The Jus Cogens Nature of the Prohibition of Sexual Violence against Women in Armed Conflicts and State Responsibility

• Jurisdiction: South Africa
• Pages: 112-135
• Author: Ntombizozuko Dyani-Mhango
• Published date: 27 May 2019
• Date: 27 May 2019

THE JUS COGENS NATURE OF THE

PROHIBITION OF SEXUAL VIOLENCE AGAINST

WOMEN IN ARMED CONFLICTS AND STATE

RESPONSIBILITY

Ntombizozuko Dyani-Mhango

LLB LLM SJD

Associate Professor of Law, University of the Witwatersrand*

1 Introduction

Sexual violence com mitted in armed conict may constitute crimes against

humanity, war crimes or ge nocide and a perpet rator may be charged with one

or more of these crimes.1 According to the prea mble to the Rome Statut e of the

International Cr iminal Cou rt (“Rome Statute”), these ar e “the unim aginable

atrocities that deeply shock the con science of human ity” a nd “the most serious

crimes of concern t o the international community a s a whole”. There are many

forms of sexual violence in armed conicts, includi ng “rape,2 se xu al sla ve ry, 3

* This art icle is a revised pa rt of the doct oral thesis wh ich was successf ully submit ted for the pa rtial

fulfil ment of the Doctor of Juridical S cience degree at the Universit y of Wisconsin-Madison, USA i n

2012. I am gratefu l to the blind reviewer s’ comments. However, all er rors are mine.

1 See arts 6 (ge nocide), 7 (crimes agai nst human ity) and 8 (war cri mes) of the Rome Statut e of the

Internat ional Criminal C ourt (adopted 17 July 1998 entered i nto force 1 July 2002) 2187 UNTS 90; and

arts 2-4 of the respect ive statutes of the internatio nal criminal tri bunals for the former Yugoslavia (ICTY)

and Rwanda (ICT R). The trial cha mbers of both tribunals h ave extensively pros ecuted and convicted

perpet rators of crimes a gainst humanit y (for example Prosecut or v Kunarac and Othe rs (Judgment) case

no IT-96-23 [Foca] – sexual slavery) 22 Febru ary 2001); Prosecutor v Akayes u case no ICTR-96-13-T

para 598, where th e Trial Chamber identif ied rape as a crime a gainst humanit y); crimes or violations of

the laws and cust oms of war (for example Prosecu tor v Delalic and Others (J udgment) case no IT-96-21

[Celebici] (16 November 1998), held that sexual violenc e is a grave breach by way of tor ture or inhuma n

treatment; and Prosec utor v Furundz ija (Judgment) case no I T-95-17/1 (10 Decembe r 1998) para 595, held

that sexual v iolence during ar med confl ict “wilfully [cau ses] great suffer ing” and is a grave bre ach), and

genocide (Prose cutor v Akayesu ca se no ICTR-96-13-T sexual violence w ith intent to dest roy).

2 Arts 7(1)(g)-1 and 8(2)(b)(xxii) of Int ernation al Crimi nal Court Ele ments of Crim es UN Doc

PCNICC/200 0/1/Add.2 (2000) (ICC Elements of Cr imes) paras 1 and 2 defi ne rape as follows:

“The perp etrator invaded t he body of a person by conduct r esulting in penet ration, however slight, of

any part of the b ody of the victim or of the per petrator with a sexu al organ, or of the anal or genit al

opening of the v ictim with any object or any o ther part of the body. The inva sion was committed by

force, or by thre at of force or coercio n, such as that ca used by fear of viole nce, duress , detention,

psychological oppr ession or abuse of powe r, against such p erson or anot her person, or b y taking

advantage of a coe rcive environ ment, or if invasio n was committ ed against a pe rson incapable of g iving

genuine cons ent.”

3 Arts 7(1)(g)-2 and 8(2)(b)(xxii) -2 paras 1 and 2 define s exual slavery as:

“[A] phenomenon where the per petrator exe rcises any or all of t he power atta ching to the r ight of

ownership over o ne or more persons, such as pu rchasing, selling, le nding or barteri ng such a person

or persons, or b y imposing on them a si milar deprivat ion of liberty. Furt her, the perpet rator must have

caused such pe rson or persons to e ngage in one or more acts of a se xual nature.”

112

(2016) 27 Stell LR 112

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enforced prostitution,4 enforced pregnancy,5 enforced steri lisation6 or any

[other] form of sexual violence.” 7 The ICC Elements of Crimes set out the

elements of sexual violence as follows:

“1. The perpetrator committed an act of a sexual nature against one or more persons or caused such

person or persons to engage in an act of a sexual nature 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 persons or another person, or by taking advantage of a coercive environment or

such person’s incapacity to give genuine consent.

2. Such conduct was of such gravity comparable to the offenses outlined in Article 7, Paragraph 1(g)

of the Statute.

3. The perpetrator was aware of the factual circumstances that established the gravity of the conduct.

4. The conduct was committed as part of a widespread or systematic attack directed against a civilian

population.

5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread

or systematic attack directed against a civilian population.” 8

This provision refers to the elements of cri mes against human ity, however

the provisions relating to war cr imes also use identical ter ms except for parts

relevant to war crimes – which requ ire that the acts b e linked to an ar med

conict, and do not require a “widespread or systematic att ack”.9 Fur th er,

with regard to the cri me of genocide, the ICC Elements of Crimes state that the

term “serious bod ily and mental har m to one or more persons” may include

rape and sexual violence.10 The art icle notes that crimes against human ity and

genocide are not exclusive to an armed conict; however, recent history shows

that these inter national crimes are prevalent in arme d conict.

The scope of this art icle is deliberate and is limite d to sexual violence

committed against women duri ng armed conict s that satises t he elements

of cr imes against humanity, war crimes and genocide as dened above for

two reasons: Firstly, the majority of the civilian popul ation that fell victim to

sexual violence in armed conict is women (and girls) as evidenced by various

4 Arts 7(1)(g)-3 and 8(2)(b)(xxii)-3 def ine enforced pros titution as follows:

“The perpetr ator caused one o r more persons t o engage in one or mo re acts of a sexua l nature by

force, or by thre at of force or coercio n, such as that ca used by fear of viole nce, duress , detention,

psychological oppr ession or abuse of power against s uch person or persons or an other person, or by

taking ad vantage of a coercive environ ment or such person’s or persons’ inca pacity to give genuine

consent. The p erpetra tor or another pe rson obtaine d or expected to obt ain pecun iary or other a dvantage

in exchange for or in c onnection with t he acts of a sexual nat ure.”

5 Arts 7(1)(g)-4 and 8(2)( b)(xxii)-4 define e nforced pregna ncy as:

“The perpet rator confined one or mo re women, forcibly made pregna nt, with the intent of affect ing

the ethnic c omposition of any popula tion or carryi ng out other grave viola tions of internat ional law.”

6 Arts 7(1)(g)-5 and 8(2)(b)(xxii) -5 define enforced st erilisation as:

“The perpe trator deprived one or m ore persons of biological repr oductive capacity. The cond uct was

neither just ified by the medical or hosp ital treatment of the pe rson or persons concer ned nor carried

out with their g enuine consent.”

7 Arts 7(1)(g), 8(2)(b)(xxii) and 8(2)(c)(vi).

8 Art 7(1)(g)-6 of ICC Eleme nts of Crimes.

9 However, it must be noted t hat sexual violence com mitted in armed c onflict may const itute war crimes

as well as crim es against huma nity as evidenc ed by the judgment s of the internat ional crimi nal tribuna ls.

For example, the ICTY A ppeals Chamber in Prosecuto r v Delalic and Oth ers Case No IT-96-21A,

Judgment 20 Febr uary 2001 [“Celebici”] para 410 has con firmed that :

“If war crimes a re shown to have been commit ted in a widespread, s ystematic manner, on pol itical,

racial or relig ious grounds, th ey may also amount to cr imes against hu manity”.

10 Art 6(b)-1 of ICC Ele ments of Crimes. Se e also Prosecuto r v Akayesu Case No IC TR—96-13-T Judgment

2 Sept 1998 link ing sexual violence com mitted against wom en during the Rwand a conflict to the cr ime

of genocide.

SEXUAL VIOLENCE IN ARMED CONFLICTS 113

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