S/1994/674/Add.2 (Vol. I)
28 December 1994
Final report of the United Nations Commission of Experts
established pursuant to
security council resolution 780 (1992)
Annex II
Rape and sexual assault: a legal study
Under the Direction of:
Christine P.M. Cleiren
Member of the Commission of Experts
Established Pursuant to Security Council
Resolution 780 (1992)
Contributor:
Melanie E.M. Tijssen, Attorney and Assistant to
M. Kamminga, Professor of International Law,
Erasmus University, Rotterdam, The Netherlands
The Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991 (ICTFY) grants jurisdiction to the International Tribunal on four grounds: «grave breaches» of the Geneva Conventions of 1949 (article 2), violations of the law and customs of war (article 3), «crimes against humanity» (article 4) and genocide (article 5). In the Statute, «rape» is listed as a crime against humanity.
Unlike the majority of codified penal law, «rape» is not precisely defined in international humanitarian law. As a consequence, there is, at present, every reason to interpret this concept broadly as encompassing other sexual assaults. In his commentary on article 5 of the Statute, the Secretary-General also seems to consider rape and other sexual assaults to be connected, as he states in relevant part: «. . . rape and other forms of sexual assault, including enforced prostitution». *2 Rape is considered in this report to be a crime of violence of a sexual nature. This also applies to other sexual assaults, such as enforced prostitution and painful circumcision. Today these crimes are considered by medical doctors, psychiatrists, and psychologists to be very serious violent crimes of a sexual nature having a wide range of severe effects on the victim and her domestic environment. *3 This study will therefore also encompass other sexual assaults. In the majority of the cases reported, women were the victims of the alleged rapes and other sexual assaults. However, men *4 and children, *5 when victims of rape or other sexual assaults, are also to be protected by international humanitarian law.
This paper considers the criteria for applying certain international humanitarian law instruments in this context. It deals, on the one hand, with the possibilities, and on the other, with the limitations of the law as applied to these specific crimes. The terminology used is «possibilities for application» and «conditions/limitations», respectively.
At present, international humanitarian law is in a process of development. As a result, it is flexible. However, the following discussion is restricted to an arrangement and study of generally accepted customary international law (nullum crimen sine lege).
Rape and other sexual assaults are prohibited in the penal law of all civilized nations. This applies in any case to the former Yugoslavia, which was a party to the conventions which are discussed here. *6 Perpetrators of these crimes must have been aware of the fact that they committed an international crime for which they could be prosecuted. Moreover, the applicable law for the most part provides for universal jurisdiction. According to article 146 of the Fourth Geneva Convention, the «grave breaches» listed in article 147 and mentioned in article 85 of Additional Protocol I, constitute universal jurisdiction. If the 1948 Convention on the Prevention and Punishment of the Crime of Genocide is considered applicable, universal jurisdiction is provided for in article VI. «Crimes against humanity» constitute universal jurisdiction on the grounds of the Nuremburg Charter and Judgment, which is reaffirmed in, e.g., the Draft Code of Crimes against the Peace and Security of Mankind. If articles of the Fourth Geneva Convention, not constituting «grave breaches», and Additional Protocols II are accepted as customary international law, they might also provide for universal jurisdiction. *7 As will be shown below, the crimes of rape and other sexual assaults are of such a nature that governments are obliged *8 to prevent the commission of international crimes and prosecute the perpetrators. When this is not done, the international community has a right to interfere with the sovereignty of a state and take responsibility for prosecution. This is another factor in favour of the exercise of jurisdiction by the ICTFY, apart from the fact that this is bestowed upon the ICTFY by its Statute, in pursuance of paragraph 2 of Security Council resolution 808 (1993).
As rape is a very personal crime, it is hardly possible to commit rape by mere instigation or omission. However, persons other than the physical perpetrators have personal criminal responsibility, as stated in article 7, paragraph 1, of the Statute. In the case of the other sexual assaults, persons other than the actual perpetrators can be said to have committed these assaults, but their responsibility should be determined first with reference to the other possibilities provided for in the above-mentioned article. *9
With regard to the «responsibility of omission», the Statute states, in article 7, paragraph 3:
«The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary measures to prevent such acts or to punish the perpetrators thereof.»In general, the principle of criminal responsibility for failing to act cannot be denied when a person in authority (a) knew or should have known that the crimes were regularly being committed; (b) had the power to interfere with the criminal practices; and (c) had special responsibility for the field in question. *10
However, due to the chaos in the former Yugoslavia including many activities carried out by paramilitaries, it might be difficult to expose lines of command. In consequence, the responsibility of the Governments for the prevention and punishment of crimes will play a crucial part in the proceedings before the ICTFY. *11
By applying this criterion of responsibility, the authorities can be held responsible for the climate which made it possible for these crimes to be committed. *12 With regard to the war crimes constituting «grave breaches», this responsibility is elaborated in article 146 of the Fourth Geneva Convention *13 and in article 86 (headed «Failure to act»), paragraph 1, of Additional Protocol I *14 by making it an «active duty» on the government not only with regard to «grave breaches», but also to «all other acts contrary to the provisions of this Convention» *15 and «all other breaches of the Conventions or of this Protocol», *16 respectively. The Convention on the Prevention and Punishment of the Crime of Genocide *17 provides for an active obligation on the part of the State parties. *18 With regard to «crimes against humanity», an active obligation on the part of the Government is provided for in the draft code of crimes against the peace and security of mankind. *19
Under international humanitarian law, rape and other sexual assaults are in most cases either expressly prohibited as such or can be categorized as «torture or . . . other form of inhuman or degrading treatment», «wilfully causing great suffering» or other terms of such a nature. *20
That rape and other sexual assaults may be considered to constitute these crimes can be deduced, inter alia, from the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, which defines «torture» in article 1 as «any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as . . . punishing him for an act that he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind . . . .» *21
According to Amnesty International, rape and sexual abuse are forms of torture or cruel, inhuman or degrading treatment. *22 An International Committee of the Red Cross (ICRC) aide-memoire of 3 December 1992 stated that «wilfully causing great suffering or serious injury to body or health obviously covers rape.» *23
The ways in which the Statute provides scope for the prosecution of persons involved in the crime of rape or other sexual assaults will be considered below. For the purpose of this discussion, the victims are assumed to be civilians, i.e., persons protected by the Geneva Convention related to the Protection of Civilian Persons in Time of War and the corresponding sections of the Additional Protocols. *24 The applicable law will be dealt with as per the Statute. For an evaluation of the scope, reference is made to the conclusion.
In the case of rape and other sexual assaults, the Fourth Geneva Convention is applicable.
Rape and other sexual assaults constitute «grave breaches» as they can be considered to be a form of torture or inhuman treatment and wilfully causing great suffering or serious injury to body and health; *25 these crimes, listed in article 147, constitute «grave breaches». Support for this argument can also be found in the fact that «inhuman treatment» is treatment contrary to article 27, which, inter alia, expressly prohibits rape and other sexual assaults. *26 Also, the enumeration of the «grave breaches» should be considered exhaustive in form only, not in substance. The commentary to article 146, paragraph 3, states in relevant part: «article 147 defines grave breaches of this convention. However, under the terms of this paragraph, the contracting parties must also suppress all other acts contrary to the provisions of this convention . . . Other grave breaches of the same character as those listed in article 147 can be easily imagined. This was well understood when the Yugoslav Penal Code (article 125) was adopted, since the crime of forced prostitution was added to the list . . . .» *27 The fact that at the Tokyo Trials rape was considered a violation of «the laws and customs of war» constitutes a very important argument. Although the Geneva Conventions were not yet existent, the charge indicates that rape is seen as a crime as serious as torture and killing. Today, such a crime would be considered a «grave breach». *28
The possibilities of application are that a single act is sufficient to constitute a war crime *29 and that it need not be policy instigated or tolerated by the State, or politically, ethnically, racially, or religiously motivated.
However, it must be clear that the perpetrators are linked to one side of the armed conflict, acting against neutral citizens or citizens of a belligerent party. From war trials, such as the Essen Lynch Case, we can deduce that these links are so obvious that this is easily taken for granted, unless both parties to the conflict are of the same nationality or from countries which are on the same side of the conflict. *30 Article 85 of Additional Protocol I to the Geneva Conventions also defines «grave breaches» and will be discussed in Section III, below.
Although article 3 of the Statute refers only to The Hague Convention of 1907 concerning the Laws and Customs of War on Land and the Regulations annexed thereto (Convention No. IV), the following principles and instruments of humanitarian law form part of international customary law as well. The Statute does not consider the Additional Protocols to the Four Geneva Conventions to be customary international law. However, they are treated as such here, because they fall within the jurisdiction of the ICTFY in so far as they constitute customary international law. This will be the case in the parts relevant to the topic of rape and other sexual assaults, as they constitute fundamental principles of international law. *31 The condition/limitation of application will consist of proving that the relevant parts of these Protocols constitute customary international law.
The principle of customary law distinguishing between civilians and combatants and limiting attacks of military necessity, *32 was violated during the war in the former Yugoslavia.
The applicable law can be found in several treaties. In the Trial of Admiral Toyoda, rape was considered a violation of the laws and customs of war. Although at the time the Four Geneva Conventions of 1949 had not come into existence, the charge suggests that rape is regarded a crime as severe as torture and killing and would thus nowadays constitute a grave breach. However, if this argument will not be accepted, the conclusion ought to be that rape constitutes one of the other war crimes, constituting customary international law and creating universal jurisdiction. *33
Rules applicable to armed conflicts of both an international and a non-international *34 character can be found in article 3 common to the four Geneva Conventions, *35 which provides a list of fundamental rules. Although this article states that it applies to a non-international armed conflict, these fundamental rules are also applicable in case of an international armed conflict. The International Court of Justice ruled, in the case Nicaragua v. United States of America, that these principles constitute «`elementary considerations of humanity' and cannot be breached in an armed conflict, regardless of whether it is international or national in character». *36 Relevant here is paragraph 1, which prohibits, inter alia, «violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture» and «outrages upon personal dignity, in particular humiliating and degrading treatment». *37 Applicable rules can also be found in paragraph 1 of article 76 of Additional Protocol I to the Geneva Conventions, which expressly prohibits «rape, forced prostitution and any other form of indecent assault». This rule «applies both to women affected by armed conflict, and to others». *38
Rules applicable in international armed conflict, are codified in the Fourth Geneva Convention. This can be derived, for instance, from the Nicaragua v. United States of America Case (Judgment of the International Court of Justice, 27 June 1980), wherein the Court rules that «the obligation to respect and ensure respect for the Geneva Conventions `does not only derive from the Conventions themselves, but from the general principles of humanitarian law to which the Conventions merely give specific expression'». *39 Another argument for the applicability of the Geneva Conventions of 1949 can be concluded from the fact that the Socialist Federal Republic of Yugoslaia (SFRY) felt itself bound by the Geneva Conventions. The Republics following SFRY are probably bound by the general treaty obligations undertaken by SFRY. In any case, «in most part . . . the Fourth Geneva Convention concerns customary law, and, in many respects, even peremptory norms that cannot be excluded by agreements». *40 Rape, enforced prostitution and any form of indecent assault are expressly prohibited in article 27, which is considered the core of the protection offered in the Fourth Geneva Convention, and can in particular be considered to codify customary international law. This can be concluded from the Commentary to the article which states in relevant part: «The Statement of these principles in an international convention gives them the character of legal obligations and marks an essential stage in the history of international law, in particular international humanitarian law . . . it codifies notions which date back to ancient times . . . .» The 1907 Hague Convention (IV) respecting the Laws and Customs of War on Land provides protection for family honour and rights in article 46. This article will not have to be considered as article 27 of the Fourth Geneva Convention now offers a more specialized protection. The general rule provides that «specialis» has preference over «generalis». (However, if article 27 cannot be accepted as constituting customary international law creating universal jurisdiction, the Hague Convention will have to be invoked and then the criteria for war crimes will apply). *41 Article 85, paragraph 4, of Additional Protocol I to the Geneva Conventions states, inter alia, that «inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination» constitute a «grave breach» when «committed wilfully and in violation of the Conventions and of this Protocol». *42
Conditions/limitations with regard to Protocol I are that it has to be proven that the crimes were based on racial discrimination and that they were «committed wilfully and in violation of the Conventions and of this Protocol».
Rules applicable in a non-international armed conflict can be found in Additional Protocol II to the Geneva Conventions, where prohibition of rape, enforced prostitution and other sexual assaults is found in paragraph 2 of article 4, headed «Fundamental guarantees».
A condition/limitation of prosecution, based on the article mentioned in paragraph 24, might be that this Protocol can only be evoked when the armed conflict takes
«place in the territory of a High Contracting Party between its armed forces and dissident forces or other organized groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.» *43
Rules applicable when the area is considered to be occupied territory are stated in article 47 of the Fourth Geneva Convention, which prohibits protected persons in occupied territory in any case or in any matter whatsoever from being deprived of the benefits of the Convention. *44
For a further discussion on possibilities of application and conditions/limitations with regard to the application of this type of law, except for the special items already dealt with in this section, see Section II. *45
In article 5 of the Statute «crimes against humanity» are described as «the following crimes when committed in armed conflict, whether international or national in character, and directed against any civilian population . . . (g) rape».
There are several reasons why rape and other sexual assaults can constitute a «crime against humanity». Rape is listed among the «crimes against humanity» in article 5 of the Statute. *46 The possibility that rape and other sexual assaults already constituted «crimes against humanity» under the Charter of the International Military Tribunal of 1945. Rape and other sexual assaults are not explicitly mentioned in the Nuremburg Charter under article 6, paragraph C, which defines the «crimes against humanity». However, rape and other sexual assaults are considered to come within the scope of this paragraph, as this was compassed in the words «. . . and other inhumane acts». «The wide scope of this term indicates that the enumeration . . . is exhaustive in form only, not in substance». Apart from this, Law No. 10 of the Control Council for Germany defined rape as a «crime against humanity». Although it can be discussed whether this Law constitutes customary international law, it does make clear that the Four Powers considered rape a «crime against humanity». *47 The scope of this term has only been widened since the Second World War cannot be excluded. *48 Apart from this, «crimes against humanity» are to be considered violations of fundamental human rights, *49 in this case: the prohibition of «torture or other cruel, inhuman or degrading treatment» *50 and the prohibition of «enslavement». *51
The possibilities of application are that «crimes against humanity» are applicable in times of peace as well as in times of armed conflict, whether national or international, *52 and that they can be committed by anybody. *53
Conditions/limitations might occur insofar as it is necessary to prove that the alleged rapes and other sexual assaults are «directed against any civilian population», i.e., «single or isolated acts» fall outside the scope *54 because it has to be proven that these crimes have been committed as part of a widespread or systematic attack against the population.
«Widespread» refers to the large scale on which the crimes are committed *55 or to a pattern of abuse. *56 This pattern might be apparent from the cases reported which show that the rapes are often perpetrated in the same manner, e.g., it starts when an area is conquered, the women are taken away and detained, or raped in front of the family. «Systematic» refers to a pattern of abuses of which rape is an element; here rape is used as one of the tools of war, which is possible due to the severe (mental) effects on the victim and her environment. Reports tend to show a pattern of abuse, e.g., it starts when an area is conquered and occurs concurrently with torture and murder. It occurs predominantly around the camps, after which the population flees before the area is occupied.
It also has to be proven that the crimes are based *57 on national, political, ethnic, racial or religious grounds and that the state is involved. This can be concluded from state tolerance. *58
Article 4 of the Statute refers to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which defines genocide in article II as:
«any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such . . . (b) causing serious bodily or mental harm to members of the group; *59 (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; *60 (d) imposing measures intended to prevent births within the group». *61
The possibilities of application are that genocide is a crime under international law, in times of peace and in times of armed conflict, whether this is deemed international or non- international, *62 and that only one of the acts enumerated in article II of the Convention has to be proven. The fact that there is no need to demonstrate that the perpetrator was acting on behalf of the state is also very important. *63
A condition/limitation of this Convention will be the requirement of proving that the acts described above were «committed with the intent *64 to destroy, in whole or in part, a national, ethnic, racial or religious group».
Violations of the laws and customs of war: applicable rules can be found in article 3 common to the Four Geneva Conventions, which provides a list of fundamental rules, and article 76 of Additional Protocol I to the Four Geneva Conventions, which expressly prohibits rape and other sexual assaults.
A single act suffices to constitute a war crime; *65 the conditions/limitations will be that it has to be proven that the perpetrators are linked to one side of the conflict, acting against neutral citizens or citizens of a belligerent State. With regard to Protocol I and, to a lesser extent, common article 3, it also has to be proven that these articles constitute customary international law giving rise to universal jurisdiction.
«crimes against humanity» can be committed by anybody and come with universal jurisdiction; the conditions/limitations arising are that it has to be proved that there is evidence of State involvement, at least in terms of tolerance, that the alleged facts form a part of a widespread *66 or systematic *67 attack against any civilian population, and that the crimes are based on national, political, ethnic or religious grounds.
Genocide: rape and other sexual assaults may come under the definition contained in the Convention on the Prevention and Punishment of the Crimes of Genocide, *68 that it is not necessary to prove that the perpetrator was acting on behalf of the State and that genocide comes under universal jurisdiction. However, it is necessary to prove that the acts were committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group.
«Grave breaches» of the Fourth Geneva Convention (enumerated in article 147), rape, and other sexual assaults constitute «torture or inhuman treatment» and/or «wilfully causing great suffering or serious injury to body or health».
Article 27 of the Fourth Geneva Convention explicitly prohibits rape.
«Grave breaches» of Additional Protocol I to the Four Geneva Conventions, article 85, paragraph 4, prohibits «inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination».
The possibilities of application are that a single act suffices to constitute a war crime and that the «grave breaches» come under universal jurisdiction. The conditions/limitations will be that it has to be proven that the perpetrators are linked to one side of the conflict, acting against neutral citizens or citizens of a belligerent state. With regard to Protocol I and, to a lesser extent, article 27, it also has to be proven that these articles constitute customary international law coming under universal jurisdiction and, also with regard to Protocol I, that the crimes were based on racial discrimination and were «committed wilfully and in violation of the Conventions and of this Protocol».
A prohibition of rape, forced prostitution, and other sexual assaults is found in article 4, paragraph 2, of Additional Protocol II to the Four Geneva Conventions. A single act suffices to constitute a war crime, provided it is proved that the armed conflict takes
«place in the territory of a High Contracting Party between its armed forces and dissident forces or other organized groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol», *69and that it constitutes a breach of customary international law, coming under universal jurisdiction.
Both «crimes against humanity» and genocide are applicable outside of armed conflict. *70 In criminal law each case has to be considered on its own merits; for the prosecution of rape and other sexual assaults, this also means that in each case it has to be decided which of the above-mentioned fields of law is applicable, depending on the conditions and circumstances of the case and the facts that can be proven.