«Dissertation zur Erlangung des Doktorgrades der Juristischen Fakultät der Universität Regensburg vorgelegt von Kathrin Greve Erstberichterstatter: ...»
by Human Rights Watch said that ethnicity was mentioned in the context of their rapes3193 and there were areas where nearly all the women and girls that were not killed, were raped. Female corpses were defiled.3194 There are reports about sexual mutilation with guns, knives, chillies or acid. Some of these mutilated women were too traumatised to even ask for medical treatment.3195 Women were victims of rapes, mass rapes, rapes with objects like sharpened sticks and gun barrels; they were sexually enslaved3196 or forced to kill their children.3197 At roadblocks, women were often separated from men, raped, and then killed;3198 after killing them, the rapists often left the women naked and with spread legs.3199 According to reports, up to 70% of the surviving women have been infected with the HI-Virus;3200 at least in some cases, this was done deliberately.3201 There were practically no medical services because of the security situation.3202 Abortion was illegal in Rwanda; many women and girls performed abortions themselves or had them carried out secretly.3203 The children conceived in rapes, called “enfants-mauvais-souvenir“,3204 have often been abandoned or killed shortly after birth.3205 When the mothers have kept them, this often creates family problems. 3206 Rwandan Human Rights Watch/Nowrojee, Shattered Lives, p. 18. See also Prosecutor v. Jean-Paul Akayesu, Judgment, Trial Chamber I, 2 September 1998, ICTR-96-4-T, paras. 431, 434, 437; Prosecutor v.
Coomaraswamy, Annex Rwanda, 4 February 1998, UN Doc. E/CN.4/1998/54/Add.1, para. 36; Amnesty International, Rwanda, p. 6; Bonnet, Viol, p. 18-19; Human Rights Watch/Des Forges, Leave None to tell the Story, p. 215; Human Rights Watch/Nowrojee, Shattered Lives, p. 24, 39-40; Layika, War Crimes, p. 39; Morris, Scharf, Rwanda, vol. 1, p. 55.
Coomaraswamy, Annex Rwanda, 4 February 1998, UN Doc. E/CN.4/1998/54/Add.1, para. 36; Amnesty International, Rwanda, p. 6; Bonnet, Viol, p. 18-19; Human Rights Watch/Des Forges, Leave None to tell the Story, p. 215; Human Rights Watch/Nowrojee, Shattered Lives, p. 24; Layika, War Crimes, p. 39; Morris, Scharf, Rwanda, vol., p. 55; Newbury, Baldwin, Rwanda, p. 30.
Fourth Degni-Ségui Report on the situation of human rights in Rwanda, E/CN.4/1996/68, 29 January 1996, para. 18; Human Rights Watch/Nowrojee, Shattered Lives, p. 39; Thomas, Levi, Common Abuses against Women, p. 161.
Human Rights Watch/Nowrojee, Shattered Lives, p. 39.
Amnesty International, Rwanda, p. 4; Human Rights Watch/Nowrojee, Shattered Lives, p. 39; RichterLyonette, Women after the genocide in Rwanda, p. 107.
Fourth Degni-Ségui Report on the situation of human rights in Rwanda, E/CN.4/1996/68, 29 January 1996, para. 20; Human Rights Watch/Nowrojee, Shattered Lives, p. 40.
Fourth Degni-Ségui Report on the situation of human rights in Rwanda, E/CN.4/1996/68, 29 January 1996, para. 20; Amnesty International, Rwanda, p. 4.
Heidtmann, Interview mit Ellen Johnson-Sirleaf, p. 30-31.
Coomaraswamy, Annex Rwanda, 4 February 1998, UN Doc. E/CN.4/1998/54/Add.1, para. 36.
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. 5; Bonnet, Viol, p. 23.
Fourth Degni-Ségui Report on the situation of human rights in Rwanda, E/CN.4/1996/68, 29 February 1996, para. 23; Amnesty International, Rwanda, p. 5; Barstow, War crimes against women, p. 238; Human Rights Watch/Nowrojee, Shattered Lives, p. 79; Inyumba, Women and Genocide in Rwanda, p. 50; Newbury, Baldwin, Rwanda, p. 31.
Amnesty International, Rwanda, p. 5; Human Rights Watch/Nowrojee, Shattered Lives, p. 3; Newbury, Baldwin, Rwanda, p. 31.
women have stated that they are unable to marry because of their rapist’s child3207 or that they have been ostracized, 3208 while others stay in abusive marriages only to avoid living alone and on the street.3209 Many of the surviving women suffer from depressions and psychosomatic illnesses. They also suffer from loss of identity, loss of memory, and have no rules or standards according to which they could organise their lives.3210 AVEGA (Association des Veuves du Génocide d’Avril), an organisation which supports and advises the widows of the genocide, concluded in 1999 that still more than 80% of those women victims or witnesses of sexual violence were traumatised.3211 II. Lacunae in International Humanitarian Law engender lacunae in ICTY and ICTR Statutes The ICTY Statute gives the Tribunal competence ratione materiae for four crimes: Grave Breaches of the Geneva Conventions (Art. 2), War Crimes (Art. 3), Genocide (Art. 4), and Crimes against Humanity (Art. 5). The applicable law, according to a report of the SecretaryGeneral, results from international customary and treaty law, pursuant to the principle nullum crimen sine lege.3212 Rape is mentioned explicitly only once in the ICTY Statute, namely, as one of the acts constituting a Crime against Humanity (Art. 5 g). There are no norms addressing other forms of sexual violence committed in the former Yugoslavia, such as forced pregnancies, sexual enslavement, or sexual assault.
The ICTR Statute comprises three categories of crimes, namely, Genocide (Art. 2), Crimes against Humanity (Art. 3), and Violations of Common Article 3 of the Geneva Conventions and Additional Protocol II (Art. 4). Rape is mentioned explicitly as a Crime against Humanity (Art. 3 g), but also as a violation of Common Article 3 (Art. 4 I 2 e). Further, Art. 4 I 2 e ICTR does not only address rape, but refers to “outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault”.
None of the four or three crimes contained in the ICTY and ICTR Statutes fit women’s experiences in the armed conflicts in Yugoslavia or in Rwanda, because of the existing lacunae Hatzfeld, Dans le nu de la vie, p. 144.
Inyumba, Women and Genocide in Rwanda, p. 50.
Flanders, Rwanda’s living casualties, p. 99.
Coomaraswamy, Annex Rwanda, 4 February 1998, UN Doc. E/CN.4/1998/54/Add.1, para. 37.
Amnesty International, Rwanda, p. 6; Harmann, Der lange Schatten des Krieges, p. 11.
Report of the Secretary-General, UN Doc. S/25704, 3 May 1993, paras. 33-35.
regarding the treatment of sexual violence in International Humanitarian Law,3213 leading to problems with the prosecution of sexual violence under these norms.
1. Difficulties in prosecuting sexual violence as a violation of Geneva law As to Art. 2, 3 ICTY and Art. 4 ICTR Statute, this is a consequence of the questionable way in which the Geneva Conventions and Additional Protocols address women’s concerns. Rape is not a Grave Breach of one of the Geneva Conventions of 1949,3214 or of the Additional Protocols of 1977,3215 and neither are other norms of Geneva law designed to protect women, as, for example, the prohibition of executing pregnant women, Art. 76 III Additional Protocol I, or the provisions on separate lodgement and hygiene facilities for female internees, refugees, or prisoners of war.3216 These norms are far from trivial, since being lodged with men heightens the risk of being subjected to sexual violence.3217 The omissions do not only create the impression that these norms are of minor importance, but also make the prosecution of their violations more difficult. Further, they also reflect the international community’s failure to include women’s perspective in addressing those crimes that are considered most serious.3218 On the other hand, Art. 85 IV d Additional Protocol I ranges the destruction of works of art and places of worship with Grave Breaches.
Rape is not a Grave Breach according to the ICTY’s Statute, either, although at the time the Statute was drafted, there were interpretations affirming the status of rape as a Grave Breach of the Geneva Conventions.3219 Further, the norms contained within the Geneva Conventions and Additional Protocols which do not define Grave Breaches also fail to address circumstances specifically affecting women, or do so in an inadequate way, which is all the more surprising when compared to the detailed provisions on the treatment of prisoners of war. Whilst 42 provisions of Geneva Conventions and Additional Protocols specifically regard women, 19 of those concern expectant mothers, Askin, War Crimes, p. 374.
See Art. 50 Geneva Convention I, Art. 51 Geneva Convention II, Art. 130 Geneva Convention III, Art. 147 Geneva Convention IV.
See Art. 85 Additional Protocol I. Additional Protocol II does not contain Grave Breaches.
See Art. 25 IV, 29 II 2, 97 IV Geneva Convention III, Art. 85 IV Geneva Convention IV.
Askin, War Crimes, p. 335; Gardam, Jarvis, Women, Armed Conflict and International Law, p. 185.
Women’s Rights Unit, Sexual Violence and armed conflict, p. 4; Bedont, Gender-specific provisions, p. 190Gardam, Jarvis, Women, Armed Conflict and International Law, p. 185.
Rape and abuse of women in the territory of the former Yugoslavia, Report of the Secretary-General, 30 June 1993, UN Doc. E/CN.4/1994/5, para. 22; Final report, annex II: Rape and Sexual Assault: A Legal Study, UN Doc. S/1994/674/Add.2 (Vol. I), 31 May 1995, paras. 14-17; Mazowiecki Human Rights Report, 26 February 1993, UN Doc. A/48/92-S/25341, para. 89; Coomaraswamy, Preliminary Report, 22 November 1994, UN Doc.
E/CN.4/1995/42, para. 261; Meron, Rape, p. 426-427, quoting an ICRC Aide-Mémoire of 3 December 1992, and a letter from Robert A. Bradtke, Acting Assistant Secretary for Legislative Affairs, to Senator Arlen Specter, dated 27 January 1993; see also Copelon, Surfacing Gender, p. 203; Fischer, Grave Breaches, p. 90, Khushalani, Dignity and Honour, p. 153; Sellers, Context of Sexual Violence, p. 296-297.
maternity cases, and nursing mothers.3220 ICRC commentaries further affirm that these provisions’ real ratio is the protection of unborn children or of babies, which necessitate the inclusion of women.3221 This excludes childless women and disregards young girls’ particular vulnerability with regard to sexual violence.3222 The image of women in International Humanitarian Law is thus shown to be a being whose weakness and chastity must be protected. 3223 This is problematic for the provisions regarding sexual violence: They address the subject from a perspective of the protection of chastity and purity of women, but not of their physical integrity or sexual autonomy. Besides, the Conventions employ a diction that focuses on the protection of women, rather than on prohibiting sexual violence. Only one sentence in all four Geneva Conventions explicitly addresses sexual violence against women, Art. 27 II Geneva Convention IV: “Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.” However, rape is not mentioned in Art. 32 Geneva Convention IV, which prohibits other violations of physical integrity.3224 A further difference results from the prohibition of other violent crimes like murder, mutilation, cruel treatment, or torture, without reference to the victim’s honour or dignity, see Art. 3, 31-34, 147 Geneva Convention IV. The entitlement to protection also strengthens the image of the weaker woman in need of male protection3225 and gives rise to the assumption that what is intended is more the role specification of the “male warrior” than the rights of women.3226 Catharine MacKinnon in criticising similar norms has coined the formula: “Rape, from women’s point of view, is not prohibited; it is regulated.”3227 This questionable treatment of sexual violence is accompanied by norms guaranteeing prisoners of war, typically men, the consumption of tobacco or the sale of soap and tobacco in camps for prisoners of war, see Art. 26 III 2, 28 I Geneva Convention III.
Krill, Protection de la femme, p. 368.
Charlesworth, Chinkin, Boundaries of international law, p. 315; Gardam, Women and the law of armed conflict, p. 57; Möller, „Celebici“-Urteil, p. 58.
Bonnet, Viol, p. 24; Charlesworth, Chinkin, Boundaries of international law, p. 315; Herman, Trauma and Recovery, p. 61. For examples of sexual violence committed against young girls or children see Prosecutor v.
Dusko Tadic, Opinion and Judgment, Trial Chamber II, IT-94-1-T, 7 May 1997, para. 175; Prosecutor v. JeanPaul Akayesu, Judgment, Trial Chamber I, 2 September 1998, ICTR-96-4-T, paras. 416, 437; Prosecutor v.
Dragoljub Kunarac and Others, Judgment of 22 February 2001, IT-96-23-T & IT-96-23/1-T, paras. 864, 879.
De la Pradelle, Les Nouvelles Conventions de Genève, p. 83: «Protection de la femme. La protection de l’enfant impliquait une sauvegarde de la femme que le C.I.C.R. envisageait sous la forme d’une assistance prolongée.»
Bedont, Gender-specific provisions, p. 190; Niarchos, Women, War, and Rape, p. 673-674.
Women’s Rights Unit, Sexual Violence and armed conflict, p. 4; Charlesworth, Feminist Methods, p. 386;
Dixon, Rape as a Crime, p. 702.
Women’s Rights Unit, Sexual Violence and armed conflict, p. 4; Charlesworth, Feminist Methods, p. 386.
MacKinnon, Feminism, Marxism, Method, p. 651.
Art. 3 ICTY does not address sexual violence explicitly, although there were voices arguing for its inclusion.3228 Art. 4 ICTR, on the other hand, integrates Art. 4 Additional Protocol II and thus contains the prohibition of several forms of sexual violence.
2. Difficulties in prosecuting sexual violence as a violation of the Genocide Convention The crime of genocide is defined as the attempt of destroying one of several protected groups.
None of these groups is defined by gender, and the Genocide Convention contains no explicit reference to sexual violence. Further, the association of genocide with the holocaust and the failure to discuss sexual violence in this context lets women’s experience be disregarded,3229 in spite of the possible interpretation of many of the acts enumerated in Art. II Genocide Convention in a way that includes sexual violence.3230 This omission is continued in Art. 4 ICTY, Art. 2 ICTR, which also do not explicitly address sexual violence.