Trigger Warning: please note this piece includes discussion of sexual assault and sensitive details about gendered violence. Reader discretion is advised.
Historically, sexual violence has been a persistent element of warfare. However, despite its prevalence in global conflicts, the notion of rape as a war crime prosecutable under international law remains comparatively new. It was only after the formation of the International Criminal Tribunal for Former Yugoslavia (ICTY) and the International Tribunal for Rwanda (ICTR) in the mid-1990s that coherent jurisprudence regarding gendered violence was developed.
For several decades, rape was neither explicitly defined nor prosecuted by international law. The dismissal of sexual violence can be seen both in the case of the Tokyo War Crimes Tribunal and the Nuremberg Trials. Despite the enforced sexual slavery of the so-called “comfort women” under the Japanese Imperial Army, rape was deemed a peripheral issue and was prosecuted as an independent crime, rather than one inextricably linked with military tactics. Similarly, the term “rape” does not even feature in the Nuremberg Charter. This may be attributed to the prevailing perception of rape as a sensitive and private subject which should not be publicly prosecuted by the international legal system. The view that rape compromised a woman’s honour and reputation was therefore integral to the failure to successfully prosecute sexual violence in the first half of the 20th century.
It was only in 1949 with the codification of the landmark Geneva Convention that rape was first classified as a crime against humanity. This forged new standards of humanitarian treatment during war with Article 27 mandating that, “Women shall be especially protected. . . against rape, enforced prostitution, or any form of indecent assault”. It then took the help of the ICTY to adapt this legislation beyond theory and into the courtroom. The practical application of these laws instigated a re-evaluation of the entrenched attitudes towards sexual violence and its perception as an unavoidable element of war. Rape was instead proved to be a deliberate method of destruction, often employed within a wider policy of ethnic cleansing.
The ICTY and ICTR were established as courts of law to prosecute war crimes and violations of international humanitarian law during the Yugoslav conflicts of the 1990s and the Rwandan genocide in 1994 respectively. Sexual violence, such as widespread rape, forced impregnation, and other forms of sexual slavery, pervaded during both these conflicts and the grave suffering and torment experienced by women continues to shock the international community to this day. The centrality of rape to these conflicts made the prosecution of sexual violence imperative and required the formation of coherent jurisprudence regarding gender-based crimes.
The Yugoslav Wars were a series of conflicts triggered by severe ethnic, cultural and religious tensions. The Bosnian War, for example, became a “paradigmatic example of ethnic conflict” as Serbian forces employed the targeted use of rape and genocidal acts to cleanse the Bosnian population and gain control of their territory. It has been estimated that around 50-60,000 women were raped between 1992 to 1995, with approximately 35,000 held captive in “rape camps”. Rape was deliberately utilised as a method to destroy and humiliate communities; for example, Serbian soldiers mounted a collective effort to forcibly impregnate Bosnian women so they would birth Serbian children. As sexual crimes were a central tactic of ethnic cleansing efforts and formed a chief number of the atrocities committed during these conflicts, it became crucial for the ICTY to address them directly.
This prompted the ICTY to reject the view of systematic rape as a haphazard consequence. Instead, Article 5 of the ICTY Statute explicitly lists it as a crime against humanity and a calculated wartime strategy, therefore making it prosecutable under international law. Furthermore, the ICTY appointed Patricia Viseur Sellers as a Legal Advisor for Gender-related Crimes, creating a specialist approach towards such issues. This was a novel concept which enabled a greater understanding of gendered violence and therefore a more effective approach towards rape. A new legal framework was devised, one which signalled to victims of rape and sexual violence that, rather than being silenced, their experiences were being heard by the international humanitarian community.
As a result, the foundations were set for the re-evaluation of rape as a targeted act of physical and psychological brutality, rather than an unavoidable by-product of war. The ICTR later adapted and developed this framework, offering a ground-breaking turning point in international criminal law. In Rwanda, gendered violence took a leading role in efforts to annihilate the Tutsi ethnic group. Jean-Paul Akayesu, the mayor of the Rwandan Taba commune, incited mass murder and actively encouraged Hutu men to commit sadistic and brutal gang rapes. As Tutsi women were specifically targeted due to their ethnicity, the landmark Prosecutor v. Akayesu trial argued that rape could be prosecuted as genocide when committed with necessary intent. This was the first trial to annunciate a more progressive definition of rape as a systematic strategy of the extermination and destruction of a cultural group by causing mental and bodily harm. Article 3 of the ICTR Statute therefore established that targeted sexual violence can be prosecuted as forms of genocide.
Additionally, the creation of the International Criminal Court (ICC), through the Rome Statue in 1998, proclaimed rape and other forms of sexual violence as a war crime. These various statutes have set an important precedent for the future of international humanitarian law. They have resulted in the vast expansion of legal attention towards gender-based crimes, leading to a re-analysis of rape and more robust decision-making regarding such acts of violence.
Nevertheless, the obstacles and issues initially faced by the ICTY when prosecuting perpetrators of sexual violence continue to persist even today. This is due to specific challenges in international law, such as gender bias, lack of extensive experience in the prosecution of gender crimes, and the reluctance of witnesses to testify to sexual violence when compared to torture or murder. For example, the first prosecutor of the ICTY, Richard Goldstone, was astounded at the “gender bias that emerged in our international office” with the majority of male investigators remaining largely unconcerned with incidents of sexual violence and rejecting its categorisation as a crime. Similarly, one assistant prosecutor in the ICTY overheard other male investigators remarking, “So a bunch of guys got riled up after a day of war, what’s the big deal?” This demonstrates how instilled gender biases and cultural attitudes towards rape have by no means been eradicated, posing a challenge to those trying to address wartime sexual violence.
Moreover, in international law, sexual violence has wrongly been viewed as a lesser crime than systematic murder and is therefore less effectively prosecuted. For example, between 1996 and 2006, of the 3,700 witnesses called to the ICTY to give evidence, only 666 were women, despite the centrality of rape in ethnic cleansing methods during the Yugoslav conflicts. Prosecuting rape as a form of genocide is also challenging as, to constitute being classified as such, the acts have to be committed with the intent to annihilate a group. Finding sufficient proof to fulfil this requisite intent is therefore vital.
It would be wrong to conclude that legislative changes have meant rape is now a widely prosecuted war crime and is given the same recognition as indecent torture and mass murder. Unfortunately, gender-based violence remains one of the least condemned crimes in international humanitarian law.
Nonetheless, establishing rape as a war crime and form of genocide has been a monumental change in international law. Both the ICTY and the ICYR stressed the importance of ensuring these crimes were not left unprosecuted, leading rape to be defined as a tool of bodily and psychological devastation and dehumanisation. As such, sexual violence has been deemed worthy of legal action and criminal prosecution, helping to address the silence that has long surrounded these horrific acts. As Judge Pillage stated during the trial of Jean-Paul Akayesu, “From time immemorial, rape has been regarded as spoils of war . . . now it will be considered a war crime. We want to send out a strong signal that rape is no longer a trophy of war”. The international community must continue to administer justice and address mindsets that have led to the systematic use of rape in conflict. They can do so by bringing rape to the forefront of international humanitarian law and allowing it to be prosecuted as the heinous crime that it is, on par with other atrocities committed during war such as torture and murder.
If your or anyone you know is a victim of sexual assault, please contact the Rape Crisis Hotline at 08088010302 or the Fife Rape and Sexual Assault Centre at 01592642336.