Some legal aspects of war and sexual violence

'WAR' - one of the most pregnant of words and one of the darkest! How much do we really know of what goes on in the bleak corners of distant conflicts?

Wilfred Owen came close to describing its brutality. And yet, no words, no images, no sounds will ever come close to veritably depicting all that victims of war, whether combatants or civilians, experience.

Much is left unsaid, whether it is for reasons of fear, culture, taboo, etc. Should it be said? To the benefit and to the detriment of whom? Should someone's suffering be made public?

International human rights law responds with a determined 'yes'. The world needs to know when the unacceptable takes place, as we are all members of the same international community, and the well-being of one fellow human being, no matter how far or close, deserves the respect and the protection of and from others. Justice not impunity should reign.

One of the realities and consequences of war is the practice, against the most vulnerable groups which includes women and children, of rape and other forms of sexual violence.

Women are brutally raped, gang raped, used as sexual slaves and sexually degraded and humiliated in various manners, leaving them traumatised, ousted from their families and communities, and susceptible to serious medical consequences, including the infection of HIV/Aids, inter alia.

In manifestation of the gravity of all this, the words of Emina, a young Muslim woman in Bosnia-Herzegovina, can remind us of the horrors caused by some Serb soldiers in the genocidal rape committed against the Muslim Bosnian-Herzegovinans: "Only leave me my honour... I will forgive you my death!"

Rape, as a grave violation of physical and mental integrity, has the potential to profoundly debilitate, to render the human being homeless in his/her own body, to create helplessness and to prevent births.

Authors and international criminal law exponents have entitled their books in various ways to express their concern on such gravity. Titles range from Making Female Bodies the Battlefield to Shattered Lives.

Men also fall victims to rape. It is, however, a historical fact that the majority of cases of sexual violence are targeted against women. This is because, among other reasons, it weakens the enemy.

This because of the traumatic effect that the practice of sexual violence against women also has on both the combatant and civilian males. Human Rights Watch referred to the phenomenon of the widespread committal of rape and other forms of sexual violence in the form of ethnic cleansing during conflict as a weapon of war.

The practice of rape and other forms of sexual violence constitutes a violation of international human rights law, which brings with it international criminal responsibility to both individuals and possibly also to states.

May international human rights and international criminal and humanitarian laws serve as a means to, if not bringing an end to, deterring the abhorrent practice of sexual violence against women and men in conflict situations?

International law itself does not provide a definition of rape. Rape was, however, defined by the International Criminal Tribunal for Rwanda (ICTR) as a physical invasion of a sexual nature committed on a person under circumstances which are coercive (Akayesu, September 2, 1998; a decision upheld by the International Criminal Tribunal for the Former Yugoslavia [ICTY] in Delalic, November 16, 1998).

The ICTY (Furundzija case, December 10, 1998) developed the definition of rape and accepted the following objective criteria:

Sexual penetration, however slight: 1. of the vagina, or anus of the victim by the penis of the perpetrator, or any other object used by the perpetrator; 2. of the mouth of the victim by the penis of the perpetrator; or 3. by coercion, or force, or threat of force against the victim or a third person.

Under the Statute of the newly established Permanent International Criminal Court (ICC), to which Convention, incidentally, Malta has ratified by Act XXIV of 2002 (Chapter 452 of the Laws of Malta), in "other forms of sexual violence", the article prohibiting 'crimes against humanity', include rape, sexual slavery, enforced prostitution, forced pregnancy, forced sterilisation, or other forms of sexual violence of comparable gravity, whether during war or peace, if of a widespread or systematic nature.

Rape, nevertheless, remains the most heinous of sexual crimes. As was held by the ICTY (Furundzija), "international law, by specifically prohibiting rape as well as, in general terms, other forms of sexual abuse, regards rape as the most serious manifestation of sexual assault".

The European Court of Human Rights entrenched the view, which had already been expressed by the Inter-American Commission on Human Rights and Amnesty International, among others, that rape constitutes a human rights violation when committed by a person in authority.

This due to the fact that it constitutes torture (Aydin v Turkey September 25, 1997). In this sense, it does not only bring with it state responsibility, but also requires the offending state to prosecute the individual concerned.

One single act of rape, therefore, when committed by, or with the acquiescence of a public official, is categorically a violation of the right to be free from torture and any other form of inhuman, degrading treatment or cruel punishment.

This position was also reiterated by the various United Nations human rights bodies, including the United Nations Special Rapporteur on Torture.

On a broader scale - under the ICTY and ICTR, when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds - rape constitutes a crime against humanity.

It is also a war crime when committed during an international armed conflict according to Article 27 of the Fourth Geneva Convention of 1949, and when committed during an internal armed conflict according to common article 3 of the Geneva Conventions, and as was also declared by the ICTY in the case of Furundzija.

Sexual violence committed against men was also declared to be a war crime by the ICTY in the case against Dusco Tadic (July 15, 1999). When committed with the intent to destroy in whole or in part a national, ethnic, racial or religious group, it constitutes genocide, as was also declared by the ICTR in the case against Akayesu (September 2, 1998).

In all three cases, rape brings with it international criminal responsibility, rendering the perpetrators of such a crime liable to criminal prosecution, wherever they are found and whoever they acted against, since universal jurisdiction applies to all the above mentioned crimes.

There is also growing consensus among the international community that rape may also entail state criminal responsibility, as it may be considered to be a grave breach under Article 147 of the Fourth Geneva Convention of 1949.

There is also no doubt - due to the international consensus regarding rape and other forms of sexual violence as constituting grave crimes under international law - that any newly established ad hoc international criminal tribunal will also provide for rape as falling under the above-mentioned three crimes.

The Statute of the ICC (Court sits in The Hague) also clearly established international criminal responsibility for the perpetration of rape and other forms of sexual violence.

The legal basis is thus existent, though still in its embryonic stages. One can, therefore, at least feel some form of consolation that responsible actors of such abominable acts will not find peace, since they will immediately, on so acting, start living the nightmare of having a national or an international arrest warrant pursuing them wherever they go.

Why is it, then, that rape and other forms of sexual violence continue to be practiced, both in times of peace and on a more horrific and widespread manner in times of war?

There are various reasons for this, which include:

1. in times of war especially, all forms of structure of law, order and accountability fall, thus rendering impunity widespread;

2. rape is not defined in the same way by municipal (national) laws, and when it is broadly defined, it could include a multitude of sexual activities, which fall short of carnal knowledge, leading to a counterproductive effect wherein its gravity is diminished;

3. it is a crime committed by an act over which huge ideological splits exist;

4. it has always been one of the most under-reported crimes, and when systematically perpetrated, its widespread nature has been concealed; and

5. powerful leaders, the majority of which are usually male, have done very little to prevent and punish sex-crimes.

However, no matter how positive the prosecution of such criminals may be, the suffering that the concerned victims go through is better pre-empted than cured.

We reiterate that education and information are the strongest tools for human rights promotion and protection. Education may serve to ensure that prosecution will not be necessary as a deterrent.

As in all human rights arguments we have propounded, it is once again here reiterated that existing legal norms are not enough, despite being a very strong potential for human rights promotion and protection. They must be constructively exploited if they are to be effective.

Of course, if the international community were more committed to prohibiting wars, especially unnecessary and unfounded ones, from occuring, this discussion would not even be necessary in the first place!

Dr Christopher Soler and Dr Rachel Balzan