LEGISLATION &   VIOLENCE AGAINST WOMEN IN ARMED CONFLICT

By Andrea Psenica

Translated by Nikola Sarnavka

13 March 2002

 

1.       INTRODUCTION – HISTORICAL ASPECT

 

1.1.    ANCIENT TIMES

Rules of engagement during armedconflict can be found even in the oldest civilizations. So it is that the workcalled The Art of Warfare (6. c. BC) by Sun Tzu, tries to establish certainconduct limitations for the purpose of ensuring humanity. \[1\] Cicero (106 BC – 43 BC) warned his contemporaries that war is a fight amongpeople and must therefore be led with as little cruelty and inhumanity aspossible, in order to reduce the repercussions any war induces eo ipso. \[2\] Nevertheless, in neither of the oldest manuscripts on war and rules ofengagement is there mention of civilian treatment, and even less on rape.However, certain conclusions can be derived about opinions on the treatment ofrape and abuse of women in those earliest civilizations, the ones that can betreated as political units.

In ancient Rome the rights and theinstitute of private property were highly developed. The term in Roman law thatdescribes what we, under modern interpretation, hold as rape and sexual abuseof women is raptus . \[3\] In Roman law, this term is viewed primarily as a form of violence againstthings, meaning property, and persons – in other words it implied a stealing ofproperty and abduction. Since this term related to abduction, it did notdirectly imply sexual violence, although sexual violence was punished as raptus . If a woman was forcefully taken,abducted, and sexually abused, this criminal offence was, in fact, defined asthe stealing of a woman or, in other words, her abduction without the gain ofconsent from those who had legal custody over her. Legally, Roman law treated awoman as the special property of a man (father, brother, tutor), in accordancewith the institution of pater potestas and with the contemporary concept of society based on the treatment of peopleas free or as slaves. Such legal treatment of women had as a consequence thetreatment of rape as a criminal offence against property, signifying that thevictim in this case was a man to whom this woman belonged; it was ultimately abreach of his rights. Of the protection of gender freedom and integrity thereis no mention. This particular kind of treatment of sexual abuse of women iseven more apparent during armed conflicts. Conquering a certain territory alsomeant becoming an owner and master of all that was on it. This did not mean justland, but also people, while women were treated as a part of the war loot,meaning that the legitimacy of their rape sprang from the legitimacy of theconquest of a particular territory.

 

1.2.    MIDDLE AGES

TheMiddle Ages in the sense of socio-political relations were, in European terms,an era of feudalism or, simply put, a system of network relations between lordsand vassals, as well as between feudalists, of clerical, military or nobleprovenance, and serfs. These relations were based on the connection with aspecific piece of land as the primary criterion of wealth and power. Althoughto a lesser extent than in the slaveholding societies of the ancient times,they created relationships of dependence that consequently influenced thesubordinated position of women.

Theearly Middle Ages demanded of a rapist to pay a sum to the owner of a victim.So it was that, according to the law of king Aethelbert of Kent in the 7 ^th century \[4\] ,a perpetrator had to pay the sum of 50 shillings to the owner of a maid he hasraped (“to her owner…if a man carried off a maiden”) \[5\] .In addition, up until the 9 ^th century, the European medieval lawswere not completely clear on the issue of the distinction between rape andadultery.   Nevertheless, there was asign of certain progress during those times, manifested in the fact thatcompensation was beginning to be paid to rape victims (one decree from theperiod of reign of Alfred of Wessex states, “If he lies with her he shall payher 60 shillings compensation…”) and not to their legal owner. However, on theEuropean continent, there still existed decrees demanding that compensation wasbeginning be paid to the victim and the owner likewise. So the Code of Vinodoldecrees: “if anybody would commit violence against a woman by sexual intercourse,or would want to sexually intercourse with her, he should pay 50 libars to therector, and the same amount to that woman, if no arrangement could be reachedwith her…” \[6\] .This decree clearly shows to what extent sexual freedom of women, as an issueof protection, was still completely unknown. Furthermore, it shows that,although victims were compensated, sexual abuse was still primarily treated asa breach of lord’s (man’s) rights to a woman. Such treatment of rape in theconditions of peace corresponds perfectly with its treatment during frequentmedieval armed conflicts.

Up untilthe late Middle Ages, the protection of women during war (implicitly meaningrape) was reduced to the level of the protection of property.

So itwas that the Saracen War Code prescribed that women and children of both sexesbecome the property of the conqueror \[7\] .This, however, does not mean that rape was generally non-punishable; it simplymeans that it was principally treated as a breach of men’s rights. That is whythe military codex of Richard II, dated 1385, and Henry V, from 1419, were thebases upon which rapists during the Hundred Years War (1337-1453) wereconvicted and given death penalties. \[8\]

Onlyafter the doctrine of ius ad bellum was legally formed (the right to wage wars - the enumerative basis from whichthe justification to start armed conflicts stems), the doctrine of ius in bello (rights and obligations inwarfare) could be established, a doctrine that set limits on the use of warinstruments, even if a war was started from just causes. This is the first timein history when the issue of the protection of women during warfare wasconsidered.

A juristAlberico Gentilli (1552-1608) in the work DeIure Belli Libri Tres wrote: “It is not legal to rape, although in somecases it might be lawful to kill a woman…There is no reason why she shouldsuffer more…”

Anothermedieval author, Lucas de Penna, also demands that the captured enemy betreated humanely.

Suchviewpoints of medieval authors did not find reflection in the reality ofmedieval wars. Unarmed civilians, women and children were considered enemiesand were not specifically protected. The very act of rape and sexual violenceduring war was still a sign of power over a woman, a measure of victory, aproof of a warrior’s manliness and success. \[9\]

When onediscusses the history of law relating to war, it is impossible not to mentionHugo Grotius (1583-1645) who was the first to perform the systematization ofthe rules of warfare. According to him, there are only three justifiablereasons to wage a war: defense of sovereignty, return of property and rightfulrevenge. Writing on sexual violence during warfare, Grotius stresses: “One canread in many places that raping women during war is allowed…They who allow rapeduring war…hold that everything that belongs to their defeated enemy belongs tothe victorious (including women)…More correct are those who think that rapecannot stay unsanctioned during a war, as it cannot in peace.” \[10\]

Emmerichvan Vattel is also one of the authors who appeals for the protection ofcivilians during war. His standpoint calls for the protection of innocentcivilians during conflict. Civilian status, meaning the right of a civilian toprotection during armed conflicts, according to him, stems from the fact that acertain person does not participate in warfare, and not from his/her gender,age or social status. \[11\]

On theterritory of Europe, the rules of engagement, in a sociological and even apsychological sense, have roots in the concept of chivalry or, at a deeper, onecould say (to use Jung’s terminology) archetypal level, from the concept ofmale honor which is attributed to and, in essence, made of such abstractions aspower, ownership, privilege, etc.

The codeof chivalry allowed fights only between opponents of equal strength. Thisessence of just warfare is today masked in modern legal terminology,articulated by various international legal instruments, in which the role ofthe medieval knight is played by the state, personified through the person of asoldier. A special category of persons who are protected under internationalhumanitarian and war laws includes women (along with the wounded, sick andcaptured) who form the majority of the civil population. It is easy to concludethat the protection of the weak is still the underlying principle ininternational laws of war. Only in the most recent times have there beenopinions appearing that deem it not absolutely right to found the normativebase of war upon chivalry, but that it is perhaps more correct to draw thisbase from universal human rights.

 

1.3.    THE AGE OF ENLIGHTNMENT AND THE NEW AGE: FORMATION OF THEINTERNATIONAL HUMANITARIAN LAW

Jean Jacques Rousseau (1712-1778),one of the most significant figures of the Enlightenment, stresses as a basicrule of warfare that there exists a right to kill somebody only as long as theyare armed. But, as soon as the person lowers weapons and surrenders…theopponent becomes just a person and nobody can claim a right to that person’slife. \[12\]

However, international laws of warcould have been fully established only when a vertical hierarchy was abandonedand horizontal relationships formed between sovereign states, which hold intheir great interest that there exist certain limits in methods and means of war.Therefore, the first regulations formed through the international war law wereconcentrated primarily in that area, while the protection of civilians, andwith it the special protection of women, was cast aside.

The first attempt to codify the lawof war was the Lieber Code of 1861. Although it served as a military codex forthe Union army during the American Civil War, meaning it was not aninternational document, but a group of temporary regulations for a specifictime, place and extent of action, it is important for its influence upon theHague conventions of 1899 and 1907. These conventions specifically defined whatthe common law of war demanded as necessary to respect the elementary need ofsustenance to ensure a certain level of humanity during warfare. The LieberCode did, in fact, compile in one place what were then valid international warcustoms. It address rape indirectly when it, in its decrees, gives specialprotection to the sanctity of family relations (“family honors and rights…mustbe respected”), whose breach it treats as an act of violence, but nowhere doesit explicitly mention the protection of women from sexual violence or theirspecific rights unrelated to family relations.

International law forbidsaggressive warfare; moreover, it considers this the gravest crime against peaceand, consequently, the gravest international crime. However, it is conscious ofthe illusion that wars can stop being a part of humanity’s experience, becauseits conventions, of which many provisions became a part of the internationalcommon law (and in doing so became obligatory even to the non-party states),speak of acceptable and non-acceptable procedures during war and armedconflict.

The very existence of suchprovisions within the framework of international law (the existence ofinternational war law, or, as it is sometimes referred to, internationalhumanitarian law; a term, which, as some authors point out, can lead to thewrong conclusion that these rules are primarily directed towards the protectionof the elementary principles of humanity and not towards military interests)implies that an armed conflict is allowed under certain conditions, by which itadmits, also implicitly, the right of the state to kill, a right delegated tosoldiers during warfare.

Indeed, despite many similarities,primarily in purpose, the concept of universal human rights and the concept ofinternational humanitarian law is different because the latter does not hold asits primary goal the execution of the principles of humanity, but is primarilyfocused on regulating the behavior of armed forces during war   (The rules on the prohibition of use ofcertain types of weapons, the rules on the treatment of prisoners of war andthe wounded are humane in their essence, but they are not in potentialcontradiction with the military goals, while the rules on the protection ofcivilians during warfare can be), while the principle of humanity stems fromthat regulation. The concept of universal human rights focuses on theprotection of citizens from the arbitrary intrusion of the state into theirareas of freedom, regardless of whether there is a state of war or not.

Women as a group are highly exposedto risk from victimization through sexual violence in peace and especially duringwar. Sexual violence against women (to a far lesser extent against men andsomewhat more against children) during war enters the domain of internationalcriminal law, among other reasons, because the female body, as manysociologists, ethnologists and other authors claim, is used as a type ofbattlefield extension, making sexual violence part of military conflict. Whatis important for the treatment of rape in war as a war crime, (regardlesswhether it is an international or internal armed conflict) under the scope ofinternational humanitarian, and, therefore, international criminal law, is thatrape is committed in war conditions (regardless whether it is an internationalor internal conflict or an occupation).

By superficially skimming throughthe conventions of the international humanitarian law, it is possible todiscern that greater attention was directed toward the protection of, forexample, cultural heritage during war or the protection of the wounded andsick, than toward the protection against sexual violence in warfare.

In the relevant literature, thefollowing possible reasons for the lack of discussion of sexual violenceagainst women are most often cited:

·         not recognizing women as a group,which, in times of armed conflicts, requires special protection given to, forexample, ethnic, religious and racial groups;

·         not recognizing the socialsubordination of women and violence against them as a form of gender-baseddiscrimination \[13\] ;

·         the prevalent male structure of theinternational legal arena, according to Andrew Byrness;

·         not recognizing that certaininternational legal regulations and principles of international humanitarianlaw reflect differently the position of men and the position of women.

The basic objection to every convention whose goal is to protectcivilians in armed conflicts is their avoidance of explicitly naming rape asone of the ways international humanitarian law can be breached.

 

1.3.1.       THE GENEVA CONVETION OF 1864

TheGeneva Convention is a convention whose intention was the protection of victimsof armed conflicts. Its provisions are directed towards bettering theconditions of persons who are members of armed forces, and are sick or wounded.The Convention was expanded and amended in 1906 and 1929. The trial for warcriminals of the Second World War demonstrated that its basic flaw was the lackof sufficient protection for the civil population in the occupied areas. Sinceit does not protect civilians on occupied territory, it does not offer anyprotection from rape.

 

1.3.2.       THE HAGUE CONVENTIONS OF 1899 and 1907

TheHague peace conventions, held in 1899 and 1907, resulted in the adoption of 13international conventions whose content primarily relates to the rules ofwaging a war on land or at sea, but also addresses issues such as neutrality inwar and peaceful conflict resolution. TheHague Conventions of 1899 \[14\] predominantly relate to the means and methods of warfare (the rules on theprohibition of the use of certain types of ammunition and weapons, the rules onthe treatment of prisoners of war), and less to the protection of civilians,which is covered by the general clause on the respect of general legalprinciples of states, the respect of principles established between civilizednations, as well as the request for the respect of humanity and publicconscience. \[15\] TheConventions greatly lean toward the American Lieber Code and discuss thetreatment of prisoners of war and the relationship of the occupying army withthe civilian population of a certain territory.

The Hague Convention of 1907: Forthe issue of rape, it is especially important to mention Annex IV to the HagueConvention, which in Article 46 contains a provision on the obligation ofrespect for family honor and rights determining: “ family honors and rights, individual lives and private property, aswell as religious convictions and liberty, must be respected. ” Critics ofthe Convention, as it relates to rape and sexual abuse during war, point outthat determining the protection against rape under the category of familyhonors and rights grossly neglects the true nature of rape as a crime againstwomen.

Since the Hague Convention became apart of international common law, its rules, according to the principles of themodern theory of international public law, are binding for all internationallegal entities, regardless whether they are its signatories.

 

1.4.    WORLD WAR I

Just like all great wars, World WarI was a catalyst for undertaking new efforts within the framework ofinternational humanitarian law. At the time it ended, the internationalcommunity took certain steps toward determining international judicialjurisdiction for the greatest crimes and criminal offences committed during thewar. A new phase was marked in determining individual criminal responsibilityfor war crimes.

The German invasion of Belgium, inAugust 1914, which was marked by mass rapes committed by German soldiers,opened a debate on rape as a war crime. The rapes in World War I, primarily dueto their large number, could not have been treated solely as unrelated, accidentalcases, but collectively as an instrument of terror. Rapes committed during theGerman invasion on Belgium are known in literature under the syntax the Belgian Humiliation , which implies abroader context in which rape in wartime can be described, meaning it impliesrape as a planned and organized humiliation, not of any specific person, but ofan entire nation. The crimes of rape, despite discussions held relating to thisissue, went unpunished.   When theyfulfilled their propagandistic function of forming a negative image of Germans,they were quickly forgotten.

In 1919, the Commission on WarCrimes was formed with its task to report on war crimes. Its report accusesGermany and other Axis countries of broad breaches of the laws of war. \[16\] It states 32 breaches of law and common practices of warfare, and includes rapewithin the context of the so-called Belgian Humiliation: In many parts of Belgium, a deliberate and systematically executedmassacre of civilians was performed, followed by numerous isolated counts ofmurder and other horrors . Innocentcivilians; men and women were killed on a large scale, violence was committedagainst women, children were killed as well.

The draft of the peace agreementwith Germany (signed June 28, 1919; put into force January 10, 1920) foresawthe trial of the German emperor Wilhelm II Hohenzollern for breaches ofinternational morals and agreements, but the effort to process and punish warcriminals failed due to political reasons (The Netherlands refused to extraditeWilhelm II). No relevant criminal proceedings against war criminals wereinitiated, again due to political interests and the improvement of diplomaticrelations.

 

1.5.    WORLD WAR II

The Second World War, among otherhorrors, brimmed with rapes on a massive scale. Indirect permission for theexecution of rape was given through statements such as this one from Goebbels: Men should be trained for war, women as arespite for soldiers. \[17\]

Yet a more concrete permission,almost an order, gave the Japanese general Okabe Naosaburo: It is very important…to allow soldiersaccess to sexual services, as soon as possible… \[18\]

Reports on war crimes committedduring the Second World War describe mass rapes in Jewish ghettos, orconcentration camps, where rape often preceded murder, physical abuse,mutilations or any combination of these respective procedures. Rapists were notjust members of the Axis armed forces, but also members of the Allies militarypowers. So it happened that after marching into Berlin, a great number of rapeswere committed by Russian soldiers, as a form of revenge for mass rapescommitted against Russian women. The Russian commander gave this answer onreported instances of rape: The Germanswere worse…this is just revenge. \[19\]

The case of the so-called Rape of Nanking was one of the most wellknown cases of mass rapes in military history. The Japanese army marched intothe city of Nanking on December 13, 1937 \[20\] ,and the rapes committed during its occupation were so numerous that theexpression the Rape of Nanking became used in literature as ametaphor for an invasion. This case is also known for the media attention itwas given.

Especially characteristic of sexualviolence in Asia during World War II is the appearance of forced prostitution. Thefirst to speak on the experiences of the so-called comfort women was a Korean woman Kim Hak-Sun \[21\] .

The Japanese government admittedthat, in World War II, it forced between 80,000 and 200,000 Korean, Filipino,Chinese, and Indonesian women into slavery. The term comfort women clouded the fact that the issue here was notprostitution, or even forced prostitution (the syntax that is in itselfcontradictory), but multiple rapes during a longer time period. General OkabeNaosaburo is considered one of the most responsible for the formation of whatare euphemistically called comfort houses .

Ironically, those documents thatare available and concern such institutions point to the conclusion that thepurpose of their creation was a reduction of uncontrolled rapes by soldiers,which lead to dangerous complaining by the civil population and was also thesource of sexually transmitted diseases among Japanese soldiers. For theformation of the system of comfort houses no one was held responsible. TheTokyo Tribunal that tried Japanese war crimes suspects considered the issue ofexecuted rapes (primarily those committed in Nanking, owing, probably, to thegreat media attention these events received) and showed evidence of theirspread. General Toyoda was accused at the Tokyo Tribunal of consciously andunlawfully ignoring and omitting to exercise his authority, because he ordered,directed, promoted, caused, allowed, approved of abuse, maltreatment, torture,rape, murder and other crimes that were committed by the Japanese navalmilitary forces.

The International Tribunal inNürnberg was established on the basis of the International Military TribunalCharter (IMT), added to the London agreement of 1945.

 

CHARTEROF THE INTERNATIONAL MILITARY TRIBUNAL IN NÜRNBERG AND CCL

The following acts, or any ofthem, are crimes coming within the jurisdiction of the Tribunal for which thereshall be individual responsibility:

(a)     Crimes against Peace: namely, planning, preparation, initiation orwaging of a war of aggression, or a war in violation of international treaties,agreements or assurances, or participation in a common plan or conspiracy forthe accomplishment of any of the foregoing:

(b)    War Crimes: namely, violations of the laws or customs of war. Suchviolations include, but not be limited to, murder, ill-treatment or deportationto slave labor or for any other purpose of civilian population of or inoccupied territory, murder or ill-treatment of prisoners of war or persons onthe seas, killing of hostages, plunder of public or private property, wantondestruction of cities, towns or villages, or devastation not justified bymilitary necessity:

(c)     Crimes against Humanity: namely, murder, extermination, enslavement,deportation, and other inhumane acts committed against any civilian population,before or during the war, or persecutions on political, racial or religiousgrounds in execution of or in connection with any crime within the jurisdictionof the Tribunal, whether or not in violation of the domestic law of the countrywhere perpetrated.

It is obvious that rape is neverspecifically mentioned, either as a war crime, or as a crime against humanity.Prof. Bassiouni considers that rape is implicitly included in the Nürnberg (andTokyo) Charter, signifying that it could be treated as an inhuman act (meaninga crime against humanity).

So, the criminal offences aredivided into three groups:

·       crimes against peace,

·       war crimes,

·       crime against humanity.

Rape and sexual violence are notexplicitly included in any of the three groups, nor was anyone ever tried forsexual violence.

The term crimes against humanity was established at the Nürnberg Tribunal inorder to ensure a mechanism which would enable holding accountable certainpersons who are politically responsible for the existence of war crimes, butwho are not their immediate executioners. War crimes with their contentcorrespond to what the international humanitarian law deems as grave breachesof laws and customs of war. Crimes against humanity, as a new category, shouldhave also encompassed grave breaches of human rights, regardless whether thebreach occurred during war or peace, where the only limitation is that victimsmust be civilians, while the perpetrators can be either civilians, stateofficials or persons acting on behalf of the state. Crimes must bequantitatively and qualitatively intense; their bases being found inpersecution based upon political, religious or racial grounds. Persecution onthe basis of gender was not included as an independent base for persecution.Although the Nürnberg Charter did not include rape on its list of crimesagainst humanity, this was done in the rule number 5 of the Control Council.Nevertheless, no one was ever tried on the basis of that provision.

Great significance for the issue of rapehad the aforementioned Law Number 10 of the Control Council (CCL 10) \[22\] ,dated December 20, 1945. This document made possible trials for individuals,who committed war crimes on territories under occupation, that is to say, itwas the basis upon which war criminals who were not architects of a war butwhose crimes were of a local character were tried. On the other hand, accordingto the Charter of the IMT, only those persons considered primarily responsiblefor a war were tried (because of the CCL 10 it was possible to process, forexample, concentration camps’ commanders, doctors who performed unethicalexperiments, etc.). It also enabled processing of persons who were members ofthe organizations that the IMT declared criminal. The Control Council Lawnumber 10 (CCL 10) lists the following acts as war crimes:

(a)     Crimes against Peace : Initiation of invasions of other countries and wars of aggressionin violation of international laws and treaties, including but not limited toplanning, preparation, initiation or waging a war of aggression, or a war ofviolation of international treaties, agreements or assurances, or participationin a common plan or conspiracy for the accomplishment of any of the foregoing.

(b)    War Crimes : Atrocities or offenses against persons or property constitutingviolations of the laws or customs of war, including but not limited to, murder,ill treatment or deportation to slave labour or for any other purpose, ofcivilian population from the occupied territory, murder or ill treatment ofprisoners of war or persons on the seas, killing of hostages, plunder of publicor private property, wanton destruction of cities, towns or villages, ordevastation not justified by military necessity.

(c)     Crimes against Humanity : Atrocities and offenses, including but not limited to murder,extermination, enslavement, deportation, imprisonment, torture, rape, or otherinhumane acts committed against any civilian population, or persecutions onpolitical, racial or religious grounds whether or not in violation of the domesticlaws of the country where perpetrated.

(d)    Membership in categories of a criminal group or organizationdeclared criminal by the International Military Tribunal.

Whatdistinguishes the Charter of the IMT and the CCL 10 is that the CCLspecifically lists rape as a crime against humanity.

The Nürnbergtrials for war crimes committed in Europe completely failed when it comes tojust legal treatment of rape, although during the trials there were numeroustestimonies made on behalf of victims and witnesses of rape. Rape is notexplicitly mentioned in any of the 172 pages of the Tribunals rulings; rape wascatalogued under the poor treatment of civil population. The prosecutionrefused to publish any documents on crimes characterized by sexual sadism.Guilt, if one can speak of it, by and large lies with the prosecution and itsrefusal to explicitly discuss the horrors of mass rapes committed during WorldWar II. The approach of the prosecution on the issue of mass rapes is probablyillustrated best by the statement made by the French prosecutor:

The Tribunal will forgive me if I avoid deliberationon the disgusting details. The medical findings of Dr. Nicolaides, who examinedthe victims of rape, I will skip over. \[23\]

Naturally, such an approach to rapeas a war crime resulted in the neglect of women as victims of rape, andclassified rape as the   lesser of warcrimes.

 

THESTATUTE OF THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST

Like the Nürnberg Tribunal,established to process war crimes committed in Europe during World War II, theTokyo Tribunal was established to process war crimes in the Far East (firstlythose committed by Japanese war criminals). Primarily due to political reasons,war crimes were also not in the spotlight here, instead full attention wasgiven to crimes against peace. The issue of committing war crimes was reviewedonly when the accused would have been proven to have committed war crimes andcrimes against peace. From this it is easy to conclude that greater politicaland legal gravity was given to war crimes. In the indictments, rape wasexplicitly stated as one of the war crimes, by way of its subsuming under thecategories of inhuman treatment, bad treatment, and disrespect of family honorsand rights. Since the Japanese government did not, like the German, execute alarge-scale destruction of its own citizens (in the case of Germany, Jews andother non-Aryans), crimes against humanity were not processed at the TokyoTribunal.

The Charter of the Tokyo Tribunal,probably due to the tremendous media attention provided by the case of the Rapeof Nanking, includes rape as a breach of customs and regulations of war in allof its provisions. For rape, as a form of a breach of customs and regulationsof war, Generals Hiroto and Toyoda were tried and convicted.

Tokyo convictions were explicitwhen it comes to rape and sexual abuse: “ Evengirls at a very young age and old women were raped in the city. In many cases,rape was followed by abnormal and sadistic behavior. Many women were killedafter being raped, and parts of their bodies mutilated ”. \[24\]

 

2. GENEVA CONVENTIONS ON THE HUMANIZATION OF WAR AND ADDITIONALPROTOCOLS

The reason for adopting the GenevaConventions on the humanization of war was primarily the understanding that theHague Conventions were not offering sufficient protection from the aftermath ofwar, and were especially impotent in providing adequate protection to civilianson occupied territories, as well as immediately during attacks and fighting.

The Geneva Conventions of 1949, aswell as their additional Protocol I are applicable primarily to internationalmilitary conflicts, meaning they were brought as a response (a late one indeed)to World War II, but today a vast majority of armed conflicts are of aninternal nature and cannot be categorized under what are traditionally known asinternational conflicts; they are within state borders waged between legalmilitary institutions of a state and paramilitary formations (for example,guerilla movements). Only did the additional Protocol II (during whose adoptionarmed conflicts were waged for the liberation from the colonial rule, whichwere the trigger for adopting a convention aimed at protecting civilians ininternal conflicts) mandate the application of humanitarian legal standards inthe cases of internal armed conflicts. Frequency and intensity of suchconflicts raised the issue of the responsibility of the state for breaches oflegal standards for humanity on behalf of paramilitary formations (whosemembers, as numerous reports show, were the primary and direct executors of thegreatest number of acts of violence against women). Although, even according tothe additional protocols of the Geneva Conventions, such paramilitaryformations were held responsible for breaches of basic humanitarian principles,slowly emerging is an understanding that the state has a responsibility forsuch actions as well.

The decision in the Velasquez case,at the Inter-American Court for Human Rights, determined the responsibility ofthe state for any breaches of human rights on its territory, including the onescommitted by paramilitary formations. Individual criminal responsibility andthe principle of universal jurisdiction are applicable to all persons who,within a state’s borders, while fighting against that state, violate theestablished standards of humanitarian law. The aforementioned approach canlegally solve such cases as, for example, forced marriages in Algiers andKashmir, meaning those acts that were committed on territories that were notunder control of the formal state government during the time of armed conflict.

2.          The Geneva Convention relative to theProtection of Civilian Persons in Time of War

This 4 ^th Convention was adoptedon August 12, 1949 at the Diplomatic Conference for the Establishment ofInternational Conventions for the Protection of Victims of War convened inGeneva on April 21, 1949.

Its basic purpose was to set basichumanitarian principles needed to protect those persons who are caught in armedconflicts, but are not participating actively in the hostilities. Itsapplication is limited only to international armed conflicts. It is one of thefew conventions which explicitly prohibit the sexual abuse of women; in Article27 it states:

Women shall beespecially protected against any attack on their honour, in particular againstrape, enforced prostitution, or any form of indecent assault .

Also, in Article 147, grave breaches of theconvention are listed, among other acts and tortures, inhuman procedure anddeliberate cause of heavy suffering or serious injuries to body or health. Someauthors are of the opinion that sexual abuse can be regarded as such an act.

The critique by feminist authors is aimedprimarily at the choice of the term protection ,instead of a more appropriate term isprohibited , which would put greater weight on the crime of rape. Inaddition, regarding rape as an attack on women’s honor masks the violent natureof the crime; the right to sexual integrity is not stressed as an object ofprotection, what is protected, instead, is chastity considered as a femalevirtue.

The flaw in this Convention is that itprotects only those persons who, as the convention states, have fallen into thehands of the enemy. Consequently, it does not protect civilians from the actsof their state against them.

This gap was partially rectified though theadditional protocols to the Convention in 1977, which broadened the terminternational armed conflict (under this term were entered wars for nationalliberation) and automatically extended the circle of persons protected underthe convention (all civilians caught in wars fought against colonial, racial orforeign occupation are also protected) \[25\] .

Article 75 of Protocol I to the GenevaConvention prohibits attacks against personal dignity, especially humiliatingand degrading procedures, forced prostitution and other similar procedures. Thecontracting parties to the Protocol are obligated to stop its violations, aswell as any violations of the Conventions of 1949. Article 76 states:

Women shall be the objectof special respect and shall be protected in particular against rape, forcedprostitution and any other form of indecent assault.

Article 87 states:

The High Contracting Parties andthe Parties to the conflict shall require military commanders, with respect tomembers of the armed forces under their command and other persons under theircontrol, to prevent and, where necessary, to suppress and to report tocompetent authorities breaches of the Conventions and of this Protocol.

Protocol I is, in fact, to a great extent,a codification of the existing common law of war and, therefore, binding to allparties under international law, regardless whether they are signatories to theGeneva Conventions.

Protocol II is aimed at protecting thevictims of internal armed conflicts. This protocol relates to all armedconflicts which are not covered by Protocol I and are happening on a territoryof any country, that is a contracting party to the Protocol, and between itsarmed forces and dissident armed forces or other organized armed forces whopossess control over parts of the territory of the state that is thecontracting party (meaning it relates to internal armed conflicts). By it areprotected all persons who are in any way influenced by the armed conflict. \[26\]

It prohibits violence against life, health,physical and mental integrity, and attacks against personal dignity, especiallyhumiliating and degrading procedures, rape and forced prostitution.

What makes the Geneva Conventionsoutdated is the fact that their rules are formulated in such a way that they donot take into consideration that a woman can also be a member of the armedforces (the addressee, as well as the object of protection is a soldier-man),and so, consequently, a prisoner of war and also wounded in battle (Peru, SriLanka), which calls for an adjustment of these rules to the special needs ofwomen. Also, it is easily overlooked that a woman can also commit a war crime,even one of sexual nature (for example, women were active participants in theexecution of genocide in Rwanda).

3.          Geneva Conventions of 1949 – CourtInterpretations

Article 3 renders these acts prohibited,regardless of the time and place of their execution:

·         violence to life and person, inparticular murder of all kinds, mutilation, cruel treatment and torture;

·         taking of hostages;

·         outrages upon personal dignity, inparticular humiliating and degrading treatment;

The International Court of Justice, in thecase of Nicaragua vs. USA, has taken the stand that this Article is an acceptedpart of the international common law and abidance to it is mandatory for allparties in a conflict, regardless of whether they are legitimate forces or somekind of paramilitary formations, as well as regardless of whether the state isa signatory to the contract or not.

Grave breaches of the Geneva Conventionsare listed in Article 147 of the Convention and include: willful killing,torture or inhuman treatment, including biological experiments, willfullycausing great suffering or serious injury to body or health, unlawfuldeportation or transfer or unlawful confinement of a protected person,compelling a protected person to serve in the forces of a hostile power, orwillfully depriving a protected person of the rights of a fair and regulartrial prescribed in the present Convention, taking of hostages and extensivedestruction and appropriation of property, not justified by military necessityand carried out unlawfully and wantonly.

The indictments of the InternationalCriminal Tribunal for the former Yugoslavia determined sexual violence astorture, inhuman punishment, and a cause of heavy suffering or seriousinjuries.

The International Committee of the RedCross expressed its opinion that Article 147, and the acts stated in it, caninclude rape. The acceptance of this opinion enables the establishment ofindividual responsibility for sexual violence as a grave breach ofinternational humanitarian law under Article 3 of the Geneva Conventions.

Additional Protocol II to the GenevaConventions of 1977, which relates to the protection of victims of internalarmed conflicts, explicitly prohibits violence against personal dignity,especially humiliating and degrading procedures, rape, forced prostitution andevery form of unsuitable attack.

4.       HUMAN RIGHTS AND GENDER-BASED VIOLENCE

5.          INTRODUCTION

The concept of basic standards for humanrights is based upon the belief that every human being immanently possesses acertain degree of dignity by the very fact it exists. The purpose of theconcept of human rights is to maintain this very level of dignity. Theestablishment of the modern concept of human rights is a direct result of thosevalues that are supported by the world community and introduced after World WarII.

 

UNIVERSAL DECLARATION OF HUMAN RIGTHS

The first document that offered an integrallist of basic human rights is the Universal Declaration of Human Rights,adopted by the General Assembly of the United Nations on December 10, 1948.This declaration was followed by numerous other international documents ofvarying degrees of binding legal power (declarations, resolutions, conventions,etc.).

The concept of basic human rights wasestablished with the aim of preserving human dignity and freedoms (both freedomfrom and freedom for). This is precisely the reason why some of them explicitlyor implicitly point toward the protection of sexual freedom and dignity,consequently implying the prohibition of sexual harassment in a broader sense.  

Among the most important rights of thistype listed in the Universal Declaration of Human Rights are:

·         theright to life, liberty and security of person

·         the right not to be subject… to torture or to cruel, inhuman or degradingtreatment or punishment

·         the right not to be subject… to attacks upon his honour and reputation

With the aim of protecting human rights,the Human Rights Committee of the United Nations is authorized to investigatecases of individuals and groups that are exposed to grave breaches of humanrights. If there is indeed a grave breach of human rights, the only sanction ispolitical pressure upon countries from which these breaches emanate. Differentconventions aimed at ensuring basic human rights anticipate certain forms ofsupervisory mechanisms on behalf of the international community, depending onthe measure to which the aforementioned rights are ensured.

The Universal Declaration of Human Rightsis a document of general character and, as such, was called upon by all theother, later documents drafted to guarantee certain specific rights or thoserights relating to a specific group of persons, these being especially thedocuments dealing with women’s human rights.

6.          CONVENTION ON THE ELIMINATION OF ALLFORMS OF DISCRIMINATION   AGAINST WOMEN(CEDAW)

One of the most important internationaldocuments dedicated in its entirety to women’s rights is the Convention on theElimination of All Forms of Discrimination Against Women (Women’s Convention –CEDAW). According to CEDAW, discrimination is defined as any distinction, exclusion or restriction made on the basis of sexwhich has the effect or purpose of impairing or nullifying … human rights and fundamental freedoms … \[27\] .On the basis of Article 17 of the Convention the Committee on the Eliminationof Discrimination against Women was created. In Recommendation No.19, theCommittee outlined the basic and most essential provisions of the Convention,whose basic function is to ensure adequate implementation of the Convention’sprovisions. The Committee considers violence against women, meaning violence onthe basis of gender, a form of discrimination:

Discriminationincludes gender-based violence…It includes acts that cause physical, mental orsexual injuries or suffering. Gender-based violence which diminishes orseriously impedes the ability of women to enjoy their human rights andfundamental freedoms guaranteed by common international law or the conventionson human rights is a form of discrimination. These rights and freedoms includethe right to equal protection according to the rules of the internationalhumanitarian law in times of international or internal armed conflict. Wars,armed conflicts and occupation of specific territories often leads to theincrease of prostitution, trafficking in women and increased occurrence ofsexual violence against women, which warrants their special protection andspecial punitive measures. \[28\]

Provisions of this convention, as well asthe above-mentioned Recommendation No.19, are important to the issue ofviolence against women during armed conflicts in the sense that they bindstates not only to adequate legal regulation of problems of violence againstwomen (a problem especially escalating during armed conflicts, as well asduring the postwar periods – issue of PTSD, worsened socio-economic circumstances,etc.), but also to undertake broader social changes (educational and healthprograms, monitoring mass media) in order to alter negative attitudes andprejudice against women that are certainly one of the causes of the subordinatesocial position of women and gender-based violence.

GENERAL RECOMMENDATION NO.19 \[29\] - Special recommendation of the Committee on the Elimination of Discriminationagainst Women to countries on the legal approach to the issue of violenceagainst women as a form of discrimination:

This recommendation is important for allfuture binding conventions primarily within the framework of the UN, and notonly for the Convention on the Elimination of All Forms of DiscriminationAgainst Women, because it set the subsequent approach to treating violenceagainst women in future conventions and other documents of internationalcharacter.   The Universal Declaration ofHuman Rights, as well as the Charter of the UN, as the most general of internationaldocuments dealing with human rights refer to the right to equality, whichconsequently means the prohibition of discrimination, but do not specifyexactly what does represent discrimination and breaches of the right toequality. The recommendation stresses that the country reports submitted to theCommittee on Human Rights, prepared for the World Conference on Human Rights of1993, demonstrate that countries have still not sufficiently recognized theconnection \[30\] , and thusthe interdependence between discrimination against women, gender-based violenceand breaches of human rights and fundamental freedoms. Full implementation ofthe principles of the prohibition of discrimination implies undertakingadequate measures to stop all forms of violence against women, which is inaccordance with the basic stance of the Committee that gender-based violence isa form of discrimination that seriously inhibits the ability of women to enjoyrights and freedoms on a basis of equality with men. Therefore, gender-basedviolence is just one of the manifestations of discrimination. Gender-basedviolence is defined as violence that isdirected against a woman because she is a woman or that affects womendisproportionately. It includes acts that inflict physical, mental or sexualharm or suffering, threats of such acts, coercion and other deprivations ofliberty…Gender-based violence, which impairs or nullifies the enjoyment bywomen of human rights and fundamental freedoms under general international lawor under human rights conventions \[31\] ,is discrimination within the meaning of Article 1 of the Convention…

Provisions of CEDAW are also applicable tobreaches on behalf of public authorities, which, in the given context, aretreated as breaches of the obligations on behalf of state parties set bygeneral international law on human rights and other conventions. State partiesto CEDAW have taken upon themselves the obligation to undertake all adequatemeasures to prevent discrimination against women on behalf of any persons,organizations or companies, and are even responsible for private acts if theyfail to act with due diligence to prevent violations of rights or toinvestigate and punish acts of violence, and for providing compensation.

The Recommendation especially scrutinizes,among others, as a form of discrimination, meaning gender-based violence:

Traditionalattitudes by which women are regarded as subordinate to men or as havingstereotyped roles perpetuate widespread practices involving violence orcoercion, such as family violence and abuse, forced marriage, dowry deaths,acid attacks and female circumcision. Such prejudices and practices may justifygender-based violence as a form of protection or control of women. The effectof such violence on the physical and mental integrity of women is to deprivethem of the equal enjoyment, exercise and knowledge of human rights andfundamental freedoms. These attitudes also contribute to the propagation ofpornography and the depiction and other commercial exploitation of women assexual objects, rather than as individuals. This in turn contributes togender-based violence (depicting women as objectsbrings down inhibitory mechanisms within a society which exist when women areviewed as autonomous human beings) .

… allforms of traffic in women and exploitation of the prostitution of women , seeing that poverty and unemployment increase the possibility oftrafficking in women, as well as new forms of sexual and labor exploitation(sex tourism: the recruitment of domesticlabour from developing countries to work in developed countries ; and organized marriages between women fromdeveloping countries and foreign nationals), which, consequently, putswomen at special risk of violence and abuse, state parties are indirectly askedto increase the socio-economic status of women.

It is especially emphasized that countrieshave an obligation to undertake additional measures to prevent theaforementioned acts during war and armed conflict, and in cases of occupation,because such conditions aggravate the socio-economic status of women even moreso than men \[32\] , alsoleading to an increased occurrence of situations that increase the risk ofviolence.

In addition, traditional customs can haveunwanted consequences upon persons subjected to them. Compulsory sterilization andabortion, procedures that nullify the right of women to autonomously decide onthe number of children they will bear, must be recognized as discriminatory andacts of gender-based violence.

Countries, for the purpose ofimplementing principles and provisions of the Convention and theRecommendation, have the following obligations:

·         Statesparties should take appropriate and effective measures to overcome all forms ofgender-based violence, whether by public or private act;

·         Statesparties should ensure that laws against family violence and abuse, rape, sexualassault and other gender-based violence give adequate protection to all women,and respect their integrity and dignity. Appropriate protective and supportservices should be provided for victims. Gender-sensitive training of judicialand law enforcement officers and other public officials is essential for theeffective implementation of the Convention;

·         States parties should encourage thecompilation of statistics and criminological research on the etiology andphenomenology of gender-based violence;

·         Recognizing the role of the media informing attitudes and prejudices within society, the recommendation asks ofcountries to ensure that the mediarespect and promote respect for women ;

·         Statesparties in their reports should identify the nature and extent of attitudes,customs and practices that perpetuate violence against women and the kinds ofviolence that result. They should report on the measures that they haveundertaken to overcome violence and the effect of those measures : informative programs, education;

·         Specificpreventive and punitive measures are necessary to overcome trafficking andsexual exploitation;

Therecommendation binds States Parties to report regularly to the Committee on theactions taken, as well as on the perceived negative effects of those actionsand, in addition, to suggest further measures for implementing the provisionsof the Convention and Recommendation.

7.          DECLARATION ON THE ELIMINATION OFVIOLENCE AGAINST WOMEN

The latest international document dedicatedin its entirety to women’s human rights is the Declaration on the Eliminationof Violence against Women. \[33\]

It, while referring to gender-basedviolence, points out:

Recognizingthat violence against women is a manifestation of historically unequal powerrelations between men and women, which have led to domination over anddiscrimination against women by men and to the prevention of the fulladvancement of women, and that violence against women is one of the crucialsocial mechanisms by which women are forced into a subordinate positioncompared with men.

Such an approach towards violence againstwomen, as a form of discrimination, and accordingly as an understanding thatsexual violence is a serious way of breaching basic human rights, is of a newerdate. Besides sparking discussion on rape during warfare as a crime againsthumanity, it had the effect of giving greater importance to the protection ofwomen, as persons that form the bulk of the civil population during war, ininternational humanitarian law. \[34\]

This declaration is already considering theapplication of women’s rights in the context of utilizing the principles ofequality, safety, freedom, integrity and dignity concerning gender that stemfrom the Universal Declaration of Human Rights, Convention on the Eliminationof All Forms of Discrimination Against Women, Convention against Torture andOther Cruel, Inhuman or Degrading Treatment or Punishment, InternationalCovenant on Civil and Political Rights, as well as those on social, economicand cultural rights.

The Declaration is most closely related tothe Declaration on the Elimination of Discrimination, and interwoven theystrengthen each other’s positions.

Violence against women is defined as anobstacle toward reaching the proclaimed equality between the sexes, meaning asa breach of rights and fundamental freedoms and is recognized as an indicatorof failure in promoting rights and freedoms. Violence against women is viewedas a manifestation of historically unequal power relations between men andwomen and as one of the crucial social mechanisms for the subordination ofwomen. The categories of women-refugees and women in areas of armed conflictare marked as groups subject to a great risk of violence.

The Declaration under the term violenceagainst women considers any act ofgender-based violence that results in, or is likely to result in, physical,sexual or psychological harm or suffering to women, including threats of suchacts, coercion or arbitrary deprivation of liberty, whether occurring in publicor in private life .

Violence, according to the Declaration,encompasses but is not limited to:

·         Physical,sexual and psychological violence occurring in the family, including battering,sexual abuse of female children in the household, dowry-related violence,marital rape, female genital mutilation and other traditional practices harmfulto women, non-spousal violence and violence related to exploitation;

·         Physical,sexual, and psychological violence occurring within the general community,including rape, sexual abuse, sexual harassment and intimidation at work, ineducational institutions and elsewhere, trafficking in women and forcedprostitution;

·         Physical,sexual and psychological violence perpetrated or condoned by the State,wherever it occurs.

The Declaration stresses that womenare entitled to equal enjoyment of all those rights considered to be universalhuman rights, and, interalia , theserights include:

1.       The right to life;

2.       The right to equality;

3.       The right to liberty andsecurity of person;

4.       The right to equalprotection under the law;

5.       The right to be free fromall forms of discrimination;

6.       The right to the higheststandard attainable of physical and mental health;

7.       The right to just andfavorable conditions of work;

8.       The right not to besubjected to torture, or other cruel, inhuman or degrading treatment orpunishment.

Countries are,according to the Declaration, bound not to support those practices, traditionsor religious beliefs that enable or justify any form of violence against women.It is natural that such an obligation holds especially in times of armedconflict. Within that framework countries must ratify, adopt CEDAW, prevent,research and, in accordance with their national legislation, punish such actsof violence against women, regardless whether committed by public or privateact. They must develop punitive, civil, and administrative mechanisms whichwould deal with acts of violence against women and enable women exposed toviolence to access mechanisms of legal protection and to develop legal,political and administrative preventive approaches that ensure protection ofwomen against any form of violence, especially against secondary victimizationbecause of gender-blind laws. Also, they should ensure that women subject toviolence have access to rehabilitation through the means of post-victimizationcounseling, programs, and the like.

8.       INTERNATIONAL DOCUMENTS – SPECIALPROTECTION DURING ARMED CONFLICTS

9.          Convention Against Torture and OtherCruel, Inhuman or Degrading Treatment or Punishment \[35\]

The starting point of this Convention isthat the prohibition of such acts stems from an unalienable and inseparableright to dignity as a human being, as well as from the obligations countrieshave under the Charter of the UN on respect for fundamental human rights andfreedoms, obligations under the Universal Declaration of Human Rights and theInternational Covenant on Civil and Political Rights which determine thatnobody should be subject to torture, cruel, inhuman or degrading treatment, allfully in accordance with the Declaration on the Protection of All Persons fromBeing Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment orPunishment (adopted by the General Assembly of the UN on December 9 ^th ,1975). The Convention defines the term torture as:

…anyact by which severe pain or suffering, whether physical or mental, isintentionally inflicted on a person for such purposes as obtaining from him ora third person information or a confession, punishing him for an act he or athird person has committed or is suspected of having committed, or intimidatingor coercing him or a third person, or for any reason based on discrimination ofany kind, when such pain or suffering is inflicted by or at the instigation ofor with the consent or acquiescence of a public official or other person actingin an official capacity. It does not include pain or suffering arising onlyfrom, inherent in or incidental to lawful sanctions.

Sexual violence and, consequently, rapewere not always clearly marked as forms of torture, although lately one canfind documents considering them as such. So, the special rapporteur of the UNwriting on torture clearly, in the report in 1992, defines rape as a form of torture.

The decision of the European Court forHuman Rights, in the case Aydin vs. Turkey dated September 25, 1997 states: Raping of prisoners on behalf of publicservants should be considered as a particularly grave form of maltreatmentwhere prisoners vulnerability and   inability to defend are abused. Furthermore, rape leaves deeppsychological effects that are not eased by time as quickly as is with otherforms of physical and mental violence.

The Court holds that the accumulation ofphysical and psychological violence against a victim and an especially cruelact of rape all fall under the breach of Article 3 of the Convention againstTorture.

 

10.      Convention on the Prevention andPunishment of the Crime of Genocide

On December 11, 1946, the General Assemblyof the UN issued Resolution 96 (I) where the following definition of genocidewas given: Genocide is a denial of theright of existence of entire human groups, as homicide is the denial of theright to live of individual human beings.

On December 9, 1948, the General Assemblyof the UN adopted the Convention on the Prevention and Punishment of the Crimeof Genocide that protects the right to existence of specific national,religious, racial or ethnic groups and makes genocide a specific form of crimeagainst humanity. The act of genocidemeans any of the following acts committed with intent to destroy, in whole orin part, a national, ethnical, racial or religious group, as such:

(a)Killing members of the group;

(b)Causing serious bodily or mental harm to members of the group;

(c)Deliberately inflicting on the group conditions of life calculated to bringabout its physical destruction in whole or in part;

(d)Imposing measures intended to prevent births within the group; (compulsorysterilization!)

(e) Forciblytransferring children of the group to another group.

The war in the former Yugoslavia raisedquestions on the issue of rape in war and its relation toward genocide(euphemistically called ethnic cleansing). The Committee of Experts, formed inOctober of 1992, headed by M. Cherif Bassiouni, had as its task to examine andanalyze information on the events occurring on the territories of the formerYugoslavia that are related to the breaches of the Geneva Conventions and otherconventions of international humanitarian law. In its report, it gives thefollowing definition of ethnic cleansing: The term ethnic cleansing isrelatively new, used in the context of the conflicts in the former Yugoslavia,and means to make a certain area ethnically homogenous through the use of forceor threats in order to remove from that area all persons of other ethnicorigins. Ethnic cleansing is contrary to international law. \[36\] If one takes into consideration numerous reports on the politics and practicesadministered in the former Yugoslavia, ethnic cleansing implies killing,torture, extrajudicial executions, rape and other sexual injuries, detainmentof civilians in ghettoized areas, compulsory relocations and deportation ofcivilians, deliberate military attacks on civilians, threats of such attacksand wanton destruction of property.

The report further analyzes the culturalforces which motivate the execution of genocide in the form of ethniccleansing. The Committee considers ethnic cleansing to be a policy with the singlegoal of removing a certain civilian population from a specific area on thebasis of ethnic or religious origin. The motives for such a policy aredetermined by a complex mixture of historical claims, pretensions, fear,nationalistic aspirations and expectations. Such a policy is, naturally, indirect collision with the modern demands of ethnic and religious pluralism, itsupports intolerance and leads to aggression that is politically exploitable.The Committee further believes that there is sufficient evidence pointing tothe existence of political directives from top government officials, whosecontents correspond with the content defined under the term ethnic cleansing.At the very least, numerous indicators point to a deliberate failure ofofficials in stopping and punishing perpetrators. The report also introduces athesis on the use of rape for the purposes of genocide. Such a conclusion,according to the Committee, is possible on the basis of:

·         similarity in the execution of rapeson different territories;

·         simultaneous breaches of otherregulations of international humanitarian law;

·         simultaneous military activity;

·         simultaneous   activities aimed at relocating civilians;

·         maximum humiliation, not only ofvictims, but of victims’ families;

·         chronological periods during whichrapes were committed.

As an especially important fact leading tothe thesis of rapes in the service of genocide, the report highlights rapescommitted in concentration camps. These cases indicate the policy ofencouraging such behavior. On the function of rapes as a tool of ethniccleansing one can also conclude, based on the analysis of methods and sites,where these rapes were committed. Victims were often raped in front of theirfamily members in public places, and instances where one member of the familywas forced to rape another were not rare. Statements of this type made byvictims were not uncommon: A man brokeinto our house and raped me…my husband had to watch. I have a four-year-olddaughter; she saw the rape . There wasno way to avoid it; he would have killed us. He just said – your husband mustwatch! (According to A. Stiglmayer). It is obvious that such actions wereused to make victims and their families never return to crime scenes. Thereport concludes that there had to have been a certain level of organizationand group activity present in order for it to be possible to execute such alarge number of rapes. A document that also speaks about rape as a means ofgenocide is the UN report entitled The Situation of Human Rights in theTerritory of the Former Yugoslavia of 1993 (A/48/92- S/25341) prepared by thespecial rapporteur of the UN Committee on Human Rights, Tadeusz Mazowiecki. Thereport states: According to sources(representatives of governments, international organizations, non-governmentalorganizations dealing with women’s issues, local women’s groups, religiousleaders of Moslem communities, and other sources, including UNPROFOR, relativesof missing persons, relatives of victims of rape) rape was, from the verybeginning, used as a modality for the execution of the policy of ethniccleansing and as a means of increasing the intensity of interethnic hatred (Allen, B. p.69). This report also adds weight to the thesis that rape is aninstrument of ethnic cleansing by stating that it was a means of terror overcivilians, a way to make civilians leave their place of residence. Furthermore,it highlights the frequency of rape occurrences within concentration camps andmaintains that there is no proof of any attempts on behalf of people in power,whether political or military, to stop the rapes. The report also warns thatone can talk of rapes, as a modality of ethnic cleansing or genocide, only inthe case of Serbian ethnic groups, while there are not enough indications thatrapes were tools of genocide in reference to perpetrators of Croatian or Moslemethnic groups, but isolated cases constituting a classic war crime.

 

11.   RAPE, FORCED PROSTITUTION, TORTURE,COMPULSORY PREGNANCY

Compulsory pregnancy, as an outcome ofrape, is often given as proof that rape is one of the methods used to achieveethnic uniformity, but also a crime whose victim can only be a woman. Reportson rapes in Bosnia and Herzegovina (BiH) contain testimonies of victims thatquote words said by some rapists during the act: you will give birth to a Serb . These accounts also report thatcertain persons were targeted for compulsory pregnancy, were forced to stay inconcentration camps in order to be prevented to abort. The authors who viewcompulsory pregnancy as a form of genocide stress that precisely the choosingof victims (almost always women in their childbearing years) and forcing themto stay pregnant constitute a deliberate attempt of preventing childbearingbetween members of the same ethnic group, definitely one of the acts fallingunder the restrictive operations described in the definition of genocide. Thefact that only within ten days, the amount of time that the Committee on HumanRights of the UN spent in BiH, 119 pregnancies, as an outcome of rape, wereregistered, speaks enough about the number of cases of compulsory pregnancy. Itis significant to mention that the number of abortions being made in a clinicin Sarajevo quadrupled from the number in the pre-war period. \[37\] Although there is a certain illogic to the thinking of rapists (they obviouslyforget, or are not aware of, the scientific fact that genetic material of achild is a combination of both mother’s and father’s genetic material,denouncing the Nazi view of culture as genetic), this does not alter the factthat victims of rape who are forced to stay pregnant are chosen according toethnic principles, where it is obvious, a victim was denied, or potentiallydenied, her national, ethnic, religious and cultural identity. It is undeniablethat here we are primarily looking at an attack upon the reproductive potentialof a victim.   However, it isquestionable whether greater weight should be given to the destruction ofreproductive potential as a means of destroying a certain ethnic or other groupor its destruction at an individual level. If the intentional and systematicnature of rapes resulting in compulsory pregnancies were proven, genocide couldbe introduced as a crime, thereby proving the existence of a policy of ethniccleansing. But, some feminist writers deem that the primary aspect of genocidehere is not the act of rape itself, but psychological torture, and categorizingas an object of protection only cultural, religious, and ethnic identityrepresses the personal, sexual, and reproductive identity of a victim as anobject of protection. They believe that linking compulsory pregnancy and rapewith the destruction of, as it is customary to say, national pride, stems fromthe patriarchal attitude towards women, from a certain identification ofthe   female body with a territory andethnic group, making its conquest, as well as governing its reproductivecapabilities, an act of the metaphorical conquest of this very territory.

The report of Ch. Bassiouni in its analysisof methods and sites of rapes in wars on the territory of the former Yugoslaviaalso deals with sexual and physical abuse accompanying rapes. Numerous areaccounts of victims and witnesses referring to the use of objects like glassbottles, guns, nightsticks, etc. for raping. Even amputations of parts ofbodies relating to sexual activity and reproductive capabilities were recorded(amputations of breasts, testicles, etc.). The term sexual violence in itselfincorporates not only rape, but also other ways of humiliation such as physicaland psychological torture of a sexual nature. Testimonies made by victims andwitnesses show that the list of the possible forms of sexual and physicalmolestation is limited only by the potential of the sadistic imagination ofperpetrators. Physical and sexual molestation accompanying rapes in war oftenhas a symbolic meaning, even a quasi-ritual character; its purpose is not onlyto diminish the dignity of a person as a human being, but to diminish thedignity of that person’s nationality and religion. Brutalities accompanyingrapes even lead to problems in lexicology in naming such acts, leading tosuggestions for new words like gynocide or femicide, meaning genocidal orfemicidal rape. These words try to suggest that such a type of rape carries initself a deep hatred for women in general and not just hatred for women of acertain ethnic, national, or religious group. According to the statute of theHague Tribunal, rape is not treated as torture, so it is logical to ask why, inthe case versus Tadić, forcing prisoners to bite each others testicles off isrecognized as torture, while similar acts committed during rapes are notconsidered as such. The authors representing the thesis that rape is torturepoint out that rape is simultaneously a psychological and physical injury withlong-term effects on victims’ lives, signifying that the main characteristic ofrape as torture is the destruction of victims’ personalities, and that theintent to obtain specific information from victims is not relevant forconsidering certain actions as torture.

Considering the issue of forcedprostitution, a large number of authors believe that it is, in fact, placingpeople in a ˝slave-master relationship˝ where the main context is repetitiverape. According to the Slavery Convention of 1926, and according to theSupplementary Convention on the Abolition of Slavery, the Slave Trade, andInstitutions and Practices similar to Slavery of 1956, slavery means: The status or condition of a person over whomany or all of the powers attaching to the right of ownership are exercised, and"slave" means a person in such condition or status. Conditions inthe concentration camps on the territory of the former Yugoslavia, as well asin the comfort houses during World War II, favor the theory that, in bothcases, there was an issue of putting people into slavery. This Conventiondetermined restitution for all comfort women during World War II, but failed torecognize criminal responsibility of the creators of the houses. The HagueTribunal in such cases does not refer to the establishment of slavery; insteadit uses the term forced prostitution, forgetting the well-establisheddefinition of prostitution as an exchange of sexual services, on a VOLUNTARYbasis, in exchange for material gains, going mostly to the renderer of suchservices. In these cases, both of these key elements are missing, so the syntax forced prostitution is contradictory.

 

12.      Declaration on the Protection of Womenand Children in Emergency and Armed Conflicts

The Declaration was adopted by the GeneralAssembly of the UN in Resolution 3318 on December 14, 1974. It was initiated onthe basis of resolutions whose contents were aimed at respecting basicprinciples of civilian protection in armed conflicts \[38\] ,and the resolution of Economic and Social (ECOSOC) Council 1515 on May 28,1970, in which ECOSOC asked of the General Assembly to consider the adopteddeclarations on the special protection of women and children during war, andthe recommendation of ECOSOC Council in the Resolution 1861 of May 16, 1974.

The driving force for its adoption was, aspointed out in its preamble, a deep concern for the suffering of women andchildren in the fights for peace, self-determination, national liberation andindependence (therefore, it is not only international conflicts that arerecognized within the framework of an aggressive war), and especially a concernfor the position of women and children in the areas of the world that are undercolonial rule, foreign domination or countries that promote a policy of racism,countries whose policies worsen the already bad position of women. But, as themain reason for the separate categorization of women as a specially protectedgroup of civilians, the Declaration stresses their role as mothers, throughwhich they hold an important position within society, and especially within thefamily considering that they participate the most in raising children.Therefore, the object of protection is not a woman as an independent category,but a woman in her function as a mother.

The Declaration demands of the UN memberstates that, just as the previously adopted Conventions demanded protection ofcivilian populations, they refrain from attacking civilians, therefore causingunnecessary suffering, especially in attacks upon women and children.Furthermore, they should refrain from using chemical and bacteriologicalweapons in military operations placing civilians in particular danger. It callsfor countries to fulfill their commitments toward the Geneva Conventions andtheir additional protocols.

What separates this declaration from theprevious ones of similar content is Article 4, where it focuses on theprotection of women and children against colonial domination and requirescountries to undertake special measures in preventing unlawful persecution,torture, sentencing, degrading procedures and violence, all forms ofrepression, cruel and inhumane treatment of women and children, includingincarceration, torture, killing, mass arrests, collective punishment,destruction of civilian structures, all of which, if executed, should beconsidered criminal acts. It also emphasizes the obligation of countries, inaccordance with the Universal Declaration of Human Rights, the Covenant onCivil and Political Rights, the Convention on Economic, Social and CulturalRights, and the Declaration of the Rights of the Child, to prohibit food,shelter, or medical aid deprivation in conditions of war.

It did not label rape in war as awar crime, but did stress in its preamble that: Women…are too often the victims of inhuman acts and consequentlysuffer serious harm.…All forms of repression and cruel and inhuman treatment ofwomen and children, including imprisonment, torture, shooting, mass arrests,collective punishment, destruction of dwellings and forcible eviction,committed by belligerents in the course of military operations or in occupiedterritories shall be considered criminal . \[39\]

13.   THE ISSUE OF REFUGEES

The issue of refugees was one of the directconsequences of armed conflicts in the past and still is today; consequentlythe issue of violence committed during periods of displacement is one of themain topics of international conventions and declarations. Since women areespecially subject to violence in conditions of war, refugee status, as aconsequence of war, also increases the occurrence of specific forms of violencerelated primarily to gender. This does not relate solely to sexual violence,but also to violence that is perhaps not directly aimed at women, butindirectly is, because precisely due to their subordinate position they remaindeprived of the rights guaranteed to refugees by international mechanisms ofprotection (primarily referring to health care, supply of food, medicine, andclothes). However, this is only one aspect of the problem, the other perhapsinsufficiently recognized at the international level is that the conditions ofrefugee life lead to additional subordination of women. The refugees themselveswillingly relinquish their guaranteed rights thinking that the time of refugeis not a good time to fight for women’s rights, that there are more importantissues at hand – protection and care for men possibly left in the war-affectedarea.

An entirely different topic related to theissue of refugees is a very recent issue of what are the justified reasons fora person to be granted refugee status, and, with that, the right to asylum inanother country.

14.      The UN Convention relating to theStatus of Refugees of 1951

The Convention identifies a refugee as aperson who left the country of his/her nationality owing to well-founded fear of being persecuted for reasons of race,religion, nationality, membership of a particular social group or politicalopinion …

Accordingly, a woman-refugee can be facedwith persecution on the basis of her language, ethnicity, culture, but alsogender, because gender has to be taken as a special category of social groups.

So it is that today some traditionalcustoms that, in certain ethnic groups, seriously impair women’s health(relating especially to genital mutilations) are considered as forms ofpersecution and as such represent a breach of international law. Therefore, thedanger inherent in performing such acts should present a valid legal base forthe assignment of refugee status.

Numerous women’s groups point to a specialproblem of women-refugees arising from the so-called crimes against honor,where these women can be killed by members of their families and isolated from thecommunity. This is because even today in certain ethnic and religiouscommunities gender-based violence is considered primarily an offense againstthe community as such, and not an aggression towards the psycho-physicalintegrity of women, making the goal of the community the excommunicationof   the person-victim of such violencein order to erase or forget the “insult” as soon as possible.

A female person who was exposed to sexualviolence during armed conflict can be treated as a destroyer of the family andsocial community and as such be put in a more tenuous position than is alreadyinherent to the life of a refugee.

Gender-based violence is a breach ofinternational law, especially the right to safety of person, including theright not to be subject to torture, cruel or inhuman procedures. Therecognition of persecution on a gender basis as grounds for gaining refugeestatus is relatively new. The European Parliament decided in 1984 that cases ofwomen faced with cruel or inhuman procedures due to the belief that they haveviolated cultural and social taboos inherent in their ethnic and religiouscommunities must be taken into consideration while awarding refugee status.

The Inter-American Committee on HumanRights in its report of 1995 concludes that rape as a means of terror overwomen is a crime against humanity. On the basis of such an opinion, the U.S.Immigration and Naturalization Service reached the conclusion that rape as ameans of political retribution (political retribution of winner over thedefeated, in armed conflicts whose roots are in a political power struggle, aswell as under the circumstances whose quality and quantity are not sufficientto declare them armed conflicts) is considered grounds for gaining asylum.

The Executive Committee of the UN HighCommissioner for Refugees (UNHCR) has reached many conclusions in recent yearsthat relate to women-refugees on the one side and, on the other, deal with theissue of gender-based persecution as recognized grounds for gaining asylum andrecognition of refugee status.

The Office of the High Commissionerrecommends to countries that rape and other forms of sexual violence committedas a means of persecution of persons on the basis of their race, religion,nationality, membership in certain specific political and social groups, or fortheir political opinion be treated as legal bases for awarding asylum topersons subject to such sexual violence. In addition, in its statute, theOffice of the High Commissioner for Refugees (par. 6, Art. II and Article IA ofthe Convention on the Status of Refugees of 1951), as a basis for awardingrefugee status, cites persecution whose means is sexual violence if the acts ofsexual violence were committed with the knowledge and tolerance from thegovernment, or if the government refused to provide effective protection tovictims, or was incapable of doing so.

The UNHCR also recognizes genitalmutilation as a serious breach of women’s human rights, as they are definedaccording to the Convention on the Rights of the Child and the Declaration onthe Elimination of Violence against Women, so this form of abuse is alsoforeseen as legitimate grounds for gaining asylum.

By interpreting theologically theaforementioned Convention and Declaration, one can draw a conclusion that evenforceful abortion or sterilization are forms of gender-based violence thatprovide a basis for gaining asylum. Today, only the USA and Canada haveaccepted, including formally, such a policy of treating the issue of refugeesfrom the perspective of breaching human rights that are specifically female.

The Executive Committee of the UNHCRcondemned persecution through the use of sexual violence as a grave breach ofhuman rights, a grave breach of humanitarian (war) law, and especially as abreach of human dignity. Accordingly, the Executive Committee calls upon allstates to respect and ensure the fundamental right to personal safety, and torecognize the refugee status of persons fleeing from their native country basedon a justified fear of persecution on the basis of race, religion, nationality,membership in a certain social group, or political beliefs, and when the meansof persecution is a form of sexual violence.

The Executive Committee also recommended tostates to accept the interpretation, within the framework of their sovereignty,which is starting to prevail at international forums, that women seekingasylum, due to exposure to an especially grave gender-based discrimination, areto be treated as a special social group as determined by internationaldeclarations and conventions.

In 1997, the Expert Group meeting ongender-based persecution organized by the UN's Division for the Advancement ofWomen in collaboration with the Centre for Refugee Studies at York University,Toronto, Canada, concluded that the recommendations of the UN High Commissionerfor Refugees are suitable to the needs of women-refugees. Within that context,it was concluded that grave discrimination and, especially but not only, abusein times of armed conflict, but also in times of political instability, canpresent gender-based persecution. Also expressed was an understanding thatserious restrictions of rights to education, employment, and freedom ofmovement have to be added to the definition of persecution in the context thatthis term was used in the Convention of 1951.

Further recommendation by the Expert Groupwas that if sex or gender were important for persecution, the fear frompersecution has to be interpreted as a fear from belonging to a particularsocial group - women, but the submitter of the asylum request does not have toprove that all the other women feel a well-founded fear of persecution as well.

At the national level, the Canadiangovernment’s efforts serve as examples of dealing with the issue of violenceagainst women as justified grounds for gaining refugee status and all therights following that status. The Canadian government in its Gender Guidelinesfor Asylum Adjudications was the first to formally recognize that a woman whois afraid of gender-based persecution can claim that such a fear stems from herbelonging to a certain social group. In the case Mazers v. the CanadianMinister of Employment and Immigration \[40\] ,the Federal Appeals Court interpreted that the term “special social group”:

• Means a natural or non-natural group of persons:

1)       with similar shared background, habits, social status, politicaloutlook, education, values, aspirations, history, economic activity orinterests contrary to those of the prevailing government; and

2)       sharing basic, innate, unalterable characteristics, consciousnessand solidarity.

A guide focusing on gender-based issues forasylum applicants \[41\] ,which was published in the States, recognizes as gender-based persecution theseforms of behavior:

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