Rape as a War Crime: The Position of International Law since World War II

• Author: Arpita Saha
• Position: Arpita Saha has a Certificate General Course in Intellectual Property from WIPO, Geneva, Switzerland and a Diploma in Cyber Crimes Prosecution and Defence (DCCPD) from Asian School of Cyber Laws (“ASCL”), Pune, India. B.Sc. LL.B. (Hons. at the National Law University of Jodhpur, India)
• Pages: 497-516

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I Introduction

In the arena of armed conflicts canvassing the globe, regardless of the internal or international character of the conflict, the truth that peeks at us time and again is that no one is safe. Worse yet, perpetrators do not consider any act off limits. And nowhere is this more apparent than it is in attacks committed against women. Uniformly, these crimes are becoming more blazoned and more horrific in their character and commission. It is almost as if the attackers are boldly defying and challenging the acceptable moral standards set by humankind and daring anyone to take action even as they threaten escalated inhumanity if outside forces intervene in any way or begin to record the crimes committed.

The connection between sexual conquest of women and war was considered natural and inevitable, an essential engine of war, rewarding soldiers and readying them to fight again.¹ The rape of women in prison was not considered torture but was usually noted as incidental to war,² a lesser abuse and even excused in law as a mere personal indiscretion, while official toleration of privately inflicted gender violence was ignored as a human rights issue. Rape was the fault of unchaste women or brushed under the rug, and thus raped women were consigned to invisibility, isolation, and shame.³ In the first recorded International Criminal Tribunal (1474), Peter von Hagenbatch⁴ was convicted and executed on a number of charges which included offences of rape.

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II War Crimes

Although an exact definition of this much-used expression is not possible, largely because the term refers to a variety of different transgressions, war crimes could be said to be the violation of national and international laws and customs regarding the resort to war and the conduct of war, and other activities associated with war. It has been accepted in international law that war crimes include at least three types of activity: crimes against peace, crimes against the laws and customs of war and crimes against humanity.

Article 6 of the August 1945 Charter for the Nuremberg Tribunal defined the three categories of crimes. Crimes against peace related to violations under jus ad bellum (laws governing the legitimacy of war) and were defined as “planning, preparation, initiation, or waging of a war of aggression, or a war in violation of international treaties, agreements, or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.”

Jus in bello (laws governing the conduct of war) thinking, on the other hand, drove the prosecution of crimes against the laws of war, which were defined in the Nuremberg Tribunal Charter as “murder, ill-treatment, or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder of ill- treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.”In addition, it was accepted that violations of the laws of war could include other acts, such as the use of banned weapons or the misuse of the flag of surrender, which were not explicitly mentioned in the Charter but were covered elsewhere.

Lastly, the Nuremberg Tribunal Charter defined crimes against humanity as “murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population before or during the war, or persecutions on political, racial or religious grounds.”As such, crimes against humanity were, like crimes against the laws of war, derived more from the jus in bello tradition. Since crimes against humanity could be committed “before or during the war,”and since “any civilian population”including that of the offending state was henceforth to be protected against such crimes, the Nuremberg and Tokyo tribunals tried a new and very broad category of offences. In this respect, the tribunals represented a serious challenge to the traditions Page 500 of state sovereignty and non-interference; previously, a state had been more or less entitled to treat its citizens as it wished. There was also the defence of ex post facto legislation to contend with; those on trial for crimes against humanity argued that these new developments in international law could not logically or fairly be applied to actions and events which had already taken place. However, the Principle of Non-Retroactivity had to give way to the overriding need for accountability for large scale atrocities.⁵

One of the most significant of the “Nuremberg Principles” ⁶ was that war crimes, as defined in the Charter of the Tribunal, were an offence against customary international law and as such were subject to universal jurisdiction. In other words, when a state found that it could not exercise domestic jurisdiction over the national of another country who chose not to present himself for trial, it was entitled to bring a prosecution under international law. Another principle was that private individuals could be tried under international law, and as criminals. Furthermore, it was not acceptable for an individual accused of committing war crimes to claim in his defense either that he had acted under superior orders or that he had acted out of military necessity being required to act in certain ways in order to carry out an otherwise just and legal military mission. War crimes, in these respects, were absolute and there could be no plea in mitigation.

III Prosecution History of “Rape”in the International Scenario

The International Criminal Tribunal for Rwanda (“ICTR”) Trial Chamber held in the Akayesu case⁷ that rape “is a form of aggression and … cannot be captured in a mechanical description of objects and body part,”which led it to the definition “a physical invasion of a sexual nature, committed on a person in circumstances which are coercive.” ⁸

A slight rift emerged in Tribunal Jurisprudence when in the Furundzija case,⁹ a subsequent decision of an International Criminal Tribunal for Former Yugoslavia ( “ICTY”) Trial Chamber concluded that greater clarity was needed, and defined the physical element as:¹⁰“The sexual penetration, however slight: (a) of the vagina or anusPage 501of the victim by the penis of the perpetrator or any other object used by the perpetrator; (b) of the mouth of the victim by the penis of the perpetrator; or (c) by coercion or force or threat of force against the victim or a third person.¹¹

The Kunarac case¹² Trial Chamber, however, found element (iii) more restrictive than that required by international law, and concluded that it should be interpreted to mean “where such sexual penetration occurs without the consent of the victim.” ¹³ The judgment emphasizes that “Consent for this purpose must be consent given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances” ¹⁴ and the principal focus should be whether there were serious violations of sexual anatomy.¹⁵ The mens rea of the crime of rape is the intent to effect a sexual penetration and the knowledge that it occurs without the consent of the victim.

A much wider scope of acts have been recognised as constituting sexual violencean act of oral penetration, and a slight penetration of any part of the body with a sexual organ, object or other body part, can constitute rape in international law.¹⁶

The case also provided a new definition of “outrages upon personal dignity.”A crime against personal dignity requires: That the accused intentionally committed or participated in an act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity, and That he knew that the act or omission could have that effect.

Additionally, Kunarac openly departed from the definition in the previous cases where there had to be “real or lasting suffering”for the crime to be an outrage upon personal dignity. The court ruled that just because a victim had recovered or was in the process of recovering from the assault did not mean that the crime had not occurred. An outrage against personal dignity did not require that there be a minimum time period for the duration of the effects.¹⁷

The definition reflects the brutality of rape, which is frequently perpetrated with sticks, guns, bottles or other objects to injure victims and is gender-neutral, recognising Page 502 that men and women alike are raped in situations of conflict. Of particular significance is an understanding that physical force alone is not the only method of securing control of a person in order to commit rape and other forms of sexual violence. The International Criminal Court( “ICC” ) Elements of Crimes definition falls in between the two definitions as given in Akayesu and Kunarac:

The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ or of the anal or genital opening of the victim with any object or any other part of the body.

In devolving the second component, the ICC followed the approach of Early Tribunal Jurisprudence:

The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such...