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«Dissertation zur Erlangung des Doktorgrades der Juristischen Fakultät der Universität Regensburg vorgelegt von Kathrin Greve Erstberichterstatter: ...»

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The massive perpetration of sexual violence is part of every armed conflict, be it international or internal, and of a religious, ethnic, political, or nationalist nature.3126 Its perpetration is the Prosecutor v. Dragan Nikolic, Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 20 October 1995, IT-94-2-R61; Prosecutor v. Radovan Karadzic and Ratko Mladic, Review of the Indictment pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, IT-95-5&18-R61; Prosecutor v. Dusko Tadic, Trial Chamber II, Decision on the Defence Motion on Jurisdiction, 10 August 1995, ITTR72; Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo, Trial Chamber II, Judgment, 16 October 1998, IT-96-21-T; Prosecutor v. Anto Furundzija, Trial Chamber II, Judgment, 10 December 1998, IT-95-17/1-T; Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, Trial Chamber II, Judgment, 22 February 2001, IT-96-23-T & IT-96-23/1-T; Prosecutor v. Radislav Krstic, Trial Chamber I, Judgment, 2 August 2001, IT-98-33-T; Prosecutor v. Miroslav Kvocka, Milojica Kos, Mlado Radic, Zoran Zigic and Dragoljub Prcac, Trial Chamber I, Judgment, 2 November 2001, IT-98-30/1-T.

Prosecutor v. Jean-Paul Akayesu, Trial Chamber I, Judgment, 2 September 1998, ICTR-96-4-T; Prosecutor v. Alfred Musema, Trial Chamber I, Judgment and Sentence, 27 January 2000, ICTR-96-13-T. At the time the dissertation was written, few ICTR cases dealing with sexual violence had been completed.

Brownmiller, Making Female Bodies the Battlefield, p. 182.

Patton, War as I knew it, p. 23-14.

rule and its absence, the exception.3127 Women are victims of sexual violence committed by men of all parties to the conflict, including UN peacekeepers3128 or other members of the international community supposedly guaranteeing their safety.3129 Sexual violence against women within armed conflicts is always the brutal continuation of women’s everyday discrimination3130 and would be unimaginable without it. 3131 Whilst men, too, are victims of sexual violence, including in Yugoslavia and Rwanda,3132 and whilst rape causes serious bodily and mental harm to victims of both sexes, it still is, statistically and structurally, a crime committed by men against women.3133 Sexual violence perpetrated against men often has different goals: Mostly, the primary aim is not the perpetrator’s sexual gratification, but the victims’ humiliation at having been “feminised“, and who in many societies will be further subjected to the stigma of homosexuality,3134 even more so because armed conflict tends to reinforce traditional gender roles.3135 Sexual violence against women, too, is committed for a variety of motives. One of them is the assumption that the rape of women corresponds to a symbolic rape of their community, the destruction of the basic elements of a society and culture, as well as constituting the ultimate humiliation of the male enemy,3136 who supposedly feels his inability of protecting the sexual See Brownmiller, Against Our Will, p. 31-113, detailing the perpetration of rape in wars from antiquity to Vietnam.

McDougall, Update, 6.6.2000, UN Doc. E/CN.4/Sub.2/2000/21, paras. 10-19; Amnesty International, Frauen in Aktion, p. 31; Callaway, Survival and Support, p. 216; Chinkin, Women and Peace, p. 408-409; Cleiren, Tijssen, Rape and Other Forms of Sexual Assault, p. 257; Copelon, Surfacing Gender, p. 197; Enloe, Afterword, p. 219; MacKinnon, Crimes, p. 107-108; Mladjenovi!, Universal Soldier, p. 14-15; Niarchos, Women, War, and Rape, p. 651; Steains, Gender Issues, p. 358; Sunga, The Emerging System of International Criminal Law, p. 172; Swiss, Giller, Rape as a Crime of War, p. 612; Sellers, Context of Sexual Violence, p. 265;

Sellers, Okuizumi, Intentional Prosecution, p. 46; Wäspi, Arbeit des ICTY und ICTR, p. 2454.

Chinkin, Rape, p. 326; Cockburn, Hubic, Gender and the peacekeeping military, p. 111; Heidtmann, Interview mit Ellen Johnson-Sirleaf, p. 32; MacKinnon, Crimes, p. 91; Orford, Politics of Collective Security, p. 379.

Bickel, In schlechter Gesellschaft, p. 6-9; Rees, International intervention, p. 64-65; see also Cockburn, Hubic, Gender and the peacekeeping military, p. 110; Filter, Mit den Waffen eines Mannes, p. 29; Kirshenbaum, Gilbert, Who’s watching the Peacekeepers?, p. 10-15; Ott, Die Opfer, p. 84; Sells, The Bridge Betrayed, p. 132.

McDougall, Final Report, 22.6.1998, UN Doc. E/CN.4/Sub.2/1998/13, para. 9; Amnesty International, Frauen in Aktion, p. 38; Möller, Völkerstrafrecht und Internationaler Strafgerichtshof, p. 368-369.

McDougall, Final Report, 22.6.1998, UN Doc. E/CN.4/Sub.2/1998/13, para. 9; Greve, Interview with Judge Odio Benito, p. 6; MacKinnon, Rape, p. 186.

P. z.B. Amnesty International, Bosnia, p. 4; Gutman, Witness to Genocide, p. 98-99; Melvern, A People Betrayed, p. 186; Rorty, Human Rights, p. 111-112; Sharratt, Foca Indictment, p. 80; Wäspi, Arbeit des ICTY und ICTR, p. 2454.

McDougall, Final Report, 22.6.1998, UN Doc. E/CN.4/Sub.2/1998/13, paras. 18, 24; Women’s Rights Unit, Sexual Violence and armed conflict, p. 2; Amnesty International, Bosnia, p. 4; Chinkin, Rape, p. 326; MacKinnon, Rape, p. 187; Sharratt, Foca Indictment p. 79-81, 80.

Askin, Women and international humanitarian law, p. 42; Bell, Beyond the ‘Thorny Question’, p. 370, 376Fitzgerald, Prosecution and Adjudication of Rape, p. 650; Hagan, Justice in the Balkans, p. 52; Wäspi, Arbeit des ICTY und ICTR, p. 2454.





Fitzgerald, Prosecution and Adjudication of Rape, p. 650.

Coomaraswamy, Preliminary Report, 22.11.1994, UN Doc. E/CN.4/1995/42, para. 275; McDougall, Update, 6.6.2000, UN Doc. E/CN.4/Sub.2/2000/21, para. 20; Askin, War Crimes, p. 360; Brownmiller, Against Our Will, p. 35; Mladjenovi!, Universal Soldier, p. 14; Swiss, Giller, Rape as a Crime of War, p. 612purity of “his” women as a degradation.3137 Women are thus made victims in the fight for male honour; the bodies of raped women serve as “medium for the transmission of male messages”. 3138 This strategy can only be successful, however, when perpetrators and the victim’s community share the same misogynist conceptions of “honour”, “purity”, and the position and role of women.

Although rape has always been a part of war and has been discussed3139 and prohibited3140 for centuries, the concrete cases have mostly remained invisible, being passed under silence and not prosecuted. If they were addressed at all, often the victims’ sufferings were used to demonstrate the innocence of the defeated or the wickedness of victors.3141 A broad public discussion of rape committed in war took place for the first time in 1992, in the context of rapes and forced pregnancies in the former Yugoslavia.3142 This is all the more important since before the institution of ICTY and ICTR, there were hardly any convictions issued by international tribunals which regarded sexual violence in armed conflict,3143 even where rape or enforced prostitution was committed in great numbers or systematically, as was the case in the European and Pacific theatres of World War II.3144 Although the world’s conscience was allegedly shocked by rapes committed publicly, systematically and in great numbers, as during the Coomaraswamy, Preliminary Report, 22 November 1994, UN Doc. E/CN.4/1995/42, para. 280; Women’s Rights Unit, Sexual Violence and armed conflict, p. 3; Brownmiller, Making Female Bodies the Battlefield, p.

181; Chinkin, Rape, p. 328; Kora!, Serbian Nationalism, p. 110; Mladjenovi!, Universal Soldier, p. 14; Möller, Völkerstrafrecht und Internationaler Strafgerichtshof, p. 366-367; Niarchos, Women, War, and Rape, p. 661. See also Salzman, Rape Camps, p. 85: “This myth, which is not limited to a particular religion, culture, or sociological status, demonstrates a model of masculine-feminine relations in which men possess, rather than relate with, women. According to this myth, when a “man’s woman” is violated through rape, it is often very difficult for him to accept the humiliation of such an event. He has failed to live up to his masculine duty and the obligation to defend “his woman”, regardless of the circumstances. Frequently, though illogically, this belief translates into alienation or violence directed toward the only one he can punish, the woman. Empathy and compassion for the woman sometimes become displaced by masculine self-pity, humiliation, and suffering as a result of her rape.” Ugre"i!, The Culture of Lies, p. 72. See also Möller, Völkerstrafrecht und Internationaler Strafgerichtshof, p. 367.

Meron, Shakespeare’s Henry the Fifth, p. 29-30; id., Rape, p. 425.

Meron, Rape, p. 425; Möller, „Celebici“-Urteil, p. 55, Sellers, Context of Sexual Violence, p. 265-277;

Wäspi, Arbeit des ICTY und ICTR, p. 2454.

Coomaraswamy, Preliminary Report, 22 November 1994, UN Doc. E/CN.4/1995/42, para. 281; Brownmiller, Against Our Will, p. 31-113; Copelon, Surfacing Gender, p. 197; Enloe, Afterword, p. 219; Human Rights Watch/Nowrojee, Shattered Lives, p. 27; Niarchos, Women, War, and Rape, p. 651; Steains, Gender Issues, p. 358; Sunga, The Emerging System of International Criminal Law, p. 176-177.

McDougall, Final Report, 22 June 1998, UN Doc. E/CN.4/Sub.2/1998/13, paras. 12, 19; Coomaraswamy, Preliminary Report, 22 November 1994, UN Doc. E/CN.4/1995/42, para. 272; Swiss, Giller, Rape as a Crime of War, p. 612.

McDougall, Final Report, 22 June 1998, UN Doc. E/CN.4/Sub.2/1998/13, paras. 12, 19; Cleiren, Tijssen, Rape and Other Forms of Sexual Assault, p. 267; Niarchos, Women, War, and Rape, p. 651; Sellers, Context of Sexual Violence, p. 265, 276-277.

For rape comitted in war see Brownmiller, Against Our Will, p. 31-113, as to World War II see ibid., p. 48McDougall, Final Report, 22 June 1998, UN Doc. E/CN.4/Sub.2/1998/13, para. 12; Chinkin, Protection, p.

457; Copelon, Surfacing Gender, p. 197; Enloe, Afterword, p. 219; Meron, Shakespeare’s Henry the Fifth, p. 30;

Niarchos, Women, War, and Rape, p. 665; Robertson, Crimes against Humanity, p. 325.

“Rape of Nanking“ in December 1937, when about 20,000 Chinese women were raped during the first month of the Japanese occupation alone, the international community did not respond adequately.3145 The same applies to the rape of about 200,000 Bengal women in East Pakistan, later to become Bangladesh, in the war of independence against Pakistan,3146 following which an estimated 25,000 children conceived in rapes were born:3147 These rapes were nor prosecuted because the amnesty granted Pakistani troops was the price paid for Bangladesh’s independence.3148

1. Women’s gender-specific experiences of sexual violence in armed conflicts While rape has disastrous consequences for victims of both sexes, there are gender-specific effects targeting only women. They can become pregnant and then have to either bear the child of the invader (of their State, community, and body), or try to get an abortion at a time where sparse medical means will predominantly be put at the army’s disposition. Abortion in many States is not legal or only with limitations;3149 women are often forcibly prevented from aborting,3150 or die following an abortion or in childbirth.3151 When women give birth to a rapist’s baby, this child is often seen as a “proof” of the mother’s collaboration or immoral behaviour by her family or community, as was the case in the former Yugoslavia and in Rwanda.3152 Some women are injured internally so badly by births forced in this way that they will never be able to have the children they would have Röling, Rüter, The Tokyo Judgment, p. 389.

Coomaraswamy, Preliminary Report, 22 June 1994, UN Doc. E/CN.4/1995/42, para. 271 (a); Brownmiller, Against Our Will, p. 78-86; Copelon, Surfacing Gender, p. 197; Paust, Blaustein, War Crimes Jurisdiction and Due Process, p. 2; Robertson, Crimes against Humanity, p. 325.

Brownmiller, Against Our Will, p. 84; Neier, War Crimes, p. 177; Swiss, Giller, Rape as a Crime of War, p.

612.

Copelon, Surfacing Gender, p. 197-198; Paust, Blaustein, War Crimes Jurisdiction and Due Process, p. 34Robertson, Crimes against Humanity, p. 325.

Rape was illegal in Rwanda in 1994, see Bonnet, Viol, p. 17. On the other hand, in some cases the law was changed to allow abortions, interestingly enough because of pressure of those men whose wives had become pregnant following rapes in armed conflicts and who regarded them and the nation as “tainted“ by enemy blood, see, for Cyprus, Roussou, War in Cyprus, p. 34.

Chinkin, Rape, p. 330.

Amnesty International, Rwanda, p. 5; Bonnet, Viol, p. 23; Flanders, Rwanda’s living casualties, p. 99; Richter-Lyonette, Women after the genocide in Rwanda, p. 107.

Amnesty International, Rwanda, p. 6; Gutman, Witness to Genocide, p. 76; Hatzfeld, Dans le nu de la vie, p.

150; Herman, Trauma and Recovery, p. 67; Human Rights Watch/Nowrojee, Shattered Lives, p. 26; Newbury, Baldwin, Rwanda, p. 30. Layika, War Crimes, p. 40, described this situation thus: “Raped women are doubly punished by society. (…) Second, from society’s point of view there is little sympathy, for at the moment that men and children died without defense, these women used the sex card, “selling their bodies to save their lives.” Thus, they are judged from all sides, and even among their families they are not easily pardoned. Even worse, people reproach them for having preferred survival through rape.” wanted.3153 Women and girls rendered sterile as a consequence of rape may lose all hope of marriage and maternity.3154 Further, there are gender-specific social consequences for female rape victims. The sterility, defloration, or rape itself cause women to be excluded from marriage in some societies, which means that they lose their position within their family or community or are ostracized.3155 In states where social networks primarily consist of the family or village community, raped women may suffer dejection.3156 Often, the raped woman is regarded as having dishonoured her community and family; she is questioned about her consent and blamed for her alleged responsibility.3157 Male victims of sexual violence do not suffer these consequences, or not to the same extent.3158

–  –  –

The media reports on mass rape in the area of the former Yugoslavia were followed by investigations by the European Union,3160 the United Nations,3161 and NGOs,3162 all affirming that Women’s Rights Unit, Sexual Violence and armed conflict, p. 2; Salzman, Rape Camps, p. 80.



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