General

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This Blog is written by Ishika Agarwal from Manipal University, Jaipur. Edited by Srishti Tiwari.

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INTRODUCTION

Sexual violence has been, and to a large extent continues to be, shrouded in silence. However, the dynamics behind it, including its prevalence and a horrific toll on individuals and societies, have been progressively better understood over the last two decades. In many conflicts around the world, sexual violence has been committed against women, men, and children alike. The consequences of sexual violence are usually very severe and may last a lifetime: many survivors of sexual violence contract sexually transmitted diseases, including HIV/AIDS, face unwanted pregnancies and health complications and suffer from sexual mutilations and other injuries, such as fistulas, uterine problems, vaginal lesions, and scarring. In addition, they often face stigma, isolation, poverty and severe traumas. Despite the often high occurrence of sexual violence in conflict and its enormous potential to destroy individual lives and communities and society at large (capable of rising to a national and international peace and security issue), perpetrators of these crimes have often not been prosecuted. Prosecutions before international criminal tribunals are relatively rare and on the national level, conflict-related sexual violence prosecutions are very often minimal or non-existent. Prevention strategies are furthermore given more thought; yet more needs to be learned and done in order to make the prevention of conflict-related sexual violence more effective. While it will not be possible to cover everything of relevance to conflict-related sexual violence, some of the most important achievements and current challenges concerning the understanding, prevention, investigation and prosecution of sexual violence in conflict, with special attention to the role of the military, will be addressed in this contribution. The conflicts in the former Yugoslavia and the Rwandan genocide, in particular, lifted the veil and brought to the fore the suffering of women, men, boys, and girls, as well as their families and whole communities, as a result of sexual violence. A growing understanding of the consequences of sexual violence has led to multiple initiatives from various humanitarian organizations, the United Nations (UN) agencies, civil society actors, governments, militaries, and academics. The development of the Statute of the International Criminal Court (ICC) was seen by many, including large numbers of civil society organizations, as a long-awaited opportunity to create clarity on this topic. Strong jurisprudence on the prohibition and criminalization of acts of sexual violence during armed conflict has also been developed by domestic, regional, and international courts.

SIGNIFICANCE OF THIS DEVELOPMENT

1) At the global level, numerous initiatives were taken have aimed at improving knowledge sharing among actors involved in the response of sexual violence.

2) June 4, 2014, Global submit to end sexual violence in conflict for instance gathered around 1,700 delegates and 123 country delegation. Training and diligence on how to respond to sexual and gender-based violence, and how to better coordinate assistance are now available to humanitarian practitioners.

3) The 32^nd international conference of the red – cross and Red Crescent at the end of 2015 will aim to ensure that the issue of sexual violence during armed conflict is highlighted theme to be addressed by states, Red Cross [3] and Red Crescent movements.

4) In 1998, the creation of permanent international criminal court gives the most extensive list of criminalizing sexual violence crimes which also include sexual violence during armed conflict and it was laid down in the international treaty the Rome statute.

5) UN security council resolution 1325, 2000 on woman, peace, and security was the first Security Council resolution to address the impact of conflict of women during and aftermath of armed conflicts.

6) The UN Security Council resolution 1820, 2008 was the first UN Security Council resolution to exclusively address sexual violence during armed conflict.

7) In addition a number of UN agencies with a specific focus on gender-based violence were set up to create awareness and to provide policies research on issues Office of the special adviser on the gender issue, (OSAGI).

IMPACT

• Integrated mental health services for the victim of armed conflicts.

• Reduce the stigma towards the saviors of sexual violence and child born of war.

• Providing medical assistance to the victims.

• Encourage and aware people around the globe that the victims and survivors of sexual violence during the armed conflict should not be discriminated on the basis of what they went through in the past.

• Helps in providing women access to justice and to a child born of war.

• Supports survivors led grassroots organizations in the different parts of the world.

• Increase survivor’s economic opportunity who is being unemployed because of war conflicts.

LEGISLATURE

First of all, it should be mentioned that conflict-related sexual violence crimes [1] were not recognized as self-standing crimes constituting crimes against humanity or war crimes they were not seen as crimes, but as consequences of war, as rewards for soldiers. It was in the 1990s – with the exposure to the media massive sexual violence in the conflicts [2] in the countries of the former Yugoslavia and (to a lesser extent) the genocide in Rwanda – before sexual violence crimes were explicitly labeled as crimes in the statutes of international criminal tribunals The 1993 Statute of the International Criminal Tribunal in Yugoslavia (ICTY) and the 1994 Statute of the International Criminal Tribunal in Rwanda (ICTR) were the first documents to name mass rape unequivocally as a crime against humanity. The Statute of the ICTR not only acknowledged rape but also named forced prostitution and indecent assaults as crimes against the woman as a crime against humanity and an act of genocide. Thereafter, the Statute establishing the International Criminal Court (Statute of the ICC) in 1998 picked the cue and included rape as a war crime, prosecutable alongside other crimes against humanity and genocide in the permanent count for international criminal justice. The Statutes of the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL), for instance, all criminalize rape and other offenses were made a public crime rather than private crime there were given recognition in 1998, with the creation of the permanent International Criminal Court (ICC). Articles 7 and 8 of the Rome Statute given to rape, sexual slavery, enforced prostitution, forced pregnancy, enforced war crime, and were given recognition for the first time in history. It reflects a recognition that the traditional burden of proof of the lack of consent is putting an unjustifiable burden on the victim/witness, notably in the context of conflict situations where conditions of force and threat preclude any freedom to consent.  In addition to these two jurisprudential advances, rape and sexual violence crimes have been successfully prosecuted under different modes of liability as war crimes and crimes against humanity, such as rape, torture, enslavement, and persecution. The Tribunals have also noted that other gender-related crimes, such as forced marriage, forced nudity, forced pregnancy, sexual mutilation, and forced abortion, may constitute international crimes. In fact, the SCSL has successfully prosecuted not only rape and sexual slavery, but also forced marriage as the crime against humanity of an ‘other inhumane act’.

CASE LAWS

1• ICTV trial chamber judgement Prosecutor v. Anto furundzija, this case established the element is that essential elements and objectives during the crime of rape on a war which is as follows- The sexual penetration however slight of the vagina or anus of the victim by the penis of a predator or any other object use by a predator or of the mouth of the victim by the penis of a predator. By coercion, force, or threat of force against the victim or a third person these elements contains the actus reus.

2• ICTV trial chamber judgement Prosecutor v. Kunarac, in this case, the crime of the rape in war is more narrowly stated that is required in international law. It does not refer to other factors that would render an act of sexual penetration non – consensual and non – voluntary on the part of the victim. According to the basis of appropriate laws in force in different national jurisdictions, the trial chamber identified three broad categories that would classify the relevant sexual acts. As the crime of war rape which are as follows- The sexual activity accompanied by force or threat of force to the victim or the third party, The sexual activity accompanied by force or a variety of specified circumstances which made the victim vulnerable or neglected her ability to make a refusal or, the sexual activity which occurs without the consent of the victim.

ANALYSIS

Despite the fact that UN and other organizations have taken an initiative to become the voice of the victims of sexual violence during the armed conflict but, furthermore, the findings support the need for intervention that strengthens the local capacity seeking to build more accountable system for survivors participation thought to report, giving evidence still need to be designed to privilege the survivors. Although the so far international laws, treaties had done remarkable work to give legal representation to the victims of the sexual violence during armed conflict.

CONCLUSION

In order to conclude the topic, sexual violence during armed conflict is not a new flaw in laws. The international law so far acknowledges the issues and has taken the initiative which gives a platform to the unheard voices of war survivors and victims.  Laws and other initiatives had been taken by the UN and other non – governmental organizations which brings remarkable changes in laws and society as well. But still, we have a long way to go there is a scope of improvement in domestic laws as well. Earlier people don’t want to discuss the elephant in the room but now because of ICC, international treaties and human rights activists the issues are being taken up and laws made now they are having a platform for talking about it but still there are many scopes of improvements earlier it was considered to be a byproduct of war but now people have become more vocal about it and are taking initiative to talk about it.

REFERENCES

[1] Conflict-related Sexual Violence: Achievements and Challenges in International Criminal Law and the Role of the Militar by Dr. A.L.M. de Brouwer.

[2] Sexual violence in conflict: A problematic international discourse Eve Ayiera, Urgent Action Fund, Nairobi.

[3] International Review of the Red Cross.