Rape and Gender Violence: From Impunity to Accountability in International Law
Human Rights Dialogue 2.10 (Fall 2003): "Violence Against Women"
November 5, 2003
"I would like to once again prosecute the Japanese military. They damaged my body and I cannot be productive any more and I would like to have the Japanese government apologize and also pay reparations. I am an old woman and I don’t know how long I will live but I will not give up until I win my victory."
—Yuan Zhu-lin of China testifying before the Women’s International War Crimes Tribunal on Japan's Military Sexual Slavery
Less than a decade ago, it was openly questioned whether rape was a war crime. Human rights and humanitarian organizations largely ignored sexual violence and the needs of its victims. The connection between sexual conquest of women and war was considered natural and inevitable, an essential engine of war, rewarding soldiers and readying them to fight again. The rape of women in prison was not considered torture but was usually noted as a lesser abuse and even excused in law as a mere personal indiscretion, while official toleration of privately inflicted gender violence was ignored as a human rights issue. Rape was the fault of unchaste women or brushed under the rug, and thus raped women were consigned to invisibility, isolation, and shame.
These cultural attitudes and practices were reinforced by the evolution of the classification of rape in the laws of war. In the 1907 Hague Convention, rape was delicately coded as a "violation of family honor and rights," simultaneously invoking male entitlement and female chastity. Rape was thus explicitly cast as a moral offense, not a crime of violence; the fault lay with the victims, not the perpetrators. The 1949 Geneva Conventions did not name rape, but subsumed it within other offenses. Rape was specifically mentioned, along with "enforced prostitution and indecent assault," as among the "outrages against personal dignity" in the l977 Second Geneva Protocol relating to noninternational armed conflict. With rare exceptions, impunity for rape was the rule of the day.
Courageous and concerted actions of women around the world forced a sea change in international law, culminating in the recognition of gender violence as a human rights concern and in its codification as among the gravest international crimes in the Rome Statute of the International Criminal Court (ICC). In the early l990s, Korean former "comfort women" broke fifty years of silence to expose Japan’s systemization of military sexual slavery during the Second World War. Soon thereafter, for example, survivors, committed journalists, and feminist human rights advocates forced the story of the rape of women in the former Yugoslavia into the media and into international consciousness; and Haitian women, working underground, organized to document the rape of women under the illegal Cedras regime. A growing women’s human rights movement and reports by human rights groups demanded recognition of the crime of rape and discredited the notion that women wouldn’t talk about it. In a series of United Nations conferences and other forums, survivors and activists from around the globe challenged the exclusion of gender violence and women's human rights from the human rights agenda.
The turning point was the l993 World Conference on Human Rights in Vienna, which prioritized violence against women and gender mainstreaming throughout the human rights system. Responding to women's demands, the International Criminal Tribunal for the former Yugoslavia began to prosecute rape and sexual violence as war crimes and crimes against humanity, including as torture and enslavement, while the International Criminal Tribunal for Rwanda prosecuted rape as genocide.
These developments laid the foundation for the gender provisions of the Rome Statute of the ICC, which creates the world's first permanent criminal court with jurisdiction over genocide, war crimes, and crimes against humanity and provides for future jurisdiction over the crime of aggression. As a result of the interventions and organizing of women's human rights activists and allies, largely through the vehicle of the Women’s Caucus for Gender Justice, the Rome Statute is a landmark in the struggle for gender justice, codifying a broad range of sexual and gender crimes as well as structures and procedures necessary to make gender justice a reality.
The Rome Statute names a broad range of sexual and reproductive violence crimes—rape, sexual slavery including trafficking, forced pregnancy, enforced prostitution, enforced sterilization, and other serious sexual violence—as among the gravest crimes of war. These are also "crimes against humanity" when committed as part of a widespread or systematic attack on a civilian population, in times of peace as well as war, and by nonstate actors as well as officials. In addition, crimes against humanity include persecution based on gender. The Rome Statute's overarching principle against gender discrimination also protects against the ghettoization and trivialization of sexual and gender crimes and encourages their prosecution, where appropriate, as traditional crimes such as genocide, torture, enslavement, and inhuman treatment.
The adoption of gender crimes withstood virulent opposition from the Vatican, which has the privileges but not the responsibilities of a state in the UN, and some Arab states. Opponents correctly perceived that crimes against humanity apply not only to rape in war but also to widespread or systemic sexual and gender crimes in everyday life. Thus, eleven Arab states sought explicitly to immunize rape, sexual slavery, and other sexual violence when committed in the family or as part of religion, tradition, or culture. In addition, the United States urged that slavery be confined to commercial exchange and sought more generally to immunize tolerance of these crimes from criminal responsibility.
Furthermore, after intense negotiations, "gender" was defined to include the social construction of male and female roles and identities, in opposition to efforts to define gender biologically and thereby exclude persecution against gender nonconformists, whether they be single women or transgendered people. Though some compromises were made, the fundamentalist positions were largely rejected, leaving the final word to the ICC judges in accordance with the principle against gender discrimination.
The Rome Statute also encompasses groundbreaking structures and processes to ensure that crimes will be prosecuted in a nondiscriminatory, respectful manner that minimizes the potential for retraumatization and overcomes women's reluctance to participate. Court personnel at every level must reflect a fair or equal representation of women and include experts on violence against women. As a result, seven women were elected to the first ICC bench of eighteen judges.
Investigations and trials contain safeguards that protect the safety and privacy of victims and enhance their role in the process. Evidentiary rules minimize some of the worst traditional features of rape trials, including distrust of women's testimony and humiliation through cross-examination about consent or their sexual histories. In addition, the statute anticipates the active participation of victims before the court and responds to the disconnect between punishment of perpetrators and the needs of victims by recognizing a role for the court in ensuring reparations.
Significantly, the ICC treaty should also affect domestic laws. It is not only the blueprint for the court; it reflects accepted minimal international norms for the operation of a justice system worldwide. The principle of complementarity encourages states to adopt its provisions as local law in order to retain the right to try national offenders. The ICC thereby powerfully supports women’s domestic law reform efforts.
But will the ICC help to transform the legal and cultural acceptance of sexual violence? If the ICC survives the current assault by the Bush administration and implements its gender-inclusive mandate, it is possible that it will make a global difference. If its norms become accepted as military and domestic law, sexual violence will no longer be exempt from punishment and hopefully will become less tolerated legally as well as culturally. The survival of the court and of its norms is crucial to legitimating norms of gender justice and shifting both blame and shame from victim to perpetrator. Most importantly, perhaps, the court will contribute to the process of empowering women to say "no" to the shame that society has demanded and will increase the possibility of reparations and participation in peacebuilding. All this requires committed and knowledgeable judicial personnel as well as persistent monitoring and engagement by NGOs at every level.
Women’s myriad campaigns around the world, including the continuing struggle for justice by the "comfort women," make clear that women’s sexual autonomy and gender-inclusive justice are critical components of women's full citizenship. But formal justice alone will not eliminate these crimes, nor ensure women’s empowerment, nor address the roots of militarism. Rape and sexual violence are products of long-standing male entitlement to control and abuse of the bodies and lives of women and perpetuate women’s economic, political, cultural, sexual, and psychological subordination. Gender norms and accountability must, therefore, be part of a larger human rights mobilization for full equality, human rights, and empowerment of women as well as for peace, economic justice, and security. The Rome Statute is a watershed and the ICC a fragile, partial, yet crucial opportunity.