This article has been authored by Pratyush Pandey, a Third year Student of Rajiv Gandhi
National University of Law, Punjab
Positive Laws has always been such that, only after ghastly instances, it focuses on something, neglected and shunted, behind the veil of ignorance. This aspect of the law has now turned into a grave, intractable, and inevitable loophole. One such law is the International Humanitarian Law (hereafter, IHL), also known as the Law of War which lays down regulations for warring nation-states. The legislative precincts of IHL also cover crimes like Rape, Genocide, etc. but here again because of the innate loophole, its implementation and dissemination become an extremely tedious process. Resultantly, the relatively new laws on War Rape predominantly fall short of effectivity.
In light of this inefficacy, instances of War Rape in Congo, Columbia, Somalia, etc are shocking. These show that, despite concretized laws and customary practices, most of the warring nation-states are heedless to them. Further suggesting that Rape, in the modern-day, has become a deliberate, massive, and egregious phenomenon of War. In light of this contemporary conundrum let us revisit this avenue of IHL and analyze it in its totality.
The Jurisprudence of Rape
On this excursion, let us start from the very provenance of the jurisprudence of War Rape within the IHL. Rape, which is a sub-set of Sexual Violence, finds in no international document or treaty an objective definition. However, it is indirectly covered, within the broader prohibited behaviors, such as violence against life, attack on personal dignity, torture, punishment, etc. Consequently, the Jurisprudence of War Rape for IHL depends largely upon the various judgments of Tribunals and International Courts. So let us look into some landmark judgments, in this regards;
The first and one of the most cited international case, on War Rape, the International Criminal Tribunal for Rwanda's (ICTR) Akayesu Case. Herein War Rape was expounded as a sexual-physical invasion prompted by a coercive force. Heavily emphasizing the coercive aspect, the Tribunal liberalized the term coercion to cover not only physical threats but also an inherent threat, apprehension, duress, etc. The starkest observation made herein was the removal of the mechanical description for penetration, thus broadening the scope of the definition. The tribunal also, for the first time, admitted that War Rape could constitute genocide if done with the specific intent to destroy, a particular social group.
However, this interpretation mutated a tad in Kunarac et. al. (Foca) Case. Herein, a more exhaustive interpretation of War Rape was given. Expounding that it is the sexual penetration in a victim's vagina, mouth, or anus, by a penis or any other object. Thus force of any nature, was made constitutive of non-consent amounting to rape. Further, the trial chamber qualified War Rape as a crime against humanity and a war crime. Furthermore, emphasizing consent, the tribunal liberalized its interpretation, opining that consent cannot be free if the surrounding circumstances are apprehensive, involving detention, duress, or any form of oppression.
Lastly, the Elements of Crime of the ICC Statute (in Articles 7(1)(g)-1, 8(2)(b)(XXII)-1, and 8(2)(e)(VI)-1 ) defines (War) Rape as a forceful invasion or penetration, done by force or threat of force, to instill in the victim a sense of violence, detention, or oppression. As observable, this definition was an amalgamation of the former two interpretations and emphasized more upon coercion rather than consent.
In light of these observations, one avers that the jurisprudential interpretation of War Rape is quite broad. It is not only accommodative of the various nitty-gritty of the domestic requirements of warring nation-states but also establishes the jurisdictions internationally.
Statutory Provisions and Customary practices for Prohibiting Rape in IHL
The next point for deliberation is the statutory provisions and customary practices, covered within IHL, which prohibit, prosecute, and punishes War Rape. Notably, Rape, as a crime, was always prohibited by the Laws of War even when it was un-codified, for instance, within the reigns of Richard II and Henry V. Within the modern constructs of IHL, War Rape, for the first time, was indicted as a capital crime in the Leiber Instructions. Then another such indictment was seen in Article 46 of the Hague Regulation, though implicitly, protecting family honor, and rights.
However, War-Rape did not find any mention, prosecution, or indictment in the comparatively recent Nuremberg Tribunal. Therefore, there has always been a dichotomy on acceptance of War-Rape as a Criminal Act and it is only in recent decades that it has concretized as a full-fledged capital crime. Therefore, in contemporaneity as IHL categorizes within International and Non-International Armed Conflicts, the provisions on War-Rape are also categorized and, the pertinent ones, are as follows:
International Armed Conflict
Herein, starting with Article 12 of Geneva Convention II, it, though implicitly, lays down regulations for the protection of the wounded, sick, and shipwrecked. Under the provision, in no case, women, falling under the mentioned category, could be robbed of their dignity. Further, Article 13 (in general) and Article 14 (in particular) of Geneva Convention III, cogently lays down regulations for humane treatment for the prisoners of war, preserving their honor and dignity, prohibiting indecent Assaults on women. Furthermore, Article 27(2) of the Geneva Convention IV and Article 76 (1) of the Additional Protocol I, explicitly, protect women’s honor, particularly against rape, forced prostitution, and Sexual Assault. Lastly, Article 77(1) of the Additional Protocol I lays down regulations to protect the children, in warring nations, against indecent Sexual Assaults.
Non-International Armed Conflict
Herein, rape as a capital crime, find a mention, though implicitly, in Common Article 3 of the Geneva Conventions. Through interpretations, rape has been categorically covered within various crimes amounting to Grave Breach of IHL. Resultantly, regulations regarding humane treatment, prohibiting torture, sexual indecency, assaults, and humiliations cover the aspect of rape, making it an offense of Grave Breach of IHL. Further, in Article 4 (2) (e) of the Additional Protocol II, an explicit mention of prohibitions of indecent assaults on dignity, rape, and forced prostitution is covered.
Customary Practices IN IHL
Even within the customary practices, War Rape as an act finds itself prohibited and punishable. Rules 93, 119, and 120 of the ICRC study of Customary IHL interpret and concretizes Indecent Assault and Rape as a prohibited crime in both International and Non-International Armed Conflicts. Further Rule 156, identifies rape as a Grave Breach of IHL, further according to the nations power to adjudicate under Rule 157 and Rule 158, respectively.
In light of these, there is no inadequacy of statutory provisions for prohibiting rape in both international and non-international armed conflicts. Though there is some subjectivity with regards to its explicit coverage IHL, as a whole, covers almost all the cases that may be committed against men, women, and children thus holding an exhaustive scope of application.
The conflation of Theory with Practical Scenarios
Now, as we are well acquainted with the Jurisprudence and Statutory Over-reach of IHL in cases of War-Rape, we must look into their implementation, viable perusal by state and non-state actors and constructive fruition.
War and Rape have always been conjunctive to one another. It is observable that rape has always been a tool of oppression and intimidation of the Subalterns in the warring nations. In recent decades, specifically, with respect to, the WW-II inflicted nations and Japanese armies, there are morbid instances where raping women, has been used in form instilling encouragement or as a military policy. However, men are equally prone to rape. In a survey conducted in the war-fed Congo, intriguing statistics came forth, highlighting, that 40% of women and 24% of men have affirmed subjection to rape. Some morbid, yet glaring, instances of War Rape, for further substantiation are:
i. The rape of Indigenous women has become a quotidian in war-fed Columbia. The recent gang-rape of a 12-year-old Indigenous girl by army men has infuriated a movement for voicing the long-muffled miseries of the tribals. However, it was not an isolated event. In the tumultuous past of the Columbian Civil War, similar instances of War-Rape were present, it was only that they did not make it to international media.
ii. Somalia is another war-wracked nation where rape as a capital crime often goes unreported and unpunished. For 2019 Somalia had 744 cases of reported rape cases. The primary reason for this is the absence of stringent domestic laws. However, Puntland, a regional state in Somalia, from 2016, criminalizes War Rape, as per IHL regulations and practices, which may be taken as a positive step.
iii. Congo, a war-fed nation, since 1998, has more than 2,00,000 rape victims living within its borders, with female cases in a trifle majority. Therein rape has become an egregious “Weapon of War” the army utilizes to suppress and oppress its denizens.
These instances are just the tip of the iceberg. Other war-festered countries like Iraq, Uganda, Sudan, etc. are facing similar issues, wherein despite concrete jurisprudence and statutory provisions, internationally, state and non-state actors flout them. More disturbing is the fact that despite activism, the number of War-Rape cases is rising. The morbidity multiplies, because even for the children, reported cases of rape are quite high, that is over 15,000 in 2019.
Therefore, based upon these observations, it is averred that the issue with the ineffective of IHL lies at the conflation of theory in the practical scenario. It is quite evident, from the cases discussed, that state, as well as non-state actors, flout the regulations, primarily in countries where there is no stronghold of a government, and the country is war-fed. Thus, the problem lies with the implementation and acceptance of the IHL regime, concurrently, because of the lack of jurisdictional acceptance and subjective consideration.
How could the problem be palliated
Now, as we have known the issue, let us discuss some of the possible, pragmatic and palliative measures to reduce, if not remove, the effect of War Rape. First and foremost, it is only when internationally state and non-state actors pay heed to the IHL, that we may think of the effectivity of the measures discussed herein. In light of these, some possible measures are:
1. As it is said that Charity begins at home, it is for the Nation-States to comply with the relevant obligations of IHL. Such an initiative by a nation (like Puntland) would give way to precedents for investigating and prosecuting War Rape, thus paving ways to fight this crime internationally.
2. State, as well as Non-State Actors, must compulsorily disseminate the provisions and practices of IHL among its military, law enforcement bodies, and civilians. They should necessarily be made aware of the modus operandi in belligerent circumstances, which would, pragmatically, reduce instances of War Rape.
3. The Nations must strive for meaningful progress towards vigorous law enforcement for confronting War Rape, as a capital crime, internationally. They should import IHL regulations in their domestic laws, pragmatically aimed to prevent War Rape.
War Rape, because of its very nature, and utility, as a weapon; stronger than guns, grenade and gases, has been utilized since antiquity. But for the greater good, this needs to be prevented and perished. The increased activism has, to a degree, alleviated the conditions of victims; but, it is a long way ahead, and it is only through the development and dissemination of IHL that we may anticipate a better future, with no instances like Columbia or Somalia. Ultimately, it is for the nations as a whole to aim, strive, and make that glorious future, a possibility.