“We know who these people are, we know them by name, by face and we know that many are still hiding in West Timor. We will not agree to live side-by-side with them in East Timor unless justice is done.” 
– Maria, an East Timorese woman

“We need to hear that these atrocities are condemned to at least relieve some of the shame and the grief. It is not just a legal issue. It is about people's lives. Something must be done so the society that was affected by the conflict can invest in peace.”
– Isha Dyfan, a lawyer, an activist for peace and women’s issues, and a survivor of Sierra Leone’s civil war.

Introduction

The impunity that prevails for widespread crimes against women in war must be redressed. Accountability means being answerable to women for crimes committed against them and punishing those responsible. The failure throughout history to deal with crimes committed against women in war has only recently begun to be addressed. The jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 and of the Rwandan Tribunal (ICTR) have begun to treat crimes against women as war crimes and crimes against humanity. The newly established International Criminal Court (ICC) is one of the most significant examples of gender mainstreaming in an international treaty. From the ICC to regional, national and traditional justice systems, gender must be taken into account and women must have full access to the rule of law.

Many women opt not to report cases of violence to authorities because of a lack of adequate legal mechanism, fear of reprisal and being ostracized, a climate of indifference and the tacit acceptance of sexual abuses as an unavoidable part of war. Many women may alsp lack knowledge about their rights and legal process. Support services and legal aid are rarely provided to women, and gender bias within the judicial process prevents women from receiving fair treatment as witnesses, as complainants and in investigations.

Under-representation of women’s view in judicial processes is another reason that crimes against women are prone to be unrecorded and un-addressed. Women been rarely consulted about the form, scope and modalities for seeking accountability. more... Impunity weakens the foundation of the post-conflict societies and prolongs instability and injustice and continues to expose women to the threat of violence. more...

Key Terms 

• Sexual violence: The founding statutes of the ICC and other international courts include crimes of sexual violence –rape, sexual slavery, enforced sterilization, forced pregnancy, enforced prostitution, and other forms of grave sexual violence- as crimes against humanity and/or war crimes. Rape has been defined by many national jurisdictions as non-consensual intercourse, and variations of this act can involve the insertion of objects and/or use of bodily orifices not considered to be intrinsically sexual. However, growing international jurisprudence indicates that rape cannot be captured in a mechanical description of objects and body parts. Rape is a physical invasion of sexual nature, committed on a person under coercive circumstances, but crimes of sexual violence do not require physical contact: the incident in which a victim was ordered to undress and do gymnastics naked in front of a crowd in the public courtyard, was considered sexual violence by the ICTR.
  
  
• Sexual violence as war crime: War crimes are serious violations of humanitarian law, whether customary or conventional, and include grave breaches and violations of Common Article 3 of the Geneva Conventions, which prohibits "violence to life and person," "cruel treatment," "torture" or "other outrages upon personal dignity." The Conventions explicitly require nations to prosecute persons of any nationality who commit acts such as "torture or inhuman treatment" and "wilfully causing great suffering or serious injury to body or health" against any person. Further, Article 27 of the Fourth Geneva Convention states that women should be protected against “rape, enforced prostitution, or any form of indecent assault” in times of war. Protocol II Additional to the 1949 Geneva Conventions, governing the protection of civilians in internal armed conflicts, explicitly outlaws "outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault" at Article 4(2)(e). A single act of such violation can constitute a war crime.
  

Furundzija case: At ICTY, a paramilitary leader was convicted of outrages upon personal dignity and torture by means of rape (a violation of Common Article 3 to the Geneva Conventions) for verbally interrogating a woman in front of laughing soldiers while his colleague physically raped her. (Assessment Report; HRW)

• Sexual violence as crimes against humanity: Crimes against humanity are acts of violence committed on a widespread or systematic basis against any civilian population, with knowledge of the attack. According to the ICTY, crimes against humanity, which can occur in war or peace time, are “serious acts of violence which harm human beings by striking what is most essential to them: their life, liberty, physical welfare, health and/or dignity. They are inhumane acts that by their extent and gravity go beyond the limits tolerable to the international community, which must perforce demand their punishment.” Rape is explicitly listed among the crimes against humanity within the jurisdictions of both ad hoc tribunals (ICTY/ICTR).
  

Akayesu case: ICTR convicted the defendant of crimes against humanity based on the evidence that he had witnessed and encouraged rapes of Tutsi women while he was a communal leader. (Assessment Report; HRW)

• Sexual violence as torture (war crime and/or crime against humanity): The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for purposes such as intimidation, coercion, punishment, or eliciting information or confessions or for any reason based on discrimination of any kind. Rape or other sexual assaults constitute torture and as such, can be prosecuted under international and national law. The Convention requires ratifying states to ensure torture is a criminal offense under domestic law and to prosecute or extradite alleged perpetrators. (HRW and AI)
  

Celebici case: ICTY characterized the rape and sexual assaults committed against Bosnian Serb prisoners at the Celebici prison camp as acts of torture—as both a violation of Common Article 3 and a grave breach of the Geneva Conventions. In July 2003, Zdravko Mucic, the former commander of the camp was granted an early release after serving two-thirds of his nine-year sentence. (HRW)

• Sexual violence as genocide: Under certain conditions, sexual violence can also be one of the means of committing the international crime of genocide. Genocide was first defined in the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, which has since passed into customary international law. Acts of genocide are committed with the specific intent to destroy, in whole or in part, a national, ethnical, racial or religious group, by killing or causing serious bodily or mental harm to members of the group, deliberately inflicting conditions calculated to bring about destruction of the group in whole or in part, imposing measures intended to prevent births or forcibly transferring children of the group to another group. Thus, rape, sexual enslavement, forced prostitution, forced sterilization, forced abortion and forced pregnancy— impregnation with the intent of forcing a woman to give birth to the rapist's child— can all be means of conducting acts of genocide.
  

Akayesu case: the ICTR found the defendant guilty of genocide, based in part on evidence that he had witnessed and encouraged rapes and forced nudity of women during the genocidal campaign. (Assessment Report; and HRW)

• International customary law: Unlike treaty law, international customary law is not adopted formally by governments. It is created by the common practice of States developed over a period of time and the belief of States that they are legally bound to follow that practice. That belief can be evidenced in a variety of ways, including on the basis of resolutions and declarations—on women's rights, for example—adopted by the United Nations and other intergovernmental bodies, as well as from patterns of national practice, including legislation and national court decisions. International customary law is binding on all States once the norms have been accepted or acquiesced to by the international community as a whole. The Statute of the ICC illustrates this process. According to Justice Theodor Meron of the ICTY, the crimes recognized by the ICC Statute, including the gender-specific offences, may well, "take on a life of their own as an authoritative and largely customary statement of international humanitarian and criminal law, and ... become a model for national laws to be enforced under the principle of universality of jurisdiction." Universal Jurisdiction covers grave breaches of the Geneva Conventions, certain very serious human rights violations (like torture) and genocide. All States have a duty to prosecute the perpetrators, regardless of their nationality, the nationality of the victims or where the crimes took place. (Assessment Report)
   

International Organizations and Instruments 

The Women’s Caucus for Gender Justice at the International Criminal Court generated comprehensive gender analysis of:

• The Laws of War - International Humanitarian Law more...
  
• Jurisprudence on Sexual and Gender violence more...
  
• International Criminal Court more...

Major international Laws related to women and armed conflicts

• Convention on the Prevention and Punishment of the Crime of Genocide (1948). more... 

• The Third Geneva Convention (1949): Article 14, 88, 97. Treatment of female prisoners of war and The Fourth Geneva Convention (1949): Common Article 3 and Article 14, 16, 17, 18, 20, 21, 23, 27, 38 (5), 50, 89, 91, and 132 more... 
  

• Convention relating to the Status of Refugees (1951). more...

• Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (1977): Article 70, 75.2, 76. more...

• Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (1977): Article 5, 6 (4). more...

• Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), (1979). more...

• The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984). more...

• United Nations Convention on the Rights of the Child (1989). more...

• Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (2000). more...

• Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY), (1993). more...

• Statute of the International Criminal Tribunal for Rwanda (ICTR), (1994). more...

• Rome Statute of the International Criminal Court (1998). more...

• Special Court for Sierra Leone (16 January 2002) more... and the international treaty between the UN and the government for Sierra Leone on the establishment of a special court of Sierra Leone (16 January 2002). more...

• UN Transitional Authority in East Timor (UNTAET Regulation 2000/15) on the Establishment of Panels With Exclusive Jurisdiction over Serious Criminal Offences. more...
  
  
• Protocol on the Rights of Women to the African Charter on Human and People’s Rights (2005). more...

• International Criminal Court (ICC): The ICC is the world's first permanent international tribunal to try individuals for genocide, war crimes and crimes against humanity. Its Rome Statute is one of the most significant examples of gender mainstreaming in an international treaty. It explicitly includes rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and sexual violence as war crimes and crimes against humanity. Trafficking is encompassed within the crime against humanity of enslavement. Also, for the first time, gender-based persecution is included as a crime against humanity. The Statute also guarantees to ensure a more empowered participation and appropriate protection of victims and witnesses as well as a presence of women on the Court and gender experts among staff. A Victim and Witnesses Unit (VWU) within the ICC will provide protection, counseling and other security measures. The Rules of Evidence are designed to shield victims of sexual violence from damaging or intrusive attacks on their sexuality or credibility. The court cannot admit evidence of a victim or witness's prior or subsequent sexual conduct or require corroboration of testimony concerning sexual violence. The Rules outline principles to guide the court in handling sexual violence cases, making clear that a victim's consent cannot be inferred where the perpetrator took advantage of a coercive environment (such as a detention center), and requiring special procedures for presenting evidence of consent to acts of sexual violence. In camera hearings are allowed for victims and witnesses of sexual violence. With the 60th ratification in April 2002, the Statute and the Court’s jurisdiction officially took into effect on 1 July 2002. In February 2003, the election of the Court’s first judges was held, and among the 18 elected judges, seven are women, which is a historic achievement in light of the traditionally very low number of women serving in international tribunals. (Assessment Report; and Women's Caucus for Gender Justice)

  Under controversial resolution 1422, later renewed as resolution 1487 by the UN Security Council, members of UN peacekeeping missions from nations that had not ratified the Rome Statute were declared immune from investigation or prosecution. This exception is no longer valid, as 1487 was not brought up for renewal in 2004 due to mounting doubts about its legality.

• Ad hoc tribunals: The statutes of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 and of the Rwandan Tribunal (ICTR) in 1994 include jurisdiction over grave breaches of the Geneva Conventions, other war crimes, crimes against humanity and genocide. Both specify rape in the definition of acts which may constitute crimes against humanity. The statute of the ICTY included rape as a crime against humanity though not explicitly among the grave breaches or violations of the laws and customs of war (Article 5). This was the first time that rape had been explicitly codified as a crime within the jurisdiction of an international court. The Statute of the ICTR includes rape as a crime against humanity (Article 3). In addition, rape is specifically included in Article 4 among the violations of “common article 3” of the Geneva Conventions and Additional Protocol II. In addition, the reports leading up to the adoption of their respective statutes make clear that sexual assaults more broadly were contemplated as part of the "inhuman treatment" that is an element of each crime. By March 1999, the ICTY had indicted twenty-seven individuals in relation to 130 individual crimes that involved either rape or sexual assault. The ICTY's jurisdiction extends to acts of sexual violence perpetrated against civilians in Kosovo today. The ad hoc Tribunals have recognized sexual slavery, forced nudity, sexual mutilation are included within the scope of the judgments, and noted explicitly that forced impregnation, forced marriage, forced abortion and sexual humiliation are serious violations of international law, and within their jurisdiction.

  An assessment of women’s contributions to the ICTY conducted by the Women Waging Peace Policy Commission lauded the ICTY for recognizing sexual violence against women and men as a war crime. Women’s Participation in the International Tribunal for the Former Yugoslavia  

See Women’s International League for Peace and Freedom fact sheets on:

• The War Crimes Tribunal on Rwanda. more... 
  
  
• War Crimes Tribunal on Former Yugoslavia. more...
  
  
• Special Court in Sierra Leone. more...
  
  
• Special courts and tribunals: Special courts and tribunals are more ‘nationalized,’ compared to the Chapter VII-based ad hoc international criminal tribunals. In particular, those special courts and tribunals lack the power to order the surrender of an accused located in a third state, as they do not enjoy primacy over national courts of all states like ad hoc tribunals do. At the same time, such ‘nationalization’ leaves space for involvement of the country’s own citizens, provides a sense of ownership, and helps rebuilding the country’s legal system and building local capacity.
  
  
• National courts: It is difficult to get indictments for crimes against women at the national level in the post-conflict situation. Judges, lawyers and other legal experts may have fled, been killed, or been unpaid. Broad amnesty may be granted to specific individuals or groups. The national judicial systems rarely focus on violations against women because of discrimination and lack of technical capacities. However, national courts have better access to evidence and witnesses on the ground, help rebuild the judicial system, provide ownership.
  
  
• Note on customary law: With regard to crimes against women, there is unfortunately not so sharp a difference between war and everyday life. In this sense, domestic customary law reform remains a key step in preventing gender-based violence. In many countries, marital rape is permitted. Rape goes largely unreported, prosecutions are rarely successful, and often determined be whether or not the victim was a virgin. A victim’s failure to convince the state that she has a credible claim of rape may be converted into an admission of an extramarital affair, and the state can prosecute her for adultery. States may permit other customary practices which may be predicated on the rape of women. The connection between family law during peacetime in Sierra Leone and the Democratic Republic of Congo, and the widespread use of sexual violence as a weapon of war during conflict, underscores this point.
  
  
• Note on amnesties: The granting of amnesties to suspected perpetrators of serious crimes under international law violates the duty of states to prosecute and punish them. However, the UN and countries emerging from conflicts have faced the dilemma between justice and blanket amnesty as a part of peace deals. In the past, the grant of amnesty was accompanied by the parallel establishment of a truth commission. More recently, however, truth commissions and prosecution have come to be seen as complementary rather than as mutually exclusive mechanisms for dealing with the injustices during the war. In Sierra Leone, for example, the Lomé Peace Agreement granted a blanket amnesty to all combatants. At the same time, the Special Representative of the Secretary General had appended an oral disclaimer to his signature of the agreement on behalf of the UN, stating that the amnesty clause “shall not apply to the international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law.” This view is reflected in the Statute of the Special Court for Sierra Leone, which provides that the amnesty does not bar the prosecution of crimes of the aforementioned nature. The UN Secretary General acknowledged the importance of the complementary roles of the Truth Commission established by the parliament of Sierra Leone and the Special Court.
  
  
• Truth and Reconciliation Commissions (TRC): Truth commissions provide a public forum for victims to express their grievances and seek reconciliation. They establish an official public record of crimes committed in war by gathering testimony and other evidence from survivors. More than 20 countries including South Africa and many Latin American countries have established truth commissions or similar processes. Generally, these have been created, vested with authority, sponsored and/or funded by governments, international organizations or both.
  

A TRC was also established in Sierra Leone by an Act of Parliament on 10th February 2000. It directs that that TRC pays “special attention to the subject of sexual abuses” and refers to the importance of confidentiality and witness-sensitive procedures when investigating gender-based crimes. As the Act provides that the selection of Commissioners “should take into account gender representation and regional considerations,” of the four citizen and three non-citizen commissioners, one citizen and two non-citizen commissioners are women. Amnesty International warns that the lack of clarity regarding the relationship between the Special Court and the TRC could jeopardize the establishment and effectiveness of both as well as progress towards peace and reconciliation. more... Amnesty International