276 Matsui ‘Overcoming the culture of impunity for wartime sexual violence.’ Chinkin ‘Women’s international tribunal on Japanese military sexual slavery’ at 335.
277Ibid. Women’s International War Crimes Tribunal 2000 for the Trial of Japan’s Military Sexual Slavery, para 24.
278 Ibid. Lee ‘Comforting the comfort women’ at 534.
279 Ibid. Argibay, ‘Sexual slavery and the “comfort women” of World War II’ at 388.
280 Chinkin ‘Women’s international tribunal on Japanese military sexual slavery’ at 339.
281 Andrea R Phelps ‘Gender-based war crimes: Incidence and effectiveness of international criminal prosecution’
(2006) 12 William & Mary Journal of Women & the Law 499 at 514.
282 Ibid.
283 Matsui ‘Overcoming the culture of impunity for wartime sexual violence.’ Drom ‘Assessment of the 2000 Tokyo Women’s International War Crimes Tribunal on Japan’s Military Sexual Slavery.’
284 Ibid.
285 Askin ‘Prosecuting wartime rape and other gender-related crimes’ at 302.
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The massive destruction and atrocious acts committed during World War II against civilians, emphasised the necessity to have international instruments to protect them during wars.
Instruments such as the Universal Declaration of Human Rights, the Genocide Convention and the Fourth Geneva Convention for the protection of civilians286 were drafted to deter bloodbaths and brutality of the kind which occurred in World War II.287 The four Geneva Conventions of 1949 revised the Geneva Conventions288 which were in existence. These four Geneva Conventions of 1949, together with the 1977 Additional Protocols, constitute the customary rules of international humanitarian law.289 Common Article 2 sets out the circumstances together with the conditions in which these Conventions apply, thus filling a gap which other instruments of international humanitarian law did not provide.290 Common article 2 provides in part that:
(1) In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
(2) The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance
Although the Geneva Conventions apply during armed conflict situations, the phrase ‘[i]n addition to the provisions which shall be implemented in peacetime’ in article 2(1) indicates that
286 Universal Declaration of Human Rights, G.A. Res. 217A (III), (10 December 1948). Article 5, for example, provides that ‘[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’
Convention on the Prevention and Punishment of Genocide, 9 December 1948, 78 UNTS 277 (entered into force January 12, 1951),Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287 [hereinafter Fourth Geneva Convention].
287 Sellers ‘The cultural value of sexual violence’ at 321.
288 The 1864 Geneva Convention was revised and expanded in 1906 and 1929. These conventions are replaced by the four Geneva Conventions of 1949.
289 Convention (1) For the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31 [hereinafter the First Geneva Convention], Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85 [hereinafter the Second Geneva Convention], the Third Geneva Convention, and the Fourth Geneva Convention.
Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1997, 1125 UNTS 3 [hereinafter Protocol I], Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 UNTS 609 [hereinafter Protocol II].
290 Geneva Convention - ICRC databases on international humanitarian law, para 192 (stating that [n]either the 1899 and 1907 Hague Conventions nor the 1864, 1906 and 1929 Geneva Conventions specified under what conditions their application would be triggered, available at
https://ihl- https://ihl- databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId
=BE2D518CF5DE54EAC1257F7D0036B518 (accessed 20 June 2018).
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human rights norms continue to apply even during armed conflict situations.291 As a result, the provisions in international human rights treaties, such as, the Convention on the Elimination of All Forms of Discrimination (CEDAW)292 and the Convention against Torture apply during armed conflicts.293 Thus, states cannot derogate from their obligations owed to their citizens.
Regarding the protection of women who are wounded, shipwrecked or prisoners of war, the First, Second and Third Geneva Conventions contain provisions which are similar to article 3 of the 1929 Geneva Convention, in that ‘[w]omen shall be treated with all consideration due to their sex’.294 Under article 27(2) of the Fourth Convention, which provides for the protection of civilians during war, rape is explicitly prohibited. The article protects female civilians from ‘any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault’.295 However, female civilians are only protected where ‘they find themselves, in the case of a conflict or occupation, in the hands of a Party to the conflict or occupying powers which they are not nationals’.296 Thus, article 27(2)’s application is limited, in that female citizens are not protected from the activities of the state to which they belong.297
Articles 75 and 76 of Additional Protocol I which relate to international armed conflicts, extend the ‘humanitarian protection ‘contained in the Fourth Convention to ‘civilians. . . in the power of a Party to the conflict.’298 The articles are also applicable to ‘rules of international law relating to the protection of fundamental human rights during international armed conflict’.299 Article 75(2)(b) of Protocol I does not specifically prohibit rape. It prohibits ‘civilians and military agents’ from inflicting ‘outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault.’300 The provision offers protection to both males and females, thus taking into consideration men as victims of
291 Geneva Convention - ICRC databases on international humanitarian law, para 199. Kelly Dawn Askin ‘War crimes against women: Prosecution in International war crimes tribunals’ at 245.
292 See Chapter 1, section 1.2 with regard to CEDAW.
293 Askin ‘War crimes against women’ at 245.
294 First Geneva Convention, art 12, Second Geneva Convention, art 12 and Third Geneva Convention, art 14.
Convention relative to the Treatment of Prisoners of War, Geneva (27 July1929) art 3 (‘Prisoners of war are entitled to respect for their persons and honour. Women shall be treated with all consideration due to their sex. Prisoners retain their full civil capacity.’) Sellers ‘The cultural value of sexual violence’ at 321.
295 Fourth Geneva Convention, art 27. See also Sellers ‘The cultural value of sexual violence’ at 321.
296 Fourth Geneva Convention, art 4.
297 Gardam and Jarvis ‘Women, armed conflict and international law’ at 64.
298 Protocol I, art 72.
299 Idem
300 Protocol I, art 75(2)(b).
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sexual violence. Article 75(2)(a) of Protocol I also prohibits ‘[t]orture of all kinds, whether physical or mental’, and mutilation.301 These are crimes that cover violent sexual acts. Article 76(1) of Additional Protocol I, on the other hand, specifically protects women against rape and other forms of sexual violence committed against women by providing that ‘[w]omen shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other form of indecent assault’.302
With regard to non-international armed conflicts, article 4(2)(e) of Additional Protocol II is worded similarly to article 75(2)(b) of Additional Protocol I, except for the inclusion of the word
‘rape’. Article 4(2)(e), which applies to ‘persons who do not take a direct part or who have ceased to take part in hostilities’,303 prohibits ‘outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault.’304 Other provisions in article 4(2) which are relevant to the protection of women and men which would cover sexual violence are articles 4(2)(a) and (f). Article 4(2)(a) prohibits inter alia ‘cruel treatment such as torture, mutilation or any form of corporal punishment’, and article 4(2)(f) prohibits ‘[s]lavery and the slave trade in all forms’. Through these articles, international humanitarian law recognises the vulnerability of women to sexual violence by expressly including rape, enforced prostitution and also indecent assault. However, these crimes are categorised as crimes against honour or dignity, rather than crimes of violence. 305 In commenting on the implications of linking rape as a crime of honour in article 27, Coomraswamy stated that:
By using the honour paradigm, linked as it is to concepts of chastity, purity and virginity, stereotypical concepts of femininity have been formally enshrined in humanitarian law. Thus, criminal sexual assault, in both national and international law, is linked to the morality of the victim. When rape is perceived as a crime against honour or morality, shame commonly ensues for the victim, who is often viewed by the community as ‘dirty’ or ‘spoiled’. Consequently, many women will neither report nor discuss the violence that has been perpetrated against them. The nature of rape and the silence that tends to surround it makes it a particularly difficult human rights violation to investigate.306
301 Protocol 1, art 75(2)(a)(ii) and (iv).
302 Protocol I, art 76(1).
303 Protocol II, art 4(1).
304 Protocol II, art 4(2)(e).
305 Gardam and Jarvis ‘Women, armed conflict and international law’ at 102.
306 Report of the Special Rapporteur on violence against women, it causes and consequences, Ms Radhika
Coomraswamy, submitted in accordance with commission resolution 1997/44, E/CN.4/1998/54 (26 January 1998)
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The Fourth Geneva Convention and the other three Geneva Conventions contain a ‘grave breaches’ provision, identifying certain crimes as the most serious crimes under international humanitarian law.307 Commission of these crimes attaches to them individual criminal responsibility. As states have an obligation to prosecute violations of grave breaches listed in article 147, the universal jurisdiction principle applies to those grave breaches listed in article 147.308 Under article 146 of the Fourth Geneva Convention, for example:
High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches. . . Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.
Rape and the other sexual crimes mentioned in article 27(2) are not listed as crimes of ‘grave breaches’ in article 147 of the Fourth Geneva Convention. Neither is rape mentioned in common article 3 of the Geneva Conventions. Also, Protocol I which extends the grave breaches system found in the Geneva Conventions does not expressly refer to sexual violence.309 Some of the following acts which article 147 lists as grave breaches are ‘willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person’.310 Torture, inhuman treatment and ‘willfully causing great suffering or serious injury to body or health’ were not originally considered as acts of rape by those who drafted the Geneva Convention.311 Although sexual violence during armed conflict is often used as a means to torture both women and men, torture was historically considered as a means to obtain a confession or information from the victim, or another person.312 With the adoption of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
available at https://documents-dds-ny.un.org/doc/UNDOC/GEN/G98/102/91/PDF/G9810291.pdf?OpenElement (accessed 23 June 2018).
307 Gardam and Jarvis ‘Women, armed conflict and international law’ at 73.
308 Patricia Sellers ‘Sexual violence and peremptory norms: The legal value of rape’ (2002) 34 Cape Western Reserve Journal of International Law 287 at 298.
309 Judith Gardam and Michelle Jarvis ‘Women, armed conflict and international law’ at 74. See Additional Protocol I, art 85. No mention is made of grave breaches under Additional Protocol II.
310 Fourth Geneva Convention, art 147. See First Geneva Convention, art 50, Second Geneva Convention, art 51 and Third Geneva Convention, art 130 for corresponding articles on grave breaches.
311 Gardam and Jarvis ‘Women, armed conflict and international law’ at 100.
312 Idem at 188. Copelon ‘Surfacing gender’ at 250 referring to the 1958 ICRC Commentary to the Fourth Geneva Convention.
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as part of international human rights law, the definition of torture has been given a broader meaning. Torture is defined in article 1 of the Convention as:
[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him [or her] or a third person information or a confession, punishing him [or her] for an act he [or she] or a third person is suspected of having committed, or intimidating or coercing him [or her] or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.313
The Special Rapporteur to the United Nations has stated that ‘in many cases the discrimination prong of the definition of torture in the Torture Convention provides an additional basis for prosecuting rape and sexual violence as torture,’314 thus accepting that under international law rape can constitute torture. ‘Willfully causing great suffering or serious injury to body or health,’
was included in the grave breaches list, as the crime of torture was considered as having a narrow meaning.315 Gardam and Jarvis also argue that though the crimes mentioned in article 27(2), are not expressly listed under article 147 as grave breaches, they would come under the umbrella of
‘inhuman treatment’.316 The International Committee of the Red Cross (ICRC),317 tribunals and international courts, such as, the ICTY318 and ICTR,319 the European Court of Human Rights320 and the ICC321 now recognise that rape can constitute torture.
313 UN General Assembly, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 39th Sess., (10 December 1984). Copelon ‘Surfacing gender’ at 251.
314 Prosecutor v Delialic, Mucic, Delic and Landzo (judgment) Case No.IT-96-21-T, Nov. 16, 1998, para 493 [hereinafter Celebici Judgment] referring to the Final Report submitted by Ms. Gay J. McDougall, Special Rapporteur, E/CN.4/Sub.2/1998/13, 22 June 1998, para. 55.
315 Copelon ‘Surfacing gender’ at 250.
316 Gardam and Jarvis ‘Women, armed conflict and international law’ at 201.
317 The ICRC stated that rape is covered under the grave breach of ‘willfully causing great suffering or serious injury to body or health.’ In 1993 the United States Department of State recognised rape as a war crime or a grave breach under customary international law and the Geneva Conventions. It stated that rape could be prosecuted as such. See Theodor Meron ‘Rape as a crime under international humanitarian law’ (1993) 87 American Journal of
International Law’ 424 at 426 -427.
318 Celebici Judgment, para 494-497. Under article 5(f) of the ICTY Statute torture is listed as an act constituting a crime against humanity. In the Celebici Judgment, the Trial Chamber held that the following elements of torture must be met for the purposes of applying articles 2 and 3 of the ICTY Statute:
(i) There must be an act or omission that causes severe pain or suffering, whether mental or physical, (ii) which is inflicted intentionally,
(iii) and for such purposes as obtaining information or a confession from the victim, or a third person, punishing the victim for an act he or she or a third person has committed or is suspected of having
committed, intimidating or coercing the victim or a third person, or for any reason based on discrimination of any kind,
(iv) and such act or omission being committed by, or at the instigation of, or with the consent or acquiescence of, an official or other person acting in an official capacity.
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Rape has also been recognised as a crime under common article 3 of the Geneva Conventions, as held in the Prosecutor v Kunarac et al case.322 The three defendants in this case were convicted of torture, outrages upon personal dignity and rape of Bosnian Muslim women during the armed conflict in and around Foca, a city in former Yugoslavia. With regard to the crime of rape, the defendants were convicted under articles 3 and 5 of the ICTY Statute and under common article 3.323 The Trial Chamber in this case made reference to the fact that common article 3 is part of customary international law, a requirement for the application of the article.324 It also referred to the Appeals Chamber decision in the Prosecutor v Tadi case where is was held that ‘customary international law imposes criminal liability for serious violations of common Article 3 . . . ’325 The Trial Chamber held that ‘rape, torture and outrages upon personal dignity, no doubt [constitute] serious violations of common article 3, entail criminal responsibility under customary international law’.326
2.4 THE INTERNATIONAL CRIMINAL TRIBUNALS FOR FORMER