<nettime> Re: query: rape as a war crime [2]

["nettime's_indigestive_system" <nettime@Desk.nl>]

Re: query: rape as a war crime
          KATHERGA@aol.com
          Cheryl K. Moralez <cmoralez@shrike.depaul.edu>
          Francisco Martin <ricenter@IGC.ORG>

   [orig messages not to nettime; some have been asciified 
    and quote material omitted.--tb

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Date: Thu, 22 Apr 1999 01:12:25 EDT
From: KATHERGA@aol.com
Subject: Re: query: rape as a war crime

Tom,

Add to the list the historical Akayesu Judgment out of the ICTR
(ICTR-96-4-T, 2 Sept 98) where rape was found to be a tool of
genocide for the first time - (genocide Art 2) (count 1); and
also the first judgment finding rape as a crime against
humanity: (rape Art 3(g)) and (other inhumane acts Art 3(i))
(counts 13 and 14). 

Also, rape was defined for the first time in international law
last fall through the 3 Tribunal judgments.  These definitions
are broader than essentially any national definition of rape.
Akayesu was first and reads:  "The Tribunal defines rape as
physical invasion of a sexual nature, committed on a person
under circumstances which are coercive." =B6688.  Celebici foll=
owed Akayesu. =B6 478-79.  Celebici also found rape to be
torture, which I think someone else pointed out. 

Little cited dicta in Celebici that may be of interest to someone
focusing on rape in int'l law is =B61066 - two brothers were
forced to perform oral sex- the prosecution charged this as
inhuman treatment (Art. 2) and cruel treatment (Art. 3) but
note as  rape.  The Trial Chambers states : "The Trial
Chamber notes that the aforementioned act could constitute rape
for which liability could have been found if pleaded in the
appropriate manner."

Furundzija adopts a different, more technical definition of rape
that essentially states that rape can be against either sex,
any kind of penetration including oral, by any object.  While
consent was not raised asa defense, the Trial Chamber states:
"it is the position of the Trial Chamber that any form of
captivity vitiates consent." (Opinion, =B6271)

Finally, it should also be pointed out that these judgments also
expanded the interpretation of sexual violence: "Sexual
violence is not limited to physical invasion of the human body
and may include acts which do not involve penetration or even
physical contact"  including forced nudity  (Akayesu =B6
688). [Furundzija also has a section on forced nudity]. The ICTR
found sexual violence to fall within the scope of "other
inhumane acts" (3(i)) and "outrages upon personal dignity"
(Art. 4(e)) and "serious bodily or mental harm (Art. 4(e))
[Art 4 at ICTR  violations of Common Art 3 of Geneva Conv
and Add'l Prot. II]   The ICTR stated that the coercive
circumstances that give rise to a finding of sexual violence
need not be evinced by a show of physical force - coercion
may be inherent in certain circumstances, such  as armed
conflict, and may be evinced by threats, intimidation, extortion
and other forms of duress "which prey on fear or desperation"
may constitution coercion.

I could go on and on, and that's probably more than you already
want or need - if the person wants more, I had excepted all
language related to rape and sexual violence from the Trib.
judgments for the Women's Caucus for the last PrepComm.  But I
would recommend reading these sections of the Judgments in their
entirety, as they also give a good history of the dev't of rape
and sexual violence in customary int'l law.

Katie

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Date: Thu, 22 Apr 1999 06:36:28 -0500 (CDT)
From: "Cheryl K. Moralez" <cmoralez@shrike.depaul.edu>
Subject: Re: query: rape as a war crime

Rape is specifically indentified in Art. 7(1)(g) of the ICC/Rome Statute as
a Crime against humanity (along with sexual slavery, enforced prostitution,
forced pregnancy, enforced sterilization, or any other form of sexual
violence of comparable gravity).

Rape is also specifically identified under "other serious violations" in
Art. 8(2)(b)(xxii), incorporating Art. 7(2)(f)[torture]: "Committing rape,
sexual slavery, enforced prostitution, forced pregnancy, as defined in
Article &, paragraph 2(f), enforced sterilization, or any other form of
sexual violence also constituting a grave breach of the Geneva Conventions."

If she needs research resources, please let me know. I recently wrote an
article that is being published in the Women's Law Journal and can give her
some resource materials.

Cheryl

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Date: Thu, 22 Apr 1999 12:12:32 -0400
From: Francisco Martin <ricenter@IGC.ORG>
Subject: Re: query: rape as a war crime

One area that I believe has not been addressed concerning the
international criminal law status of rape is what the European
Court of Human Rights in X=2E & Y. v. The Netherlands, 91 Eur.
Ct. H.R. (ser. A) (1985), 8 E.H.R.R. 235 (1986), and the
Inter-American Commission on Human Rights in Rivas Quintanilla
v. El Salvador, Case 10.772, Rep. No. 6/94, Inter-Am. Cm. H.R.,
OEA/Ser.L/V/II.85 Doc. 9 rev. at 181 (1994) have held. (The
Inter-American Court of Human Rights also recently addressed a
rape case in Loayza Tomayo Case, but I have not been able to get a
copy of it.)  Although these tribunals are not criminal courts,
they have issued declaratory and injunctive relief that addresses
the state's criminal law duties in the area of rape.  In X. & Y.
v. the Netherlands, the Eur.Ct. H.R. held that the state had a
duty to investigate allegations of a rape of a minor.  In Rivas
Quintanilla v. El Salvador, the Inter-American Commission
recommended that the state had a duty to investigate, identify,
prosecute, and punish state actors responsible for rape of a
child.  Unlike the Inter-American Commission, the Eur.Ct.H.R. lim=
its its relief to investigation only, which is in line with its
jurisprudence in its other criminal law-related cases (such as
extrajudicial killings, torture, etc.).  What is different about
the holdings of these tribunals as compared with those of the ICTY
or ICTR is that rape can rise to the level of an "international
crime" without being a crime against humanity, which requires
that the rape be part of widespread or systematic attack against
civilians.In other words, an individual act of rape has
international criminal law implications. The holdings of the
Eur.Ct.H.R. and Inter-Am. Cm. H.R. also are significant in the
context of the ICC Statute's recognition of rape as a war crime,
insofar as it rises to a war crime only in the context of an
international conflict.

I hope that this has been helpful.

Francisco Forrest Martin
President
Rights International, The Center for International Human Rights Law, Inc.
600 Biltmore Way, No. 1117
Coral Gables, FL 33134
USA
Tel: 305-442-1815
Fax: 305-446-7334
Email: ricenter@igc.org
http://www.rightsinternational.org

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