Rape during war has been documented throughout history. Sexual violence during war is often committed with the intention of terrorising the population. It is done with a purpose of breaking up families, and in some cases, rape, is done with an intention of changing the ethnic makeup of the next generation. Rape is also used to deliberately infect women with HIV or render women from some minority groups from bearing children. For example, over 100,000 women during the Rwandan genocide where raped. According to figures from the UN, more than 60,000 women were raped during the civil war in Sierra Leone between 1991 and 2002. And more than 200,000 women have been raped since 1998 in the Democratic Republic of Congo.
In 1999, the International War Crimes Tribunal at Hague heard the horrors of what happened during the Bosnian war. The tribunal heard gang rape, torture and sexual enslavement were committed against Muslim women and girls by the Serbian soldiers during the early days of the Bosnian conflict. Survivors of the rape camps, detail stories of how they had to watch and take turns at being gang-raped by Serbian soldiers, sometimes three times a day. One survivor was only released when she was visibly pregnant, and her rapist told her” go and bare our Serbian children” (Crime of war, p,369)
Incidents of rape have continuously been documented in contemporary conflicts with increasing frequency. Rape is used as a weapon of war to intimidate the enemy, terrorize the community, ethnic cleansing and genocide. Rape has been considered a war crime for centuries and is punishable if convicted. During the American civil war, Abraham Lincoln in 1863 signed into law making rape a capital offence, more recently in the 20th-century rape has been included explicitly to regulate the conduct of war.
Article 27 of the fourth Geneva convention of 1949 clearly, states that women are to be protected against any attacks on their honor. Particularly against Rape, enforced prostitution or any form of indecent assault. The most vulnerable during war are the women and the children. Girls are usually raped and tortured, boys are trained as child soldiers, as is the currently the case in Congo and Somalia
Why are war crimes hard to prosecute?
Firstly, silence, in the past victims of sexual violence have been hesitant to come forward for fear of retribution, this is true for many parts of Congo and Sudan. This is because these countries lack the robust institutions to uphold the rule of law and bring people to justice. In Congo notably, according to the human rights watch, most of the perpetrators of sexual violence were members of the armed forces or other militant groups. That is why it was a step in the right direction when in 2016 the International Criminal Court Convicted Jean-Pierre Bemba for crimes against humanity. This case was significant because it showed that high-level commanders can be prosecuted for actions committed by their soldiers.
Secondly, limitations of international law. Under International law, every country has the rights to govern itself. The nation’s sovereignty limits what the ICC can do, the international human rights is a piece of legislation, but it is not binding and can only be enforced when the countries that have signed to the law codify it within the country. Besides the point, not all countries are part of the treaties. So even if the acts committed within a state are crimes against humanity, it is up to that country to allow the ICC to prosecute the people responsible. International law is too easy to ignore because we do not have a world police, that enforces these laws.
Thirdly, to prove war crimes happened, there must be beyond all reasonable doubt for a guilty verdict to be reached. For example, the Nuremberg trials for the Nazi war criminals where fast because there was overwhelming documented evidence. In contrast to the trial for Slobodan Milosevic which lasted for almost five years. Milosevic faced 66 counts of crimes against humanity, genocide and war crimes that were committed in the Yugoslav, wars which he pleaded not guilty. Milosevic died of a heart attack while in his cell and because of his death the court failed to rule.
In 2017 the judges at Hague in a separate trial concluded as follows.
“The Chamber is not satisfied that there was sufficient evidence presented in this case to find that Slobodan Milosevic agreed with the common plan to permanently remove Bosnian Muslims and Bosnian Croats from Bosnian Serb claimed territory”.
Focus here should be on the word “sufficient”. A not guilty verdict does not always mean that a crime did not occur, and that the defendant is innocent. In some cases, it means that the evidence presented is not enough beyond all reasonable doubt for a guilty verdict to be reached. The burden of proof in murder trials is very high, the burden is always on the plaintiff to prove that the crime happened. Murder trials rarely tell you the truth of what happened, this is partly due to the numerous competing rights, and it also comes down to who has the money and can tell the story consistently.
Furthermore, International law suffers from lack of funding. It is not enough to just prosecute high ranking officials, the low level soldiers carrying out the crime have to also be prosecuted. But considering how long and expensive these trials are. It is no wonder most people are not brought to justice, especially in places like Congo and Sudan. In addition to this point, some countries are not willing to cooperate in giving up the criminals to the ICC. Prosecuting leaders like Jean-Pierre Bemba is hard, but nowhere near as hard as prosecuting people responsible for ethnic cleansing. Ethnic violence still goes on in the deep parts of the Congo, but it is widely under-reported, and as always it is the women and children that are affected most.
Finally, there is no rational basis for why people commit these acts of evil, and while some people get their justice, others don’t. And even those that are prosecuted, it is hard to come up with punishment that fits the crimes committed.