Wartime sexual violence
Wartime sexual violence is rape or other forms of sexual violence committed by combatants during an armed conflict, war, or military occupation often as spoils of war, but sometimes, particularly in ethnic conflict, the phenomenon has broader sociological motives. Wartime sexual violence may also include gang rape and rape with objects. It is distinguished from sexual harassment, sexual assaults and rape committed amongst troops in military service.
During war and armed conflict, rape is frequently used as a means of psychological warfare in order to humiliate and terrorize the enemy. Wartime sexual violence may occur in a variety of situations, including institutionalized sexual slavery, wartime sexual violence associated with specific battles or massacres, as well as individual or isolated acts of sexual violence.
Rape can also be recognized as genocide when it is committed with the intent to destroy, in whole or in part, a targeted group. International legal instruments for prosecuting perpetrators of genocide were developed in the 1990s, and the Akayesu case of the International Criminal Tribunal for Rwanda, between the International Criminal Tribunal for Yugoslavia and itself, which themselves were "pivotal judicial bodies the larger framework of transitional justice", was "widely lauded for its historical precedent in successfully prosecuting rape as an instrument of genocide".
The Rome Statute of the International Criminal Court classifies rape, sexual slavery, enforced prostitution, and forced pregnancy as crimes against humanity and as war crimes.
Definition
There is no consensus definition of wartime sexual violence, as there is variance in what forms of violence are included in the definition and variance in which violence is considered conflict-related. The terms rape, sexual assault and sexual violence are frequently used interchangeably. The Explanatory Note of the Rome Statute, which binds the International Criminal Court, defines rape as follows:and
The concept of "invasion" is intended to be broad enough to be gender-neutral and the definition is understood to include situations where the victim may be incapable of giving genuine consent if affected by natural, induced or age-related incapacity.
A prominent data-set on conflict-related sexual violence, Sexual Violence in Armed Conflict, builds on the ICC definition and covers seven forms of violence: " rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilization/abortion, sexual mutilation, and sexual torture". The data-set defines conflict-related sexual violence as the sexual violence committed by "armed actors during periods of conflict or immediately postconflict", thus excluding sexual violence by civilians. More expansive definitions may define wartime sexual violence as being committed even by civilians if the conflict creates a sense of impunity.
In 2009, the UN established a mandate and adopted SCR 1888 resolution 2009 to tackle conflict-related sexual violence as a peace and security issue and related violations. CRSV refers to rape, sexual slavery, forced prostitution, forced pregnancy, forced abortion, enforced sterilization, forced marriage, trafficking in persons when committed in situations of conflict for the purpose of sexual violence/exploitation and any other form of sexual violence of comparable gravity perpetrated against women, men, girls or boys that is directly or indirectly linked to a conflict.
History of laws against sexual assault during war
Prosecution of rapists in war crime tribunals was rare prior to the late 1990s. Kelly Dawn Askin, the senior legal officer at the Open Society Foundation, argued that the lack of explicit recognition of war rape in international law or applicable humanitarian law can not be used as a defense by a perpetrator of war rape. Laws and customs of war prohibit offenses such as "inhuman treatment" or "indecent assaults", adding to this domestic military codes and domestic civil codes may make sexual assault a crime.In 1999, humanitarian law concerned the maltreatment of civilians and "any devastation not justified by military necessity".
Pre-modern Europe
In the Middle Ages, the Catholic Church sought to prevent rape during feudal warfare through the institution of Peace and Truce of God which discouraged soldiers from attacking women and civilians in general and through the propagation of a Christianized version of the chivalric ideal of a knight who protected innocents and did not engage in lawlessness.In 1159, John of Salisbury wrote Policraticus in an attempt to regulate the conduct of armies engaged in "justifiable" wars. Salisbury believed that acts of theft and "rapine" should receive the most severe punishment, but also believed that obeying a superior's commands whether legal or illegal, moral or immoral, was the ultimate duty of the soldier.
Rape and pillage were prohibited by some army codes as early as the 14th century because of the tendency to create strong hostility in civilian populations and the detrimental effects to army discipline. Despite early efforts to systematize the laws of war, rape continued to be a problem in the 15th and 16th centuries. The influential writer Francisco de Vitoria stood for a gradual emergence of the notion that glory or conquest were not necessarily acceptable reasons to start a war. The jurist Alberico Gentili insisted that all women, including female combatants, should be spared from sexual assault in wartime.
It is suggested that one reason for the prevalence of war rape was that at the time, military circles supported the notion that all persons, including women and children, were still the enemy, with the belligerent having conquering rights over them. In the late Middle Ages, the laws of war even considered war rape as an indication of a man's success in the battlefield and "opportunities to rape and loot were among the few advantages open to ... soldiers, who were paid with great irregularity by their leaders ... triumph over women by rape became a way to measure victory, part of a soldier's proof of masculinity and success, a tangible reward for services rendered ... an actual reward of war".
During this period in history, war rape took place not necessarily as a conscious effort of war to terrorize the enemy, but rather as earned compensation for winning a war. There is little evidence to suggest that superiors regularly ordered subordinates to commit acts of rape. Throughout this period of history, war became more regulated, specific, and regimented. The first formal prosecution for war crimes did not take place until the late Middle Ages.
Early modern Europe
, considered the father of the law of nations and the first to conduct a comprehensive work on systematizing the international laws of war, De jure belli ac pacis, concluded that rape "should not go unpunished in war any more than in peace", rejecting the view that it is permissible to inflict damage or harm "on anything belonging to the enemy":Emmerich van Vattel emerged as an influential figure when he pleaded for the immunity of civilians against the ravages of war, considering men and women civilians as non-combatants.
In the late 18th century and 19th century, treaties and war codes started to include vague provisions for the protection of women: The Treaty of Amity and Commerce specified that in case of war "women and children ... shall not be molested in their persons". Article 20 of the Order No. 20, a supplement to the US Rules and Articles of war, listed the following as severely punishable "Assassination, murder, malicious stabbing or maiming, rape". The Declaration of Brussels stated that the "honours and rights of the family ... should be respected".
In the 19th century, the treatment of soldiers, prisoners, the wounded, and civilians improved when core elements of the laws of war were put in place by nations who were signatories to treaties. However, while the customs of war mandated more humane treatment of soldiers and civilians, new weapons and advanced technology increased destruction and altered the methods of war.
The Lieber Code was the first codification of the international customary laws of land war and an important step towards humanitarian law. The Lieber Code emphasized protection of civilians and stated that "all rape ... prohibited under the penalty of death", which was the first prohibition of rape in customary humanitarian law.
20th century
During the 20th century, international legal procedures attempted to prevent and prosecute perpetrators of war rape. Similarly, individual states developed laws pertaining to war rape's victims and perpetrators.The prohibition of rape was excluded from the Geneva Conventions and was deliberately left vague by the Hague Conventions. Article 46 of the Hague Conventions of 1899 and 1907 regarding Land Warfare required only that "amily honour and rights the lives of persons ... must be respected" by the occupying powers.
After World War I, the Commission of Responsibilities, set up in 1919 to examine the atrocities committed by the German Empire and the other Central Powers during the war, found substantial evidence of sexual violence and subsequently included rape and forced prostitution among the violations of the laws and customs of war. Efforts to prosecute failed.
World War II
The Nuremberg and Tokyo Tribunals became the first international courts of real significance. The victorious Allied powers established them in 1945 and 1946 respectively to prosecute the major war criminals of the European Axis powers and of Japan for crimes against peace, war crimes, and crimes against humanity. The possibility of prosecuting sexual violence as a war crime was present because of the recognition of war rape as serious violation of the laws of war in the Hague Conventions of 1899 and 1907 assertion that "amily honour and rights the lives of persons ... must be respected."While the Nuremberg Tribunals failed to charge Nazi war criminals with rape, witnesses testified about it occurring. Several of the testimonies of victims of sexual violence during the Holocaust were by Jewish men and women. Previous war crimes trials had prosecuted for sex crimes, hence war rape could have been prosecuted under customary law and/or under the IMT Charter's Article 6: "abduction of the civilian population ... into slavery and for other purposes" and "abduction unjustified by military necessity". Similarly, it would have been possible to prosecute war rape as crime against humanity under Article 6 of the Nuremberg Charter: "other inhumane acts" and "enslavement". However, notwithstanding evidence of sexual violence in Europe during World War II, a lack of will led to rape and sexual violence not being prosecuted at the Nuremberg Tribunals.
According to at least 34 records, 140 European women were forced to prostitution during the German occupation of their countries, along with concentration camp female prisoners. In many cases, girls and women were abducted from the streets of occupied cities during German patrols.
The International Military Tribunal for the Far East did convict Japanese officers "of failing to prevent rape" in the Nanjing Massacre. The tribunal, in Tokyo, prosecuted cases of sexual violence and war rape as war crimes under the wording "inhumane treatment", "ill-treatment", and "failure to respect family honour and rights". According to the prosecution, in excess of 20,000 women and girls were raped during the first weeks of the Japanese occupation of the Chinese city of Nanjing. The War Crimes Tribunal in Tokyo included accounts of sexual violence crimes in the trial testimonies as well as public records. On a national level, a commander of the 14th Area Army, General Yamashita, was convicted for, inter alia, "rape under his command". Some 35 Dutch comfort women brought a successful case before the Batavia Military Tribunal in 1948.
It is well known that brutal mass rapes were committed against German women; both during and after World War II. According to some estimates, over 100,000 women were raped by Soviet soldiers in Berlin both during and after the Battle of Berlin.
The phrase "from eight to 80" was used to describe potential victims of Soviet mass-rape. "Red Army soldiers don't believe in 'individual liaisons' with German women", wrote the playwright Zakhar Agranenko in his diary when he was serving as an officer of the marine infantry in East Prussia. "Nine, ten, twelve men at a time – they rape them on a collective basis." Rape was regarded by men in the Soviet army as a well-deserved form of punishment, whether the civilians had anything to do with the war or not. In total, historians estimate that over two million German women were raped.
Rapes were also committed against allied nationals during the war; for example, Marocchinate is a term which is applied to the mass rape and killings of Italian civilians by the Moroccan Goumiers, colonial troops of the French Expeditionary Corps, commanded by General Alphonse Juin, after the Battle of Monte Cassino in Italy during World War II. It was estimated that 2,000 women and 600 men were raped and most of these crimes took place in the rural area between Naples and Rome.
Following World War II, the judges at the Nuremberg trials in 1946 stated that the laws of war only applied when committed between two opposing sides, not between allies, meaning such acts were not war crimes.