Sexualised Crimes, Armed Conflict and the Law

The International Criminal Court and the Definitions of Rape and Forced Marriage

Hannah Baumeister

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9781138085121
• eBook ISBN: 9781351619219
• Edition: 1
• Topic: Law
• Subtopic: Courts
• Index: Law

From ancient to modern times, sexualised war violence against women was tolerated if not encouraged as a means of reward, propaganda, humiliation, and terror. This was and is in defiance of international laws that have criminalised acts of sexualised war violence since the 18th century. Ad hoc international tribunals have addressed especially war rape since the 15th century. The International Criminal Court (ICC), however, is the first independent, permanent, international criminal court that recognises not only war rape but also sexual slavery and other sexualised crimes as crimes against humanity, war crimes, and acts of genocide in its statute and supporting documents.

This book explores how the ICC definitions of rape and forced marriage came about, and addresses the ongoing challenge of how to define war rape and forced marriage in times of armed conflict in a way that adequately reflects women's experiences, as well as the nature of the crimes. In addition to deepening the understanding of the ICC negotiations of war rape and forced marriage, and of the crimes themselves, this volume highlights relevant factors that need to be considered when criminalising acts of sexualised war violence under international law.

Sexualised Crimes, Armed Conflict and the Law draws on feminist and constructivist theories and offers a comprehensive theoretical and empirical examination of the definition of rape and forced marriage. It presents the latest state of knowledge on the topic and will be of interest to researchers, academics, policymakers, officials and intergovernmental organisations, and students in the fields of post-conflict law and justice, international law, human rights law, international relations, gender studies, politics, and criminology.

1
Introduction

Introduction

This book analyses the international criminalisation of war rape and forced marriage in times of armed conflict under the statute of the International Criminal Court (ICC). It addresses the ongoing challenge of how to define the two crimes in a way that adequately reflects women’s experiences, as well as the nature of the crimes.

The ICC definition of war rape is considered one of the most progressive and broad definitions of rape under international and national law.¹ This, however, overlooks the awkward, limiting and partly regressive wording of the first element, defining rape as an invasion resulting in penetration.² This formulation is puzzling considering that actors in the ICC negotiations could have relied on a more progressive precedent in defining rape. Contrastingly, the crime of forced marriage was understood as a form of sexual slavery and was not discussed in any depth.³ This neglect is perplexing considering the widespread use of forced marriage in conflicts that were ongoing while the ICC instruments were negotiated⁴ and would likely be considered by the court.⁵

Based on this critique of the ICC’s definition of war rape and forced marriage, the book analyses the process of how those definitions came about. Using a feminist and constructivist lens, it focuses on the driving actors, what influenced them, how they understood the crimes of war rape and forced marriage, and how they shaped the ICC negotiations. It is argued that, in addition to state delegations, nongovernmental organisations (NGOs) in general and women’s organisations in particular played a role in developing the definitions of war rape and forced marriage. Actors represented all parts of the world and included survivors of sexualised war violence.⁶ Opposition to progressive definitions of rape and forced marriage came mainly from states with strong patriarchal structures where religion plays a leading role in legal and social matters. Influenced by national and international norms, rape and forced marriage were interpreted as honour crimes as well as acts of structural violence. Actors shaped the ICC definitions of the two crimes by conducting research and policy analysis, producing and distributing reports and proposals, organising briefings, and lobbying. Non-state actors also influenced the negotiations as civil society members of state delegations.

The aim and potential contribution of this book is to deepen the understanding of the ICC negotiations of war rape and forced marriage. By comparing the criminalisation of war rape and forced marriage, this book highlights relevant factors that need to be considered when criminalising acts of sexualised war violence under international law. This way it contributes to debates about the nature of international law-making. By considering forced marriage in the context of the ICC negotiations, the book also aims at raising awareness of the crime and intends to contribute towards a better understanding of it.

Context

Legislative histories of war rape and forced marriage

From ancient to modern times, sexualised war violence against women was viewed as a socially acceptable practice in war, as collateral damage. Women were spoils of war, a reward to which the victors had a right. Sexualised violence was tolerated, if not encouraged, as a means of propaganda, humiliation and terror. The criminalisation of sexualised war violence has been attempted at the international level at least since the 18th century when bilateral and multilateral conventions criminalised sexualised war violence in the form of rape as an honour crime. This understanding was maintained in international agreements of the early and mid-20th century as well as by the Nuremberg and Tokyo tribunals established after the Second World War. International instruments of the second half of the 20th century moved away from an honour-based interpretation of sexualised war violence towards an understanding of it as a gender-based violation of women’s integrity. Sexualised war violence was framed as an issue of discrimination against as well as of protecting women and their fundamental rights. A connection was established between the vulnerability of women in wartime and the discrimination and disadvantages they experience in everyday life. Despite this growing recognition of sexualised war violence as a wrong, acts of sexualised war violence were perpetrated systematically on a massive scale during the conflicts in the former Yugoslavia and Rwanda in the 1990s. War rape was used as a strategic method to destroy culture and life as well as a method of ethnic cleansing and genocide. This was a known fact, condoned, encouraged and even ordered.⁷ In response, the statutes of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) explicitly included war rape as a crime against humanity. The ICTR statute also explicitly listed rape as an outrage upon personal dignity which constitutes a violation of Article 3 common to the Geneva Conventions and to Additional Protocol II.⁸ In the tribunals’ jurisprudence, war rape was defined as a crime against humanity,⁹ a war crime,¹⁰ as constituting torture,¹¹ an act of genocide¹² and a grave breach of the Geneva Conventions.¹³ Before the ICC negotiations had been completed, the Yugoslavia and Rwanda tribunals developed different definitions of the crime of rape as such. In Prosecutor v Jean-Paul Akayesu, the ICTR introduced a definition using the term ‘invasion’.¹⁴ The term ‘penetration’ was used in definitions developed in Prosecutor v Anto Furundžija¹⁵ and in Prosecutor v Dragoljub Kunarac, Radomir Kovač and Zoran Vuković (Foča case).¹⁶ The latter can also be found in most national definitions.¹⁷

While the ad hoc tribunals largely focused on war rape, some, especially women’s rights advocates, began to criticise the overemphasis on war rape in the discussion of sexualised war violence. They stressed that women also experience other acts and forms of violence in wartime. The United Nations (UN) Special Rapporteur on Violence against Women, its Causes and Consequences, for example, directly mentioned forced marriage in times of armed conflict in her reports from 1995 on.¹⁸ The first definition of forced marriage, however, was put forward by the UN Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slavery-Like Practices during Armed Conflict. At a time when the ICC’s Rome Statute had been passed and the discussion of the Elements of Crimes had begun, she found the constituting elements of forced marriage to include being forced into a conjugal relationship, forced labour and acts of sexualised violence.¹⁹ After the ICC Elements of Crimes were passed, the Special Court for Sierra Leone (SCSL) addressed the issue as a form of sexual slavery and an inhumane act in Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu (AFRC case),²⁰ Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao (RUF case)²¹ and Prosecutor v Charles Taylor.²² In these cases, the Special Court also developed different ways of referring to the crime.

War rape, forced marriage and the ICC

The ICC, based in The Hague in the Netherlands, is the first independent, permanent international criminal court established to try persons accused of the most serious crimes of international concern: genocide, crimes against humanity, war crimes and the crime of aggression.²³

The ICC is a treaty-based court, governed by the Rome Statute that is binding only on those states which formally express their consent to be bound by its provisions. The Rome Statute was negotiated between 1994 and 1998.²⁴ A draft statute for an international criminal court was submitted to the United Nations General Assembly (UNGA) by the United Nations International Law Commission (ILC) in 1994. The ILC recommended convening a conference of plenipotentiaries to negotiate a treaty and enact the draft statute. The UNGA, however, decided to establish the Ad Hoc Committee on the Establishment of an International Criminal Court to review the draft statute and to work towards an international conference to finalise and adopt it. After meeting twice, the Ad Hoc Committee submitted its report to the UNGA in 1995.²⁵ After considering the report, the UNGA created the Preparatory Committee on the Establishment of an International Criminal Court (PrepCom) to prepare a consolidated draft text. Between March 1996 and April 1998, the PrepCom met six times at the UN headquarters in New York. In January 1998, the inter-sessional meeting in Zutphen, the Netherlands, took place to technically consolidate and restructure the draft articles into a draft statute. Based on the PrepCom’s draft, the UNGA convened the United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome Conference) to finalise and adopt a convention on the establishment of an international criminal court. The Rome Conference took place from 15 June to 17 July 1998 in Rome, Italy. The Rome Statute was adopted on 17 July 1998 with 120 state delegations voting in favour, seven against and 21 states abstaining.²⁶ After the Rome Conference, the Preparatory Commission for the International Criminal Court (PrepCom2) was charged with completing the establishment and enabling smooth functioning of the ICC by negotiating complementary documents²⁷ setting out the court’s structure, jurisdiction and functions. Of particular relevance to this research project are the Elements of Crimes that were negotiated between February 1999 and July 2000.²⁸

State and non-state delegations participated in the ICC negotiations. States were the main actors in the sense that they made the final decisions. They acted individually as well as in groups. NGOs attended the negotiations under the umbrella of the international NGO Coalition for the International Criminal Court (CICC). This facilitated networking and cooperation between NGOs at multiple levels, as well as between NGOs and states. NGOs closely monitored the discussions and produced and distributed information on developments. They also produced, distributed and promoted new research, expert documents and news articles. Additionally, they briefed and lobbied state delegations. This way, they facilitated exchange and provided input into the discussions. NGOs provided more detailed and specific contexts for the decisions that were to be made by states. However, members of NGOs also influenced states’ decisions by becoming members of state delegations. Furthermore, NGOs had an impact on the ICC negotiations by undertaking preliminary drafting work. NGOs engaged in capacity building, provided orientation and guidance and mobilised other NGOs. NGOs also facilitated parallel activities, raising awareness of the ICC.²⁹

The Rome Statute’s provisions on sexualised violence are considered to be great achievements. They build on existing international laws, especially the experience and expertise of the ICTY and ICTR, and recognise rape as a war crime and a crime against humanity.³⁰ Going further than the ad hoc tribunals, the ICC Elements of Crimes also specify that rape can cause serious bodily or mental harm and therefore constitute an act of genocide if the qualifying elements of genocide are met.³¹ In addition to rape, the Rome Statute also explicitly recognises ‘sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, [and] any other form of sexual violence of comparable gravity’³² as well as gender-based persecution.³³

Previous research on the evolution of the ICC and its instruments considered the process of including rape as a war crime and crime against humanity in the Rome Statute and the outcome of the process of defining the crime.³⁴ The final definition of war rape is generally considered one of the most progressive and broad definitions of rape under international and national law.³⁵ Howev...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Acknowledgments
• Table of cases
• Table of conventions and statutes
• Table of United Nations documents
• Table of other legal documents
• List of abbreviations
• 1 Introduction
• 2 Theories and methods
• 3 Theories and legislative histories of war rape and forced marriage
• 4 The dynamics of the ICC negotiations: Actors’ identities, influences and methods
• 5 The ICC negotiations of war rape and forced marriage
• 6 The Women’s Caucus’ understanding of forced marriage
• 7 The Arab block’s proposal
• 8 Conclusion
• Appendix 1 The legislative history of war rape and forced marriage: A timeline
• Appendix 2 The CICC’s structure
• Index