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Rape As A War Crime Criminology Essay

From time immemorial, rape has been regarded as spoils of war. Now it will be considered a war crime. We want to send out a strong message that rape is no longer a trophy of war. Whenever there is an imbalance of power brought about by the chaos of war, the potential for rape increases. This is no new phenomenon specific to the wars of the twentieth century, rather it is present in our history books for as long as war has been reported. What is new however is the way in which rape during war is dealt with. As time progresses we have seen a shift in attitudes regarding sexual violence during conflict, one concerned less with the perpetrators impunity and more with their accountability.

The extent to which sexual violence against women and young girls has been recognised and addressed by the international community has depended on the social conditions surrounding each period of war. Perhaps one of the more forceful reasons cited for why victims of rape during World War Two received no real form of redress were the social and cultural attitudes of the time, which actively discouraged women from openly talking about what had happened to them [2] .

However, since the 1940’s social conditions, along with cultural attitudes, have changed greatly, arguably for the better. The enhancement of media, coupled with the on going efforts of a well organised and mobile feminist movement [3] are just some of the reasons to thank for a social pressure that actively seeks redress for the wartime brutality inflicted upon women and girls.

As time has changed women are now, although not always, capable of speaking out about rape thanks to the relaxation of societal etiquette. Letting women express themselves and their experiences has led to:

“Unprecedented levels of awareness of rape as a method of war and political repression. As a result, great strides have been made in the condemnation and prosecution of sexual and gender-based violence [4] ”.

It is safe to say that although we are still a long way from prohibiting rape during wartime conflict, changing conditions have allowed for substantial changes most notably from rape not being expressly included in the charters of either the Nuremberg Tribunals or the International Military Tribunal for the Far East, to rape and other forms of sexual violence affording recognition as a war crime, a crime against humanity and also as a form of genocide [5] by the International Criminal Tribunal for both Yugoslavia and Rwanda [6] .

Central Legal Problems

The triumph of the United Nations back in 1998 to classify rape as a War Crime without tying in any other charges was a clear indication of the international communities acceptance of changing times. The idea that such atrocities may now afford recognition as crimes against humanity [7] and that of genocide [8] under international law owe much to the changing social conditions throughout the century. It is therefore necessary to ask what conditions have changed to allow for these developments, as well as the reason why such changes came about?

Media has contributed greatly to the way rape and sexual violence are now regarded during times of war, however it is not the sole reason for the relatively recent developments concerning the prosecution of these crimes under international law. Several avenues of thought must also be considered, ranging from the progress made in the fight for equal rights of women, giving women in previously repressed areas the chance to talk openly of their experiences, to the increasing role of women in the judiciary [9] and the obvious and necessary benefits having such female influences will bring to the decision-making process. In the case of the International Criminal Tribunal for Rwanda, Judge Navanethem Pillay has agued that:

who interprets the law is at least as important as who makes the law, if not more so...and I cannot stress how critical I consider it to be that women are represented and a gender perspective integrated at all levels of investigation, prosecution, defence, witness protection and the judiciary. [10] 

It is therefore necessary to consider whether enough has been done to ensure women are at the forefront of issues that directly involve them. Only by having a female gender perspective can we fully understand and address these issues. This raises the question of whether conditions in society are of level that will allow for the greater incorporation a female gender perspective.

Any attempt to strengthen the scope for prosecution of perpetrators in cases of sexual violence should be welcomed, but the question of whether such attempts are only going to lead to more law without actually changing anything is present throughout each debate [11] . The issue of different cultures must therefore be explored, analysing how social conditions are affected by the varying cultural norms between countries and the effect this will have on the development of sexual violence under international law.

Suitability for In-Depth Analysis

The relatively recent developments that have arisen since the 1990’s onwards have shown that important steps have been taken in a bid to end wartime violence against women. Women’s rights activists continue to fight for the victims rights in an effort to ensure that history will not repeat itself should future wars break out.

As changes continue till this day, especially with the United Nations security council unanimously adopting resolution 1820 back in 2008, further strengthening sexual violence in conflict zones as a matter of international peace and security, such an area of law is still incredibly new and relevant to todays times. [12] 

Sexual violence during conflict may now be an area of law that can flourish with todays more relaxed social and cultural conditions. As we are now able to discuss previously sensitive and intimate matters such as rape, it is clear that such a topic is suitable for in-depth analysis. Questions may now be asked such as why it has taken so long to address the legal and cultural acceptance of sexual violence, as well as raising awareness of whether current legislation is adequate in both its safeguarding and application, particularly relevant with the sexual violence still ongoing in Africa, most notably in the Republic of the Congo, with the high incidence of rape in its eastern part being described as `the worst in the world’ [13] .

Research Methodology

To provide for a more structured form of research, I have devised possible chapter headings concerning areas id like to discuss. By doing this I’m able to place the researched information under the chapter heading it concerns, thereby allowing myself to see which areas may be lacking in material.

Literature

Much of the literature I have encountered provides both a narrative and analytical take on the progression of sexual violence from the Nuremberg Trials right the way up to the Rome Statutes creation of the International Criminal Court. As such, some have proven quite useful in providing an overall backdrop to the topic at hand. The books I have referred to include the workings of Stiglmayer, [14] Allen, [15] and McGlynn and Munro. [16] 

Primary and Secondary Sources

It is clear from research so far that the core of my study will draw little from primary sources such as legislation. Although useful, primary sources serve only to stipulate the law rather than offering an analysis of why such law was made. For this reason it is in my best interests to turn to journal articles, typically written by academics with the aim of critiquing the primary sources.

Upon searching both the Westlaw and LexisNexis libraries I was initially overwhelmed with the amount of journal articles I found, most of which proved irrelevant to my research. However, by refining my search terms to include judges names combined with well reported conflict zones, I managed to find a handful of extremely relevant articles, including the works of SàCouto, [17] Dixon [18] and Miller. [19] 

The analytical nature of journals and the abundance of other articles cited within each has been extremely helpful in allowing me to find similar pieces of work worthy of some consideration, whilst also helping to reduce the time spent separating irrelevant yet similarly sounding journals with ones that may prove to be of help.

Case Law

This area of interest has not lead to an abundance of relevant case law, but those cases that have presented themselves are of the utmost importance. It is likely my study will involve concentrating on a limited number of cases, but each in great depth as my interest lies with their judgements.

Electronic Sources

The internet has provided a large amount of material relevant to the topic of sexual violence in conflict zones. From the Guardian to the Washington Post, journalists are publishing their articles online, each offering different perspectives on the ongoing treatment of sexual violence by the international community.

Additionally, through the use of iTunes I have also been able to make use of podcasts. One in particular, One Night, One Voice: Spotlighting Rape as a War Crime, [20] has been of particular benefit in highlighting once more how suitable a topic this is for in depth discussion, the reason being the podcast talks of ongoing cases of sexual violence in the Darfur region of Sudan.

Problems Encountered

Scope of Analysis

One of the main issues I have faced with my research to date involves the narrowing down of relevant material. A topic concerning rape and sexual violence during wartime has of course raised many questions I may wish to explore in coming to any possible conclusions. When writing within a restrictive word limit it is vital to prioritise the more important aspects of discussion, meaning at times certain areas of thought cannot afford the same level of in-depth research as others. This was initially problematic as I felt I would need to address all of these questions in order to provide a detailed yet varied response to my main research question.

Luckily I was able to overcome this problem after a meeting with my dissertation supervisor helped focus my attention on a smaller time scale, so as to allow me to analyse and develop a more concentrated area where I felt most progress had been made in relation to my question.

Commentary

Early attempts to find material, including books and journal articles, were unsuccessful. The fact sexual violence has been documented throughout most of history meant most material chose a more narrative approach rather than focussing on particular moments in time of which to analyse. The result of this was, as explained above, an uncertainty as to whether my dissertation question could be answered without encompassing all of the history to date regarding sexual violence during times of war. This ran the risk of turning my dissertation into a history report, concerned with documenting developments rather than critiquing them.

Thankfully with the use of Westlaw and other online databases recommended by the library catalogue, I was able to locate more relevant material, being both informative and analytical, two necessary requirements I feel for a well balanced dissertation.

Preliminary Observations and Conclusions

How perpetrators of rape were prosecuted following World War Two owes much to the degree of social etiquette of the day, whereby matters of an intimate nature remained private. To raise awareness of the indignity suffered by thousands of women at the hands of their rapists would involve divulging private information in a hostile environment.

Sexual violence was not something people would have freely talked about, and had they tried to they would have found it difficult to raise awareness as the media was not as developed as it is now. The role of women in society at the time would further justify why prosecutions were hard to come by. Had this injustice applied to men things may arguably have been different.

The lack of general will to first acknowledge let alone prosecute those guilty of rape led to the widespread sexual violence in Europe and the Japanese military’s use of sexual slavery largely going unpunished by either the International Military Tribunals in Nuremberg and the Far East.

What should be noted however is that there may have been grounds to prosecute sexual violence as a war crime under the Lieber Code and the Hague Conventions. Failure to do so was indicative of the times, although during the Tokyo trials some leeway was made in referring to sexual violence in judgements whilst also managing to lump elements of these atrocities under the lesser umbrella of Crimes Against Humanity - Inhumane Treatment.

The failure of the courts to recognise and challenge crimes of sexual violence led to confusion as to where the law stood concerning such atrocities. By not tackling these crimes head on rape and sexual violence were once again seen as byproducts of war.

Now, however, rape and sexual violence during war are regarded as something quite different. We now live in a world that has been severely altered by the modernisation of media. Compared with the times of the Nuremberg trials, we now have greater access to news stories whether its by using the internet or looking at photographs. We are now without reason for ignorance, and when something shocking happens we are far more aware of it. This in turn with the larger role of women in society, for example in the justiciary, the result of an ongoing fight by women’s rights organisations, means we are now more prepared to face wrongs, even if they appear to be out-with our depth.

These changes in the conditions present in society are what have allowed us to make progress in the recognition and condemnation of sexual violence during times of war. Both the International Criminal Tribunals for the former Yugoslavia and for Rwanda were able to work with these changes in finding rape and sexual violence as a crime against humanity and that of genocide under international law.

One last observation however is whether legislation can truly end needless suffering during war. We may have made this progress in relation to sexual violence, but with news of mass rape ongoing in the Republic of the Congo, the effectiveness of recent developments must be called to question.

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