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Under the Radar Screen—Rape and Sexualized Violence and the Geneva Conventions

September 27, 2006

The photos from Abu Ghraib—exposing such a range of sexualized violence and abuse—shocked most people in the United States and around the world. Under the radar screen, in this week’s Congressional battle over the treatment of terror suspects, are restrictive redefinitions of war crimes that obstruct the ability to prosecute or seek other relief from sexualized torture and inhumane treatment. The Abu Ghraib revelations follow 15 years during which the global women’s human rights movement worked to accomplish the recognition of rape and sexualized violence and abuse as torture and cruel, inhuman or degrading treatment or punishment—placing such offenses among the gravest crimes condemned by international law, including under Common Article 3 of the Geneva Conventions. Abu Ghraib, which made men the primary victims and manipulated gender, homophobia and culture, drew yet broader attention to the horror of sexualized violence. Last May, the UN Committee Against Torture (CAT) examined U.S. compliance with the related Convention Against Torture or Cruel Inhuman or Degrading Treatment or Punishment (CIDT). It concluded that the U.S. “should rescind any interrogation technique, including methods involving sexual humiliation…that constitute torture or CIDT.” The CAT further urged that the U.S. should bring perpetrators to justice, impose commensurate punishment, and ensure all detainees’ access to habeas corpus or other independent review as well as redress, compensation and rehabilitation for victims. At stake in the legislative battle in Congress to establish military commissions and redefine crimes under Common Article 3 is whether this country will abide by the rule of law and its ratified treaties or legislate impunity for many of the violations we have witnessed and that continue. Both the Warner-McCain-Graham bill, approved by the Senate Armed Services Committee, and the newer “compromise” bill with the Administration give away far more than they preserve. Both contain an overbroad definition of “enemy combatant” and eliminate federal court jurisdiction to provide full judicial review through the writ of habeas corpus as well as to prosecute under international definitions and to hear civil actions for compensation when based on violations of the Geneva Conventions. Both also establish loopholes in the definition of war crimes that limit protection from rape and sexualized violence, torture and humiliating and degrading treatment. Historically, U.S. military justice has utilized judicial interpretations of international law when applying the Geneva standards. Sexualized violence and abuse have been interpreted as Geneva violations by the U.S.-supported International Criminal Tribunals for Rwanda and the former Yugoslavia, and the crimes section of the Rome Statute of the International Criminal Court. But the “compromise” bill would explicitly ban use of foreign or international interpretations and, at the same time, give the President authority to redefine crimes and techniques rendering the legislation a potential nullity and the President and officials and agents impune. By narrowly redefining Common Article 3 crimes, the bills would provide a subtle but potentially impenetrable screen of impunity for sexualized violence. This part of the bill could affect both “enemy combatant” detainees and all women and men subjected to sexualized war crimes by U.S. soldiers or other officials. For example:
  • The “compromise” requires that the perpetrator specifically intend to commit the crime of torture. Assessing the mind of perpetrators beyond a reasonable doubt who claim that they didn’t mean to torture has been repeatedly rejected internationally and would make it almost impossible to obtain a conviction for rape or sexual violence as torture.
  • The “compromise” limits the Geneva crimes to “cruel or inhuman treatment” excluding Common Article 3’s explicit prohibition of “outrages against personal dignity, including humiliating and degrading treatment.” The definition of serious mental injury would also exclude such offenses. All this would largely eliminate a basis of accountability for sexualized violence and abuse, such as forced nudity, sexualized harassment, and gendered or cultural insult. This would immunize some of the most degrading and devastating practices suffered at Abu Ghraib as well as commonly by women. It flies in the face of the comprehensive non-discrimination, humane treatment provisions of Article 3.
  • The definition of rape is inconsistent with international law as well as the laws of most states in the U.S.  For example, it requires that penetration be “forcible, or with coercion or threat of force.” This ignores that rape occurs where the victim does not give free and voluntary consent and the international recognition that a perpetrator may take advantage of coercive circumstances without exercising direct coercion.
  • The crime of “sexual assault or abuse” not only requires that contact be forcible or with coercion or the threat of force. It requires physical contact with another’s genitalia, further ensuring impunity for coerced nakedness, sexualized entertainment, harassment, and other forms of mental abuse.
In sum, many of the practices at Abu Ghraib as well as rape and sexualized violence and abuse most commonly experienced by women will be cloaked with impunity. Common Article 3, the bedrock of humane treatment and due process, would be so in name only. Beyond that, detainees would have no right to challenge their detention or conditions of confinement, and the shredding of the great writ of habeas corpus, crucial to confronting abuses of liberty since 1215, would have begun. This is a law reminiscent of Pinochet, not the traditions upon which this country was founded. Legislation on procedures for interrogating and trying suspected terrorists is making its way through Congress this week.  Women’s human rights supporters advocate amendments to: restore the full right to protection from rape and sexual violence, torture and outrages against personal dignity in accordance with international law; and restore the full right to habeas corpus for all detainees, including to challenge detention and conditions of detention.  Readers who wish to make their views known should contact their senators and representative immediately as well as the following interested senators, key sponsors of the Violence against Women Act: Barbara Boxer (202 224-3553), Joseph Biden (202 224-5042), and Chuck Schumer (202 224-6542).