Gender-Based War Crimes: Its Gradual Evolution and Future

Written by: Yi Ning Nina Lu, University of Toronto

The issue of gender-based war crimes has been one that the international community has increasingly shone a light on since the Second World War. However, for such a serious topic, sexual and gender-based crimes (SGBC) still do not get nearly the deserved amount of attention. Gender-based war crimes are crimes committed against individuals on the basis of their socially constructed gender roles in society. Sexual crimes are a type of gender-based crime that includes a sexual component.^[1]These crimes include, but are not limited to, rape, sexual slavery, forced pregnancy, forced prostitution, forced conscription, sex-selective massacre, and forced sterilization.^[2]Despite also affecting men, gender-based violence disproportionately affects women by depriving them of the exercise of their human rights and violating them in such a personal way.^[3]In fact, Security Council Resolution 1325, which was passed unanimously on October 31, 2000, acknowledged the disproportionate and unique impact of armed conflict on women and girls specifically.^[4]This paper does acknowledge the horrific violence that men specifically encounter, but it will focus on SGBC towards females. 

Although SGBC have basically been present in every war throughout history, the recognition and prosecution of gender-based war crimes have only really made crucial headway since the post-World War II period. Despite this fact, there still needs to be significant development in this area of international law. While also recognizing the occurrence of gender-based war crimes before this world war, this paper will be primarily focused on the post-WWII era because that is when this topic picked up traction in the global sphere. This paper will first lay out the gradual evolution of gender-based war crime prosecution from the Nuremberg and Tokyo trials during the 1940s to the release of the Policy Paper on Sexual and Gender-Based Crimes in 2014. Secondly, it will argue that, although the prosecution of SGBC has made many advancements since the 1940s, this concept still needs much development and advocacy through a focus on accountability measures, individual symbolic and monetary reparations, and reduction of stigma. 

Evolution: Its Development

Considering how the damaging effects of sexual and gender-based violence (SGBV) on individuals and their communities were acknowledged long before its global criminalization,^[5]this type of violence has always been under-investigated and under-prosecuted.^[6]For centuries, rape was seen simply as an inevitable consequence of war and a way to boost soldier morale. Unlike other crimes against humanity, sexual violence, such as rape, is unique because it stigmatizes the victim as well as the perpetrator.^[7]Rape not only violates and hurts individuals in the most intimate way possible, but it also causes an immense amount of fear, including fear of future harm and retribution, as well as fear of being revealed as a victim.^[8]In societies where being raped carries a debilitating negative stigma, many choose to suffer alone in silence. In these situations, silence is the only way for victims of sexual violence to stay in the good graces of their home society and retain any semblance of normal everyday life. Only in the last half century has rape come to be seen as an offence against the woman’s dignity rather than a property crime or a crime against her family’s or husband’s honour, the latter of which was justified through a conception of viewing rape as a theft of a daughter’s or wife’s virtue.^[9]

In fact, it was not until after the Second World War that gender-based war crimes were first addressed at The International Military Tribunal in Nuremberg and the International Tribunal for the Far East (Tokyo Tribunal). Although these international criminal tribunals recorded evidence of a number of sex crimes committed by both armed forces, sex crimes received little attention. In addition to the fact that there were no convictions for rape at Nuremberg, sexual assault was prosecuted only as a “secondary crime” in Tokyo.^[10]. Additionally, although the Tokyo Tribunal investigated Japanese war crimes and convicted perpetrators of the rape of prisoners and female nurses under the “murder, rape, and other cruelties” category, the systematic rape and sexual slavery by the Japanese imperial army of as many as 200,000 former “comfort women,” was completely ignored.^[11]Despite the plethora of evidence demonstrating the huge presence of sex crimes, such as rape and sexual slavery, there was an unmistakable neglect of sexual violence at both the Nuremberg and Tokyo trials during the period following the Second World War.^[12]

 In the 1990s, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) brought more attention to the prosecution of gender-targeted crimes. The ICTR and ICTY statutes differed from previous statutes in that they specifically enumerated rape as a war crime.^[13]Both of the tribunals resulted in historic decisions regarding rape and the conviction of a number of war criminals.^[14]In addition, the landmark cases of Prosecutor v Tadicin the ICTY and Prosecutor v Akayesuin the ICTR were the first international criminal trials to prosecute sexual violence as a war crime and to convict perpetrators of sexual violence against women in the genocide respectively.^[15]Due in part to the discovery of the scale of sexual violence committed during these times of conflict, these two tribunals resulted in more attention being directed towards the issue of SGBC on the global stage with both international lawyers and the greater international community beginning to take a genuine interest.^[16]

Despite this ultimate recognition of rape as a crime against humanity in the statutes of both these Ad Hoc Tribunals, it would simply be presumptuous to regard war crimes against women as a recent occurrence that has not already been explored by both customary and conventional international law.^[17]Although rape was not always explicitly listed in war crimes treaties, many states and intergovernmental organizations during the trials at the ICTY pointed out that the legal basis for the criminalization of rape could be found in both the Geneva Conventions and customary international law. Some even argued that there was precedent for categorizing rape as a crime against humanity.^[18]

Even with this apparent progress, there were only a few trials of important military figures who should have been held responsible for the perpetration of the sexual assault and violence of thousands of women during these conflicts.^[19]Even though statutes of the Ad Hoc Tribunals included rape as a crime against humanity, it was omitted from the other categories of crimes.^[20]Rape was also excluded as a grave breach of the Geneva Conventions and as a violation of the laws or customs of war. In addition to that, sexual violence crimes other than rape were not enumerated in either of the Statutes. Some sources believe that this is because the Statutes were written in period before there was a focus in the international community on human rights documents that specifically address gender discrimination, such as the 1979 Convention on the Elimination of Discrimination against Women (CEDAW).^[21]Although the lack of explicit mention of sexual violence crimes as grave breaches was not determinative of their status under international law, it was problematic because it failed to give due acknowledgement to the seriousness of the crimes.^[22]It was evident that, even after the horrific statistics and heart-breaking individual tales of sexual exploitation came to light, SGBVstill had a long journey ahead until the ultimate status of being treated equally to other heinous crimes. 

Since the ICTR and ICTY, the adoption of the Rome Statute in July 1998 has made significant progress in this area of international law. This statute was extremely important at the time not only because it was the founding document of the International Criminal Court (ICC), but also because it consequentially categorized sexual and gender-based crimes both as war crimes and as crimes against humanity^[23]Through the Statute’s recognition of a spectrum of gender crimes and its inclusion of gender crimes in both the categories of war crimes and crimes against humanity, the Rome Statute symbolized a crucial milestone in the path to demolishing the inequitable and insufficient treatment of SGBC under international law.^[24]This landmark Statute was the first international instrument to designate SGBC as potential underlying acts for other crimes, such as genocide.^[25]For the first time in history, the Rome Statute also codified the crime of sexual slavery.^[26]In addition to the actual provisions, Rome Statute was revolutionary because it developed a mandate for the ICC to adopt specific investigative and procedural policies that were necessary in achieving gender justice.^[27]As a continuation of the women’s movement, the integration of gender concerns into the Rome Statute was a tangible symbol of how far the international women’s human rights movement has come.^[28]

However, despite the existence of this long-awaited Statute, the ICC, which derives its authority to prosecute such crimes from the Rome Statute, has failed to do so on multiple occasions. In the 2006 case of Prosecutor v. LubangaDyilo (Lubanga), the Office of the Prosecutor (OTP) failed to not only include charges for SGBC at the beginning of the investigation, but also to show how sexual violence can be, and often is, an essential component of other crimes, such as the recruitment of child soldiers.^[29]In addition, in the 2014 case of Prosecutor v. Germain Katanga (Katanga), the OTP was forced to drop specific charges for rape and sexual violence.^[30]

After Katanga was acquitted of rape and sexual slavery, the OTP released a Policy Paper on Sexual and Gender-Based Crimes in 2014. Being one of the first of its kind, the Paper outlined a series of policies through which it would “integrate a gender perspective and analysis into all of its work”^[31]and help to issue in a new era where gender-based war crimes would be treated with the importance they rightly deserve. The Policy Paper laid out a framework for the ideal methods of carrying out the investigation and prosecution of SGBC in an attempt to guide the OTP in avoiding the mistakes made in the past.^[32]The Policy Paper also discovered that, since seemingly “gender-neutral” war crimes, such as civilian-directed attacks, acts of torture, and the recruitment of child soldiers, may contain sexual or gender elements. Thus, gender-based crimes should not limited in its scope.^[33]

This Policy Paper has been instrumental in improving various aspects of SGBC investigation and prosecution, such as the incorporation of a gender-perspective in the early stages of the investigations.^[34]The importance of such a perspective was demonstrated in the Lubanga case. Although specific charges related to rape, sexual slavery, and forced marriage were not included at the beginning of the trial, at least 15 of the first 25 prosecution witnesses gave testimony of sexual crimes, particularly rape and sexual slavery.^[35]Despite the testimonies provided, the Prosecution essentially undermined its chances of successfully having SGBC considered by the Trial Chamber by not including them in the Decision on the Confirmation of Charges. The omission of these charges resulted in the Chamber deciding that it could not base its judgement on the evidence introduced during the trial.^[36]When a gender-perspective is included at an earlier stage, cases concerning SGBV can be more effectively heard and evaluated at the ICC. This was made particularly evident in the 2016 case of Prosecution v. Jean-Pierre Bemba Gombo (Bemba), which marked the first conviction of sexual violence and rape as a weapon of war at the ICC.^[37]Due to the successes in Bembaand other cases such as the trial of Congolese warlord Bosco Ntaganda, who was the first militia leader to face SGBV charges at the ICC, it can be concluded that the Policy Paper was definitely successful in improving the practices and increasing the attention on charges for SGBC.^[38]

Future

Despite the significant strides that SGBC has made in international law, there is still a long journey ahead. The creation of the 1998 Rome Statute and the 2014 Policy Paper are signs of progress in the right direction, but the International Criminal Court must uphold and implement both effectively in order to have its desired impact. Unfortunately, the reality is that the Court is far from achieving true gender justice, or from deterring against sexual and gender-based crimes, which risks compromising the legitimacy of the ICC.^[39]To date, the ICC only has had one successful conviction for SGBV crimes in the case of Bemba, which was overturned by the Appeals Chamber on June 8th, 2018.^[40]

Accountability mechanisms and measures, such as the enforcement of the duty to disclose evidence in the proceedings,^[41]must be implemented in order to ensure that the ICC does not fail due to its shortcomings. For example, more care needs to be put into the collection of evidence because there is still a disproportionate dependence on evidence collected by non-governmental organizations (NGOs), even though they are given little weight as hearsay evidence.^[42]NGOs have a critical role in evidence collection, but it is also important that their reports are supplemented and supported by other evidence, such as direct witness testimony.^[43]

In addition, the Policy Paper failed to mention the ICC’s failure to address SGBV crimes at the individual level in terms of restorative justice.^[44]In Lubanga, the Appeals Chamber decision for reparations demonstrated how the ICC’s system can fail to leave victims of gender-based war crimes with any sense of symbolic justice and financial support. This decision only granted reparations for charged crimes that resulted in a guilty verdict, meaning that if the SGBV charges are dropped, which is too often the case, victims cannot receive individual reparations.^[45]As studies have consistently shown, both symbolic and monetary reparations are extremely important for the psychological and physical recovery of victims.^[46]This failure to address the individual needs of victims has caused them to continue to live in extreme poverty for years after, suffering from physical and psychological harm instead of rebuilding their lives. For example, after the Bembatrial, the World Wide Movement for Human Rights interviewed dozens of survivors and victims who prioritized the need for individual compensation and the need for community education regarding sexual assault stigmatization because these factors have prevented them from reconstructing their lives with dignity.^[47]

As mentioned in the interviews conducted by the World Wide Movement for Human Rights, the future of SGBC should also include recognition and reduction of stigma towards the victims. The stigma that victims of sexual violence victims still sadly face results in the underreporting of incidents and lack of public awareness. Unfortunately, stories, like the ones that came out of the 1995 genocide in Bosnia-Herzegovina where Muslim women denied being raped by Serb soldiers because their husbands would divorce them if they admitted that they were raped,^[48]are still widespread today. This stigma forces victims to suffer in silence and, in many cases, prevents them from moving forward with productive lives. Since this is a societal issue and not just a policy one, there needs to be increased education and awareness surrounding the harms of stigmatizing victims of sexual violence. In addition, the atrocities committed in the past and the men and women who fell victim to these horrible crimes must be remembered and honored by the world. For example, despite the Japanese government never publicly apologizing for the country’s role in the forced prostitution of “comfort women” during the Second World War, South Korea has put up statues commemorating “comfort women” on city buses, and even in front of the Japanese Embassy in Seoul.^[49]The expansion of education around stigmatization and the statues that pay tribute to its victims will help individuals heal openly with the support of the surrounding community and society. 

In this arena, advocacy and lobbying by non-governmental organizations (NGOs) is extremely crucial. The importance of advocacy in this area of law is perfectly exemplified in the role that NGOs played in the establishment of the ICC and the drafting of the Rome Statute and the Rules of Procedure and Evidence.^[50]In addition, it was due to the lobbying of the Women’s Caucus for Gender Justice before and during the December 1997 PrepCom that the draft Rome Statute was changed to create a separate category for rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and any other forms of sexual violence amounting to a grave breach of the Geneva Conventions.^[51]As international relations and law develop, states are not the only actors that have an influence. Non-state actors have an increasingly important role to play on the international stage, including in the advancement of the investigation and prosecution of SGBC. 

Although the progress demonstrated in the gradual evolution of gender-based war crime prosecution from the Nuremberg and Tokyo trials in the 1940s to the release of the Policy Paper on Sexual and Gender-Based Crimes in 2014 must be applauded, it is also important to realize that it still has not come far enough. Even after the Policy Paper was published, there has still been considerable difficulty and neglect in the process of prosecuting perpetrators of gender-based violence. The investigation and prosecution of SGBC still needs much advancement and advocacy through an emphasis on accountability measures, individual symbolic and monetary reparations, and reduction of stigma. Only a holistic approach that is focused on both the rehabilitation of victims and the improvement of methods to bring perpetrators to justice can help the international community properly prevent, address, and prosecute gender-based war crimes. 

Works Cited

^[1]Policy Paper on Sexual and Gender-Based Crimes(The Office of the Prosecutor, 2014), 3, accessed February 2, 2019, https://www.icc-cpi.int/iccdocs/otp/otp-policy-paper-on-sexual-and-gender-based-crimes–june-2014.pdf.

^[2]Policy Paper, 5. 

^[3]Patricia Viseur Sellers,The Prosecution of Sexual Violence in conflict: The Importance of Human Rights as Means of Interpretation(United Nations Office of Human Rights, 2007), 3. 

^[4]R. Carpenter, 2006, “Recognizing Gender-Based Violence Against Civilian Men and Boys in Conflict Situations,” Security Dialogue37(1): 85. doi:10.1177/0967010606064139. 

^[5]Bridget Mannix, “A Quest for Justice: Investigating Sexual and Gender-Based Violence at the International Criminal Court,” James Cook University Law Review21 (2014-2015): 9.

^[6]Mannix, “A Quest for Justice,” 7.

^[7]Patricia H. Davis, “The Politics of Prosecuting Rape as a War Crime,” The International Lawyer34, no. 4 (2000): 1225, http://www.jstor.org/stable/40707587.

^[8]Davis, “The Politics of Prosecuting Rape as a War Crime,” 1226. 

^[9]Amy Palmer, An Evolutionary Analysis of Gender-Based War Crimes and the Continued Tolerance of “Forced Marriage”, Northwestern Journal of International Human Rights 7(1) (2009): 137,

^[10]Mertus, Julie. “War Crimes Against Women: Prosecution in International War Crimes Tribunals. By Kelly Dawn Askin,” The American Journal of International Law93, no. 3 (1999): 740-44, doi:10.2307/2555278.

^[11]Mannix, “A Quest for Justice,” 9.

^[12]Mertus, “War Crimes Against Women,” 741. 

^[13]Davis, “The Politics of Prosecuting Rape as a War Crime,” 1224.

^[14]Davis, “The Politics of Prosecuting Rape as a War Crime,” 1224.

^[15]Mannix, “A Quest for Justice,” 9.

^[16]Mertus, “War Crimes Against Women,” 740. 

^[17]Mertus, “War Crimes Against Women,” 744.

^[18]Karen Engle, “Feminism and Its (Dis)contents: Criminalizing Wartime Rape in Bosnia and Herzegovina,” The American Journal of International Law99, no. 4 (2005): 778, doi:10.2307/3396669.

^[19]Davis, “The Politics of Prosecuting Rape as a War Crime,” 1225. 

^[20]Barbara Bedont and Katherine Hall-Martinez, “Ending Impunity for Gender Crimes under the International Criminal Court,” The Brown Journal of World Affairs6, no. 1 (1999): 71, http://www.jstor.org/stable/24590222.

^[21]Patricia Viseur Sellers,The Prosecution of Sexual Violence in conflict: The Importance of Human Rights as Means of Interpretation(United Nations Office of Human Rights, 2007), 3.

^[22]Bedont, “Ending Impunity,” 71. 

^[23]“International Criminal Law — Sexual and Gender-Based Crimes — ICC Outlines Policies to Improve Prosecutorial Outcomes. — The Office of the Prosecutor of the ICC, Policy Paper on Sexual and Gender-Based Crimes (2014),” Harvard Law Review128, no. 2 (2014): 794, http://www.jstor.org.myaccess.library.utoronto.ca/stable/24644065.

^[24]Bedont, “Ending Impunity,” 72.

^[25]“International Criminal Law,” 794. 

^[26]Bedont, “Ending Impunity,” 73.

^[27]Bedont, “Ending Impunity,” 77.

^[28]Bedont, “Ending Impunity,” 80.

^[29]Olga Jurasz, “Gender-Based Crimes at the ICC: Where Is the Future?” Proceedings of the Annual Meeting(American Society of International Law) 108 (2014): 430, doi:10.5305/procannmeetasil.108.0429.

^[30]“Sexual and gender based crimes,” Coalition for the ICC, accessed February 2, 2019, http://www.coalitionfortheicc.org/sexual-and-gender-based-crimes.

^[31]“International Criminal Law,” 793. 

^[32]Valerie Oosterveld, The ICC Policy Paper on Sexual and Gender-Based Crimes: A Crucial Step for

International Criminal Law443 (2018): 446, https://scholarship.law.wm.edu/wmjowl/vol24/iss3/2.

^[33]Oosterveld, The ICC Policy Paper, 453. 

^[34]Mannix, “A Quest for Justice,” 7.

^[35]Mannix, “A Quest for Justice,” 19. 

^[36]Mannix, “A Quest for Justice,” 19.

^[37]Mannix, “A Quest for Justice,” 19.

^[38]“Sexual and gender based crimes.”

^[39]Laurie, Green, 2011, “First-Class Crimes, Second-Class Justice: Cumulative Charges for Gender-Based Crimes at the International Criminal Court,” International Criminal Law Review11 (3): 530, doi:10.1163/157181211X576401.

^[40]J. Nilsson, “Prosecutor v. bemba et al.,” The American Journal of International Law, 112(3) (2018): 478. doi: http://dx.doi.org.myaccess.library.utoronto.ca/10.1017/ajil.2018.63. 

^[41]Mannix, “A Quest for Justice,” 15.

^[42]Mannix, “A Quest for Justice,” 16-17.

^[43]Mannix, “A Quest for Justice,” 17. 

^[44]Nicole Cvercko, “Analysis: The ICC’s Treatment of Sexual and Gender-Based Violence Crimes,” Kirsch Institute, accessed January 26, 2019, http://www.kirschinstitute.ca/analysis-iccs-treatment-sexual-gender-based-violence-crimes.

^[45]Cvercko, “Analysis.”

^[46]Frédéric Mégret, “The International Criminal Court Statute and the Failure to Mention Symbolic Reparation,” International Review of Victimology16, no. 2 (September 2009): 142. doi:10.1177/026975800901600202.

^[47]Cvercko, “Analysis.”

^[48]Davis, “The Politics of Prosecuting Rape as a War Crime,” 1223. 

^[49]Elise Hu, “’Comfort Woman’ Memorial Statues, A Thorn in Japan’s Side, Now Sit on Korean Buses,” NPR, November 13, 2017, https://www.npr.org/sections/parallels/2017/11/13/563838610/comfort-woman-memorial-statues-a-thorn-in-japans-side-now-sit-on-korean-buses.

^[50]Mannix, “A Quest for Justice,” 13.

^[51]Bedont, “Ending Impunity,” 73.

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