International humanitarian law, international human rights law and international prosecution and jurisprudence can all be used to protect women from violence during war and armed conflict.
According to the International Committee of the Red Cross international humanitarian law is the “set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. International humanitarian law is also known as the law of war or the law of armed conflict.” Humanitarian law applies during times of international and non-international armed conflict. It attempts to minimize the suffering from war and protect those in enemy hands. The focus of international humanitarian law is on the fundamental rights of civilians, the sick, the wounded, the shipwrecked, and prisoners of war during armed conflict. International human rights law also focuses on protecting the individual from harm and promoting dignity. There is substantial overlap between human rights law and international humanitarian law during times of conflict. However, human rights law can also apply in non-conflict situations. Whereas international humanitarian law applies only during times of armed conflict, human rights law applies during times of peace, as well as during conflict, and focuses on protecting individuals from government actions that violate their human rights. Human rights law can supplement the shortcomings of international humanitarian law by applying after armed conflict has ceased, when the fundamental rights of actors and civilians are still vulnerable. But human rights law has some shortcomings. Some rights may be suspended by states during times of war or public emergencies.
In addition to humanitarian and human rights law, precedents set by proceedings of war crimes tribunals also support the protection of women against violence during armed conflict. Prosecuting offenders of international law during armed conflict is extremely important on several levels. It provides personal accountability for offenders, and hopefully provides deterrents for potential offenders. It also provides the symbolic importance of redress for victims, and in some situations, actual financial compensation. International trials show victims that the international community cares about them enough to initiate and maintain lengthy and expensive trials. Prosecuting perpetrators also helps victims realize that the offenses committed against them was not their fault or the fault of a separate ethnic group, but rather, it was a calculated decision made by a select few individuals. In addition to the inherent value in prosecuting perpetrators, ad hoc tribunals and other forms of international law have provided valuable interpretations and additions to pre-existing human rights and international humanitarian laws, which may be used to prevent or remedy future armed conflicts. Compiled from: Introduction to International Humanitarian Law, American Red Cross; What is the Difference Between Humanitarian Law and Human Rights Law? International Committee of the Red Cross, (2002); Judith G. Gardam and Michelle J. Jarvis, Women, Armed Conflict and International Law, Kluwer Law International 123-124 (2001); Judith G. Gardam and Michelle J. Jarvis, Women, Armed Conflict and International Law ,Kluwer Law International 83-85, 178, 204 (2001); Steven R. Ratner and James L. Bischoff, eds. International War Crimes Trials: Making a Difference?, University of Texas Austin Law school 50-51, 60-64, 140 (2004); M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law, 543-547 (1999); Dominic McGoldrick, Peter Rowe and Eric Donnelley, eds., The Permanent International Criminal Court: Legal and Policy Issues, Oxford 11-12 (2004).
INTERNATIONAL HUMANITARIAN LAW ON WOMEN AND ARMED CONFLICT
International humanitarian law has traditionally focused on the needs of men because armed conflicts were traditionally fought between men on a battlefield. Early international law, which was codified in the 18-19th century, prohibited harm to women based on traditional notions of chivalry and honor. Because women are most often civilians, the current provisions of international humanitarian law that deal with women most often pertain to civilian populations instead of active participants in armed conflict. While there are volumes of treaties and instruments concerning the law of armed conflict, the Geneva Conventions are viewed as the most influential and widely-used laws governing armed conflict. The 1949 Geneva Conventions were drafted in response to address the inadequacies of existing international humanitarian law which were revealed during WWII. These Conventions constitute part of customary international law. The Geneva Conventions bind state actors as well as non-state actors during international and non-international armed conflict, but they do not fully protect civilians within the national jurisdiction of a state not engaged in armed conflict. Forty-two provisions of the four 1949 Geneva Conventions and Additional Protocols deal specifically with women and the effects of armed conflict. The following four provisions are among the most relevant for women in armed conflict, although several of them do not specifically mention women. Compiled from: Judith G. Gardam and Michelle J. Jarvis, Women, Armed Conflict and International Law, Kluwer Law International 56-58 (2001); M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law, 204 (1999); “Developments in the Law: International Criminal Law” 114 Harvard Law Review 1943, 1951 (2001).
1949 Geneva Conventions, Common Article 3 (1949)
Common Article 3 is found in each of the Geneva Conventions. It is important because it is one of the first provisions of international humanitarian law to extend humanitarian protections to non-combatants during non-international armed conflicts. It has been interpreted through case law to apply to international armed conflict, as well. It is found in the general provisions section of each Geneva Convention. Common Article 3 explicitly prohibits the following crimes: violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; taking of hostages; outrages upon personal dignity, particularly humiliating and degrading treatment; passing of sentences and the carrying out of executions without prior judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. The prohibitions against violence to persons, cruel treatment, torture, and outrages upon personal dignity are especially relevant for women during armed conflict because they implicitly incorporate sexual assault and violence against women. In fact, Common Article 3 has been analogized to Article 4 of Protocol II, which specifically prohibits rape, enforced prostitution, and indecent assault. Common Article 3 is silent on whether it applies to rape or sexual assault or any other specific crime to allow flexibility in future applications. As explained in the Comments to Common Article Three, the original purpose was to prohibit biological experiments committed by the Nazis, but “it would never be possible to catch up with the imagination of future torturers.” It should be noted that Common Article 3 is not included as a grave breach of the Geneva Conventions, meaning that states parties are not obligated to prosecute violators of Common Article 3 as they are for grave breaches. Compiled from: Judith G. Gardam and Michelle J. Jarvis, Women, Armed Conflict and International Law, Kluwer Law International 73, 76 (2001); Kelly Dawn Askin, War Crimes Against Women: Prosecution in International War Crimes Tribunals, Nijhoff Publishers 329-330 (1997); M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law, 358-359 (1999).
Fourth Geneva Convention (1949) The Fourth Geneva Convention relates to the treatment of civilians in enemy hands during wartime. It was drafted to respond to the atrocities committed against civilians during the two World Wars. The Fourth Geneva Convention seeks to offer civilians the protections guaranteed to prisoners of war and wounded prisoners. Because women are rarely involved in the actual fighting and comprise the majority of affected civilians, this provision is important. While it applies to enemy forces, the protections of the Fourth Convention do not necessarily protect individuals from prohibited acts committed by their national state or in some cases, against acts committed by a party to a “friendly” nation. Two articles are especially relevant for women: Article 27 specifically addresses women and protects them from the following acts: any attack on their honor, especially rape, enforced prostitution or any form of indecent assault. This article is historic because it was the first, and remains one of the only, articles of the Geneva Convention to expressly prohibit rape and other forms of sexual maltreatment that affect women. It explicitly prohibits several of the most common violent sexual crimes committed during armed conflict. Indeed, the Comments to Article 27 acknowledge that such provisions were included to address “the certain practices which occurred, for example, during the last World War, when innumerable women of all ages, and even children, were subjected to outrages of the worst kind: rape committed in occupied territories, brutal treatment of every sort, mutilations, etc. In areas where troops were stationed, or through which they passed, thousands of women were made to enter brothels against their will or were contaminated with venereal diseases, the incidence of which often increased on an alarming scale.” Article 147 is important because it contains the teeth of the Fourth Geneva Conventions. The article classifies several war crimes as “grave breaches,” meaning that state parties are required to adopt legislation punishing such acts, and violations involve individual criminal liability. It imposes an obligation on each state to prosecute those who have committed grave breaches and who are within the state’s jurisdiction. Relevant violations mentioned in Article 147 that traditionally affect women include: willful killing, torture or inhuman treatment, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, taking of hostages, and extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly. While none of these acts are referred to as specific to women, they implicitly incorporate common acts of violence against women, such as sexual assault, forced detentions, and human trafficking, which have subsequently been affirmed through case law. Additionally, the Comments to Article 147 note that the article is to be construed broadly. Compiled from: Judith G. Gardam and Michelle J. Jarvis, Women, Armed Conflict and International Law, Kluwer Law International 64, 73-75 (2001); Kelly Dawn Askin, War Crimes Against Women: Prosecution in International War Crimes Tribunals, Nijhoff Publishers 247-248, 309-311, 260, 326-327 (1997); M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law, 350-352 (1999).
Geneva Conventions, Protocol I (1977)
According to the Introduction to Protocol I, the first Protocol to the Geneva Conventions was adopted after the end of the colonial era, and it incorporates the needs and concerns of new nations that emerged as a result of de-colonialization. Protocol I applies to victims of international conflicts and it extends the scope of fundamental protections to all persons in the territory of a party to a conflict, not just those in enemy hands. Protocol I includes several protections specifically designed for women during international armed conflict. Article 75 of Protocol I provides protection for women in detention—they must be kept separate from men and supervised by females unless they are detained as a family. The Comments to Article 75 suggest that such provisions are largely a reflection of similar protections for women contained in other articles of the Conventions. Article 76, entitled, “Protection of Women” provides protection against rape, forced prostitution, or any other form of indecent assault, and it affords women “special respect.” Article 76 also offers protections for detained pregnant women and mothers of young children, mandating that such cases receive priority and that state parties avoid imposing the death penalty as punishment. While Articles 75 and 76 are not specifically incorporated as grave breaches in Article 85 of Protocol I, certain violations mentioned as grave breaches can be applied to violent crimes commonly committed against women during armed conflict, such as making the civilian population the object of an attack, launching an attack that will knowingly injure civilians (Paragraph 3 (a) (b)), or transferring parts of the occupied population outside the territory (Paragraph 4 (a)). Compiled from: Judith G. Gardam and Michelle J. Jarvis, Women, Armed Conflict and International Law, Kluwer Law International 65, 75 (2001).
Geneva Conventions, Protocol II (1977)
Protocol II protects victims of non-international (internal or civil) armed conflicts. According to the Introduction to Protocol II, before Protocol II, the only provision of the Geneva Conventions applicable to non-international armed conflict was Common Article Three. This provision is especially important because internal conflicts are increasing and a large number of the atrocities committed against women in armed conflict occur within civil wars and internal ethnic violence. Article 4 does not specifically mention women, but it prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault,” which are all acts of violence that are commonly committed against women during armed conflict. Additionally, Article 5 prohibits detaining women with men and seeks to ensure that women detainees are supervised by women. Article 6 prohibits the death penalty from being carried out upon pregnant women or mothers of small children. None of these prohibitions are incorporated into the grave breach provisions of the Conventions. Compiled from: Judith G. Gardam and Michelle J. Jarvis, Women, Armed Conflict and International Law, Kluwer Law International 65, 76 (2001); Kelly Dawn Askin, War Crimes Against Women: Prosecution in International War Crimes Tribunals, Nijhoff Publishers 309 (1997). Rome Statute for the International Criminal Court (2002) The Rome Statute of the International Criminal Court (Rome Statute) was ratified in 1998 and entered into force July 1, 2002. There are currently 113 parties to Treaty, which established the International Criminal Court. According to Article 5, the ICC has jurisdiction over four broad categories of crimes: genocide, crimes against humanity, war crimes, and certain crimes of aggression. The Rome Statute was drafted with the needs of victims of armed conflict in mind, especially women and children. For example, the Preamble notes that “during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity.” Additionally, Article 36, paragraph 8(b) mandates that judges be selected who have experience regarding violence against women and children. The ICC’s jurisdiction over crimes against humanity, as articulated in Article 7, is most relevant for women because it provides an expanded list of sexual offenses that can constitute crimes against humanity. Prior to the adoption of the ICC, the only other existing international statutes for crimes of sexual violence against women existed for the International Criminal Tribunal for the Former Yugoslavia and International Criminal Tribunal for Rwanda. The statutes of both ad hoc tribunals listed rape as a crime against humanity, but their statutes provided no further guidance about what constituted rape or whether the scope of “rape” was sufficiently large to encompass the numerous other sexual offenses that occur during armed conflict. Therefore, Article 7 of the ICC is important because it expands upon the rape statutes of the ICTY and ICTR and broadens the list of sexual offenses to include: “Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity.” Sexual offenses are also listed as war crimes in the Rome Statute. Rape and other sexual offenses are listed as “serious violations” that constitute a grave breach under the Geneva Conventions (implicitly) under Article 8 (b)(xxii). Such a classification implies that sexual offenses are especially egregious to the ICC, more so than in the Geneva Conventions, where rape and sexual violence are merely inferred from the grave breaches listed in Article 147 of the Fourth Geneva Convention, and more so than in the statutes of the ICTR and ICTY, which restrict the scope of sexual violence to include only rape. Article 7 also addresses trafficking in persons, a problem commonly associated with armed conflicts. Article 7 (1)(c) classifies “enslavement” as a crime against humanity. Article 8(2)(c) defines “enslavement” as: “the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.” The final provision of the Rome Statute that addresses sexual violence is Article 68, which mandates that the court take into account the special circumstances surrounding investigating sexual offenses. In particular, the statute provides for certain privacy, dignity, and safety considerations of witnesses and victims. When sexual violence is involved, the court may conduct certain proceedings in camera or collect electronically-recorded testimony. The Rome Statute also addresses certain issues regarding gender equality. Article Seven makes it a crime against humanity to persecute a group based on, among other factors, gender. Article 21(3) requires a gender-neutral application of the Rome Statute. Paragraph 8(a)(iii) of Article 36 encourages a fair balance between male and female judges. Despite their innovative scope and sensitivity to the unique needs of women during armed conflict, there are some limitations to Articles 7 and 8 of the Rome Statute. Most importantly, the expansive list of sexual offenses is limited in scope to crimes that are widespread, systematic, directed against a civilian population and with prior knowledge of the attack. Therefore, crimes that affect small groups of women or are committed without the knowledge of the alleged perpetrator may be outside the jurisdiction of the court. Similarly, according to paragraph one of Article 8, war crimes must be “committed as part of a plan or policy or as part of a large-scale commission of such crimes.” Compiled from: Dominic McGoldrick, Peter Rowe and Eric Donnelley, eds., The Permanent International Criminal Court: Legal and Policy Issues, Oxford 24, 310-311 (2004); Judith G. Gardam and Michelle J. Jarvis, Women, Armed Conflict and International Law Kluwer Law International 76, 80, 81, 85 (2001); M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law 360-361 (1999). INTERNATIONAL HUMAN RIGHTS LAW ON WOMEN AND ARMED CONFLICT
While international humanitarian law applies during armed conflicts, it normally ceases to operate at the end of the conflict. Human rights law, however, applies during times of conflict and peace. It can also supplement the shortcomings of international humanitarian law because international humanitarian law does not normally apply in short-term, domestic conflicts. It is also important that human rights law recognizes that a woman’s vulnerable position during armed conflict is a result of general gender inequalities found in society. Human rights law addresses a variety of issues concerning women and armed conflict, from sexual violence to gender equality to domestic violence. The major drawback to human rights law is that certain provisions may be suspended during conflict and it may not bind non-state actors. In contrast, derogations under international humanitarian law are not permitted because they apply to emergency situations. Compiled from: Judith G. Gardam and Michelle J. Jarvis, Women, Armed Conflict and International Law, Kluwer Law International 60, 122-124, 136-167, 146 (2001); What is the difference between humanitarian law and human rights law? International Committee for the Red Cross (2002). Convention for the Elimination of All Forms of Discrimination Against Women (1981) The Convention for the Elimination of All Forms of Discrimination against Women (CEDAW) is the UN treaty that outlines women's basic right to equality. Entering into force in 1981, CEDAW requires state parties to combat sex-based discrimination through legislation, education and elimination of prejudices and practices that are based on stereotyped roles. CEDAW also requires states parties to submit periodic reports, reviewed by the Committee on the Elimination of Discrimination against Women. As of September 2010, there are 191 state parties to CEDAW. While CEDAW does not specifically protect against sexual violence, it nonetheless offers several protections specifically based on gender equality. Article 1 protects women from several human rights violations that may occur during armed conflict or during peacetime. Article 1 defines discrimination as: “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” Additionally, Article 6 calls on states to suppress trafficking in women and the exploitation of prostitution. This provision is important because trafficking in women and prostitution are well-established effects of armed conflict. Compiled from: Gardam Judith G. Gardam and Michelle J. Jarvis, Women, Armed Conflict and International Law, Kluwer Law International 146 (2001); “Women’s Convention and Optional Protocol,” Stop Violence Against Women, Advocates for Human Rights, 24 September 2008. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) Sexual and other forms of gender-based violence may constitute torture under certain provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. While the Geneva Conventions and Protocols, as well as several regional treaties, prohibit torture during armed conflict, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) is important because it contains several important provisions based on previous prohibitions of torture in international law that apply at all times. Article 1 of CAT offers a broad definition of torture and Article 2 obliges state parties to prohibit torture within their respective jurisdictions. Article 2 also prohibits any excuses or justifications for torture. It should be noted that CAT was originally designed to protect men against traditional, non-sexual notions of torture, and it does not specifically address women or sexual violence; however, CAT’s broad definition of torture may be construed to include violence against women during armed conflict. Compiled from: M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law, 331-338 (1999); Kelly Dawn Askin, War Crimes Against Women: Prosecution in International War Crimes Tribunals, Nijhoff Publishers 226, 314-322 (1997). CEDAW General Recommendation No. 19 (1992)
The Convention on the Elimination of All Forms of Discrimination does not directly prohibit violence against women. However, in 1992, the Committee adopted General Recommendation 19, gender-based discrimination with violence against women. The Recommendation notes that, "violence that is directed at a woman because she is a woman or that affects women disproportionately [is discrimination]. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty . . ." This list of offenses includes several offenses committed against women during armed conflict. Additionally, General Comment 7(c) guarantees the “right to equal protection under humanitarian norms in time of international or internal armed conflict.” This provision provides protection for women during international and domestic conflicts, which is significant because international humanitarian law does not always protect women during all forms of non-international armed conflict. A final provision that is important for women is the recognition in Article 16 that, “wars, armed conflicts and the occupation of territories often lead to increased prostitution, trafficking in women and sexual assault of women, which require specific protective and punitive measures.” This provision applies during armed conflict and reaffirms the important idea that offenders should not go unpunished, which is all too often the case after armed conflict has ceased. Compiled from: “General Recommendation 19,” Stop Violence against Women, Advocates for Human Rights.
Vienna Declaration and Programme of Action (1993)
The Vienna Declaration and Programme of Action was adopted by 171 states at the World Conference on Human Rights in Vienna in 1993 as a reaffirmation and development of the human rights principles established through the 1948 Universal Declaration of Human Rights. The Declaration is important for women during armed conflict because it recognizes that gender-based violence, sexual harassment, and exploitation are human rights issues and are “incompatible with the dignity and worth of the human person, and must be eliminated.” The Declaration acknowledges that women are especially vulnerable to sexual violence during armed conflict. It notes that the elimination of gender-based violence can be achieved by legal measures and through national action and international cooperation in various economic and social fields. It also recognizes that human rights of women and the girl-child are inalienable, integral and indivisible parts of human rights. The Declaration calls for the full and equal participation of women in all sectors of life, at all levels, and the eradication of all forms of gender discrimination. Compiled from: Judith G. Gardam and Michelle J. Jarvis, Women, Armed Conflict and International Law, Kluwer Law International 147 (2001); Report on the World Conference on Human Rights, Office of the High Commissioner for Human Rights, United Nations (1993).
The Declaration on the Elimination of Violence Against Women (1993) The Declaration on the Elimination of Violence against Women (DEVAW) reinforces the idea that violence against women is a human rights violation. Its definition of violence against women is broad and includes three categories of violence against women: “any act of gender-based violation that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.” The DEVAW Preamble notes that women are particularly vulnerable during armed conflict: “[S]ome groups of women, such as women belonging to minority groups, indigenous women, refugee women, migrant women, women living in rural or remote communities, destitute women, women in institutions or in detention, female children, women with disabilities, elderly women and women in situations of armed conflict, are especially vulnerable to violence.” Compiled from: “DEVAW,” Stop Violence Against Women, Advocates for Human Rights; and Judith G. Gardam and Michelle J. Jarvis, Women, Armed Conflict and International Law Kluwer Law International 147 (2001). Beijing Platform for Action (1995)
Adopted at the Fourth World Conference on Women, the Beijing Platform for Action imposes obligations on member states to adopt national plans of action to address the goals of equality, development, and peace for women worldwide. There are also periodic conferences to assess the progress of the Platform. The first was in 1998, and the most recent was a fifteen-year assessment conference in March of 2010. Several articles of the platform recognize the heightened degree of hardship experienced by women during armed conflict. For example, paragraph 13 acknowledges the chaos since the end of the Cold War and the potential for harm to women because of smaller armed conflicts. Grave violations of the human rights of women occur, particularly in times of armed conflict, and include murder, torture, systematic rape, forced pregnancy and forced abortion, in particular under policies of "ethnic cleansing”. Additionally, paragraph 44 notes that “wars of aggression, armed conflicts, colonial or other forms of alien domination or foreign occupation, civil wars and terrorism” are barriers to women’s empowerment. Most importantly, the Platform operates beyond the scope of international humanitarian law (which focuses on sexual violence against women during armed conflict) to encompass a much broader view of the effects of armed conflict on women. For example, paragraph 132 notes that armed conflict can result in harm to women in the following capacity: “…torture and cruel, inhuman and degrading treatment or punishment, summary and arbitrary executions, disappearances, arbitrary detentions, all forms of racism and racial discrimination, foreign occupation and alien domination, xenophobia, poverty, hunger and other denials of economic, social and cultural rights, religious intolerance, terrorism, discrimination against women and lack of the rule of law.” Greater accountability for member states, coupled with a broad view of the effects of armed conflict on women, make the Beijing Platform for Action an important measure of protection for women affected by armed conflict. Compiled from: Judith G. Gardam and Michelle J. Jarvis, Women, Armed Conflict and International Law Kluwer Law International 147 (2001); “Beijing Declaration and Platform for Action,” Stop Violence against Women, Advocates for Human Rights. UN Security Council Resolution 1325 on Women, Peace, and Security (2000) The UN Security Council Resolution 1325, the first Security Council resolution that focuses solely on the impact of war on women, was passed by a unanimous Security Council in October of 2000. Resolution 1325 calls for participation of women in the peace process; gender training in peacekeeping operations; protection of women and girls and respect for their rights; and gender mainstreaming in UN reporting and implementation systems relating to conflict, peace, and security. The resolution is significant because it affirms the UN’s commitment to the protection of women during armed conflict and urges greater involvement of women in decision-making peacekeeping procedures, a concept that is not adequately addressed in humanitarian law. Compiled from: “Security Council Resolution 1325,” Stop Violence against Women, Advocates for Human Rights; and United Nations Security Council Resolution 1325: History and Analysis, Peace Women International. United Nations Trafficking Protocol (2003) The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children was adopted by the UN General Assembly to encourage international cooperation to prevent the increasing problem of trafficking in persons, a problem that is especially prevalent during and after armed conflicts. The Protocol requires states to both prosecute offenders and provide protections for victims. The Protocol provides a broad definition of trafficking: “recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.” Compiled from: “The Trafficking Protocol and Recent Initiatives,” Stop Violence Against Women, Advocates for Human Rights.
United Nations Security Council Resolution 1820 (2008)
In 2008 the United Nations Security Council passed Resolution 1820 to promote awareness of the problem of sexual violence during armed conflict and to take steps towards ending it. Resolution 1820 calls for greater protection of women and girls in conflict areas and displacement camps, for training of military and peacekeeping personnel on women’s rights, and the categorical prohibition of sexual violence. The resolution also compels post-conflict measures such as ending impunity for perpetrators of sexual violence, improving physical, psychological and maternal health services for victims, and increasing the participation of women in local community peace-building initiatives and in international peacekeeping forces.
Compiled from: “UN Security Council Resolution 1820,” United Nations Development Fund for Women, www.unifem.org.
United Nations Security Council Resolution 1888 (2009)
Passed a year after Security Council Resolution 1820, Resolution 1888 was passed to strengthen the United Nation’s response to sexual violence during wartime. Resolution 1888 calls for the appointment of a Special Representative to the UN on sexual violence, the establishment sexual violence expert teams that can be rapidly deployed in situations of concern, and the identification of Women Protection Advisors among local NGOs. The Resolution re-emphasizes the commitment of the United Nations to ending impunity for perpetrators, to including women at all levels of peace negotiations and reconstruction, and to mainstreaming gender issues locally and at the international level.
Compiled from: “UN Security Council Resolution 1888 (2009),” United Nations Development Fund for Women, www.unifem.org.
PROSECUTION AND JURISPRUDENCE Most atrocities committed during war and armed conflicts after WWII throughout the world remain unprosecuted (e.g., Korea, Vietnam, Palestine, Pakistan-Bangladesh, Cyprus, Lebanaon, Persian Gulf). However, there are three options for redress for armed conflict, depending on the type of conflict, the extent of damage, and the willingness of the international community to intervene. First, offenders may be prosecuted under the Geneva Conventions within each member state. Domestic prosecution is the most common form of redress for armed conflict. Second, the UN can set up ad hoc tribunals, such as those established for the violence that occurred in Rwanda and the former Yugoslavia. Ad hoc tribunals prosecute persons for individual criminal liability. Third, offenders can be prosecuted through the International Criminal Court. In addition to the inherent value in prosecuting perpetrators, ad hoc tribunals and other forms of international law have provided valuable interpretations and additions to pre-existing human right and international humanitarian laws, which may be used to prevent or remedy future armed conflicts.
There have been four major ad hoc war crimes tribunals. The first two, Tokyo and Nuremberg, occurred immediately following WWII to address human rights atrocities committed by Germany and Japan. These two ad hoc tribunals were largely based on the moral victory of the Allied forces. Ad hoc tribunals were halted after Tokyo and Nuremberg because the international community was divided based on Cold War politics. After the fall of the Soviet Union in 1991, not only did armed conflicts explode in number, but the international community was able to collectively condemn perpetrators based on international human rights standards without having to adhere to East/West divisions. While most perpetrations of human rights violations during armed conflict remain unprosecuted, two ad hoc tribunals have been initiated, the International Criminal Tribunal for Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR). Several factors must coincide to create an ad hoc tribunal. There are generally two initial standards to initiate a tribunal: the harms must be sufficiently serious to constitute an international crime, and the crimes committed in the armed conflict must shock the conscience. Generally, the larger in scope the conflict is, the more likely there is to be prosecution. Crimes that constitute grave breaches of the Geneva Conventions usually prompt action, as do some serious violations of the Geneva Conventions. Until recently, international humanitarian law did not address rape because it has historically been considered a private act between two persons that could be adequately addressed through domestic courts. The Tokyo and Nuremberg tribunals did not focus on women’s issues beyond comfort women (women detained as sexual slaves for military personnel). For gender-specific crimes, there must be a grave breach of International Humanitarian Law to create an ad hoc tribunal. Most of the gender-specific atrocities committed during armed conflict do not constitute grave breaches, such as increased rates of domestic violence or lack of access to medical supplies or shelter. But sexually violent atrocities can qualify as grave breaches if they meet certain criteria. Such standards were merely implied before 1993, but have been developed and expanded through subsequent tribunals. After the ICTY and ICTR, rape is clearly very public and political, and is widely considered a violation of international law. Today, the most recent legal definitions of crimes against humanity include rape and sexual violence, reflecting the idea that ethnic persecution has increasingly used sexual violence to intimidate and terrorize groups of people. It should be noted that there is a split in the use of war crimes tribunals to address rape. Some scholars believe that, due to concerns about state sovereignty, tribunals should only be used to prosecute rape when the state is unable to prosecute, or when rape occurs on a large scale, against a specific group, for a specific purpose. There are also limits to what an ad hoc tribunal can do for women affected by armed conflict. Such tribunals do not typically address gender-specific crimes beyond sexually violent crimes. Also, many victims have been dissatisfied with the tribunals because a very small number of perpetrators actually go to trial. Tribunals are very expensive and time-consuming, providing no compensation or remedial measures for victims. Compiled from: Judith G. Gardam and Michelle J. Jarvis, Women, Armed Conflict and International Law Kluwer Law International (2001); Steven R. Ratner and James L. Bischoff, eds. International War Crimes Trials: Making a Difference? University of Texas Austin Law school (2004); M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (1999); Dominic McGoldrick, Peter Rowe and Eric Donnelley, eds., The Permanent International Criminal Court: Legal and Policy Issues, Oxford (2004); May, Larry. Crimes Against Humanity. Cambridge 96-100 (2005); “Developments in the Law: International Criminal Law” 114 Harvard Law Review 1943, 1952 (2001). The International Criminal Tribunal for Yugoslavia (ICTY) The International Criminal Tribunal for the Former Yugoslavia was the first ad hoc war crimes tribunal since the end of WWII. It was established after the horrors of the Serbian ethnic cleansing campaigns were revealed in the early 1990s. It was created under Chapter VII of UN Charter, referring to threats to peace, breaches of the peace, and acts of aggression, through UN resolutions 808 and 827 on February 22, 1993. Through the ICTY, the United Nations Security Council [PROVIDE LINK] hoped to use international law to enforce international justice and prevent the uncontrolled use of violence to resolve regional disputes; force the guilty to answer for their actions; stabilize peace in the former Yugoslavia by affirming individual guilt instead of collective guilt; and promote reconciliation between affected nations and ethnic groups. The ICTY represents the first time that the UN system has considered the problem of violence against women during armed conflict. It is widely regarded as taking a progressive and aggressive stance against sexual violence against women during armed conflict, and it has set several important precedents for women. Article 5 of the ICTY statute is the first time that rape is defined in a war crimes tribunal statute as a crime against humanity. While additional women-specific crimes are not listed in the statute, they have been incorporated and expanded through case law from the tribunal. Additionally, several grave breaches, such as “torture or inhuman treatment,” may incorporate acts of sexual violence against women. Compiled from: Fatic, Aleksandar, Reconciliation via the War Crimes Tribunal? 1, 6-9 Ashgate (2002); Steven R. Ratner and James L. Bischoff, eds. International War Crimes Trials: Making a Difference? University of Texas Austin Law School 13-18, 62 (2004); Kelly Dawn Askin, War Crimes Against Women: Prosecution in International War Crimes Tribunals, Nijhoff Publishers 298-299; 302-305; 308, 313 (1997); M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law 360-361 (1999); Judith G. Gardam and Michelle J. Jarvis, Women, Armed Conflict and International Law Kluwer Law International 83-85, 148, 150-151 (2001); Dominic McGoldrick, Peter Rowe and Eric Donnelley, eds., The Permanent International Criminal Court: Legal and Policy Issues, Oxford 22, 26 (2004). The International Criminal Tribunal for Rwanda (ICTR) The International Criminal Tribunal for Rwanda was held in Arusha, Tanzania. The ICTR was established under Chapter VII of the United Nations Charter by the United Nations Security Council in 1994 in response to massive killings and war crimes committed in Rwanda in 1994. The atrocities in Rwanda began when a 1994 plane crash killed the presidents of Rwanda and Burundi, touching off massacres throughout the region. The ICTR has jurisdiction over the following three types of crimes: genocide, crimes against humanity, and violations of Common Article Three and Protocol II of the Geneva Conventions, as outlined in Articles Two through Four of the ICTR Statute. The ICTR has two provisions dealing with rape. Article Three (g) classifies rape as a crime against humanity, and Article Four (e) classifies as a serious violation of Common Article Three and Protocol II of the Geneva Conventions, “Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault.” Neither statute specifically categorizes rape as a grave breach of the Geneva Conventions, but such a concept is developed through subsequent case law. One of the most important decisions to emerge from the ICTR for women and armed conflict is Prosecutor v. Jean-Paul Akayesu, decided on September 2, 1998. Even though rape was widespread in Rwanda in 1994, perhaps more so than in Yugoslavia, the original focus of the indictments was not on sexual violations, but on genocide. The original indictment against Akayesku did not allege sexual violence. But various amicus briefs filed by NGOs and the compelling testimony of rape victims in 1997 created significant pressure to include sexual violence in the tribunal. Akayesu held the following in regard to rape: 1. Rape is a “physical invasion of a sexual nature, committed on a person under circumstances which are coercive.” (¶ 598); 2. Physical force is not needed to show coercion in rape (¶ 688); 3. Rape may constitute genocide (¶ 508); 4. Genocidal measures to prevent births may be mental—i.e., if a person raped refuses subsequently to procreate (¶¶ 507-508); 5. Rape may constitute torture under the Convention Against Torture: “Like 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 in acting in an official capacity.” (¶ 597); 6. Sexual violence is not limited to physical bodily invasion and may include acts not involving penetration or physical contact. Sexual violence not involving physical contact may involve, for example, a victim ordered to undress and perform gymnastics naked in a public courtyard in front of a crowd. (¶ 688). Such interpretations build on the understanding of the Geneva Conventions and may affect subsequent prosecutions through ad hoc tribunals, the International Criminal Court, or hybrid courts. This broadening of the understanding of the term “rape” through case law represents an important step in international jurisprudence surrounding women and armed conflict. Compiled from: Dominic McGoldrick, Peter Rowe and Eric Donnelley, eds., The Permanent International Criminal Court: Legal and Policy Issues, Oxford 36-37 (2004); “Developments in the Law: International Criminal Law” 114 Harvard Law Review 1943, 1953 (2001); M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law 360 (1999); Judith G. Gardam and Michelle J. Jarvis, Women, Armed Conflict and International Law Kluwer Law International 76-80, 151-153, 214 (2001). International Criminal Court The International Criminal Court is located at the Hague. It is the first permanent international court with jurisdiction over the “most serious crimes of concern to international community, “i.e., genocide, war crimes, crimes against humanity, and some acts of aggression, as outlined in Article 5 of the Rome Statute. It has a relationship with the United Nations, but is not a UN body. Its jurisdiction is based on the Rome Statute, for which reservations are not permitted. Jurisdiction is only permitted when national courts are unable or unwilling to prosecute perpetrators. The ICC only has jurisdiction over natural persons and only for certain crimes, as outlined in Article 5 of the Rome Statute. There are three triggering mechanisms to petition to initiate proceedings with the ICC: referral by a state party to the statute, the ICC prosecutor, or the United Nations Security Council. Currently, the ICC is investigating atrocities committed in Uganda, the Democratic Republic of the Congo, the Central African Republic and Darfur Sudan, and is conducting a preliminary investigation in Kenya. The ICTY and ICTR tribunals were an important step in implementing international human rights law, but they were not permanent solutions. The nature of an ad hoc tribunal is temporary, limited in scope and jurisdiction, and limited to certain offenders and offenses. Additionally, ad hoc tribunals can be expensive and time-consuming, as each tribunal must create a new institution tailored to the specific atrocity that it will address. Such concerns, which were revealed in the 1990s, prompted the creation of the International Criminal Court, which provides a permanent solution with a broad scope, with the potential to prosecute any and all perpetrators of wide-scale atrocities. There are several benefits to the ICC. First, the direct effect is that prosecution brings perpetrators to justice. Second, a complementary effect is that international humanitarian and human rights norms begin to increasingly influence national political systems of ICC member states. Third, as a transformative effect, the ICC has opened a tremendous amount of dialogue about international crimes among policymakers, NGOs, and citizens. Perhaps the most important benefit of the ICC is its focus on victims. While the goal of the court is to prosecute individuals responsible for international crimes, more than any other international criminal body, the ICC has made it a priority to incorporate the needs of victims after armed conflict. Indeed, the ICC emphasizes its innovative approach to victim treatment in the “Victims and Witnesses” portion of its website: “The victim-based provisions within the Rome Statute provide victims with the opportunity to have their voices heard and to obtain, where appropriate, some form of reparation for their suffering. It is this balance between retributive and restorative justice that will enable the ICC not only to bring criminals to justice but also to help the victims themselves obtain justice.” Unlike the previous ad hoc tribunals, which restricted victims to a witness-only capacity, the ICC provides innovative provisions for victim participation, protection, and compensation. Such a strong emphasis on victims has many positive implications for women victims of violence during armed conflict. By incorporating victims into all portions of the proceedings, the court may provide important psychological benefits to women who would normally have no outlet for their frustration and anger after armed conflict. Another important innovation to prosecution through the ICC involves reparations. One of the most devastating effects of armed conflict on women is poverty resulting from destroyed infrastructure, lost breadwinners, and inflation. Article 77 of the Rome Statute allows reparations to be paid to victims of armed conflict or their families based on restitution, compensation, or rehabilitation, as decided by the court, which has wide discretion to determine payment. In fact, the ICC acknowledges that women may require funds to rebuild their lives after rape for material loss, medical care, and for therapy and counseling. Payment may be made either through the perpetrator’s funds or through the Victim’s Trust Fund, which is funded by member states and is governed by Article 79. One of the major barriers to the full implementation of the ICC is the fact that the United States Administration objects to the Rome Statute because it confers jurisdiction over U.S. nationals and U.S. soldiers charged with war crimes stemming from legitimate uses of U.S. force. Compiled from: Steven R. Ratner and James L. Bischoff, eds. International War Crimes Trials: Making a Difference? University of Texas Austin Law School 14, 132-138, 147-149, 152 (2004); M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law 514 (1999); Elsea, Jennifer. The International Criminal Court: Overview and Selected Legal Issues. Nova Publishers 1-4, 17, 28-31 (2003); Dominic McGoldrick, Peter Rowe and Eric Donnelley, eds., The Permanent International Criminal Court: Legal and Policy Issues, Oxford 40-44, 315, 322 (2004); Judith G. Gardam and Michelle J. Jarvis, Women, Armed Conflict and International Law Kluwer Law International 91-92 (2001); “Victims and Witnesses,” The International Criminal Court.