Patricia Viseur Sellers. Encyclopedia of Genocide and Crimes Against Humanity. Editor: Dinah L Shelton. Volume 2. Detroit: Macmillan Reference USA, 2005.
In the period immediately following World War II, when the London and Tokyo Charters attempted to establish a list of crimes against humanity, rape was not explicitly mentioned. In contrast, the underlying crimes of extermination, persecution, and enslavement were expressly included as part of the unlawful acts committed against a civilian population. Whether sexual assaults, in particular rape, could be manifestations of crimes against humanity under the Nuremberg and Tokyo Charters is usually answered in hesitant or dumfounded terms. International criminal scholars, however, such as Cheriff Bassiouni, contend that rape was indeed subsumed in the explicit, residual crime of “other inhumane acts.” the last category of crimes against humanity as listed in both the London and Tokyo Charters. International lawyers, such as Patricia Sellers and Kelly Askin, assert that rape not only could constitute at least a part of a crime against humanity, but that the Nuremberg Tribunal accepted evidence of sexual violence as valid in the prosecution of crimes against humanity.
Although the fact is frequently ignored, evidence of rapes and other sexual abuse was introduced by the French and Russian Allied prosecutors at the Nuremberg Tribunal. Witnesses testified about rapes committed by German soldiers in occupied France and on the Russian front. Testimony also informed the judges about sexual abuse, male and female, including sterilization experiments, in Nazi concentration camps. The Nuremberg Judgment specifically addressed crimes such as the killing of prisoners of war, the persecution of Jews, and the deportation of individuals to serve in slave labor programs but, unfortunately, did not refer even once to the crime of rape or other sexual violence. In an apparent effort to explain their decision, the judges observed that, in the section of the judgement that dealt with wars crimes and crimes against humanity, “the evidence was overwhelming in its volume and detail.” They proposed, therefore, to deal with the multitude of atrocities quite generally, noting that “every conceivable circumstance of cruelty and horror” had been perpetrated. The judges distinguished, rather hastily, the difference between war crimes and crimes against humanity in their analysis of the “overwhelming” evidence, and they found that:
[I]nsofar as inhumane acts charged in the indictment and committed at the beginning of the war, did not constitute War Crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted Crimes Against Humanity.
To the extent that the rapes and other forms of sexual violence inflicted upon German civilians, or civilians of other nationalities, were not judged to be traditional war crimes, the Tribunal condemned such conduct as inhumane acts under crimes against humanity. The failure to expressly include rape among the listed crimes against humanity, together with the paucity of clearer judicial explanation on how sexual assault evidence was characterized, has contributed to the continuing myth that rapes and other sexual violence evidence were not pursued at Nuremberg.
At the Tokyo Tribunal, prosecutors submitted harrowing evidence of rapes committed by the Japanese forces in Nanking and other Chinese cities. The evidence also confirmed that rapes, sexual mutilations, and forced sexual intercourse between prisoners occurred frequently. Even though the Tokyo Charter provided for crimes against humanity, the Tokyo Tribunal judges held that all the atrocities committed by the Japanese forces, including the rapes, constituted war crimes. The crimes against humanity provision was not relied upon, probably because initially, crimes against humanity were thought to apply to acts committed against one’s own civilian population. The Japanese, unlike the Nazis, were not accused of committing crimes against Japanese citizens. Moreover, crimes committed by the Japanese against peoples they subjugated in Korea and Taiwan were not prosecuted at all, even though they fit the criteria of crimes against humanity. Hence, the Tokyo Tribunal judges employed traditional theories of war crimes in their legal analysis of rapes and other sexual violence.
Control Council Law No. 10 and the Subsequent Nuremberg/Tokyo Trials
After the major Axis criminals were prosecuted at Nuremberg and Tokyo, the minor Axis war criminals, in both Europe and the Pacific theatre, were tried by military courts set up by the Allies in their respective occupations zones. In what is commonly referred to as the “subsequent trials,” minor criminals faced charges in the British, Polish, French, and American military courts. Within the U.S. Army occupation zone, these proceedings were established and governed by Control Council Law No. 10. Its provisions proscribed crimes against peace, war crimes, and, importantly, crimes against humanity. For this latter criminal category, the definition reads as follows:
Crimes Against Humanity. Atrocities and offenses, including but not limited to murder, extermination, deportation, imprisonment, torture, rape, or other inhumane acts committed against the civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.
Control Council Law No. 10, unlike the Nuremberg and Tokyo Charters, expressly names rape as a type of crime against humanity. In its strictest sense, however, the law was national military law, decreed to aid in the administration of foreign occupied lands. It was not international law per se, and differed to some extent from the law applied at the International Military Tribunals.
These subsequent trials, held in the occupied sector governed by Control Council No. 10, did not produce as great a wealth of jurisprudence as was generated during the trial of Nazi doctors who performed medical experiments or the trial of the industrial producers of the Zyklon B gas that was used in the concentration camps. There was little jurisprudence on rape, although several cases did roundly condemn other forms of sexual abuse, such as forced sterilization, as inhumane acts prosecutable under the heading of crimes against humanity. The significance of Control Council No. 10 in regard to rape, therefore, lay not in straightforward jurisprudence on the subject, but rather in its clear acknowledgement, so soon after the Nuremberg and Tokyo Charters, that acts of rape could be considered a crime against humanity.
In the Far East, the trails were held to prosecute minor war criminals. In one of these, the U.S. military court charged Japanese General Yamashita for multiple crimes, including rapes committed in the occupied Philippines. In the Dutch Batavia trials in Indonesia, other defendants were prosecuted for forced prostitution. Consistent with the factual and legal holdings of the Tokyo Tribunal, these subsequent trials condemned the rampant commission of rape as a category of war crimes.
In 1950, at the direction of the General Assembly Resolution 95, the International Law Commission produced the Nuremberg Principles to codify the offenses contained in the Nuremberg Charter. The Commission set forth the verbatim text of crimes against humanity as drafted into the Nuremberg Charter. Unfortunately, rape was omitted from this list, even though Control Council No. 10 was still in force. As a result, the legacy of World War II regarding the classification of rape as a war crime remained ambiguous.
The Modern Recognition of Rape as a Crime Against Humanity
The concept of crimes against humanity is one of the few international crimes that has never been grounded in a treaty. Unlike the crimes of apartheid, torture, or genocide, all of which are replete with conventions devoted to their legal terms, there existed no convention establishing internationally agreed upon terms of crimes against humanity, until the adoption of the Rome Statute of the International Criminal Court in 1998. As a result, the modern understanding of crimes against humanity derives from its incorporation into national laws and, more recently, its ubiquitous insertion into the statutes of international courts and tribunals. A notable example of a domestic provision which includes rape among its list of crimes against humanity is found in the law of Bangladesh.
In 1971, East and West Pakistan fought a bloody war of secession, which resulted in the creation of an independent Bangladesh. During that armed conflict, tens of thousands of women were reportedly raped. In 1973, the newly formed Bangladesh legislature published Act XIX to set forth the legal basis upon which to prosecute Pakistani prisoners. Its provision on crimes against humanity read:
Crimes Against Humanity: namely; murder, extermination, enslavement, deportation, imprisonment, abduction, confinement, torture, rape, or other inhumane acts committed against any civilian population or persecution on political, racial, ethnic or religious grounds, whether or not in violation of the domestic law of the country where perpetrated.
This legislation exemplifies the ongoing evolution of the legal concept of crimes against humanity. Like Control Council Law No. 10, the law includes rape and torture among recognized crimes against humanity, along with additional proscriptions outlawing abduction and confinement.
The aftermath of Pakistan’s 1971 war did not, however, include the prosecution of rape as a crime against humanity. Instead, an eventual political agreement was reached whereby Pakistan recognized Bangladeshi independence in exchange for the return of its prisoners of war. This agreement derailed any hope of prosecution. A pervasive lack of political will to prosecute international crimes in general, and rapes in particular, created a dearth of jurisprudence on rape as a crime against humanity during the latter half of the twentieth century. Only with the establishment of the ad hoc tribunals for the former Yugoslavia and Rwanda did rape as a crime against humanity receive diligent international attention and concerted enforcement.
In 1991 the disintegration of Yugoslavia devolved in to an armed conflict during which thousands of acts of sexual violence were committed, most notably the rape of detained Bosnian Muslim and Bosnian Serb women. The worldwide media and women’s rights and other human rights movements vociferously urged the United Nations to condemn the rapes. Without hesitation, the UN Security Council issued Resolution 820, condemning “the massive, organized and systematic detention and rape of women and reaffirmed that those who commit … or order … the commission of such acts will be held individually responsible.” In 1993, the Security Council established the ad hoc International Criminal Tribunal for the Former Yugoslavia to investigate, prosecute, and judge criminals from all sides of the conflict. The Secretary-General’s Report to the Security Council detailed the nature of rapes and sexual violence that occurred during the armed conflict and explained its rationale for placing crimes against humanity within the Yugoslav Tribunal’s jurisdiction.
Crimes against humanity refer to inhumane acts of a very serious nature, such as wilful killing, torture, or rape, committed as part of a widespread or systematic attack against the civilian population … such inhumane acts have taken the form of so-called “ethnic cleansing” and widespread and systematic rape and other forms of sexual assault, including enforced prostitution.
The ensuing Article 5 of the Yugoslav Statute explicitly enumerated in subsection (g) rape as a crime against humanity.
In 1994, Rwandan ethnic tensions devolved into genocide. The Secretary-General of the United Nations drafted the Statute of the Rwanda Tribunal and included an express provision for rape as a crime against humanity under Article 3(g). The inclusion of rape in the Article 5 of the Yugoslav Statute, and in Article 3 of the Rwanda Statute highlighted the international community’s acceptance that the crime formed a part of the customary law that binds all states, even though it had no basis in any formal treaties. The UN’s inclusion of rape as a crime against humanity within both statutes signaled the Security Council’s intent to ensure that the perpetrators of rape in Rwanda and Yugoslavia would be prosecuted under international law.
Since 1950, the International Law Commission, the body that penned the Nuremberg Principles, had been tasked by the United Nations General Assembly to draw up a Draft Code of Crimes Against Mankind. In 1996, as a result of the Yugoslav and Rwanda Statues, the Commission inserted rape into the crimes against humanity provision of the Draft Code and finally redressed its omission in the Nuremberg Principles.
By the late 1990s, the universal acceptance of the legal concept of crimes against humanity spurred its incorporation into several other statutes of international tribunals. The Rome Statute, which governs the jurisdiction of the International Criminal Court, was signed in 1998 and ratified in 2003. It is the first truly international treaty, drafted to prosecute international crimes (even when they were not generated by a war) or genocide. Article 7(g) of the Rome Statute proscribes a panoply of violent sexual offenses under the heading of crimes against humanity. Included among these offenses are “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other from of sexual violence of comparable gravity.” The International Criminal Court, a permanent body with prospective jurisdiction (the ability to judge international crimes committed in the future), included several explicitly described forms of sexual violence under the heading of crimes against humanity. Prosecutors and judges will eventually be able to rely upon these provisions when prosecuting a widespread or systematic attack against civilians.
The ad hoc tribunals constituted under the Sierra Leone Special Court, the Panels of East Timor, and the anticipated Extraordinary Chambers in Cambodia, have also revisited the concept of sexual assault as a crime against humanity. As a direct outgrowth of the Rome Statute’s broader definition of sexual violence, two of the courts have incorporated rape and a selection of other sex-based crimes into their crimes against humanity provision. For instance, Article 2 of the Sierra Leone Special Court includes rape, sexual slavery, enforced prostitution, forced pregnancy, and any other form of sexual violence as crimes against humanity. Section 5 of the United Nations Transitional Administration in East Timor Regulation 2000/11 incorporated the Rome Statute’s list of crimes against humanity verbatim, thus including sexual offenses as prosecutable by the East Timor Special Panel. The proposed Extraordinary Chambers of Cambodia, the subject of tense political negotiations between the national leaders and the United Nations, includes rape as the only sexbased conduct explicitly listed under crimes against humanity.
Jurisprudence of Rape as a Crime Against Humanity
In 1998, the Rwanda Tribunal delivered its first judgment, in the case against Jean-Paul Akayesu. Mr. Akayesu was the highest-ranking political official in a commune where about 2,000 Tutsis were slaughtered by a Hutu political militia group called the Interhamwe. During the killings, many Tutsi women fled their homes and sought sanctuary at the communal headquarters where Akayesu presided. The women pleaded with Akayesu to protect them from the oncoming massacre. Testimony revealed that the women were subjected to rapes, gang rapes, and sexual humiliation. The acts often preceded their deaths.
The Akayesu Trial Chamber pronounced a detailed opinion based on the rape testimony it heard. The judges cited the testimony of a Tutsi witness identified as JJ, who asserted that
she was taken by force from near the [municipal office] into the cultural centre … in a group of approximately fifteen girls and women. In the cultural center, they were raped. She was raped twice. Then another man came to where she was lying and he also raped her. A third man then raped her, she said, at which point she described herself as near dead.
The Trial Chamber also heard from a Hutu woman, identified as PP, who observed the rape of Alexia, a Tutsi. Witness PP testified that “one person held her neck, others took her by the shoulders, and others held her thighs apart as numerous Interhamwe continued to rape her—Bongo after Pierre, and Habarunena after Bongo.”
The Trial Chamber concluded that the sexual assault described in the testimony constituted rape under Article 3, the crimes against humanity provision of the Rwanda Statute. It also found these incidents of sexual violence to constitute an act of genocide, under the prohibition of “causing serious bodily or mental harm to members of the group.” In finding Mr. Akayesu guilty, the Trial Chamber, for the first time in international law, undertook to define rape:
The Chamber must define rape, as there is no commonly accepted definition of this term in international law. While rape has been defined in certain national jurisdictions as non-consensual intercourse, variations on the act of rape may include acts which involve the insertion of objects and/or the use of bodily orifices not considered to be intrinsically sexual.
The Chamber defines rape as a physical invasion of a sexual nature, committed on a person under circumstances which are coercive.
Mr. Akayesu was sentenced to life imprisonment for genocide and crimes against humanity, including the relentless rapes committed upon Tutsi women by the Interhamwe.
The jurisprudence of the Yugoslav Tribunal developed along parallel lines with that of its sister tribunal in Rwanda, yet its conception of rape was distinctly different. In a 1998 case, against an individual named Furundzija, the Yugoslav Tribunal employed a more mechanical definition of rape, treating it as a war crime.
In 2000 a Trial Chamber heard a case against Kunarac et al., in which three Bosnian Serbs were charged with rapes, torture, and enslavement. During the trial it was revealed that hundreds of Bosnian Muslim women and girls had been caught up in the military takeover of the town of Foca, in eastern Bosnia. The women were held in a series of Serb-run detention centers. Some were eventually expelled, but others were held by individual Serb soldiers and forced to serve as their personal, sexual slaves.
Each of the accused was found guilty of rape as a crime against humanity under Article 5 of the Yugolsav Statute. They were all sentenced to terms of imprisonment, ranging from sixteen to twenty-eight years. In rendering its decision, this time the Trial Chamber set forth a definition of rape that placed it within the category of crimes against humanity:
The actus reus of the crime of rape in international law is constituted by: the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) the mouth of the victim by the penis of the perpetrator, where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances. The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim.
This definition combines the mechanical terms employed in the Furundzija case with new considerations. Specifically, the Kunarac definition adds the requirement that the sexual intercourse occur without the victim’s consent, and that the perpetrator be aware of the absence of consent.
In the Kunarac Appeals Decision, the Appeals Chamber offered extensive clarification on the meaning of lack of consent as an element of rape as a crime against humanity. It stipulated that the conditions of the rape must be such that true consent is not possible. Moreover, it rejected the ground of appeal put forth by the defendant, who argued that resistance to rape had to be “continuous” or “genuine.” The appellate court concluded that:
the Appellants were convicted of raping women held in de facto military headquarters, detention centres and apartments maintained as soldiers residences. As the most egregious aspect of the conditions, the victims were considered the legitimate sexual prey of their captors. Typically, the women were raped by more than one perpetrator and with a regularity that is nearly inconceivable. (Those who initially sought help or resisted were treated to an extra level of brutality). Such detention amounted to circumstances that were so coercive as to negate any possibility of consent.
Even though the Furundzija/Kunarac definition of rape resembles the definition used in many national laws, it is designed for application in periods of armed conflict or in the context of crimes against humanity. Accordingly, any allegation of the possibility of consent must take into account the military, social, and political upheaval that prevail in such circumstances. In order to prove that a victim-survivor of rape did not consent, it is crucial to introduce evidence of the actual circumstances of the offense. Elements such as abduction and detention of civilians can be invoked to show the perpetrator’s awareness of inherently coercive circumstances. This broad approach to evidence of consent also reflects the original intent of procedural Rule 96, which is in force at both tribunals. Rule 96 discounts consent as a defense against the charge of sexual assault and rape if a victim has been subjected to or threatened with violence, duress, detention, or psychological oppression.
The definition of rape as a crime against humanity at the Rwanda Tribunal has incorporated the Furundzija/Kunarac approach since 2003. In the Rwandan case of Prosecutor v. Kajelijeli, the Trial Chamber noted that, “given the evolution of the law in this area … the Chamber finds the [Furundzija/Kunarac] approach of persuasive authority.”
Another important stage in the evolution of rape as a crime against humanity is exemplified by findings of the Yugoslav Tribunal. This is the development of a gender-neutral orientation, which acknowledges that men and boys can be subjugated to rapes. In 2004, in the Prosecutor v. Cesic, the Trial Chamber sentenced Bosnian Serb Ranko Cesic to eighteen years in prison for committing ten camp killings and for committing rape upon two brothers. The Trial Chamber found the following:
Regarding the sexual assaults, the factual basis indicates that the victims were brothers, who were forced to act at gunpoint and were watched by others … [t]he assault was preceded by threats and that several guards were watching and laughing while the act was performed. The family relationship and the fact that they were watched by others make the humiliating and degrading treatment particularly serious. The violation of the moral and physical integrity of the victims justifies that the rape be considered particularly serious as well.
Until recently, the recognition of rape as a crime against humanity that protects both males and females has not been clearly articulated in international jurisprudence. Rapes involving male victims will notably require a different development of the factual basis for rapes. For example, the forced sexual penetration commonly performed in the rape of males was often not physically committed by the accused. Instead, such rapes usually involve two male victims who were directed by the accused to assault one another. Another common element of male rapes in this context is the public nature of the assault. It may be the case that the prosecution of male rape will entail the use of different standards to demonstrate lack of consent than that employed in cases of female rapes.
The initial concept of crimes “repugnant to the principles of humanity” gradually stimulated the development of crimes against humanity. From rape’s rather hesitant debut within the crimes against humanity provision after the World War II International Military Tribunals to its uniform acceptance by the beginning of the twenty-first century, many men, women, and children have endured rapes committed as part of attacks on civilian populations. The body of judgments that condemn rape as a crime against humanity have helped to close a legal loophole that resulted from earlier understandings of the offense, which consigned it to the category of war crimes. As the concept evolves, the prohibition of rape under crimes against humanity may become more readily enforcible.
The establishment of the permanent International Criminal Court, the mixed national and international courts, and the ongoing issuance of judgements from the ad hoc tribunals raise valid expectations that the interpretation of rape as a crime against humanity will constantly evolve. Under the International Criminal Court, rape is presently defined as an act in which:
The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.
The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.
The definition borrows from the substantive jurisprudence of the Yugoslav and Rwanda Tribunals and certain aspects of the procedural safeguards of Rule 96, but it still leaves room for further challenges and development. Issues still to be addressed include the concept of genuine consent, and determining when, other than the presence of force or coercion, a person may be deemed incapable of giving that consent. It might be argued, for instance, that incapacity may be due to age. A further issue lies in the clinical specificity of the definition currently in use, which singles out penetration by a sexual organ of the anal or genital opening. It might be argued that other parts of the body are subject to rape or capable of being an instrument of rape. The answers will be shaped by the horrible conduct of future perpetrators, as well as by the legal deliberations of judges.