The complexities of Prosecuting War time Sexual Violence

photo credit ICTY.

Rape as the spoil of war can be seen throughout history, sexual violence during the war is often committed with the intention of terrorising the population, break up families, and in some cases, it is done with the intention of changing the ethnic makeup of the next generation. Rape is also used to deliberately infect women with HIV or render women from some minority groups from bearing children. For example in the Rwandan genocide in 1994  between 100,000 and 25,000 women were raped.  According to figures from the UN more than 60,000 women were raped during the civil war in Sierra Leone between 1991 and 2002. And more than 200,000 women have been raped since 1998 in the Democratic Republic of Congo.

In 1999, the international war crimes tribunal at Hague heard the horrors of what happened during the Bosnian war. The tribunal heard gang rape, torture and sexual enslavement were committed against Muslim women and girls by the Serbian soldiers during the early days of the Bosnian conflict.  Muslim survivors of the rape camps tell stories of how they had to watch and take turns at being gang-raped by Serbian soldiers, sometimes three times a day. One survivor was only released when she was visibly pregnant, and her rapist told her ” go and bare   our Serbian children” (Crime of war, p,369)

Incidents of rape have continuously been documented in contemporary conflicts with increasing frequency.  Rape is used as the weapon of war to intimidate the enemy, terrorize the community and used as a form gendered relations, ethnic cleansing and genocide. Rape has been considered a war crime for centuries and is punishable if convicted. During the American civil war, Abraham Lincoln in 1863 signed into law making rape a capital offence, more recently in the 20th-century rape has been included explicitly to regulate the conduct of war.

Article 27 of the fourth Geneva convention of 1949, clearly states that women show be protected against any attacks on their honour.  In particular against rape, enforced prostitution or any form of indecent assault. Because in any war, it is the women and children that are most affected, with girls it is rape, torture and sexual violence. And as for boys they are often taken and trained to fight in the war.

Why are war crimes hard to prosecute?

Firstly, silence, in the past victims of sexual violence have been hesitant to come forward for fear retribution and the stigma attached to it especially in places like the Congo and Sudan. This is because these countries do not have the proper institutions, like the justice system to uphold the rule of law and bring people to justice. In Congo notably,  according to the human rights watch report, the majority of the perpetrators of sexual violence were members of the armed forces or other militant groups. That is why it was a step in the right direction when in 2016 the International criminal court convicted  Jean-Pierre Bemba for crimes against humanity. This case was significant because it showed that high-level commanders can be prosecuted for actions committed by their soldiers.

Secondly, limits of international law, under international law, every country has the rights to govern itself. The nation’s sovereignty limits what the ICC can do, the international human rights is a piece of legislation, but it is not binding and can only be enforced when the countries that have signed to the law codify within the country. Besides the point, not all countries are part of the treaties. So even if the acts committed with a state are crimes against humanity, it is up to that country to allow the ICC to prosecute the people responsible. International law is too easy to ignore because we do not have a  world police, policing what every nation does. For example, the use of chemical weapons in Syria is a war crime, but bringing the people responsible to justice is impossible because of current political climate.

Thirdly, to prove war crimes, there has to be beyond all reasonable doubt for a guilty verdict, for example, the trails at Nuremberg for the Nazi war criminals where fast because there was overwhelming evidence. In contrast to the trail for Slobodan Milosevic which lasted for almost five years, Milosevic faced 66 counts of crimes against humanity, genocide and war crimes that were committed in the Yugoslav, wars which he pleaded not guilty. Milosevic died of a heart attack while in his cell and because of his death the court comes back with no verdict.

However, in 2017 the judges at Hague during separate trail found that “the Chamber is not satisfied that there was sufficient evidence presented in this case to find that Slobodan Milosevic agreed with the common plan to permanently remove Bosnian Muslims and Bosnian Croats from Bosnian Serb claimed territory” focus here should be on the word “sufficient”, and in a murder trial, if a person is found not guilty of murder, it does not mean that they did or did not commit the crime. It just means that the evidence presented is to enough beyond all reasonable doubt for a guilty verdict. The burden of proof for murder trails is very high, and it should be. Murder trails rarely tell you the truth of what happened, there have innocent people that the court has found guilty and there are monsters that have got away with murder.

Furthermore, international law suffers from lack funding, for example, it is not enough to just prosecute people in charge. The people carrying out the crime have to also be prosecuted, but considering how long and expensive these trails are, it is no wonder most people are not brought to justice, especially in places like Congo and Sudan.  In addition to this point, some countries are not willing to coöperate in giving up the criminals to the ICC. Prosecuting leaders like Jean-Pierre Bemba is hard, but nowhere near as hard as prosecuting people responsible for ethnic cleansing. Ethnic violence still goes in the deep parts of the Congo, but it is widely under-reported, and as always it is the women and children that are affected most.

Finally, there is no rational basis for why people commit these acts of evil, and while some people get their justice, others don’t. And even those that are prosecuted, it is hard to come up with punishment that fit the crimes.

 

By Paul Mukube

 

 

 

 

 

 

 

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