SEXUAL VIOLENCE AS AN INTERNATIONAL CRIME

SEXUAL VIOLENCE AS AN INTERNATIONAL CRIME

Historically, rape has been characterized as an attack against the honor and dignity of women, and not as a grave act of violence. However the last decade has witnessed important developments in the treatment of harm experienced by women in armed conflict. The most extensive development has been increased recognition of sexual violence as an international crime. The Statutes of the Tribunals created to address crimes committed in the former Yugoslavia and Rwanda explicitly incorporate rape as a crime against humanity. The Statute of the International Tribunal for Rwanda expressly includes rape, enforced prostitution and any form of indecent assault as a violation of article 3 common to the Geneva Conventions and of Additional Protocol II. Both Tribunals have issued indictments relating to sexual violence and defendants found guilty of such violence have been convicted of crimes against humanity, including as a result of rape, enslavement and torture; violation of the laws or customs of war, including the result of rape, torture and outrages upon personal dignity; and genocide, through rape and sexual violence committed with the specific intent of destroying in whole or in part a particular group.

The Statutes of the Tribunals have been built on by the Rome Statute of the International Criminal Court (the Rome Statute) whose jurisdiction will include genocide, crimes against humanity, war crimes and crimes of aggression. The Rome Statute makes explicit that rape and other gender violence are among the most serious crimes of concern to the international community by specifically defining them as constituent acts of crimes against humanity and war crimes.⁹ 

The Rome Statute will enter into force on 1 July 2002. The Court, to be based in The Hague, Netherlands, is expected to be established in 2003. The Court is expected to draw upon the jurisprudence of the international tribunals for the former Yugoslavia and Rwanda (the ICTY and ICTR respectively). 

The Court's jurisdiction is not retroactive. It can only address crimes committed after entry into force of the Statute. The Court may exercise its jurisdiction over a specific case when either the State in whose territory the crime was committed, or the State of the nationality of the accused, is a party to the Statute. Non-party States may accept the Court's jurisdiction on an ad hoc basis. The Court will also have jurisdiction over cases referred to it by the Security Council whether or not the State concerned is a party to the Statute. 

It is unlikely that Burma will come within the Court's jurisdiction until a democratic transition is underway or has occurred. However, examining the jurisprudence to date gives a clear indication of what international crimes are currently being committed in Shan State and in the event an ad hoc tribunal were established to investigate and prosecute serious crimes committed within a certain time period such as genocide, war crimes, crimes against humanity, murder, sexual offences and torture, the jurisprudence of the two ad hoc international tribunals and the Court will be drawn upon.

9 See Rome Statute http://www.un.org/law/icc/statute/romefra.htm, Articles 7 & 8.