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by Radhika Coomaraswamy (United Nations Special Rapporteur on Violence Against Women)

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

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.

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