The United Nations Security Council officially recognized rape as a tactic of war. Rape is classified as an act of torture within international human rights, humanitarian and criminal law. Rape is used to discourage dissent and to demonstrate power and it can be used to create an environment of fear that systematically breaks down the cohesion of a community by creating division and shame which tears apart social and family bonds. Rape in such a context is a war crime. Rape occurs also frequently in detention and in some countries is almost expected when a woman has been tortured.
Rape affects the entire community, although sexual assault is most often a crime defined by gender, with women and girls the predominant victims. It is a tactic to rape a woman in order to shame and humiliate the men in her family who were unable to protect her. Thus the sexual assault causes vicarious trauma to all who care about the rape victim and gives the rapist power over others who witness or hear about the rape. Men and boys have also been subjected to sexual abuse and rape. The shame and humiliation of such sexual violations leaves many victims unable to tell their stories. Being raped has consequences far beyond the event itself. There is a risk of pregnancy, sexually transmitted diseases and physical injury, as well as psychological consequences that last for a lifetime. Those who have experienced rape as torture often experience depression, anxiety and inability to trust as well as headaches, nightmares and intrusive memories. There is long term impact on themselves, their families and society.
Article 1 of the Universal Declaration of Human Rights (1948) states:
“All human beings are born free and equal in dignity and rights...”
There is a human right to self autonomy and personal dignity. A person whether a man or woman has the human right to refuse sex with any particular person, at any particular time, under any particular set of circumstances. Consent is the issue, no one else has the right to make that decision for another. It does not matter whether force, coercion or fraud have been used, if the person's right to decisions regarding her/his personal autonomy has been ignored and he/she has been humiliated then it is rape - only if she/he has consented would it not be rape.
On July 17, 1998 the International Criminal Court was created and on April 11, 2002 the Rome Statute (establishing the court) was ratified, coming into effect in July 2002. The International Criminal Court can not only prosecute nation states for committing crimes against humanity under the Rome Statute, but certain types of non-state actors can be prosecuted as well.
There were four types of international crimes the court was created to address:
• Crimes against humanity,
• War crimes,
• Aggressive wars.
Some Examples of Crimes against Humanity - Article 7 of the Rome Statute provides a list of the most heinous offenses, which includes:
• Enforced disappearance, defined as the detention or abduction of people (with the acquiescence of the state) along with a refusal to acknowledge their whereabouts or fate,
• Rape, sexual slavery, forced pregnancy and enforced prostitution and sterilization,
• Deportation or forcibly transferring a population,
• Persecution, defined as the intentional and severe deprivation of fundamental rights.
Rape causes serious bodily or mental harm and international criminal tribunals have indicated that rape can constitute genocide when it is directed toward destroying a national, ethnic, racial or religious group. Under international law the crime of rape is a physical invasion of a sexual nature, which is not limited to a physical invasion of the body and may involve acts where there is no penetration or even physical contact.
The definition of rape in The Statute of the International Criminal Court (ICC) includes two key elements:
“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 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.”
“The invasion was committed by force, or by the threat of force or coercion, such as that was caused by fear of violence, duress, detention, psychological oppression, or abuse of power, against such person or another person, or by taking advantage of a coercive environment or the invasion was committed against a person incapable of giving genuine consent.”
One of the most significant aspects of the above elements is the presence of the “coercive environment” and the inability of a person to give consent. This moves away from an assumption of implied consent and recognizes that under certain coercive circumstances the assumption works the other way—namely, the assumption is that the sex was unwanted.
When does rape change from sexual assault carried out by one individual against another to become a crime against humanity?
The Foca rape case verdict in February 2001 was the first time that individuals were convicted for rape as a crime against humanity. The Foca rape case was prosecuted by the International Criminal Tribunal for the Former Yugoslavia (the ICTY) in an effort to bring to justice those responsible for crimes against humanity in the war in Bosnia. Prior to the Foca rape case no one had ever been convicted of rape as a crime against humanity.
The atrocities carried out in the Balkan war showed that in a terror campaign of “ethnic cleansing,” rape can be used as a “Tool of Terror.” The Serbs sought to carve out a new Republic of Srpska from Bosnia and Herzegovina in the former Yugoslavia by getting rid of the Muslim population. Witness accounts of rape that were communicated from a woman in one village to another became an important campaign of terror that caused the population to flee. Witnessing a rape of another woman is emotionally traumatizing, especially if that woman was your mother, sister or friend. A woman did not need to be herself raped in order to have the terror of rape to be effective causing her and her family to leave her home and abandon her possessions. Rape is not merely a brutal form of violence but it also violates deeply held social values,and therefore it breaks apart the ties of community that gives a group strength. When the rapist humiliates the woman or girl in public, it humiliates the entire community. Public rape communicates dominance not only over the victims that suffer this cruelty, but even more importantly it communicates the impotence of the community to do anything about it. Thus the crime of rape was perpetrated against the entire community in an effort to drive them out of their homes and off their land. The traumatic memories of the sexual violation of Muslim women would psychologically and emotionally traumatize the victims/witnesses long after they fled the area and were settled elsewhere, causing long term harm to the social group
The prosecution in the Foca rape case argued three things:
1. The use of rape in attacks on civilians was widespread and systematic,
2. To support the allegation that rape was “widespread and systematic” the prosecution worked to show that the tactic was repeated and continuous (systematic) and that what had happened in Foca was a representative sample of Serbian methods of ethnic cleansing in Bosnia (widespread),
3. Rape was not simply an individual action but involved a chain of command. This did not mean that a commanding officer had ordered his men to rape, but that rape was occurring with his knowledge and he did not intervene to stop it.
The court ruled that the acts of rape were recognized as crimes against humanity because:
• They were part of a systematic and widespread campaign,
• The acts included elements of enslavement.
The Statue of Rome had included rape in its definition of crimes against humanity, but the Foca rape case made that language a reality. After the court’s decision in the Foca case, one commenter noted that, “Now we say rape is a crime, a crime against humanity, or a war crime or a constituent part of genocide.” The ICC Statute is important because it expands the coverage of crimes against women to more than just rape. The ICC statute also makes clear that such crimes as sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and sexual violence are all punishable under international law.
The Foca case taught us that it is extremely important that the court considers the views and concerns of victims throughout the legal proceedings. Experienced professionals with expertise in trauma, especially trauma related to sexual violence should provide psychological counseling to victims and witnesses. There also need to be special advisers with legal experience on the special issues regarding sexual and gender violence against children. It must be remembered that the victims put themselves in danger by agreeing to testify and the court should take appropriate measures to protect the safety and the physical as well as the emotional well being of the victims. These mechanisms to protect victim rights are crucial to establishing the truth about these serious crimes.