda (5/6/05).

• Sexual Slavery Constituting a Crime Against Humanity

[Article 7(1)(6)]

• Rape Constituting a Crime Against Humanity

[Article 7(1)(g)]

• Rape Constituting a War Crime

[Article 8(2)(e)(vi)

Vincent Otti, Uganda (5/6/05).

• Sexual Slavery Constituting a Crime Against Humanity

[Article 7(1)(6)]

• Rape Constituting a War Crime

[Article 8(2)(e)(vi)

--Darfur, Sudan--   

Ahmad Muhammad Harun, Sudan (2/27/07).

• Rape Constituting a War Crime (2 counts)

[Article 8(2)(e)(vi)

• Rape Constituting a Crime Against Humanity (2 counts)

[Article 7(1)(g)]

• Rape and Other Acts as an Outrage Upon Personal Dignity Constituting a War Crime

      [Article 8(2)(c)(ii)]

• Persecution by Acts of Rape Constituting a Crime Against Humanity

      [Article 7(1)(h)]

• Persecution by Acts of Rape and Outrages Upon Personal Dignity Constituting a Crime Against Humanity

      [Article 7(1)(h)]

Ali Muhammad Ali Abd-Al-Rahman (‘Ali Kashayb’), Sudan (2/27/07).

• Rape Constituting a War Crime (2 counts)

 [Article 8(2)(e)(vi)

• Rape Constituting a Crime Against Humanity (2 counts)

 [Article 7(1)(g)]

• Outrages Upon Personal Dignity Constituting a War Crime

       [Article 8(2)(c)(ii)]

• Persecution by Acts of Rape Constituting a Crime Against Humanity

       [Article 7(1)(h)]

• Persecution by Acts of Rape and Outrages Upon Personal Dignity Constituting a Crime Against Humanity

       [Article 7(1)(h)]

Omar Hassan Ahmad Al’Bashir, Sudan (7/14/08).

• Rape Constituting a Crime Against Humanity

 [Article 7(1)(g)]

• Genocide based on Rape and Sexual Assault

       [Article 6(b)]

---

[1] Christopher K. Butler, Tali Gluch, and Neil J. Mitchell, “Security Forces and Sexual Violence: A Cross-National Analysis of a Principal–Agent Argument,” The Journal of Peace Research 44 (2007), 683, http://jpr.sagepub.com/cgi/reprint/44/6/669 (accessed March 5, 2010.

[2] Ibid, 683.

[3] United Nations Commission on Human Rights, Preliminary Report Submitted by the Special Rapporteur on Violence against Women, its Causes and Consequences, 50^th Session, 1994, UN Document E/CN.41995/42.

[4] Susan Brownmiller, Against Our Will: Men, Women and Rape (New York: Simon Schuster, 1977). 12.

[5] Ibid., 18.

[6] Louis M. Epstein, Sex Laws and Customs in Judaism (New York: Ktav Publishers, 1967), 188.

[7] Henry de Bracton, On the Laws and Customs of England, trans. Samuel Thorne (Cambridge, MA: Harvard University Press, 1968). 414.

[8] Edward Coke, The Second Part of the Institutes of the Laws of England (Volume 2); Containing the Exposition of Many Ancient, and Other Statues (London: W. Clarke and Sons, 1817), 179.

[9] Ibid. 432.

[10] Hugo Grotius, The Law of War and Peace, trans. Francis W. Kelsey (Montana: Kessinger Publishing, 2004), 675.

[11] Geoffroy Miles, ed., Classical Mythology in English Literature: A Critical Anthology, 1st ed. (New York: Routledge, 1999), 39.

[12] Kelly Askin, War Crimes Against Women: Prosecution in International War Crimes Tribunals, 1st ed. (Boston: Martinus Nijhoff Publishers, 1997), 10-21.

[13] Ibid. 14.

[14] Martina Lindroos, “But When the Rapes Started They Lost all Hope: The Efficacy of Legal Mechanisms in Prosecuting Cases of Sexual and Gender-Based Violence in Armed Conflicts” (Masters of International Humanitarian Assistance, Uppsala University, 2003), 14, http://www.kbh.uu.se/imch/phha/noha/Martina%20Lindroos%20Mastersuppsats.pdf.

[15] Brownmiller 38.

[16] United States War Department, The Lieber Code: Instructions for the Government of Armies of the United States in the Field, 1863, art. 44.

[17]  "Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land,” October 18, 1907, International Conferences (The Hague). 46. http://avalon.law.yale.edu/20th_century/hague04.asp

[18] Human Rights Watch, Shattered Lives: Sexual Violence during the Rwandan Genocide ad its Aftermath (New York: Human Rights Watch, 1996), 18.

[19] David S. Mitchell, “The Prohibition of Rape in International Humanitarian Law as a Norm of Jus Cogens: Clarifying the Doctrine,” Duke Journal of Comparative and International Law 15 (2005), 219-258, http://www.law.duke.edu/shell/cite.pl?15+Duke+J.+Comp.+&+Int'l+L.+219+pdf.

[20] Arnold Joseph Toynbee, The German Terror in Belgium: an Historical Record (New York: George H. Doran Company), 1917.

[21] Kenneth Roth, Introduction to Geoffrey Robertson, Crimes Against Humanity: The Struggle for Global Justice (New York: New Press), xxi.

[22] Raul Hilberg, Destruction of the European Jews (Chicago: Quadrangle, 1961), 28.

[23] Sara Pawlowicz, I Will Survive (London: Muller, 1964). 41.

[24] As Cited in Ronald Sommer, “Forced Sex Labour in Nazi Concentration Camps,” Brutality and Desire: War and Sexuality in Europe’s Twentieth Century, ed. Dagmar Herzog (New York: Palgrave Macmillan, 2009), 173.

[25] Raul Hilberg, Destruction of the European Jews (Chicago: Quadrangle, 1961), 28.

[26] The Black Book: The Nazi Crime Against the Jewish People (New York: The Jewish Black Book Committee, 1946), 301, 329.

[27] Although many Germans claimed to have seen this specific leaflet, no physical record exists. Moscow historians, when questioned on the subject, are reticent to discuss the subject.

[28] Karl Doenitz, Memoirs: Ten Years and Twenty Days (Cleveland: World Publishing, 1959) 69.

[29] Laurence Rees, “Hitler’s Invasion of Russia in World War Two,” BBC News, World Wars In-Depth. (BBC Publications, 2009). <http://www.bbc.co.uk/history/worldwars/wwtwo/hitler_russia_invasion_01.sht>ml (Accessed 3/10/10).

[30] Elizabeth Jean Wood, “Variation in Sexual Violence During War”, Politics Society 34 (2006), 309.

[31] Iris Chang, The Rape of Nanking (New York: Penguin Books, 1997), 87.

[32] Ibid. 90.

[33] Ibid. 90.

[34] Ibid. 91.

[35] Ibid. 91.

[36] Wood 311.

[37] Japanese Cabinet Counselors Office on External Affairs, “On the Issue of Wartime ‘Comfort Women,” cited in UNESCO, Contemporary Forms of Slavery, appendix, 9(a).

[38] Elizabeth Jean Wood, “Variation in Sexual Violence During War,” 311.

[39] Cited in Chung Hyun-Kyung, “‘Your Comfort versus My Death’: Korean Comfort Women,” in War’s Dirty Secret: Rape, Prostitution, and Other Crimes against Women, ed. Anne Llewellyn Barstow (Cleveland, Ohio: Pilgrim Press, 2000), 18.

[40] Kenneth Roth, Introduction in Geoffrey Robertson, Crimes Against Humanity: The Struggle for Global Justice, xxii.

[41] Theodor Meron, War Crimes Law Comes of Age (Oxford: Oxford University, 1998), 206.

[42] Judge Gabrielle Kirk McDonald, The International Criminal Tribunals Crime and Punishment in the International Arena, 7 ILSA J. Int’l Comp L. 667, at 676.

[43] Kelly D. Askin, “Prosecuting Wartime Rape and Other Gender Related Crimes under International Law: Extraordinary Advances, Enduring Obstacles.” Berkeley Journal of International Law 288. (2003), 295.

[44] Mark Ellis, “Breaking the Silence: Rape as an International Crime,” in Case West Reserve Journal of International Law 38 (2007), 228.

[45] “The Molotov Note,” Trial of the Major War Criminals Before the International Military Tribunal (IMT Docs) 7 (Nuremberg: 1947) 456-457.

[46] IMT Docs, vol. 6, 170.

[47] International Military Tribunal for the Far East: Judgment (IMTFE), (Tokyo: 1946), 4467.

[48] Ibid. 1012.

[49] IMTFE Judgment, 1012-1019.

[50] Ibid.

[51] Ibid.

[52] IMTFE: Indictment, Article 5.

[53] Richard R. Lael, The Yamashita Precedent : War Crimes and Command Responsibility (Delaware: Scholarly Resources, 1982) 95.

[54] UN War Crimes Commission 1948.

[55] Askin 8.

[56] United Nations Charter: Article 1.3 (San Francisco: UN, 1945) http://www.un.org/en/documents/charter/. (Accessed February 10, 2010).

[57] Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (Geneva: 12 August 1949) http://www2.ohchr.org/english/law/index.htm

[58] Convention Relative to the Protection of Civilian Persons in Time of War, (Geneva: August 12, 1949) http://www2.ohchr.org/english/law/index.htm

[59] Protocol I Additional to the 1949 Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Geneva: June 8, 1977) http://www2.ohchr.org/english/law/index.htm

[60] Protocol II Additional to the 1949 Geneva Conventions, and Relating to the Protection of Victims of Non-International Armed Conflicts (Geneva: June 8, 1977) http://www2.ohchr.org/english/law/index.htm

[61] David S. Mitchell, “The Prohibition of Rape in International Humanitarian Law as a Norm of Jus cogens: Clarifying the Doctrine,” Duke Journal of Comparative and International Law 15 (2005), 239. http://www.law.duke.edu/shell/cite.pl?15+Duke+J.+Comp.+&+Int%27l+L.+219+pdf

[62] Nicholas Rees and John Terence O’Neill, United Nations Peacekeeping in the Post-Cold War Era (New York: Routledge, 2005), 24.

[63] Kenneth Roth, Crimes Against Humanity, xxii.

[64] Kelly Askin, “Rape as a Weapon of War: Accountability for Sexual Violence in Conflict,” testifying at the Hearing Before the Subcommittee on Human Rights and the Law of the Committee on the Judiciary United States Senate, 110^th Cong., 2^nd sess., 2008, 45.

[65] Peter Arnett as interviewed by Susan Brownmiller, Against Our Will, New York: Simon Schuster p. 97.

[66] Ibid. 95.

[67] Mark Baker, Nam: The Vietnam War in the Words of Men and Women Who Fought There. As cited in, Peace Magazine, Oct-Dec 2009, page 6, http://www.peacemagazine.org/archive/v25n4p06.htm (Accessed April 29, 2010)

[68] Dan Rather, as cited in footnote, Susan Brownmiller, Against Our Will, p. 92.

[69] “Viet Cong Says U.S. Troops Killed Villagers,” St. Petersburg Times, 21 November 1969, 8A. Available at: http://news.google.com/newspapers?nid=888&dat=19691121&id=Z_0NAAAAIBAJ&sjid=-XsDAAAAIBAJ&pg=7007,75974 (Accessed April 29, 2010)

[70] Angela Debnath, “The Bangladesh Genocide: The Plight of Women,” in S. Totten, ed., The Plight and Fate of Women During and Following Genocide (New Jersey: Transaction Publishers, 2008), 47.

[71] Susan Brownmiller, Against Our Will, 80.

[72] Ibid 82.

[73] Nayanika Mookherjee, “Gendered Embodiments: Mapping the Body-Politic of the Raped Women and the Nation in Bangladesh,” in Nirmal Puwar and Parvati Raghuram, ed., South Asian Women in the Diaspora (New York and Oxford: Berg Publishers), 160.

[74] Angela Debnath, “The Bangladesh Genocide: The Plight of Women,” 53.

[75] Nayanika Mookherjee, “Gendered Embodiments: Mapping the Body-Politic of the Raped Women and the Nation in Bangladesh,” in South Asian Women in the Diaspora, 436.

[76] Yasmin Saika. “Beyond the Archive of Silence: Narratives of Violence of the 1971 Liberation War of Bangladesh,” History Workshop Journal 58. (2004), 285.

[77] Ibid 283.

[78] “Khmer Rape Victim Tells Story,” Taipei Times, 27 August 2004, 5. Available at: http://www.taipeitimes.com/News/world/archives/2004/08/27/2003200423 (Accessed April 29, 2010)

[79] Tang Kim. “The Khmer Rouge Rice Fields: The Story of Rape Survivor Tang Kim.” Cambodia Tribunal Monitor. Available at: http://www.dccam.org/Archives/Films/playthis.php?file=TangKim (Accessed April 29, 2010)

[80] Ibid.

[81] Brownmiller, Against Our Will. 112.

[82] The forty-five participating states were: Afghanistan, Algeria, Chad, Egypt, Guinea, Indonesia, Iran, Jordan, Kuwait, Lebanon, Libya, Malaysia, Mali, Mauritania, Morocco, Niger, Pakistan, Palestine, Saudi Arabia, Senegal, Sudan, Somalia, Tunisia, Turkey, Yemen, Bahrain, Oman, Qatar, Syria, UAE, Sierra Leone, Bangladesh, Gabon, Gambia, Guinea-Bissau, Uganda, Burkina Faso, Cameroon, Comoros, Iraq, Maldives, Dijbouti, Benin, Brunei, and Nigeria.

[83] The Cairo Declaration on Human Rights in Islam. Cairo: Organisation of the Islamic Conference, 1990) Available at: http://www.oic-oci.org/english/article/human.htm (Accessed April 29, 2010)

[84] “How Sharia Law Punished Raped Women,” Assyrian International News, 17 November 2008. Available at: http://www.aina.org/news/20081117111817.htm (Accessed April 29, 2010)

[85] “Stoning Victim ‘Begged for Mercy,’” BBC News, 4 November 2008. Available at: http://news.bbc.co.uk/2/hi/7708169.stm (Accessed April 29, 2010)

[86] Jackie Ching, Genocide and the Bosnian War (New York: Rosen Publishing Group, 2008), 46.

[87] Cited in Joshua A. Goldstein, War and Rape: How Gender Shapes the War System and Visa Versa (New York: Cambridge, 2001), 363.

[88] As cited in Ivana Macek, “The Plight and Fate of Women During the Crisis in the Former Yugoslavia,” in S. Totten, ed., Plight and Fate of Women During and Following Genocide.

[89] Ibid.

[90] Trnoplje, Doboj, Hotel ‘Vilina Vlas’ in Visegrad, Miljevina near Foča, an oil refinery in Slavonski Brod, and Dretelj near Capljina are just some of the many places that served as rape camps.

[91] While women were targeted as part of an ethnic cleansing campaign, the only distinguishing marker between the two ‘races’ was religion. Hence, the word religion is used here. Siobhan K. Fisher, “Occupation of the Womb: Forced Impregnation as Genocide,” Duke Law Journal 46, No. 1 (October 1996) 91-133. P. 93.

[92] Kelly Askin, “Rape as a Weapon of War: Accountability for Sexual Violence in Conflict,” 46.

[93]International Court of Justice, “Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)” 22 March 1993, Available at:  http://www.icj-cij.org/presscom/index.php?pr=235&pt=1&p1=6&p2=1&PHPSESSID=123aa6dddc8540b398a5890387747d03 (Accessed April 29, 2010)

[94] S/RES/780 (1992) 6 October 1992. Available at:

 http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N92/484/40/IMG/N9248440.pdf

[95] Theodor Meron, War Crimes Law Comes of Age (Oxford: Oxford University Press, 1999), 205.

[96] S.C. Res. 827, UN Doc, S/827/1993 (1993). Available at: http://untreaty.un.org/cod/avl/ha/icty/icty.html.United Nations Charter: Chapter VII, Article 39, states: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” Available at: http://www.un.org/en/documents/charter/chapter7.shtml.

[97] Kelly Askin, “Rape as a Weapon of War: Accountability for Sexual Violence in Conflict,” 46.

[98] United Nations, Report on the Situation of Human Rights in Rwanda submitted by Mr. René Degni-Segui, Special Rapporteur of the Commission on Human Rights, under paragraph 20 of the resolution S-3/1 of 25 May 1994, E/CN.4/1996/68, January 29, 1996, 7.

[99] Human Rights Watch/FIDH interview, Rusatira commune, Butare prefecture, March 23, 1996 as cited in Human Rights Watch, Shattered Lives, 48.

[100] Ibid 60.

[101] Ibid 60.

[102] Ibid18.

[103] Amnesty International, “Rwanda: Marked for Death, Rape Survivors Living with HIV/AIDS in Rwanda,” 208.

[104] Dina Temple-Raston, Justice on the Grass: Three Rwandan Journalists, Their Trial for War Crimes, and a Nation’s Quest for Redemption (New York: Free Press, 2005),155.

[105] Human Rights Watch, Shattered Lives. 41.

[106] RESOLUTION 935 (1994) Adopted by the Security Council at its 3400^th meeting, on 1 July 1994. Available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N94/273/51/PDF/N9427351.pdf.

[107] RESOLUTION 955 (1994). Adopted by the Security Council at its 3453rd meeting, on 8 November 1994. Available at: http://www.ictr.org/ENGLISH/Resolutions/955e.htm.

[108] Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of the International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, UN Doc. S/25704, Annex (1993), reprinted in 32 I.L.M. 1192 (1993) [hereinafter ICTY Statute or Yugoslav Statute].

[109] Ibid Article 5(g).

[110] ICTR Statute Articles 3(g) and 4(e), respectively.

[111] Francoise Hampson, “Working Paper on the Criminalization, Investigation and Prosecution of Acts of Serious Sexual Violence”, UN Doc. E/CN.4/Sub.2/2004/12, 4.

[112] Prosecutor v. Tadic, Case No. IT-94-1 (Trial Chamber). Para 228.

[113] Prosecutor v. Tadic, Case No. IT-94-1 (Trial Chamber). Para. 154.

[114] Prosecutor v. Tadic, Case No. IT-94-1 (Trial Chamber). Para. 730.

[115] Prosecutor v. Tadic, Case No IT-94-1 (Opinion and Judgment). Paras. 667-690.

[116] Joanna Birenbaum, Lisa Wyndel, Rhonda Copelon & Jennifer Green, Prosecutor v. Akayesu: Amicus Brief Respecting the Amendment of the Indictment and Supplementation of the Evidence to Ensure the Prosecution of Rape and Sexual Violence Within the Competence of the ICTR, May 1997. Available at: http://www.iccwomen.org/publications/briefs/docs/Prosecutor_v_Akayesu_ICTR.pdf

[117] Kelly Askin, “A Decade Of The Development Of Gender Crimes In International Courts And Tribunals: 1993 to 2003 Decade of Gender Crimes,” Human Rights Brief 11 (2004), 17, http://www.wcl.american.edu/hrbrief/11/3askin.cfm (Accessed April 29, 2010)

[118] Kelly Askin, “Prosecuting Wartime Rape and other Gender-Related Crimes under International Law: Extraordinary Advances, Enduring Obstacles,” 319.

[119] Kelly Askin, “A Decade Of The Development Of Gender Crimes In International Courts And Tribunals: 1993 to 2003 Decade of Gender Crimes,” 17.

[120] The Trial Chamber likened its definition of rape to the definition of torture, as enumerated in the UN Convention Against Torture, which “does not catalogue specific acts in its definition of torture, focusing rather on the conceptual framework of state-sanctioned violence. The Tribunal finds this approach more useful in the context of international law. Like torture, rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person.” Prosecutor v. Akayesu, Case No. ICTR-96-4-T (Trial Chamber). para. 687.

[121] Prosecutor v. Akayesu, Case No. ICTR-96-4-T (Trial Chamber).  para. 688.

[122] Prosecutor v. Akayesu, Case No. ICTR-96-4-T (Opinion and Judgment). para. 686.

[123] ICTR Statute, Article 2(b).The Tribunal also found that rape and sexual violence could constitute genocide in Article 4(d) of the Statute: “imposing measures intended to prevent births within the group,” as long as it was committed with the requisite intentions.

Prosecutor v. Akayesu, Case No. IT-96-4-T (Judgment). para. 507.

[124] Prosecutor v. Akayesu, Case No. IT-96-4-T (Opinion and Judgment) para. 731.

[125] Prosecutor v. Akayesu, Case No. ICTR-96-4-T (Opinion and Judgment). para 731.

[126] The three defendants are: Alfred Musema, Sylvestre Gacumbitsi, and Mikaeli Muhimana.

[127] Kelly D. Askin, “Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status,” American Journal of International Law 97 (1999), 121.

[128] ICTY Press Release, CC/PIU/364-E
The Hague, 16 November 1998. Available at: http://www.icty.org/sid/7617. (Accessed April 9, 2010)

[129] Ibid.

[130] Prosecutor v. Mucic et al., Case No. IT-96-21 (Trial Chamber). Counts 38 and 39.

[131] Because this indictment was secret and redacted, and the trial testimony was conducted mostly in closed court, this case is difficult to describe accurately and completely.

[132] Nicole Hallet, “The Evolution of Gender Crimes in International Law” in S. Totten, ed., The Plight and Fate of Women During and Following Genocide.

[133] Wenona Mary Giles and Jennifer Hyndman, Sites of Violence: Gender and Conflict Zones (Berkeley: University of California Press, 2004), 310.

[134] The Hague: “Gang rape, torture and enslavement of Muslim women charged in ICTY's first indictment dealing specifically with sexual offences.” CC/PIO/093-E. http://www.icty.org/sid/7334. (Accessed April 29, 2010)

[135]
Marlise Simmons, “For First Time, Court Defines Rape as War Crime”, New York Times, June 28, 1996 at 1 (quoting Christian Chartier).

[136] The Hague: “Gang rape, torture and enslavement of Muslim women charged in ICTY's first indictment dealing specifically with sexual offences.”

[137] John Hagan, Justice in the Balkans (Chicago: University of Chicago Press, 2003), 190.

[138] Prosecutor v. Kunarac, IT-96-23 & IT-96-23/1-A (Opinion and Judgment). para. 450.

[139] http://www.iwpr.net/index.php?apc_state=hen&s=o&o=p=tri&l=EN&s=f&o=166707

[140] Barbara Ehrenreich, Prison Abuse; Feminism’s Assumptions Upended; A Uterus is Not a Substitute for a Conscience. Giving Women Positions of Power Wont Change Society by Itself, L.A. Times, 16 May 2006, M1.

[141] Coalition for the International Criminal Court, “History of the ICC.” http://www.iccnow.org/?mod=icchistory (Accessed April 29, 2010)

[142] Ibid.

[143] United Nations, “UN Fact Sheet, Common Question about the ICC,” United Nations Department of Public Information, http://www.un.org/News/facts/iccfact.htm (Accessed April 29, 2010)

[144] Coalition for the International Criminal Court, “History of the ICC.” http://www.iccnow.org/?mod=icchistory (Accessed April 29, 2010)

[145] John Terence O'Neill and Nicholas Rees, United Nations Peacekeeping in the Post-Cold War Era (New York: Routledge, 2005), 35.

[146] World Conference on Human Rights, Vienna Declaration and Programme of Action. Vienna, Austria: June 25, 1993, UN Doc. A/CONF/ 157/23. para. 38.

[147] United Nations, “Questions of Integrating the Rights of Women into the Human Rights Mechanisms of the UN and the Elimination of Violence Against Women (1994)” and “UN Declaration on the Elimination of Violence Against Women,” Resolution 104, 48^th Session, Supp. No. 49, Art. 4(c). UN Doc A/RES/48/104. (1993)

[148] Fourth World Conference on Women, Action for Equality, Development and Peace: Platform for Action. Beijing, China: September 1995, http://www.un.org/womenwatch/daw/beijing/platform/ (Accessed February 20, 2010)

[149] Drafted in 1969, Article 53 of the Vienna Convention on the Law of Treaties, a jus cogens norm is,  “a fundamental principle of international law considered to have acceptance among the international community as a whole. Once a norm achieves jus cogens status, all governments are bound by it regardless of whether they have signed the relevant treaties or conventions.”

[150] The only states to vote against the Rome Statute were Israel, Iraq, Libya, the United States, Qatar, China and Yemen. [Michael P. Sharf, “Results of the Rome Conference for an International Criminal Court,” American International Law Journal (August 1998)]

[151] See Appendix D for the relevant components of the Rome Statute.

[152] David S. Mitchell, “The Prohibition of Rape in International Law as a Norm of Jus Cogens: Clarifying the Doctrine,” Duke Journal of Comparative and International Law 15 (2005), 247.

[153] Barbara Bedont and Katherine Hall Martinez, “Ending Impunity for Gender Crimes under the International Criminal Court,” The Brown Journal of World Affairs 1 (1999), 65-85, http://www.iccwomen.org/publications/articles/docs/Ending_Impunity_for_Gender_Crimes_under_the_International_Criminal_Court.doc (Accessed April 29, 2010)

[154] David S. Mitchell, “The Prohibition of Rape in International Humanitarian Law,” 242.

[155] Kelly Askin, “Prosecuting Wartime Rape,” 349.

[156] The OTP announced its formal opening of an investigation into the situations: in Central African Republic (CAR) on May 22, 2007 (ICC-OTP-PR-20070522-220-En); in Darfur, Sudan on June 6, 2005. (ICC-OTP-0606-104-En); in North and South Kivu, Darfur on June 23, 2004. (ICC-OTP-20040623-59-EN); in Northern Uganda on Junly 29, 2004. (ICC-OTP-20040729-65-En); and in Kenya on November 26, 1998. (ICC-01/09-3).

[157] Ashley Dallman, “Prosecuting Conflict-Related Sexual Violence at the International Criminal Court,” SIPRI Insights on Peace and Security 1(2009), 1-16, http://books.sipri.org/files/insight/SIPRIInsight0901.pdf (Accessed April 29, 2010)

[158] Rhonda Copelon, “Surfacing Gender: Reconceptualizing Crimes Against Women in Time of War, in Beverly Allen, Mass Rape: The War Against Women in Bosnia-Herzegovina (Minneapolis: University of Minnesota Press, 1996), 197.

[159] Karen Engle, “Feminism and its (Dis)Contents: Criminalizing Wartime Rape in Bosnia and Herzegovina,” American Journal of International Law 4(2005), 779 https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&crawlid=1&doctype=cite&docid=99+A.J.I.L.+778&srctype=smi&srcid=3B15&key=6153dc1b53147182f20e27be819176ad (Accessed April 29, 2010)

[160] Kathleen M. Pratt & Laurel E. Fletcher, “Time for Justice: The Case for the International Prosecutions of Rape and Gender-Based Violence in the Former Yugoslavia,” Berkeley Women’s Law Journal 9 (1994), 80–82.

[161] Catherine Mackinnon, Are Women Human?: And Other International Dialogues (Boston: Harvard University Press, 2006), 159.

[162] Hallet, Nicole, “The Evolution of Gender Crimes in International Law,” In The Plight and Fate of Women During and Following Genocide. Edited by Samuel Totten. (New Jersey: Transaction Publishers, 2008)

[163] Catherine Mackinnon, “Rape, Genocide, and Women’s Rights,” Harvard Women’s Law Journal 17 (1994), 13.

[164] Human Rights Watch, Soldiers Who Rape, Commanders Who Condone (New York: Human Rights Watch, 2009), 14.

[165]  Ibid.

[166] Interview with Nicholas Kristof, New York Times Multimedia Collection, February 7, 2010.