Rape not only can damage the physical health of the victim due to the fierce insertion of foreign objects as well as the transmission of diseases including HIV/AIDS. It is also a form of terror that has serious mental- health repercussions especially if counselling is not available. While the vast majority of rape victims in conflict situations are women; men, boys, and girls have also been targets of sexual violence.
In the face of such brutal aggression, when we arrive as witnesses after the fact, what can the law say? Does it have a role to play in ameliorating the situation? Does it have the right to propose actions or sanctions? Or, is any legal reaction just an invention to soothe our own emotional trauma?
International humanitarian law is the branch of public international law that sets out the minimum legal obligations in times of war. It operates only in cases of international armed conflict — that is when there is a conflict between two states, or in non-international armed conflicts when a state and a non-state armed group are involved in an armed conflict. As Éric David stated, the rules of IHL can be simply summed up as “do not attack non-combatants, attack combatants only by legal means, treat persons in your power humanely, and protect victims.” The complexity of international humanitarian law lies in the factual conditions surrounding the conflict in question: who are the combatants and non-combatants? What means and methods of warfare are being used to attack the combatants? When is treatment inhumane? How are civilians being protected?
International humanitarian law derives its legitimacy from common human values and universal adoption. In his master’s thesis, Louis Lafrance argued international humanitarian law is the product of “an intuitive force and can even be said to be a requirement of the human condition, which causes killing, torture, slavery, and unfair judgement to arouse repulsion not only among the vast majority of intellectuals but among ordinary people as well. Whether attributed to reason, universal harmony or the divine origin of mankind, sound assertions are made about human nature.”
Wherever there are people, there is an agreed set of rules that we agree to live by. In this way, humanitarian law is a codification of accepted customs and customary law during times of armed conflict. Just because in some cases belligerents choose to ignore these codes and customs does not mean they are without value. In the face of war, humanitarian law is perhaps one of the most poignant examples of law attempting to provide dignity in cases where killing is a legitimate and lawful activity.
In addition to the general protection of civilians in situations of armed conflict, international humanitarian law affords specific protections for women. For example, under Article 8(a) of Additional Protocol I, maternity cases get priority for medical assistance over the wounded and sick irrespective of whether military personnel or civilian. Article 14 of the Fourth Geneva Convention recognizes expectant mothers and mothers of children under seven as a specific category that may require special protection along with the wounded, sick, and children under 15. Under Article 27, female civilians must be protected against any attack on their honour, including rape, forced prostitution, or any form of indecent assault.
In the last 20 years, under another branch of public international law — international criminal law — decisions by the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda enabled prosecutions of rape in situations of armed conflict and recognized that rape can be a crime against humanity and an instrument of genocide. In 1998, the Rome Statute of the International Criminal Court codified rape as an international crime and included other crimes against women, such as sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and sexual violence.
Starting in 2000 with the United Nations Security Council Resolution 1325, there has been a series of Security Council resolutions dealing with women, peace, and security. UNSCR 1325 is the most broad and calls for the participation of women in peace processes; gender training in peacekeeping operations; protection of women and girls and respect for their rights; and gender mainstreaming in the reporting and implementation systems of the UN relating to conflict, peace and security.
In 2008, UNSCR 1820 explicitly recognized sexual violence as a tactic of war and called for the training and discipline of members of the military in relation to sexual violence. The next year, UNSCR 1888 called on the UN secretary general to develop a proposal to ensure monitoring and reporting of sexual violence in conflict and post-conflict situations. It also called on the secretary general to establish the mandate of the Special Representative on Sexual Violence in Conflict. Margot Wallström was appointed in 2010. UNSCR 1889, in 2009, focused on data collection and analysis. Finally, in 2010, UNSCR 1960 focused on the creation of institutional tools to combat impunity.
As disturbing as the brutality of the stories of survivors is, there has been criticism of the approach taken by some academics, activists, NGOs, state, and international actors that focus their “war and gender” lens on the rape of women as a weapon of war. There are concerns that a continual framing of rape and violence against women in situations of conflict allows only a one-dimensional view of women and men who are caught in these situations — women as victims and men as perpetrators.
As long as women are only seen and dealt with as victims, they will not be allowed to participate in decision-making and other activities to protect women and children and move towards peace in situations of conflict. Some see the Security Council resolutions that followed 1325 as watering it down and marginalizing the voices of women and the contributions they can make towards their own self-protection and the strengthening of their communities through the shaping of peace.
In January of this year, in an open letter to member states of the Security Council regarding UNSCR 1960 and 1325, the Global Network of Women Peacebuilders highlighted the fact that UNSCR 1960 was adopted without the consultation of women on the ground. The letter goes on to say:
“We cannot pluck rape out of war for our attention and let the war go on. We must be passionate about preventing and stopping wars, and about recognizing the equal right of women to seats at all tables where decisions are made. Rape will be reduced when violence is reduced and when women are taken more seriously and treated equally in all decisions on the fate of humanity.”
As unfashionable as peace may be to a cynical public, and as disruptive as peace may be for the current economic and political power players — I think they have a point.