RAPE:

An effect or a
weapon of war?

Submitted by:
Mariel Josine N. David
12-21741

Submitted to:
Atty. Frances Margaret Alger-Del Rosario

INTRODUCTION

Since time immemorial, soldiers have used sexual abuse as a weapon during
wartime. Sexual activities were considered as support for the weary and
disheartened soldiers while the enemys wives and daughters were seen as
prizes for the victors. Considering the patriarchal nature of societies in the olden
times, women were considered as properties of their husbands and fathers. The
act of sexually abusing women was considered as taking control over the
properties of the enemy soldiers. Furthermore, women and children were more
vulnerable to the attacks of the enemies as they were only at home and without
defenses especially when their towns and cities were being ransacked.
Recently, the use of rape and other sexual abuse as a weapon in war has
evolved from women being spoils of war to a more systematic and well-thought
of modus. It has transformed into a tactic of ethnic cleansing through rampant
impregnation as well as the intentional infection of HIV and other sexual
diseases.
Although much has changed in the forms of military tactics and hardware
used in war, sexual abuse is a constant presence in wartime.

HISTORICAL PERSPECTIVE

During the Second Sino-Japanese War, the Chinese city of Nanking was
among the cities that were pillaged and destroyed. Accounts of mass murders
and sexual abuses were rampant. An estimated 200,000 women and children
were raped, sexually abused, and tortured. Outrageously, most of the attacks
were done systematically, with groups of soldiers who would go house to house
and rape young girls.

When the Second World War was about to end, the Soviet Army began to
move toward Germany. Most of the assaults were committed in the Soviet
Occupation Zone. Women were raped on a regular and repetitive basis. Both
abortion rates and birth rates spiked during the occupation.
The Bangladesh war for independence in 1971 also resulted in systematic
operation of mass rape by the Pakistani military against Bangladeshi women,
particularly Muslims and Hindus. This led to pregnancies, abortions, infanticide,
and suicide.
The Bosnia-Herzegovina War, the Army of the Republika Srpska (VRS)
committed systematic, genocidal rape against the Bosniaks. Here, the VRS used
rape as a weapon in their campaign of ethnic cleansing. Bosniak women were
sent to rape camps where they would be subjected to rape and torture. They
were only allowed to leave when they got pregnant.
During the Rwandan genocide, the Hutu population targeted the Tutsi
population, causing an alarming increase in HIV cases. Here, the mass rape was
seen as a weapon in a genocidal tactic to destroy a particular ethnic group.
Gender specific violence was also rampant during the Sierra Leone Civil War.
Multi-Perpetrator Rape, sexual slavery, and torture were widespread. Some
women were forcibly impregnated as a form of ethnic cleansing.
In Colombia, there is an ongoing civil war with the civilian population as the
main victims of the war. The Armed Forces, guerillas, and paramilitaries are the
culprits of sexual violence inflicted upon civilian women and girls. The
Colombian Government is silent as to how cases of sexual violence in armed
conflict are being resolved.
Known as the rape capital of the world, the Democratic Republic of the
Congo remains to be involved in armed conflict despite the formal end of the war.
Cases of rape, gang rape, genital mutilation, sexual slavery, and sexual assault are

very prevalent. Rape is done both on an individual level as well as on a systematic

level in order to uplift frustrated soldiers, to foster fear in victims, and to act as a
panacea for their worsening economic and social woes.
In Burma, violence is used to control the civilian population as well as the
ethnic minorities. Systematic rape and other forms of sexual violence are
examples of State-sponsored terrorism in the country. In Burma, rape is used as a
weapon to scare the civilian population and ethnic minorities. It breaks
community and family ties as the stigma of being a rape victim is still very strong.
In Kenya, rape, gang rape, and female and male genital mutilation are very
common and strongly linked to armed conflict. Survivor stigma is also very
strong, which is worsened by lack of legal aid and protection.

DEVELOPMENT IN INTERNATIONAL LAW

Lieber Codes
The Lieber Codes, signed during the presidency of Abraham Lincoln,
provided for the wartime decorum and rules of war of soldiers during the
American Civil War. The codes provided for the punishment of death in cases of
rape.
Article 44 of the said codes provides:
All wanton violence committed against persons in the invaded country, all
destruction of property not commanded by the authorized officer, all robbery, all
pillage or sacking, even after taking a place by main force, all rape, wounding,
maiming, or killing of such inhabitants are prohibited under the penalty of death,
or such other severe punishment as may seem adequate for the gravity of the
offense.

A soldier, officer, or private, in the act of committing such violence, and

disobeying a superior ordering him to abstain from it, may be lawfully killed on
the spot by such superior.
Hague Convention
Although not specifically mentioning the crime of rape, the convention
cautions opposing forces to observe laws and customs of war which impliedly
included rape.
International Military Tribunal at Nuremberg
After World War II, leading Nazi officers were indicted on charges of crimes
against peace, war crimes, and crimes against humanity. The coverage of crimes
against humanity was first acknowledged in this tribunal. Oddly enough, despite
enough testimony to support the charges of rape, the Nazi defendants were not
convicted of said crime.
International Military Tribunal for the Far East
Convened after World War II, the IMTFE was called upon to try the leaders
of Japan for 3 different war crimes including crimes against humanity. The
defendants were accused of murder, torture, plunder, mass murder, pillage, rape,
and other barbaric cruelties. Japanese officers were convicted of rape under
command responsibility as well as individual accounts of sexual violence.
Control Council Law No. 10
Punishment of Persons Guilty of War Crimes, Crimes Against Peace and
Against Humanity
After World War II, the concept of crimes against humanity was explored
and given strong legal basis. Article II of this law provides:

xx C. Crimes against Humanity. Atrocities and offences, including but not

limited to murder, extermination, enslavement, deportation, imprisonment,
torture, rape, or other inhumane acts committed against any civilian population,
or persecutions on political, racial, or religious grounds whether or not in
violation of the domestic laws of the country where perpetrated. xx
Fourth Geneva Convention
Geneva Convention relative to the Protection of Civilian Persons in Time of
War
This convention provides for humanitarian protection of civilians in
war-torn areas. From a mere treaty, it has evolved into customary international
law, making its provisions binding on non-signatories to the Convention.
Article 27 of the said Convention provides that Women shall be especially
protected against any attack on their honour, in particular against rape, enforced
prostitution, or any form of indecent assault.
International Criminal Tribunal for the Former Yugoslavia
The ICTY is a UN court which adjudicates war crimes committed during the
Yugoslavian war. Its main objective is to try those accused of murder, torture,
rape, slavery, and destruction of property, among others. Among the charges filed
against the more than 70 defendants are crimes of sexual violence such as sexual
assault and rape.
International Criminal Tribunal for Rwanda
The ICTR was instituted to prosecute those responsible for genocide and
other violations of international humanitarian law which took place in Rwanda.
This tribunal first introduced the concept of rape as a weapon of war. The

Tribunal is also the first to hold that mass rape during wartime is an act of
genocide.
Rome Statute of the International Criminal Court
The Rome Statute of the International Criminal Court is a treat which
instituted the International Criminal Court in 1998. The ICC is empowered to
prosecute international crimes such as genocide, crimes against humanity, war
crimes, and crimes of aggression if the state is either unable or unwilling to
prosecute.
Sexual violence and rape were formally recognized as crimes against
humanity and war crimes in the Rome Statute as provided for in the following
articles:
Article 7
Crimes Against Humanity
1. For the purpose of this Statute, crime against humanity means any of
the following acts when committed as part of a widespread or systematic
attack directed against any civilian population, with knowledge of the
attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in
violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy,
enforced sterilization, or any other form of sexual violence of
comparable gravity;

xx

Article 8
War Crimes
xx
2. For the purpose of this Statute, war crimes means:
xx
(xxii) Committing rape, sexual slavery, enforced prostitution, forced
pregnancy, as defined in article 7, paragraph 2(f), enforced sterilization, or
any other form of sexual violence also constituting a grave breach of the
Geneva Conventions.
xx

WHEN IS RAPE A CRIME AGAINST HUMANITY?

According to the International Criminal Court, the elements of the crime

against humanity of rape as are follows:
1. 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.
2. The invasion was committed by force, or by threat of force or coercion, such
as that caused by fear or 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.
3. The conduct was committed as part of a widespread or systematic attack
directed against a civilian population.
4. 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.
The elements as provided by the ICC imply a gender-neutral approach to the
concept of rape as a crime against humanity. It infers that the act of invasion is
broad enough to cover both genders. Furthermore, Paragraph 2 provides the lack
of genuine consent as an element. Lack of genuine consent may be caused by fear,
coercion, force, or lack of capacity to give consent. Paragraph 3 requires that the
act was widespread and systematic, as compared to random individual accounts
of rape. Lastly, Paragraph 4 requires that the act of rape was conducted against a
civilian population.
Historically, women were seen as prizes for the victors. Discouraged soldiers
raped women and children to boost their morale. The enemys wives and
daughters served as prizes. Moreover, women were seen as properties of their
husbands and fathers. Therefore, any attack on their person is essentially an
attack on the male figure as well.
Over time, this developed into a military tactic for ethnic cleansing and
genocide. Women became mere birthing stations who were to give birth to kids
who would be enslaved, trained as soldiers, or sold. Furthermore, rape was also
used as a weapon for genocide through intentional impregnation as well as
intentional infection of HIV and other sexually transmitted diseases.

INTERNATIONAL JURISPRUDENCE ON RAPE CASES

Tokyo War Crimes Tribunal

The Tribunal was convened to prosecute the leaders of Japan for war crimes.
There were 28 defendants composed of military and government officials.
Among the charges were plundering private and public property, mass murder,
rape, pillage, brigandage, and torture. Regarding the judgment, some defendants
were sentenced to death, some were sentenced to life imprisonment, some were
sentenced to 20 years, and so on. The judgment was, however, criticized by our
very own Justice Delfin for being lenient. The exclusion of the imperial family was
also criticized as the Emperor and the family was absolved from liability.
Prosecutor vs. Kunarac, et al.
During the armed conflict in Foca from 1992-1993, Non-Serb civilians were
victims of murder, rape, and torture. The main target of these atrocities were
Muslims and other Non-Serb inhabitants. In 2001, the ICTY found Dragoljub
Kunarac, Radomir Kovac, and Zoran Vukovic guilty of crimes against humanity.
They were found guilty of multiple counts of enslavement, rape, murder, torture,
and violations of the law and customs of war. Kunarac was sentenced to 28 years,
Kovac to 20 years, and Vukovic to 12 years.
Prosecutor vs. Furundzija
Anto Furundzija was a local commander of a unit of the Croatian Defence
Council in Central Bosnia and Herzegovina. Some of the allegations include Anto
Furundzija, while interrogating a Muslim woman, sexually harassed said woman
and did not prevent his subordinates from doing the same. He was charged with
one count of grave breach of the Geneva Convention and two counts of violations
of the customs of war. He was found guilty of aiding and abetting in outrages
upon personal dignity, including rape.

Prosecutor vs. Edouard Karemera

The accused here are Edouard Karemera and Matthieu Ngirumpatse. The
allegations include conspiracy to commit genocide, direct and public incitement
to commit genocide, genocide, complicity in genocide, rape and extermination as
well as crimes against humanity; and killing and causing violence to health and
mental well-being. The prosecution was able to prove beyond reasonable doubt
that women were raped and sexually assaulted on a large scale.

IS RAPE AN EFFECT OR A WEAPON OF WAR?

On the surface, war is a mere effect of war. War allows for widespread
destruction and highlights the vulnerability of women. Political turmoil causes
men to be called to service, leaving their wives and children behind. The
accessibility of women as well as the comfort they provide to tired and weary
soldiers lead to incidents of rape.
However, over time, rape has transformed into a weapon of war. At the onset,
it merely provided comfort to weary troops. Over time, it has changed into the
weapon itself.
It has been converted into a weapon of ethnic cleansing. Through systematic
attacks of rape and other forms of sexual violence, rape has transformed into a
mode by which genocide is committed. It has caused victims to be ostracized in
their communities, leading to the weakening of the victims social groups.
Rape was used to transmit HIV and other sexually transmitted diseases so as
to cause massive infection among the enemy population. Instances of forced
pregnancy were common as a means to further spread sexually transmitted
disease, traumatize women, break religious or cultural customs, and spread the
perpetrators ethnicity.

It is saddening to conclude from the above research that rape is no longer a

mere contingent event of war but already a means by which to achieve the ends
of war. It capitalizes on the seeming vulnerability and frailty of women and
children and spreads fear and terror in the enemy population. Rape is not a mere
crime of sexual violence. It is driven by the urge to control and not mere lust. It is
an exercise of control over the victim. Perpetrators use rape and sexual violence
to demonstrate their superiority of the victims.
The development of the response of the international community is also
evident in the creation of tribunals and the punishment of the war criminals. The
concept of rape as a war crime has evolved through the creation of these
tribunals and through jurisprudence. However, it is unfortunate that justice is
only served after the war has ended. There is little to no action on cases of
wartime rape while the conflict is still ongoing. The challenge faced by both the
international community and the individual countries is how to end impunity
and push for greater accountability.