Rape as a War Crime

David J. Scheffer
Ambassador-at-Large for War Crimes Issues Remarks, Fordham University New York, October 29, 1999

As we prepare to embark on a new millennium and chart a course toward a stronger world built on peace, security and a healthy respect for the rule of law, it is appropriate that we reflect and take stock of where we are in the advancement of international humanitarian law.

As Ambassador at Large for War Crimes Issues, I have to focus on conflicts and related atrocities across the globe. My work requires me to meet with victims and survivors who are traumatized, demoralized, and weak. As a result I have traveled to many war zones and have seen the abominable effects of war be it in Sudan or Kosovo, Sierra Leone or Cambodia. An integral component of each crisis is the systematic attack against a civilian population.

Canvassing the globe, what becomes clear, regardless of the internal or international, character of the conflict, 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. But fortunately, the tide is turning.

In the past, as many in this room are all too aware, rape and acts of sexual violence against women went unrecognized and unchallenged. In many conflicts, some soldiers, perpetrators, and world leaders viewed rape as a fringe benefit of war, an unspoken perk. While some observers have dismissed incidents of rape, with the reason that men, or as so often seen, boys, simply get out of hand or out of control after a rough day on the battlefield, recent history has shown that organized, systematic patterns of rape are a component of deliberate ethnic cleansing. The world community, on occasion, ignored the truth that these acts are not simply acts of recklessness, but acts of torture.

Fortunately, thanks in large part to the noble effort of many in this room, today we have a new weapon: THE LAW. Specifically defined prohibitions against rape evolved against the backdrop of its all too frequent use as a weapon of war. Despite the fact that the prohibition against rape was not specifically identified, what many consider to be the first recorded international criminal tribunal, held in 1474, convicted Peter von Hagenbach and ordered his execution on a number of offenses which included rape.

The crime of rape has long existed under customary international law. The Leiber Code listed rape as a specific offense, and made it a capital offense. The Hague Conventions, World War II prosecutions, and the Geneva Conventions all reinforced the prohibitions on rape and other sexual violence. Although it was not codified in their Charter, some evidence of sexual violence was presented before the International Military Tribunals, after World War II, most notably, before the International Military Tribunal for the Far East where rape was first specifically referenced in the judgments. Unfortunately, in the Tokyo Trials, acts of sexual violence and rape were not placed at a level that would allow them to stand alone. The Tribunal and its lawyers, while deserving ample credit for presenting the evidence and recognizing the atrociousness of the offenses committed upon women in places such as Nanking, Borneo, the Philippines, and French Indo-China, lumped the acts of sexual violence under the residual umbrella of Crimes Against Humanity--Inhumane Treatment.

This resulted in a blur. Rape was lost in the barbarous mass of the overall crimes. It became a passing reference in a tale of horror. In the end, no one knew whether rape in time of conflict could be prosecuted as a separate substantive crime standing on its own merits under international law. It was left to scholars and interested people like you to opine and speculate. The only solace arose from the Allied Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, which specifically mentioned rape in its charter.

But today, we find ourselves in an enormously stronger position to investigate, document, and prosecute rape and other forms of sexual violence. Rape and sexual violence now have a firm foothold as specifically enumerated offenses under international humanitarian law. This cementing began in 1993 and 1994 after rape, and sexual violence, was specifically codified for the first time as a recognizable and independent crime within the statutes of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR). These two historic international instruments are now the foundation upon which crimes of rape and sexual violence are punished.

As a result, there is now solid caselaw holding that rape and sexual violence are a form of genocide. The ICTY and ICTR cases have also reinforced the legal basis for arguing that rape and sexual violence are individual crimes against humanity, and also constitute violations of the laws and customs of war. This jurisprudence handed down from both ad hoc tribunals has forever altered the landscape of criminal prosecution and affected the scope of consequences that any potential perpetrators must consider.

And it all started quietly within the International Criminal Tribunal for Rwanda in the case of the Prosecutor v. Jean-Paul Akayesu. In that case, for the first time, rape and acts of sexual violence were put on equal footing with all other offenses. The Chamber in its progressive decision captured the essence of the crime holding that 3like torture, rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of the person. Like torture, rape is a violation of personal dignity, and ...in fact constitutes torture when it is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.�

The Akayesu decision also held that rape or sexual violence can be prosecuted as genocide if the evidence shows that it is accomplished with the intent to physically or psychologically destroy a group. This landmark case is now the cornerstone of all future genocide and crimes against humanity prosecutions. I am proud to say that I now have as a member of my staff the prosecutor of the case, Pierre Prosper. We support the legal strategy of the ICTR's Legal Advisor for Gender, Patricia Sellers and others who put gender on the agenda.

In late 1998, the ICTY, produced equally historic precedents in the Celebici, Furudzija, and Delalic cases. These judgments recognized rape as a violation of the Laws and Customs of War and as a basis of torture under the Geneva Conventions. The Trial Chamber of the ICTY held in Celebici that it 3considers the rape of any person to be a despicable act which strikes at the core of human dignity and physical integrity.�

Furudzija was a watershed because it was the first case to consist exclusively of rape charges. The ICTY Trial Chamber in Delalic adopted the Akayesu definition of rape as a 3physical invasion of a sexual nature, committed on a person under circumstances which are coercive.� The judges of ICTY will soon hear evidence in the Konarac and Kovac cases that will be the first to allege sexual violence as a form of enslavement. Next year before the ICTR will be the first ever case of a woman being prosecuted for rape as an aider and abettor.

The law of rape and sexual violence continues to evolve. Nowhere is that more apparent then it is with the International Criminal Court. Next month, in New York, governments will reconvene for the 3rd session of the Preparatory Committee meeting on the Rome Statute for the International Criminal Court. The United States will renew discussions regarding the elements of the offences within the statute. The crimes of rape and other forms of sexual violence have already received extensive discussion among the nations represented at the PrepCom. Throughout the many debates surrounding the creation of the ICC, the United States has been a strong advocate for the inclusion of rape and sexual violence as specific offences for the world body to punish. We fought hard for laws that help ensure the protection of women in times of conflict throughout the world. And in New York we will continue to insist on elements of crimes and rules of procedure and evidence that respect the dignity of victims and the sensitivity of world cultures

We are following many of the principles set forth in the Akayesu, Celebici, and Furundgiya cases and believe that the ability of a victim of sexual assault to consent, whether a man or a woman, can be stripped away by acts of force or the threat of force or coercion. Acts that can eliminate consent are any acts that cause fear of violence, duress, detention, or other forms of psychological oppression or abuse of power. In short, an individual cannot take advantage of a coercive environment and claim that a victim was a willing participant.

As the Trial Chamber held in Furundgiya, conditions of captivity can combine to vitiate even an apparent consent by the victim. Nevertheless, the United States' position has been that the perpetrator has a fundamental right to present a defense. In other words, a lack of consent cannot simply be inferred or assumed. The United States has fought to retain the lack of consent as a core component of the crime that cannot be ignored. That is why in the last session of the PrepCom, we insisted and supported the inclusion of language from this line of cases that recognizes the effects an environment can have upon a victim. We also pushed for a broader definition of rape that is gender neutral and treats physical invasions by any object or body part no differently in the eyes of the law, thus further protecting victims from the horror of inhumanity. The ICTY has already recognized this principle in its Tadic decision, and the current text of the elements of crimes for the ICC includes a footnote that the concept of physical invasion is intended to be gender neutral.

But as I mentioned, there are cultural sensitivities that must be respected, in particular the question of how descriptive the elements should be and to what level of detail a victim must describe the horrendous events inflicted upon her or him. Should the word 3penetration� be used, or is the phrase 3physical invasion� as captured by the Akayesu decision be enough to provide sufficient notice and information to all parties involved in the proceedings?

The United States feels that we must balance the degree of specificity that some nations are demanding with the need not to unduly offend victims and the court with mechanical descriptions of body parts. The weighty decision to convict and punish a rapist should be made based on clear and established criteria. We also do not want to see a proceeding become a perverted process insulting to victims and adding to the traumatization. We want a process that is fair to the victim and ensures that an accused is fully informed of the nature of the charges against him or her and can mount a defense. We are committed to working with other delegations to ensure that the language of the final text will balance all interests while embodying a significant advancement in the law applicable to international enforcement of rape and other sexual crimes.

We also want to see an expansion of the scope of criminal responsibility. We want to ensure that the jurisprudence is such that no one who is culpable escapes punishment. We welcome recent advancements of international humanitarian law in the area of rape and sexual violence that broaden the scope of individual criminal responsibility to leaders and commanders who lend their influence and tacitly encourage crimes against women. The Akayesu and Furudgiya decisions hold that officials and leaders can be directly responsible when they witness acts of sexual violence and rape committed by attackers, even when those attackers are not strictly under their chain of command. This is reasonable case law in all armed conflicts, both internal and international, as well as situations of genocide. This is ever so important given that today's paramilitary and militia command structures are often covertly organized and not easily defined. We must combat these intentionally loosely knit paramilitary and militia by creating laws that are flexible, thus piercing the shields that are designed to hide the true culprits.

We are living in a world that continues to see abhorrent behavior. In Kosovo and Rwanda, women and girls are still reeling from the aftermath of having been herded and sexually violated in manners that shock the conscience of civilized humans. In places like East Timor and Sierra Leone, we are learning the full extent of the horror a vulnerable population can experience. The violence has too often been widespread and the crimes horrendous.

The United States will continue to stand strong against these forms of inhumanity. We will continue to be a voice of reason and justice that works to meet the needs of victims and punish the perpetrators of these atrocities.

At the end of the day, the nations of the world must face the cruel reality of our present situation. I believe that with the effective use of international humanitarian law and a continued determination by all of us as individuals to raise awareness and ensure the protections against these evil acts, we can guide the course of history and permanently provide equal status and equal punishment for crimes against women

Thank you.

*** NOTICE: In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. ***

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