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by Radhika Coomaraswamy

(United Nations Special Rapporteur on Violence Against Women)

(Excerpted from a paper prepared for UNIFEM, January 2002).

Women are affected by armed conflict in a myriad different ways. They are often direct victims of violence, being either killed, maimed to subject to sexual violence. This direct violence is often severe and of the 'shock-the-conscience' variety. Women are often gang-raped ....., usually in front of their families. They are often sexually mutilated, sometimes their bodies are tattooed or they are paraded naked through the streets, or forced to dance nude on tables. They are made to become sexual slaves as well as domestic slaves and they are sometimes forcibly impregnated. Human rights groups have documented the nature and scale of this sexual violence in many countries throughout the world. They convey a pattern of brutality and humiliation that is often unimaginable for those living in peacetime.

In addition to being direct victims, women suffer violence as refugees or internally displaced. While the men go to war, women are usually displaced with their children, trying to eke out of life at a refugee camp. They are often victims of sexual violence in flight, and they are also harassed once they are in the camps. If they are with their husbands, they are often subject to increased rates of domestic violence. Some scholars have argued that women often make use of the refugee status to acquire agency over their lives, having escaped the structures of patriarchy. But for many women, being a refugee and an internally displaced person is a state of victimhood where they are subject to sexual violence and discrimination as a matter of course. In addition, they are denied basic economic and social amenities and have to often survive in subhuman situations.

During wartime, the presence of large armies and unattached males often leads to a demand for prostitution. This demand is often met by the trafficking of women from borders or from the countryside. Lured by job offers and other enticements, many of these women end up in brothels in terrible conditions. The comfort women of Japan are the best-known victims of these practices. They were often lured by job offers and then kept in brothels run by the Japanese army. There they serviced up to 40 clients a day in little bed-cubicles. They were subject to extraordinary violence and humiliation, and after the war many returned home with terrible scars and an inability to make a new life. Today, trafficking continues though private owners run the brothels. In recent times, the presence of large numbers of UN peacekeepers has led to trafficking and prostitution in areas adjoining their camps. This has caused a great deal of unhappiness among the local population, and new efforts are being made to curb these activities and to raise awareness among the peacekeepers.

Women are also affected by war in the sense that many of them become war widows. Their husbands may have been killed in combat or been lost in displacement. These women have to take on the burden of being heads of single-parent families trying to eke-out a living in new places and new contexts. They are often at the bureaucratic mercy of state institutions and international humanitarian institutions. Many complain of sexual harassment and difficulty while living in their community. Many others turn to prostitution to make ends meet. They have to find food, clothing and shelter for their children as well as education, and this is often an uphill struggle. In some countries as widows they are denied inheritance rights so that all their husbands' property reverts back to their families leaving the widows at the mercy of their male in-laws. The lack of inheritance rights makes war widows into paupers, and if they have no male children they are denied any right to the husband's property.

Women are also affected by war in that in some wars pornography plays an important part in the war. In the Bosnian war some of the rapes were publicly performed and videotaped and then the tapes were sold as pornographic material. Women victims were ordered to pose in certain positions and pictures were taken for pornographic magazines. This exploitation of women's bodies during war, with its strikingly modern technology of video cameras and hitech props was one of the great horrors of the war in the former Yugoslavia. The Serbs directing the films used sophisticated modern methods and props and even dubbed the dialogue. This cynical dehumanizing use of women is a new contribution to the depravity of war.

Women are also victims in another sense. Many of them become armed combatants, especially in the newer wars. As women combatants they are entitled to the protection of the Geneva Conventions, but in practice they need special treatment and care. Women in guerrilla movements are particularly vulnerable to rape from the other side. If they are captured they are invariably raped as part of the interrogation. (For this reason the women fighters of the Liberation Tigers of Tamil Eelam take cyanide capsules rather than give in to capture). In addition, many of these women are subject to sexual assault from their own colleagues. In Colombo ex-combatants spoke of sexual abuse by commanders and colleagues as well as a ban on pregnancy that often made them leave the movement. The control of reproductive rights often goes hand in hand with the presence of women fighters. Though some women would argue that the right to take up arms is the right of women as resistance fighters, the spectre of armed women cadres raises disturbing issues about women, non-violence and women's role in peace movements. Many argue that belonging to an armed movement is an act of empowerment. However, whether participation at the lower echelons of a military chain of command can be truly liberating for women is one of those intermediate debates within the women's movement.

Women are also often compelled to work in munitions and production factories preparing uniforms, shells and other military equipment needed for the war. In Britain, the munition factory worker was seen as doing a patriotic duty in making ammunition for the troops. Women in guerrilla villages sew and make clothing for the troops and also make other material needed for the war. The woman worker who comes out into public life to assist men during wartime, only to return to the home after the war is over, is a well known pattern in the conduct of war. It is also true that women play a major part in peace efforts far in excess of their numbers. But their presence in the 'war machine' cannot also be overlooked, and many women play an important part in the conduct of war.

Perhaps the greatest but least quantifiable impact of war on women is in the process of militarisation. Militarisation reinscribes certain masculine values and lifestyles. These lifestyles that condone violence and a measure of aggression often result in greater violence in the home and greater violence in the community. Army deserters, young men with guns, the climate of impunity, the celebration of martial valor, all lead to a context where violence becomes an acceptable way of life. This has enormous consequences for women since they are often the first victims of this tolerance for the violent lifestyle and the last to benefit from the largesse of the state toward its military apparatus.

There are two conflicting approaches on how history treats violence against women in wartime. Many scholars have argued that such crimes have been invisible and that history has no recollection of these horrible events. Seen as a necessary consequence of war, violence against women in armed conflict has been ignored by recorded history and those involved in making and implementing international standards. These scholars feel that patriarchal notions of sexual violence and the invisibility of women in the international law-making process led to the complete neglect of sexual violence during wartime. Such violence is rarely named as a terrible crime, and there are few provisions in international law that deal with these acts.

It is often pointed out that The Hague Convention, the first document of the twentieth century to deal with crimes of war, has no provision with regard to sexual violence during wartime and only mentions a general notion of 'family law'. It is also pointed out that though the Fourth Geneva Convention in Article 27 clearly states that crimes against women's 'honour' are prohibited, sexual violence is not mentioned as one of the crimes that constitute a 'grave breach' of the Geneva Conventions triggering individual criminal responsibility and universal jurisdiction. Cast in the language of 'honour', these crimes have a very patriarchal ring to their language and tenor. The Statutes on Nuremberg are also silent with regard to sexual violence, and such acts do not explicitly constitute war crimes or crimes against humanity as stated in its provisions, it is only in the 1990s with the International Tribunals in The Hague and Arusha that sexual violence is treated as a serious war crime and a crime again humanity.

Another school of thought, usually emanating from the office of prosecutors around the world, is the belief that sexual violence against women has always been seen as a prohibited act of war. Pointing to the chivalry codes of the medieval ages, the provisions on honour in the Hague Conventions, the provisions of Control Council Rule No 10 of the Occupying Powers of Germany, the trial Japanese Commanders from sexual violence in Nanking, these prosecutors argue that sexual violence against women has always been seen as a crime of war. They also point out that the general clauses on torture and wilful killing that mark the language of the Geneva Convention provisions on Grave Breaches were meant to include acts of sexual violence and assault. They argue that the prohibition against sexual violence during wartime is so universal that it is an aspect of customary international law. These arguments then set the framework for the legal argument about the accountability of perpetrators for sexual violence during wartime.

The accountability of the perpetrators today begins with the Geneva Conventions to which all states are party. Article 27 of the Convention speaks about protected persons and their right to be protected from crimes against their honour, rape, enforced prostitution and indecent assault as well as discrimination. However it is Article 147 that deals with individual criminal responsibility and therefore the accountability of perpetrators. Those combatants in an international armed conflict that commit these crimes against civilians are seen as having committed a war crime, and these acts trigger individual criminal responsibility and universal jurisdiction, the possibility of being sued in any of the courts of member states. The acts that constitute a grave breach of the Geneva Convention and are a war crime are stated as

(a) willful killing;

(b) torture or inhuman treatment, including biological experiments;

(c) willfully causing suffering or serious injury to body or health;

(d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly

(e) compelling a prisoner of war or other protected person to serve in the forces of a hostile power;

(f) wilfully depriving a prisoner or other protected person of the rights of fair and regular trial;

(g) unlawful deportation or transfer or unlawful confinement;

(h) taking of hostages.

These provisions then constitute the internationally accepted framework of international war crimes against civilians under the Geneva Convention. Though sexual violence is not explicitly stated, prosecutors have successfully argued that these crimes are subsumed under torture and wilfully causing suffering and serious injury. However, feminists argue that the lack of explicit language on sexual violence displays the patriarchal attitudes of the negotiators.

For crimes that are committed during a local internal war, as opposed to international armed conflict, the Geneva Conventions contain a common Article 3 in all the Convention that spell out prohibited acts during internal wars. These are stated as:

(a) violence to life and persons, in particulars murder of all kinds, mutilation, cruel treatment and torture

(b) committing outrages upon personal dignity; in particular, humiliating and degrading treatment;

(c) taking of hostages;

(d) the passing of sentences and carrying out executions without previous judgement pronouncement by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.

However, these acts described are not included as part of Article 147 which defines Grave Breaches of the Geneva Conventions, and therefore it was ambiguous as to whether individuals were criminally responsible before courts of law for committing these acts. The Security Council in setting up the Rwanda Tribunal, however, passed a statute that clearly states that individuals are to be held personally accountable for committing the acts contained in article 3 of the Geneva Conventions and that they could be brought to trial for violating these provisions.

Most countries of the world are signatories to the Geneva Conventions and are therefore bound by these provisions. Jurists and courts have held that the principle contained in the Geneva Conventions are so universally recognized that they constitute customary international law and states are bound, regardless of whether they have signed relevant treaties. The universality of the Conventions makes it still the most important document when it comes to dealing with individuals who have committed crimes during wartime.

Some states have gone beyond the Geneva Conventions and signed the Statute on the International Criminal Court which went into operation just two years ago. The ICC Statute is 'the state of the art' document on international war crimes and crimes against humanity. It is far-reaching in its treatment of sexual violence and there is explicit language with regard to sexual violence and gender discrimination. Individuals are held criminally responsible for the prohibited acts and can be brought before the International Court.

In the section on Crimes Against Humanity i.e. certain kinds of acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack, there is explicit mention of sexual violence. Article 7 (1) (g) includes as part of the prohibited acts, 'rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparative gravity. Another prohibited act is 'persecution against any identifiable group or collectively on political, racial, ethnic, cultural, religious, gender or other grounds....' In addition, enslavement is a prohibited act, and enslavement as defined by the Statute 'means the exercise of any or all 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 Statue also recognizes 'forced pregnancy' and defines it as 'unlawful confinement, of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law.' The requirement of proving intent to affect ethnic composition or carry out other grave violations of international law, however, is seen as a negative aspect of this provision from the perspective of women's rights. The provision was part of the lobbying by the Vatican to ensure that the provision does not lead to unnecessary abortions.

The section on War Crimes is equally explicit. In this Statute War Crimes include the Grave Breaches of the Geneva Convention cited earlier as well as a whole series of other acts, including 'committing rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions. In addition, to avoid the problem of internal and external wars, the Statute in a different section on war crimes in internal wars refers explicitly to sexual violence during internal wars. It mentions that prohibited acts include 'rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, and any other form of sexual violence also constituting a serious violation of Article 3 common to the Four Geneva Conventions.

The ICC Statute goes even further with regard to gender equity by requiring a fair representation of judges according to gender and requiring that one judge be appointed who specialises on violence against women as a subject area. The ICC exhorts the investigators of crimes to be sensitive with regard to their investigative procedures to the nature of crimes that involve gender violence and violence against children. Despite these laudable aspects, there are also certain disappointments with regard to the ICC statute. The provisions on genocide do not include any reference to sexual violence even though many women lobbied for systematic rape and forced pregnancy to be seen as an aspect of genocide. Gender is defined in a manner that seems to avoid any reference to sexual orientation, a major concern for certain countries and religions. Finally, with regard to the ICC as a whole, the country of the defendant or the country where the incident took place has to be a party to the Statute or give its consent to the proceedings. This vitiates any fully independent international process. Most states have not ratified the ICC Statue to-date, and with active lobbying by the United States against it, it is unlikely that there will be many signatories in the first few years. The Geneva Conventions, therefore, still remain the most important document with regard to binding provisions of international humanitarian law.

The nature of international norms and standards has evolved rapidly in the last decade because of the terrible wars that took place in the former Yugoslavia and Rwanda. Over the last decades, the International Criminal Tribunal of the Former Yugoslavia (ICTY) and The International Criminal Tribunal for Rwanda (ICTR) have made some far-reaching judgment that have resulted in people being prosecuted and convicted at the international level for war crimes and crimes against humanity. Sexual violence has been an important part of their considerations. Their pronouncements are important because they interpret the law to cover actual situations, and therefore, give depth and meaning to the law. The law is in the process of evolving, but significant milestones have already been reached.

The International Criminal Tribunal for the Former Yugoslavia has defined rape as a form of torture and a grave breach of the Geneva Convention. Therefore in the future, if sexual violence occurs in armed conflict and the case is covered by the Geneva Conventions, the interpretation of the court will carry great weight as a precedent. This equation of rape with torture was done in cases of women who were raped by being detained in a prison camp and when they were raped as part of an interrogation. In the Foca judgment, the court also held sexual violence to be included in the crime of enslavement and the crime of an outrage against personal dignity. In the Akeyesu judgment of the International Criminal Tribunal of Rwanda the court argued that rape in certain circumstances might also be an aspect of the crime of genocide.

The Foca judgment of the International Criminal Court of the Former Yugoslavia is the first judgment of any international tribunal in history to be primarily about sexual violence. In that sense it is an interesting case, and is therefore seen as an international standards-setter with regard to the application of international norms. However, the judgment is still only at the level of the Trial Court, and so some of the decisions may be reversed in appeal.

The Foca case involved the testimonies of many women who were detained in detention centers and private houses and raped repeatedly. The testimony of anonymous witness 75 gives one a sense of the sexual violence that took place in the former Yugoslavia. FWS 75 was in her village when it was attacked. At the commencement of the attack, she ran into the woods with her father, her mother and her brother. The soldiers ran behind them and shot her mother dead and encircled the others. The men were separated and led away. They heard gun shots soon after, and then silence. She never saw her father or brother again. She was then taken to the Buk Bijela detection camp. As soon as she entered she was raped by ten men. After the tenth she fainted. From Buk Bijela she was taken to The Foca High School. There she was kept for some time. She was fed only once in three days. Policemen and soldiers would come into the High School, point to girls and then either take them to another room and rape them or take them overnight. She was taken out every night except for two to a private apartment and then raped by many men. After a few days she was taken to the Patizan Sports Hall. Again she was taken out every night and raped orally, vaginally and anally by so many men that she lost count. Finally she was taken to two apartments where the defendants lived and had to provide domestic service as well as sexual services along with some other women. She cooked, cleaned and washed clothes, often in the nude, and often had to dance nude on tables. When one of the men got angry with her, he marched her nude through the streets to a river and was about to shoot her when the other men prevailed upon him. This continued until the end of the war when she was sold in prostitution to a brothel owner.

The facts of the case were so terrible that prosecutors were of the opinion that the number of counts and charges should be augmented to ensure a long prison sentence for the individuals concerned. For this reason they were charged on the grounds of torture, rape, outrages upon personal dignity and enslavement. The men were accused of having committed war crimes and crimes against humanity. The main defendant received a cumulative sentence of over one life imprisonment.

Despite these positive developments, some major questions remain from a legal doctrinal point of view with major implications for the future. What elements constitute rape during war-time, are the factors the same as during peacetime? In the Akeyesu judgment, the Rwandan Tribunal defined rape as follows. 'The Tribunal' considers that rape is a form of aggression and that the central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts. The Tribunal defines rape as a "physical invasion of a sexual nature, committed on a person under circumstances that are coercive". The extremely progressive judgment defines rape without any emphasis on the consent of the victim, probably under the belief that the issue of consent in the context of a war crime and a crime against humanity is an affront to the victim. Given the fact that such acts are committed in 'circumstances that are coercive', the perpetrator himself need not use active force and act against the will of the women. In addition sexual acts are not defined in terms only of sexual intercourse but as any physical invasion of a sexual nature.

The International Criminal Tribunal for the Former Yugoslavia is not so far-reaching in its judgment. The Furundzija judgment where rape at a detention center was seen as torture defined rape as 'sexual penetration'.

(a) of vagina, anus of the victim by the penis of the perpetrator or any other object used by the perpetrator;

(b) of the mouth of the victim by the penis of the perpetrator by coercion, or force or threat of force against the victim or third person.'

This definition requires sexual penetration of the vagina, anus or mouth of the victim and is therefore quite specific about sexual violence. In addition it requires the perpetrator to use some kind of coercion or force. This requirement of the use of force also requires that the prosecutor prove force. In a war context, soldiers may not actually use physical force, their uniforms are coercive enough. Therefore this definition of rape is very negative from the view point of the victim.

Finally, the Foca judgement lies in between these judgements. It states that rape occurs when

(i) 'sexual activity is accompanied by force or threat of force to the victim or third party,

(ii) the sexual activity is accompanied by force or a variety of other specified circumstances which made the victim particularly vulnerable or negated her ability to make an informed refusal,

(iii) the sexual activity occurs without the consent of the victim.

This definition rests the whole case on the use of force or the lack of consent of the victim. Though defined more flexibly to give room for 'vulnerability' this definition of rape also forces attention in certain contexts on the consent of the victim and may, therefore, result in terrible cross-examinations. In addition, by making it a constituent element of the crime, the prosecutor will have to prove lack of consent in certain contexts, again making prosecution difficult and onerous for the victim.

Ironically, in the evidentiary rules of the Tribunal itself, Rule 96 states that 'consent shall not be allowed as a defense of the victim if the victim -

(a) has been subjected to or threatened with or has reason to fear violence, duress, detention or psychological oppression or

(b) reasonably believed that if the victim did not submit another might be so subjected, threatened or put in fear'.

The dispute on the definition of rape therefore becomes a very important debate for people interested in women's rights at the international level. The Akeyesu approach will ensure maximum accountability and successful prosecutions. However, it may have titled the balance too far with regard to the rights of the defendant. On the other hand, the other two definitions have many of the dangers of national prosecutions, and given the context of war and the types of sexual violence that occur during wartime, may prove to be major obstacles in certain kinds of prosecutions.

For the first time sexual slavery is clearly defined and analyzed at the international level. Defining enslavement as the 'exercise of any or all of the powers attaching to the right of ownership', it held that the activities in the private apartments where women provided all kinds of services and lived in a constant state fear amounted to enslavement and a complete violation of international humanitarian law.

Recommendations

1. The system of accountability for sexual violence as war crimes and crimes against humanity should be strengthened. Countries should be encouraged to sign the Rome Statute (the International Criminal Court) and to amend their national laws to recognize the different types of sexual violence as war crimes and crimes against humanity. Prosecutors and investigators round the world should be supported to bring such cases before international or national tribunals and before Truth and Reconciliation Commissions. It is important to ensure that everyone recognizes that these crimes are unacceptable and that those who commit these crimes will be prosecuted and punished.

2. UN Peacekeeping operations should be sensitive to the problems of the local female population. It should have effective measurement to protect the female population from sexual abuse and exploitation and special internal mechanisms to ensure that those who violate such codes will be punished or transferred. There should be more women at all levels of peacekeeping operations.

3. International and national humanitarian agencies should make violence against women during wartime a high priority. In this sense there should be systematic attempts to

(a) make combatants and civilians aware that sexual violence during wartime is an international crime against humanity. This should be done by ensuring that troops are properly trained and guerrilla groups properly informed by agencies such as the ICRC;

(b) protect women living in the war zones from sexual violence and disruption of their livelihood through strict adherence to the Geneva Conventions;

(c) provide women in the war zones and the refugee camps with minimum services:

4. The right to food. Food should not become a hostage of war, and food to the civilian population, either through humanitarian efforts or through protection of livelihood, should be guaranteed. There should be no economic embargoes that affect the right to food and water.

5. Health care should be provided to the women living in war zones with a special expertise in wounds resulting from sexual violence. International and national surgeons specializing in v section operations for women as well as gynaecologists skilled in diseases relating to the reproductive system should be an integral part of any medical team sent by the national or international health authorities. In this context, treatment for AIDS and programs to educate the population about AIDS and treatment for AIDS should also be a part of any health strategy in the war zones.

6. Psychosocial support should also be an important part of humanitarian strategies in the war zones. Trained counsellors and community workers should be included in any such team at refugee camps or hospitals in and around the war zones.

7. Mobile units of health professionals may also be necessary in contexts where access to health services is limited. Mobile humanitarian services assisting both sides will be of great assistance in the context of war.

8. Women should be involved in all the decision-making plans with regard to refugee camps and in the management of such refugee camps. The same should be true with regard to local level leadership involved in individual projects.

9. It must be recognized that when services are given to the general population, at the lower level of these bureaucratic establishments women are often asked to provide sexual services in return for the provisions. It is important to ensure an implementing strategy that prevents this type of exploitation.

10. Sexual harassment and domestic violence in the refugee camps and community centres are often a major problem. The management of these camps and centres should make it clear that these practices would not be tolerated, and there should be a committee from the camp or centre to look into these matters where women also participate.

11. Programs of demining and awareness-raising about mines should be conducted in war zones, and women and girls should be specially targeted for this education since they are often the individuals who fetch the water and the firewood.

12. Inheritance laws and other impediments that prevent women's access to land and livelihood during and after conflict should be amended so that women war widows are given economic security and some assistance.

13. Special programs for female-headed households in war zones should be implemented to ensure that these widows are not left at the mercy of local-level bureaucrats and commanders. Programs in awareness raising, skills training, trauma counselling and child management will be of great assistance to these women in the context of their real life situation.

14. The girl child should not be neglected in the context of armed conflict. Special programmers should exist to reintegrate women and girl child combatants who have been combatants in the war, as their needs are different from male combatants. There should also be programs to prevent girl children from being trafficked from war zones to worse slavery-like situations where they must engage in prostitution or similar activities. Trafficking of women and girl children should be a serious concern of military authorities and humanitarian agencies working in the war. - (Courtesy: Nethra)

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