The status of acts of sexual violence in international criminal law

• Jurisdiction: South Africa
• Pages: 69-87
• Published date: 24 May 2019
• Date: 24 May 2019
• Author: Prof J le Roux
• Citation: (2009) 22 SACJ 69

The status of acts of sexual violence

in international criminal law

Prof J Le Roux* and Yves Muhire**

‘The past ten years have witnessed explosive developments in recognizing and

prosecuting gender crimes in international law. Long ignored, trivialized, and

misunderstood, rape and other forms of sexual offences committed in the con-

text of war or mass atrocity have received unprecedented attention in recent

years.’

KD Askin ‘A decade in the development of gender crimes in international

courts and tribunals: 1993 and 2003’ (2004) Human Rights Brief 16

1. Introduction

Crime has been with humanity since time immemorial. Acts of sexual

violence are criminalized and punished in national legal systems as they

constitute direct attacks on the most basic of human rights.

1

Historically,

acts of sexual violence have been left to the jurisdiction of national or

military courts within individual states and the international criminal law

demonstrates an historical silence on recognizing sexual violence as

international crimes. De Than and Shorts

2

expose the fact that neither

the Nuremberg nor Tokyo tribunals mentioned sexual violence in their

Charters whatsoever, even though rape had undeniably been a crime

during warfare for centuries.

3

Chinkin

4

refers to the worldwide rape of

women by so-called enemy and ‘friendly’ forces as well as members of

* BIuris LLB LLD (Pret), Professor in the Department of Public Law, University of Pretoria.

**

LLB LLM, Lecturer at the Universite Libre de Kigali, Rwanda.

1

‘Rape is a very serious offence, constituting as it does a humiliating, degrading and brutal

invasion of the privacy, the dignity and the person of the victim.’ Mahomed CJ in Sv

Chapman 1997 (2) SACR 3 at 5. See also Nkabinde J in Masiya v Director of Public

Prosecutions, Pretoria (Centre for Applied Legal Studies, Amici Curiae) 2007 (5) SA 30

(CC) at para 27. See also J Burchell Cases and Materials on Criminal Law 3ed (2007) 707

as well as R Cryer, H Friman, D Robinson and E Wilmshurst An Introduction to

International Criminal Law and Procedure 1ed (2007) 208.

2

C de Than and E Shorts International Criminal Law and Human Rights 1ed (2003)

348. See also I Bantekas and S Nash International Criminal Law 2ed (2003) 365 and LJ

van den Herik The Contribution of the Rwanda Tribunal to the Development of Interna-

tional Law 1ed (2005) 192.

3

The historical indolence of the recognition of sexual violence as international crimes

may be due to a lack of understanding of the physical and psychological impact of such

violence on the victims; prejudice and the absence of effective women’s rights lobby for

such recognition. De Than and Shorts op cit (n2) 348 further identify the absence of

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(2009) 22 SACJ 69

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United Nations peacekeeping forces and concludes that sexual violence

towards women

5

in armed conflict has a long history.

Perpetrators of international crimes often resort to acts of sexual vio-

lence as wartime tactics. Nowrojee

6

explains that rape in wartime is

employed as a weapon to terrorise and degrade a particular community.

The sexual violence is meant to degrade not only the individual woman,

but also to dehumanise the larger group of which the victim is a part.

Sexual violence thus becomes the means to achieve social degradation.

The special rapporteur appointed by the United Nations Commission on

Human Rights, Tadeusz Mazowiecki, explained the purpose of rape dur-

ing the Bosnia-Herzegovina conflict as an attack on the individual victim

as well as a method of ethnic cleansing, intended to humiliate, shame,

degrade and terrify the entire ethnic group.

7

Historically the victor’s

‘right to rape’ was also seen as part of the spoils of war and a bonus for

the victor. So-called ‘rape camps’ were established during World War II

women from the drafting of United Nations instruments and the downplay of wartime

acts of sexual violence to generic charges of violence as causal factors. See also MC

Bassiouni Crimes against Humanity in International Criminal Law 2ed (1999) 345.

4

See C Chinkin ‘Rape and sexual abuse of women in international law’ (1994) European

Journal of International Law 326. See also TLH McCormack and GJ Simpson The Law

of War Crimes: National and International Approaches 1ed (1997) 210 and R Coomar-

aswamy ‘Sexual violence during wartime’ in Listening to the Silences: Women and War

(2005) H Durham and T Gurd (eds) 7.

5

Although men can be equally affected by wartime sexual violence, De Than and Shorts

op cit (n2) 347 convincingly argue that women fall victim in the majority of cases. Being

raped arguably impacts far more negatively on women than on men, in that, apart from

being scarred physically and psychologically, they may become ostracized and loose

their ‘marriageable’ status. Compare JMT Labuschagne ‘Die penetrasievereiste by verk-

ragtng’ (1991) South African Law Journal 156; GA Walker Family Violence and the Wo-

men’s Movement (1990) 103; Satchwell J in S v Engelbrecht 2005 (2) SACR 41 (W) at

para 53; Howie J in S v Ferreira 2004 (2) SACR 454 (SCA) at para 40 and Ackermann

and Goldstone JJ in Carmichele v Minister of Safety and Security (Centre for Applied Le-

gal Studies Intervening) 2001 (4) SA 938 (CC) at para 62. See also E Odio-Benito ‘Sexual

violence as a war crime’ in The New Challenges of Humanitarian Law in Armed Con-

flicts (2005) PA Fernandex-Sanchez (ed) 164. (Elizabeth Odio-Benito was the vice-presi-

dent of the International Criminal Court at the time.) WA Shabas Genocide in

International Law: The Crimes of Crimes 1ed (2000) 170 notes that Islamic law provides

that women who have sexual relations outside of marriage are not marriageable and re-

fers to Bassiouni who concluded that targeting Muslim women for rape and sexual as-

sault in order to effectively separate Bosnian Muslim women from Bosnian Muslim men

may create a condition of life calculated to bring about the group’s destruction.

6

B Nowrojee ‘Shattered lives: Sexual violence during the Rwandan genocide and its after-

math’ (1996) New York Human Rights Watch 1. See also MN Vinar ‘Civilization and tor-

ture: Beyond the medical and Ppsychiatric approach’ (2007) International Review of the

Red Cross 620.

7

See T Meron War Crimes Law Comes of Age 1ed (1998) 205. See also K Kittichaisaree

International Criminal Law 1ed (2001) 112 and Bantekas and Nash op cit (n2) 365.

70 SACJ *(2009) 1

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