WMC Women Under Siege

When rape became a war crime (hint: It’s not when you think)

Much confusion swirls around when rape was actually recognized as a war crime. Try Googling “rape as a war crime” and you’ll find the third result is a Huffington Post article declaring that it was made such a crime definitively in the International Criminal Tribunal for Rwanda’s initial case, in 1998. But this isn’t exactly right.

And then there’s 2008, which is the year the UN Security Council passed Resolution 1820, which states “rape and other forms of sexual violence can constitute war crimes, crimes against humanity, or a constitutive act with respect to genocide.” The press reported then that rape was finally being recognized as a war crime and a threat to peace and stability. The reality, however, is that while sexualized violence has in recent years been codified or more explicitly included in various conventions or resolutions, rape and other sexualized violence, such as forced prostitution and indecent assault, have long fallen under the umbrella of actions that would be considered illegal.

The confusion likely stems from a misunderstanding of how customary international law works, says Patricia Sellers, a prominent international criminal attorney and special adviser for prosecution strategies to the prosecutor of the International Criminal Court. Sellers also teaches international criminal law at Oxford University.

Customary international law is a law derived from the customs and customary practices of states. Despite states sometimes disagreeing about what rules are recognized as custom, bodies like the UN’s International Court of Justice accept its existence as a source of international law. While customary laws might eventually be written down or codified in treaties or domestic laws, they do not need to exist in written form in order to apply. States respect and act in line with such legality, even when unwritten, if their customary acceptance and practice are recognized. When new nations emerge, often they accede to treaties signed by the former country, but are bound by the fact of becoming a nation to customary international law.

The laws of war existed well before they were codified by international treaties such as the Hague Conventions (1899, 1907). The recognition that some acts were not to be tolerated or viewed as acceptable conduct in times of war has been around for centuries. Rape itself, during international war, has been illegal for centuries—from as far back as the 1470s, when a trial for Peter von Hagenbach, a mercenary soldier, convicted him of war crimes for raping and killing innocent civilians. Or we can look back at the creation of the Geneva Conventions in 1949.

I spoke with Sellers to get a better understanding of when—and how—rape became recognized as a crime of war. Sellers has written extensively on gender and sexualized violence under international criminal law, and was the legal advisor for gender and acting senior trial attorney at the international criminal tribunals for the former Yugoslavia and for Rwanda.

Patricia Sellers is the special adviser for prosecution strategies to the prosecutor of the International Criminal Court. (Stephan Röhl)

Kerry Paterson: Why is it that so often it seems as though rape being called a war crime was a great achievement in the mid-2000s?

Patricia Sellers: Well, there are several factors. One is owed to amnesia. Previously, most of the international law attorneys, mainly military lawyers, and most international law scholars, overwhelmingly males, were never really concerned with studying sexualized violence as a legitimate international criminal law subject—for example, the meetings of the UN’s International Law Commission that were tasked in the early 1950s to set forth a Draft Code of [Crimes Against the Peace and Security of] Mankind. Beginning their work in the aftermath of World War II, even subsequent to the 1949 Geneva Conventions, the minutes of their meeting reveal that during a 45-year period, rape and crimes of sexualized violence are not discussed.

In the 1990s, when the Draft Code of Mankind finally is produced, it is after the establishment of the Yugoslav and Rwanda Tribunals, whose statutes explicitly included rape as a crime against humanity, that the International Law Commission seriously considered including sexualized violence within their Draft Code. Also, by the mid- to late 1990s, the International Criminal Court’s Rome Statute expands the list of rape and other sex-based crimes under the crimes against humanity and the war crimes article.

Of course, by then there was a substantial increase in the participation of women in the practice and drafting of international humanitarian law and international criminal law.

Another factor is the CEDAW convention [the Convention on the Elimination of all Forms of Discrimination Against Women] that comes about in 1979. Over the next 20 years, the UN holds a series of women’s meetings in Mexico City, Copenhagen, Nairobi, and finally the 1995 meeting in Beijing, China, that issued the Beijing Platform of Action. The Beijing Platform urges the UN and states to understand “what happens to females during armed conflict, especially being subjected to rapes and sexual violence.” The platform’s attention is, I think, greatly generated by an evolving critical feminist perspective on international human rights law and international humanitarian and criminal law.

In 1993, when the Yugoslavia Tribunal is created, it is important to understand that the Yugoslav statute was only based on customary international law. The UN-created tribunal was drafted to apply the customary law that already binds nations. Therefore, no prolonged negotiation was required to issue the state, as was the case with the International Criminal Court’s Rome Statute—which is a combination of codified customary law and newly negotiated crimes.

In the Yugoslav and Rwanda statutes, rape is included as a crime against humanity. Those provisions derive from rape having been a crime against humanity from the late 1940s in legal documents drafted right after Nuremburg and the Tokyo trials. Rape was also interpreted into the customs of war provision of the Yugoslav statute given its long-recognized status as a war crime, based, for example, on the holding of rapes as war crimes in the 1947 Tokyo Judgment.

The great achievement of the 1990s to the 2000s was the modern enforcement of rape as a war crime, a crime against humanity and sexualized violence within the meaning of genocide. The enforcement was contained in the judgments of cases tried at the Yugoslav and Rwanda tribunals as well as the Special Court for Sierra Leone. The entering into force of the Rome Statute’s sexualized violence crimes furthered that sense of achievement.

KP: You previously mentioned a few examples of how we can infer certain acts—like rape—to be included even where it hasn’t been explicitly stated, like attacking one’s honor, for instance. Is it important that we spell out each explicit crime, or can it be more useful to have a broader umbrella that many crimes sort of fit within?

PS: Let me break it down in the following manner. First of all, I’m talking about three different categories of crimes—war crimes, crimes against humanity, and genocide.

For example, under crimes against humanity, charges of torture, persecution, or inhumane acts could be brought based upon sexual assault conduct. Under customary law, sexualized violence might be part of the illicit conduct that occurs under enslavement as a crime against humanity. The customary and treaty law that encompasses war crimes might bring charges of outrages upon personal dignity or cruel treatment based upon the infliction of rapes or other sexual abuse.

These are specific crimes that, along with explicitly named sex-based crimes such as rape or sexual slavery could be charged, depending upon the court or tribunal’s jurisdiction. It is important that several provisions of crimes be available to charge sexualized violence since they enable different instances of sexualized violence to be fully couched by the law. For example, males who are prisoners of war in an international armed conflict and were sexually abused while detained might have such acts charged as cruel treatment, torture, or rape under the Rome Statute. Sexualized violence committed during a genocide might be prosecuted under the genocide provision of “causing serious bodily or mental harm to members of the group” under customary or treaty law. Sexualized violence, such as rape, might be used to persecute different groups and charged under a persecution count.

It is important for the international community to understand that crimes that, on their face, appear not to be explicit sex crimes can indeed be the basis of charges that entail illicit sexual conduct.

KP: So why is it then that prosecutions for wartime sexualized violence seem so difficult to pursue?

PS: We have turned the difficulty of pursuing international sex crimes into conventional wisdom. We make it seem not only hard, but impossible. All war crimes, crimes against humanity, and genocide can be very difficult to investigate, to prosecute, and adjudicate. Evidentiary gathering during any of those situations—periods of open hostilities or of ongoing genocides, or even 20 years later—can be devastatingly difficult. For sexualized violence, it can be extremely challenging, but not necessarily more burdensome than redressing other crimes. There might be multiple scenarios concerning crimes of sexualized violence to investigate currently. Different legal strategies might have to be weighed.

In reality, the sexual assault victim or survivor might also have been subjected to multiple war crimes or crimes against humanity. The sexual assault investigation and prosecution, therefore, usually takes place within the context of the pursuit of other crimes. To claim that sexualized violence crimes are too difficult is a self-defeating proposition that might, and usually does, weaken the overall case.

During the past two decades, the acknowledgement of wartime rapes and other conflict-related sexualized violence as international crimes has dramatically advanced. Still, only an extremely small percentage of the sexualized violence inflicted upon females and males has ever been investigated, charged, and judged.

Since when has rape been a war crime? Rape has been a war crime for hundreds of years. Since when are international sexual assault crimes being enforced? A slow, imperfect process has been under way for the last 60 years. When will deterrence and prevention supersede the inflictions of rape? When international wartime rape culture subsides.

This interview has been edited for clarity.

More articles by Category: International, Violence against women
More articles by Tag: Rape, Law, Sexualized violence



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