Between Law and Reality: Preventing Sexual Violence in Conflict

By Jessica Schwarz

Women’s Rights Team

Global Human Rights Defence

September 2023

Introduction

Sexual violence remains prevalent in both peace and conflict. In fact, sexual violence is rarely a crime of passion, as we had previously believed, but is rather an aggressive act aiming to express power and dominance, especially as it stems from social inequality and oppressive patriarchal structures. While sexual violence happens most frequently to women and girls, men and boys are at times also victims. In recent conflicts around the world, from Ukraine to Ethiopia to Afghanistan, there have been disturbing reports of sexual violence to terrorise, degrade and humiliate the victims. Not only is the occurrence of conflict-related violence devastating for the victims due to its negative physical, psychological, social, and economic effects, but often also for the victims’ relatives and wider communities when it creates fear and destroys the social fabric. It is important to point out that women’s bodies are an important site of war and sexual violence has always existed throughout the history of war, but it has been an increasingly prominent feature of contemporary conflicts. Conflict-related sexual violence has often been considered as an inevitable by-product of armed conflict and as a crime committed by a small amount of renegade soldiers. However, that is no longer the case, as rape and sexual violence are recognised as an intentional weapon of war, and no longer committed in isolation. As such, perpetrators of sexual violence can be charged with war crimes, crimes against humanity, and acts of genocide. Even though international humanitarian law strongly prohibits sexual violence in armed conflicts and international human rights law prohibits it at all times, enforcement mechanisms are either fragile or non-existent, allowing for the continued occurrence of this crime. Despite the severity of punishment, obstacles remain in the investigation, prosecution, and adjudication of rape, which is indicative of the difficulties women face in accessing justice and their human rights.

Laws and Prosecution

Sexual violence in any form remains a pressing concern in international human rights law, and conflict-related sexual violence presents its own difficulties given the chaotic and disordered nature of war and conflict. Currently, there exist various declarations, recommendations, and resolutions addressing sexual violence in conflict. For example, Article 27(2) of the Geneva Convention relative to the Protection of Civilian Persons in Time of War states that “[w]omen shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault”. With the adoption of the Rome Statute in 1998, the founding treaty of the International Criminal Court (ICC), domestic laws on sexual violence were also broadened, as all States Parties to the ICC must legislate to? criminalise and prosecute acts mentioned in the Rome Statute. This means that rape can be prosecuted not only as a crime in and of itself, but also as international crimes such as war crimes, crimes against humanity, or genocide.

At the international level, basic laws aimed at preventing sexual violence in conflict are not in short supply; however, there exists no legally binding international instrument. Moreover, not all countries are States Parties to the ICC. Although conflict-related sexual violence has been defined as a war crime for decades now, rape is rarely prosecuted on either international or domestic levels. This is in large part due to rape laws being discriminatory towards victims, often women, who come forward to report rape. What is needed is a more conscious determination to enforce existing laws. By strengthening international law requirements in regards to sexual violence, it will force states to adopt more proactive measures to deal with sexual violence at a domestic level. Additionally, a monitoring body is needed to ensure adequate implementation of both international and domestic laws on sexual violence and investigation into reports of incidences.

As an international community, progress has certainly been made to hold perpetrators accountable for conflict-related sexual violence. The International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), as well as the ICC, have been instrumental in advancing international criminal justice for conflict-related sexual violence. Efforts at the national level have also increased, as courts in Bosnia-Herzegovina and Colombia have also had cases of conflict-related sexual violence. These efforts remain limited however, and states must do more to act on these violations, as they are required to do. Rape remains underreported and successful conviction is even more rare. There is no arguing against the fact that implementation of the provisions and prosecution of the crime need to be strengthened on both domestic and international levels to fill the gap between the law and the reality. This is especially relevant as efforts in prosecuting conflict-related sexual violence are most effective when national and international efforts are combined. It is only through both national and international willingness and efforts that an effective system at persecuting offenders of sexual violence can be created.

Another challenge in prosecuting sexual violence in conflict at an international level is that the international courts or tribunals do not have a unified definition for the crime of rape. The ICTR defined rape as “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive” during the case of Prosecutor v. Jean Paul Akayesu. For the case of Prosecutor v. Anto Furundzija, the ICTY used the definition of rape as?

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

The ICC combines elements from both definitions. The various legal definitions of rape leaves room open for the judiciary to interpret, which can be both an advantage and a hindrance.

Unfortunately, the reality is that the number of successful prosecutions of sexual violence in conflict are paltry compared to the scale of the crimes. The ICTY and ICTR have failed to meet expectations for establishing accountability for sexual violence despite their ground breaking beginnings. Prosecutions by the ICTY and the ICTR on sexual violence have also been hampered due to fear, as witnesses worry that their testimony would reveal their identities and put them and their families at risk. This shows that stigma surrounding sexual violence needs to be combatted and that programs to protect victims and witnesses are crucial at all stages. Undoubtedly, survivors need access to protection and services pertaining to sexual and reproductive health, mental health, and legal support. In the aftermath of conflict where sexual violence has taken place, it is likely that survivors and their communities are in need of support to overcome the trauma and stigma associated with sexual violence. These efforts to remove the stigma and prejudice against survivors of sexual violence are needed in all levels of society, which could also have a preventative effect on sexual violence from occurring in the first place. To see tangible change in society, we must sometimes start at the bottom with changing our perceptions on certain ideas, such as gender, violence and rape. From there, we then can change the norms of society and the institutions which embody them.

Additionally, this will require reforms in the judicial systems, rape laws, and enforcement agencies to better prosecute rape crimes and support and validate victims. Rape laws need to be updated to be based on consent rather than coercion or violence. Police reforms should consider how police services can better prevent and investigate crimes of sexual violence, provide support to the victims, and put in place effective measures to prevent and punish such abuses committed by police personnel. All these reform strategies should aim to be more gender-sensitive and more responsive to victims of sexual violence and be more effective in rape prosecutions.

Prevention

While prosecution is definitely a form of prevention, and obtaining justice for victims reinforces global commitments to peace and human rights, we need to go further to stop sexual violence occurring in the first place, be it in peace or wartimes. In fact, ICC jurisdiction and interventions have negligible, if not negative, effects on sexual violence (Broache and Kore, 2023). Additionally, international courts can only prosecute a small number of high-profile cases, leaving the rest to domestic authorities who often either lack capacity or willingness to address sexual violence. To put things in scale, the ICTR and ICTY are estimated to have cost $39 million and $35 million per conviction, respectively (Cohen, 2023). While these international courts do support domestic prosecutions and judiciary systems in prosecuting international crimes, more needs to be done to engage with domestic authorities and other relevant bodies and organisations, such as non-governmental organisations, to eliminate impunity and sexual violence from multiple angles. International prosecutions of sexual violence in conflict are certainly important, but they alone will not eliminate the phenomenon as that will require changes to the norms and ideas around gender in society.?

The fact that sexual violence is not present in all conflicts reveals that it is not an inevitable part of war, even in some of the deadliest conflicts, such as the Israel Palestine conflict and war in Sri Lanka. At the core of it, rape occurs due to the inequalities between men and women (Skjelsb?k, 2012, 163). Indeed, sexual violence is not created by conflict. Certainly, the causes of conflict-related sexual violence, both direct and indirect, are numerous, from a climate of impunity, the absence of clear orders and instructions prohibiting sexual violence, the increased vulnerability of civilians, and the destruction of community ties all play a role in the occurrence of sexual violence during conflict, but whether in war and peace, sexual violence is driven by gender norms that socially sanction dominance of men over women. The violence and discrimination experienced by women during peacetime is exacerbated by the outbreak of conflict. Coupling ideas of female inferiority, often viewing women as male property or sexual objects, and ideas of violence and domination prevalent during conflicts with a breakdown of social order and chaos, there is a greater likelihood of violence of all kinds against women, but especially sexual violence, as well as a greater chance of impunity.

Wood (2006) argued that the conflicts in Peru and Sri Lanka had low sexual violence against civilians due to an ideology preventing sexual violence, combined with strong leadership and harsh punishment. Groups with strong internal discipline and leaders who punish violations of norms are less likely to perpetrate sexual violence, indicating that the role of social norms and views on gender equality are of great importance (Cohen, 2023). As Gloria Steinem states,

[i]f you’re going to get groups of men to risk their humanity, health, and lives in wars of offense, the traditional way is […] to addict them to the ‘cult of masculinity’. You have to convince them they’re not ‘real men’ unless they kill and conquer (Steinem, 2012).

It is precisely harmful gender norms that grant some men permission to commit heinous acts of violence against women. By changing these norms that perpetuate inequality and violence, we tackle the root of violence against women, thereby mitigating the occurrence of sexual violence in conflict as well. This then feeds into the social dynamics, leadership, and ideology of armed groups during conflict, and the outcome of sexual violence in conflict. As seen with certain armed groups, the prevention and prohibition of sexual violence is possible. In order to prevent sexual violence, several factors need to be addressed: changing norms, including the perception and treatment of survivors post-conflict in their communities; improving infrastructures and reporting of incidences; ending impunity; protecting witnesses; ensuring accountability and responsibility of commanders. To truly end violence against women, we must end long established patterns of male violence and social acceptance of violence against women.

Conclusion

To conclude, rape and other sexual crimes constitute a grave violation of human rights, such as an individual’s rights to bodily integrity and sexual autonomy, life, physical and mental health, personal security, freedom, and equality within the family and before the law regardless of gender and gender identity, amongst other human rights. It is the state’s responsibility to protect our human rights by preventing and prosecuting sexual violence, whether conflict-related or not. To do so, the state authority must have appropriate legislation on rape and other forms of sexual violence in line with the international human rights framework, adequately investigate allegations of rape, prosecute effectively according to the laws, and provide necessary support to survivors in the process. Certainly, addressing the complex issue of sexual violence and conflict-related sexual violence is a challenging task, but one that must be undertaken nevertheless.

Bibliography

Broache, M. P. and Kore, J. (2023) Can the International Criminal Court prevent sexual violence in armed conflict?, Journal of Human Rights, 22:1, 78-93

Cohen D. K. (2023, 14 March) Going Beyond Accountability to Deter Conflict-Related Sexual Violence, United States Institute of Peace, Retrieved on 22 August 2023 from: https://www.usip.org/publications/2023/03/going-beyond-accountability-deter-conflict-related-sexual-violence

ICTR (2001) Prosecutor v. Jean-Paul Akayesu, Judgment, Case No. ICTR-96-4-A, 1 June 2001 Judgment (Akayesu Appeals Judgment)

ICTY (1998) Prosecutor v. Anto Furundzija, Judgment, Case No. IT-95-17/1-T, 10 December 1998 Judgment (Trial Chamber Judgment)

Skjelsb?k, I. (2001) Sexual Violence and War: Mapping Out a Complex Relationship, Journal of International Relations, 7(2), 211-237

Steinem, G. (2012) Gloria Steinem on Rape in War, Its Causes, and How to Stop It: Interview by Lauren Wolfe, The Atlantic, Retrieved on 22 August 2023 from: https://www.theatlantic.com/international/archive/2012/02/gloria-steinem-on-rape-in-war-its-causes-and-how-to-stop-it/252470/#.TzMnh-mxjkg.twitter

Wood, E. J. (2006) Variation in Sexual Violence during War. Politics & Society, 34(3), 307–342