By Alix Mazieres, Columbia University
Maria Bahizi, now 67 years old, narrates her traumatizing experiences of April 1994 during the Rwandan genocide: “I think that I am still alive, that the Interahamwe didn’t kill me, because the high-level army officials came to rape me every day. Because I was ‘their’ woman,” she says. “And for me, it was like I was more than dead.” A Bosnian Muslim girl anonymously referred to as Witness 87 shares a similar story of the Bosnian genocide that started in 1992. She explains that the Serb soldiers “would come inside looking for particular persons, girls. They would select them, as many as they wanted, and then they would take them with them,” every night. It is estimated that between 100,000 and 250,000 women were raped during the Rwandan genocide and between 20,000 and 50,000 women were raped during the Bosnian genocide. These testimonies and figures demonstrate the consistency of rape as a means of genocide, that it is not collateral damage as is often argued, but intrinsically linked to the oppressor’s intention to dehumanize an ethnic, national or religious group.
Though these numbers are already appalling, rape is only one of the acts of sexual violence that occur during genocide and war, including in Rwanda and Bosnia. It must be noted that sexual violence is an umbrella term that refers also to sexual assault, sexual slavery, enforced prostitution, sexual trafficking, forced pregnancy, and enforced sterilization. These crimes are in majority committed against women, but can also be perpetrated against men.
Acts of sexual violence are undoubtedly human rights violations, breaching one’s right to health and bodily integrity and to not to be subject to torture, cruel, inhuman or degrading treatment or punishment. These rights are enshrined in binding international treaties on political and civil rights and socio-economic rights. Women are additionally legally protected from sexual violence through the Convention of Elimination of Discrimination Against Women (CEDAW) that recognizes gender-based violence, defined by the General Recommendation 19 as “violence that is directed against a woman because she is a woman or that affects women disproportionately.” In times of conflict, instruments of international humanitarian law, such as the Geneva Conventions, also protect civilians populations against all acts considered as cruel treatment and torture, sexual violence falling under these protections.
Despite international law treaties protecting one from sexual acts of violence both in conflict and in peace, they are limited in their enforceability. Different definitions of rape and other acts of sexual violence render accountability and justice difficult to implement. The differences among countries revolve around factors such as the legal age of consent, the definition of penetrative acts considered as sexual violence, and the recognition of marital rape. Moreover, debates persist about whether sexual violence refers to the victim’s lack of consent or to the use of force, threat, and coercion. These variations complicate the international community’s role in enforcing human rights and legal obligations when it comes to sexual violence. Historically, the international community has failed to correctly address the question: are acts of sexual violence in conflict individual crimes, or are they constitutive of genocide? In developing a uniform and universal answer to this question, the International Criminal Tribunal for Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) in the aftermath of the Rwandan and Bosnian genocides represent turning points, considering sexual violence as war crimes, crimes against humanity, and as genocidal crimes. Nonetheless, I later argue these tribunals were of a limited efficiency regarding accountability of perpetrators of sexual violence.
Established by the UN Security Council, the ICTY, formed in 1993, and the ICTR, formed in 1994, have indeed considerably changed the way sexual violence is recognized in international law. While both of these tribunals operated independently from one another, being conducted simultaneously, they followed similar principles, rules, and inspired one another. In this article, I will be using examples from both to highlight a larger trend in international justice.
First, and most importantly, by condemning rape within their statutes as crimes against humanity, the ICTY and ICTR both recognized that systemic rape is not an isolated crime from genocide and war. Notably, article 4 of the ICTR gives judges the freedom to condemn “outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault” within the context of genocide. In that sense, the tribunal affirmed that sexual acts of violence are not ordinary crimes and that the perpetrators can be tried as war criminals for such acts. This stance, shared by the ICTY, represents an unprecedented progress in international law, sexual violence not yet having been defined as a war crime in past international trials.
In the additional rules to their mandates and statutes, the tribunals defined consent, and therefore non-consent, with more precision and breadth than previous international tribunals. The ICTY stated that meaningful consent is not possible when the victim “has been subjected to, threatened with, or has reason to fear violence, duress, detention or psychological oppression” or “reasonably believed that if the victim did not submit, another might be so subjected, threatened or put in fear.” This definition of what is considered lack of consent is large and thus represents a great progress concerning the prosecution of sexual violence. Further, the ICTY has a set of Rules of Procedure and Evidence partly created to protect victims, including victims of sexual violence. For instance, rule 96 states that corroboration is not required in sexual violence cases. By implementing this rule, the tribunal acknowledges the challenge of presenting evidence for wartime sexual violence and aims to ensure that the testimony of the victim can be given appropriate weight and consideration in legal proceedings.
In practice, one case that has changed the course of international law concerning sexual violence is the Prosecutor v. Akayesu case of the ICTR. The court accused Mr. Akayesu, mayor of the Taba commune during the genocide, of knowing of acts of sexual violence and refusing to help those seeking safety from rape. For his inaction in the face of mass sexual violence and genocide, Mr. Akayesu was found guilty of both genocide and crimes against humanity. This case confirmed in an unprecedented way that sexual violence can be recognized as constitutive to genocide rather than as an isolated crime. It demonstrates that sexual violence in genocide is not about male pleasure but rather concerned the will of a group to dehumanize, humiliate and torture a minority.
However, the progress made through the ICTY and the ICTR was limited, and despite sexual violence being addressed by the tribunals, most perpetrators were not convicted of any or all of the rapes of which they were accused. For instance, Sylvestre Gacumbitsi, during the Rwandan genocide, would encourage the rape of Tutsi women publicly with a megaphone and was accused of rape by multiple women. He was found guilty of rape as a crime against humanity, but the ICTR failed to convict him of all the acts of sexual violence he encouraged and participated in because of the difficulty to prove his direct responsibility. Although his conviction can and should be seen as a progress in international law, it must be noted that it did not provide justice for all of the concerned victims. As for the Bosnian genocide, where it is estimated that at least 20,000 women were raped, the court heard 161 cases of sexual violence crimes, charged 78 individuals, and convicted only 32 perpetrators. Victims’ fear to testify in an effort to promote reconciliation or their inability to testify against their assaulter because they did not know their name can partly explain such a turnout. Therefore, in Rwanda as well as in Bosnia, most victims of sexual violence did not get the justice they deserved.
Furthermore, rank-and-file individuals that committed acts of sexual violence during the genocide in an effort to humiliate and torture were not charged as war criminals. Only the commanding officers (e.g. Akayesu, Gacumbitsi) were charged with war crimes, crimes against humanity, and genocidal crimes for acts of sexual violence. Thus, the novel principle of considering rape as a war crime, as stated in the statutes of the ICTR and the ICTY, was not applied equally to all individuals that have participated in the sexual violence of the genocides. This is problematic in the sense that, whenever it is within the context of genocide, sexual violence should be regarded as a genocidal act and as a war crime, whoever the perpetrator may be. Ultimately, the ICTR and the ICTY failed to convict all perpetrators of sexual violence, rendering their contribution to changing accountability for sexual violence in international humanitarian law less practical than it had been hoped.
The last limitation to the progresses of the ICTR and the ICTY regarding sexual violence is revealed by the one-sided narrative that only men are the perpetrators of rape and only women are their victims. By considering that sexual violence can only be gendered violence against women — even if that is true for the overwhelming majority of cases — one underestimates the prevalence of rape against men during conflicts. In contexts of genocides where the target of mass violence is an ethnic group, one’s vulnerability to sexual violence is dependant on ethnicity as much as it is on gender. For example, a Bosnian ex-prisoner narrates anonymously his experience being raped in an interview for a local Balkan newspaper and confirms that rape was a strategy of humiliation and emasculation during the war. His rapist has never been brought to justice. As the witness explains, men who were victims of these crimes were often scared of being stigmatized by addressing the courts, and for this reason, many cases of rape against men went unreported.
To conclude, sexual violence cannot be regarded as an isolated crime from contexts of genocides and brutal wars. Rape is used as a tool for dehumanizing ethnic, national or religious minorities. The ICTR and ICTY tribunals of the 1990s, following the Rwandan and Bosnian genocides, have built the foundation for a greater recognition of rape and sexual violence within the scope of war crimes, crimes against humanity, and genocidal crimes. These advances had effects beyond their own jurisdictions, inspiring future courts and international considerations on sexual violence. However, the accountability of perpetrators through these tribunals was limited because of challenges regarding the lack of proof of non-consent, the forgotten responsibility in international courts of individual perpetrators of sexual violence, and lastly, the one-sided narrative that undervalues the prevalence of men as victims. Writing this article has led me to ask myself whether sexual violence against women and men in conflict, and especially in genocide, is inevitable. As long as sexual violence may be regarded as a means to the end of genocide and is used to express profound hatred, it seems like even significant efforts in the international community may not suffice. Therefore, are we bound to depend on postbellum reparations and sentences by criminal courts such as the ICTY and the ICTR to address sexual violence in conflict? If so, can ad hoc tribunals eventually offer justice for all victims of sexual violence in conflict, ovecoming challenges related to proof, taboos, and fear? As new conflicts erupt globally and threaten the rights, health and dignity of countless vulnerable individuals, it seems that a forward-looking approach to addressing sexual violence must still be reinforced, both building on the previous efforts of the ICTY and ICTR, as well as learning from their failures and limitations.
