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Sexual violence as crimes against humanity
Sexual violence as crimes against humanity
The widespread or systematic commission of acts of sexual violence against a civilian population may be prosecuted as crimes against humanity, regardless of whether they take place in the context of war or peace. Crimes against humanity include acts such as murder, torture, enslavement, imprisonment, enforced prostitution, forced pregnancy, rape or other inhumane acts when committed systematically or on a mass scale against civilians. They are also war crimes when committed in either international or internal armed conflicts.
Developments in the context of the recognition of sexual violence as a crime against humanity include: torture as one of the acts constituting a crime against humanity; rape has been expressly recognized as one of the acts constituting a crime against humanity;19 acts of sexual violence (other than rape), have been charged and recognized as crimes against humanity, by means of inhumane acts, and; 'enslavement' as a constituent act of crimes against humanity has been recognized.
The Akayesu judgment articulated a broad definition of rape as a war crime that places rape on an equal footing with other crimes against humanity. The tribunal found that the rapes were both systematic and carried out on a massive scale. The Akayesu definition reconceptualises rape as an attack on an individual woman's security of person, not on the abstract notion of virtue and not as a taint on an entire family's or village's honor. The court defined sexual violence to include forced nudity thus constituting a crime against humanity by way of other inhumane acts.20 This establishes that acts of sexual violence are not limited to those involving penetration or even sexual contact. This classification of 'serious sexual assault' as a crime against humanity by way of inhumane acts was also confirmed by the ICTY in the Furundzija decision.
In the Tadic case,21 Dusko Tadic, a member of the Bosnian Serb forces and low-level official at the Omarska camp, was convicted by the ICTY on 7 May 1997 for crimes against humanity for criminal acts of persecution that included crimes of sexual violence. He was not convicted for directly committing an act of sexual assault, but for his participation in a general, widespread and systematic campaign of terror. This decision states categorically that rape and sexual violence can be considered constituent elements of a widespread or systematic campaign of terror against a civilian population. It is not necessary to prove that rape itself was widespread or systematic but that rape was one of perhaps many types of crimes - the spectrum of which was committed on a widespread or systematic basis and comprised an aggressor's campaign of terror.22
The first convictions by the ICTY of rape as a crime against humanity came in the Kunarac, Kovac, and Vukovic decision of 22 February 2001.23 Trial Chamber II found that rape was 'used by members of the Bosnian Serb armed forces as an instrument of terror. An instrument they were given free rein to apply whenever and against whomever they wished'. The court found, amongst other factors, that the actions of the accused were part of a systematic attack against Muslim civilians; they knew that one of the main purposes of that campaign was to drive the Muslims out of the region; to achieve this they terrorized the Muslim civilian population in a manner that would make it impossible to return; they also knew of the general pattern of crimes, especially of detaining women and girls in different locations where they would be raped, and; they were not just following orders, if there were such orders, to rape Muslim women, the evidence showed free will on their part.
Kunarac, Kovac and Vukovic were also convicted for enslavement as a crime against humanity. The decision is the first time that the ICTY found enslavement as a crime against humanity. Six women were found to have been enslaved by the defendants - held for months in sexual slavery and subjected to multiple gang rapes by the defendants and others. This decision has set a legal standard for sexual enslavement as a crime against humanity.24
| 19 | ICTY Statute Article 5(g) and ICTR Statute Article 3. The Rome Statute Article extends the recognition of sexual violence in the context of crimes against humanity in Article 7(1)(g) to rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any form of sexual violence of comparable gravity. |
| 20 | See Akayesu Judgment, para 697. Also see the Musema judgment, supra note 20 - Musema was also found guilty of crime against humanity (rape) as the rape was consistent with the pattern of the widespread and systematic attack on the civilian population which he had knowledge of. |
| 21 | Prosecutor v. Tadic, Judgment, 7 May 1997 [Tadic judgment]. |
| 22 | Ibid, para 704 and 649. See also Prosecutor v. Blaskic, No. IT-95-14, Judgment (3 March 2000), para 203, which discusses at length what constitutes a crime against humanity. The court listed four elements that comprise a systematic attack including: (a) the perpetration of a criminal act on a very large scale against a group of civilians or the repeated and continuous commission of inhuman acts linked to one another; (b) the existence of a political objective, a plan pursuant to which the attack is perpetrated or an ideology, in the broad sense of the word, that is, to destroy, persecute or weaken a community; (c) the perpetration and use of significant public and private resources, whether military or other; and (d) the implication of high-level political and/or military authorities in the definition and establishment of the methodical plan. |
| 23 | See Press Release on the Judgment of Trial Chamber II in the Kunarac, Kovac and Vukovic case, The Hague, 22 February 2001 JL/P.I.S./566-e. |
| 24 | Ibid, at page 1 and Human Rights Watch, Bosnia: Landmark Verdicts for Rape, Torture, and Sexual Enslavement, (New York, February 22, 2001). |
Villagers tortured for "not seeing" the rebels