conflict on both combatants and non combatants

Published: Last Edited:

This essay has been submitted by a student. This is not an example of the work written by our professional essay writers.

The Laws of war attempt to lessen horrors of armed conflict on both combatants and non combatants by developing mandatory rules and setting limits on the means and methods in which war can be waged [1] . The vital tenet of these laws is to prevent combatants from targeting civilians and to take utmost care to prevent them from any harm [2] .Laws governing warfare have been developing for thousands of years [3] . During war it was normal not show mercy to age, sex or nun in the extensive carnage that occurred after victory [4] . Kings began issuing written rules in the Middle Ages, by which their subjects must conduct themselves while waging war [5] .However; these laws were concerned with the conduct of combatants against each other. Rape in war was largely invisible before the 1990s. Rape was considered a private matter or as a by-product of war. During the American Civil War, the Leiber Code which recognized rape as a cardinal crime was drafted to control the Union army [6] . It was only in the nineteenth century that the notions of prohibiting harm to civilians gain credence [7] . Powers in Europe began formalizing treaties and laws governing conduct in war, some being: the 1856 Declaration of Paris, the 1864 Geneva (Red Cross) Convention, the 1868 St. Petersburg Declaration, the 1874 Declaration of Brussels, the 1899 and 1907 Declaration of Hague Convention. The Fourth Hague Convention (1907) contained a provision to protect civilians. The Allies established a commission to investigate reports of atrocities committed by Germany and its Allies at the end of World War I [8] .The commission observed, there were gross violations of the rights of both civilians and combatants. Setting up of an International Court was recommended in order to prosecute "all authorities ... who ordered, or, with knowledge thereof and with power to intervene, abstained from preventing or taking measures to prevent, putting an end or repressing, violations of Laws or customs of war" [9] .

Leaders of the Axis powers were repeatedly warned by the Allies during World War II against the perpetration of brutality and their resolution to penalize and indict those responsible [10] . The Nuremberg and Tokyo trials were established to deal with major war criminals, by the Charter of the International Military Tribunal for Far East [11] .Three categories of crimes were declared by the Charter within the Tribunal's jurisdiction:

Crimes Against Peace: i.e. the planning, preparation, initiating or waging of a... war of aggression or a war in violation of International...treaties....

Conventional War Crimes: i.e. violations of the laws of customs of war. Such Violations shall include, but not be limited to, murder, ill treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory...killing of hostages....

Crimes Against Humanity: i.e. murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population.... [12] 

The introduction of the notion of crimes against humanity at the Nuremberg led to the promulgation of the four Geneva Conventions (with their two Additional Protocols aiming to protect civilians) by the International Red Cross in 1949. Under Article 27, of the Fourth Geneva Convention rape and any form of sexual atrocity, during war are proscribed. Providing that: "[w]omen shall be especially protected against any attack to their honour, in particular against rape, enforced prostitution, or any form of incident assault" [13] . The other sources that proscribe sexual violence are: (1) in violation of Article 46 of the 1907 Hague Convention it is a crime against "family honour and rights" [14] (2) in contravention of Principle IV (b) Nuremberg Charter it is "ill treatment" of civilians [15] (3)"inhuman acts" are a violation of Principle IV (c) of the Nuremberg Charter [16] (4) they comprise of "torture", "inhuman treatment" and "wilfully causing great suffering" all of these are defined as "grave breaches" of the Article 147 of the Fourth Geneva Convention [17] .Rape was explicitly charged as a war crime in the Tokyo trials [18] , however,it was not so in the Nuremberg trials although narratives and testimonies of rape were introduced into evidence [19] .

There were a series of UN conferences that addressed the issue of women and gender violence. The first such conference was the 1993 Vienna conference on Human Rights, which wrote women into Human Rights [20] . The Vienna instrument denounced organized rape and appealed for the elimination of violent behaviour and discrimination towards women in civic and personal life as a matter of urgency [21] . The 1995 Beijing Declaration and Platform for Action expanded on the tenet that rights of women are fundamental rights; also that rape, including systematic rape, sexual slavery and forced pregnancy are predominantly egregious violations of humanitarian law calling for the right balance of men and women in the judiciary and other offices including tribunals [22] .

International criminal tribunals, in an ad hoc manner have brought gender into mainstream jurisprudence. In 1993 the ICTY was established to prosecute war crimes perpetrated during the Yugoslav conflict; the International Criminal Tribunal for Rwanda (ICTR) was instituted in 1994 to prosecute war crimes committed during the Rwandan civil war [23] . The ICTY had the ability to try offenders charged for crimes enumerated under Articles 2-5 of its Statute, i.e. grave breaches of the 1949 Geneva Conventions [24] , violations of the laws or customs of war [25] , genocide [26] and crimes against humanity [27] . The Rwandan statue in concurrence with the Tribunal authority tried offenders for crimes detailed in Articles 2-4, namely, genocide, crimes against humanity, and breach of universal Article 3 of the Geneva Conventions and of Additional Protocol II [28] . Article 7, paragraphs (1) and (3) of the ICTY Statute and Article 6, paragraphs (1) and (3) of the ICTR Statute grant jurisdiction to these ad hoc Tribunals to try the accused for individual criminal responsibility on the bases of individual culpability and superior authority. The ICTY explicitly recognized rape as torture and devoted significant means to prosecute rape, whereas ICTR recognized rape as an act of genocide. The Statue of the International Criminal Court is a milestone in codifying gender based violence as part of the ICC's authority and instituting measures to guarantee that victims are treated properly [29] . Several indictments were brought by the Office of the Prosecutor since the establishment of the tribunals [30] . These have included charges of sexual violence, certain decisions, comprising Tadic, Akayesu, Celebici and Furundzija, directly involve many crimes that are perpetrated solely or excessively against women and girls. Failure to prosecute rape and sexual violence against women is not a thing of the past. Genocide and rape occurred in Rwanda, media and other observers did not account the vile and huge numbers of rape of women. Rape was mostly invisible until a Belgian doctor reported that unusual numbers of women were presenting themselves carrying children conceived of rape. Even after this instance rape was not documented formally.

The first series of the ICTR indictments did not have rape as a component. Rape was incorporated as an offence against humankind in the Statute of the International Criminal Tribunal for Rwanda [31] , it was also cited there as an exemplar of war time crime of disgraceful and demeaning treatment [32] . The Human Rights Watch/FIDH reported that the first accused, Jean Paul Akayesu who went on trial was responsible for conducting rape and gender violence in the Taba Community [33] . Reports showed that prosecutorial staff failed to take the issue of rape seriously and also that they lacked investigative training to make such enquiry [34] . The general contention was that rape does not constitute genocide, mass murder is genocide. Shattered Lives reported that "[t]here is a widespread perception among the Tribunal investigators that rape is somehow a 'lesser' or 'incidental' crime not worth investigating" [35] . There were no indictment for or substantiation of rape when the Prosecutor v. Jean Paul Akayesu case [36] went to trial, the situation altered during the ICTR Trial Chamber hearing when the only women judge, Judge Navanethem Pillay, engaged in the inquest with two women witness summoned by the prosecutor to give evidence of the rapes carried out against the Taba Commune [37] . Stated in the evidence by Witness J, was the detail of the rape of her six year old daughter by three Interahamwe when they attempted to murder her father, and also of her knowledge of the rapes of many young girls at the bureau communal, which was under the authority of the accused [38] . Witness H testified to being raped in a sorghum field and also to having seeing the rape of other Tutsi women [39] . She also corroborated that she knew that the accused and other commune officers were present when other women were raped in the nearby fields and on the site of the bureau communal [40] . Five more women testified to rape and forced nudity [41] .It was held that Akayesu was knowledgeable about sexual violence being perpetrated on or in surrounding regions of the commune office by Interahamwe, and that he took no action to stop or prevent this , and also that he was present or that he ordered it on some occasions [42] . The Akayesu decision is a feat as it strongly asserted the complex relation of sexual violence to the genocide carried out during the Rwandan conflict, provided that it was committed with the explicit intent to exterminate, in part or in whole, a specific group [43] .

The focal point of the Furundiija case was the rape/torture of a woman inmate during cross-examination, the decision documented rape in interrogation as a "means of punishing, intimidating, coercing or humiliating the victim, or obtaining information, or confession, from the victim or a third person" [44] . Dubbed after the jail where atrocities transpired were the Delalic or Celibici case, several defendants were found guilty of torture and rape of women inmates. The decision re-examined many precedents, documenting that rape metes out grave bodily and psychological pain and that in situations of armed conflict, when rape is endorsed by an official, it inherently meets the objective of torture-i.e. it comprise of chastisement, intimidation, discrimination, or oppression [45] . The first case to charge rape as a form of torture, enslavement, inhuman treatment, a form of sexual violence involving forced nudity and sexual entertainment was the FOCA judgement [46] . If the ICC is successful, it will help not only to thwart carnage in situations of conflict and to sharpen the prevailing knowledge of the brutality of sexual and gender violence and maltreatment, the relation between violence in personal relationships and in situations of armed conflict [47] .

Former Vice President of Congo was brought to trial on 22 November 2010, before the International Criminal Court on charges of using rape as a means of terrorising civilians in the Central African Republic during 2002-03. Activist hope that the final decision will send out a word of warning to individuals who utilize rape as a weapon of war, that they will be caught and punished [48] .

The rape and forcible impregnation of women, and the failure of the international community to halt it, have illuminated fundamental flaws in current international law and how it affects the human rights of women. First, breaches of international law are not pursued in a uniform manner, and no formal and enforceable remedy exists for breaches of international law [49] . Compliance with international law is generally established on the offending state's desire to maintain good world relations and economic ties by submitting to or recognizing international jurisdiction, and peace negotiations are often manoeuvred to shield wartime criminals from post-war prosecution [50] . A second problem with international law is that the male-created and controlled international legal system fails to explicitly emphasize the human rights of women through omission of woman- specific concerns and the perpetuation of discrimination against women which exists at the state level [51] .