By Prof. Bharat H. Desai
Sexual violence against women during conflicts has been used as a tactic and weapon of war. It is not just rape out of control, but rape under orders, as means of pursuing military, political or economic ends.
On 19 June 2022, the world stood up to say ‘NO’ to sexual violence (SV) against women in conflicts and call for its elimination. Notwithstanding the worldwide reality of use of SV as a ‘weapon of war’, this International Day will witness powerful protest against SV. This write-up is a sequel to the 28 May 2022 article on “Use of Food as a Weapon of War” (https://sisblogjnu.wixsite.com/website/post/blog-exclusive-use-of-food-as-a-weapon-of-war-a-challenge-for-international-law ).
The global humanitarian watchdog, the Geneva based International Committee of the Red Cross (ICRC) brought to the public on 19 June 2022 the two uprooted dead trees at the place du Rhône and in Palais des Nations. Instead of treetops, irritating, blood-red roots will invade the sky. It will be symbolic outcry for “all the persons whose human dignity and integrity have been torn down and violated by SV in conflicts” (ICRC campaign on the international day for the elimination of sexual violence in conflict | International Committee of the Red Cross). In most of the conflicts, SV in general and ‘rape’ in particular as predominant form of sexual and gender-based violence (SGBV) against women has been used with fatal consequences. The warring factions seek to hit the ‘soft belly’ where it hurts the most. Mass rapes have been used as cheaper and lethal weapons than even bullets.
Brutality of Wars
This author has, for years, taught the MA Winter Semester Core Course on Legal Controls of International Conflicts. The CILS course emanated from the 1959 treatise by the same name by Julius Stone, who visited predecessor of SIS, the Indian School of International Studies at its infancy. Notwithstanding teaching of the legal framework for control of international conflicts, one is always alive to the reality that wars have been as old as human existence and perceived as ‘extra-legal’ – neither legal no illegal. Yet there has always been a quest for ‘outlawry’ of war as seen in 1899 & 1907 Hague Peace Conferences, 1919 Treaty of Versailles and 1928 Pact of Paris. Even after the advent of the 1945 UN Charter with a ‘blueprint’ for prohibition of threat or use of force [Article 2 (4)], scores of conflicts have taken toll of “millions of people”, as warned by the US President Truman, at San Francisco Opera House on 26 June 1945, about consequences for not taking the UN seriously. In view of this reality, all right-thinking peoples and genuine scholars, have been left with the only option of ‘taming the beast’ of war, dubbed as a ‘scourge’ by Preamble to the UN Charter.
It came out vividly in the award of 2018 Nobel Peace Prize to Congolese gynaecologist Denis Mukwege and Nadia Murad, the Yezidi victim of the IS brutality in Iraq. “If we want people to say ‘no more war’, we have to show how brutal it is”, Berit Reiss-Andersen, Chair of the Norwegian Nobel Committee said. It was emphatic global call to end the use of SV as a weapon of war in the 21st century.
Rape under Orders: A Neglected crime
SV against women during conflicts has been used as a tactic and weapon of war. It is not just rape out of control, but rape under orders, as means of pursuing military, political or economic ends. SV against women has occurred and continues to occur before, during, and after most of the wars. The horrors of Pakistani army’s brutal efforts to crush 1971 Bangladeshi liberation movement are etched in collective memory. The systematic mass rapes in final days of Bangladesh war, the Tamil Eelam war in Sri Lanka, Maoist insurgency in Nepal and during partition of the Indian sub-continent are instances of large-scale SV against women. All have remained unaccounted for. It shows that SV in conflicts persists due to acceptance of brutalities and resultant trauma that remains frozen in ‘walls of silence’.
Wars leave behind gory incidents, horrid stories, painful past and many wounds that refuse to heal with the passage of time. During the Second World War, the Japanese ‘comfort stations’ massively abused women drawn from its empire as sex slaves. It remains a festering wound in the Japan-Korea relations even after 2015 Japanese apology. It shows how wounds of the past refuse to heal.
Big Challenge for the UN
At the 68th UN General Assembly (2014), 122 Member States endorsed a Declaration of Commitment to End Sexual Violence in Conflict. It resolved to end pernicious culture of impunity by bringing perpetrators of SV in conflicts to justice. There have been appointments of special envoy by the UNSG, special rapporteurs by the HRC and the UN Women remains the focal point for SV against women. Similarly, the UN Security Council Resolutions 1325 (2000) and 1820 (2008) have brought the agenda item ‘women, peace and security’. The Statutes of the UNSC mandated international criminal tribunals (ICT) in Rwanda, Yugoslavia and Sierra Leone contain crimes of sexual violence. The 1998 Rome Statute of ICC became the first global treaty that recognized rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and other forms of SV as distinct types of war crimes.
These ICTs had limited capacity to provide justice to SV inflicted upon women during conflicts. They recognize only a small set of the SV against women, fell short of addressing gender-based harms and gender biases. The Sierra Leone civil war infamously gave birth to notorious tradition of ‘bush wife’ wherein abducted girls and women were forcibly assigned to rebel commanders and routinely tormented by their rapists.
Survivors’ Right to Heal
In view of such institutionalized practices, there is a tendency to dismiss SV as inevitable by-product of war, random acts of few renegades, or mere collateral damage! Nobel Laurate Desmond Tutu, Chairman of the South African Truth and Reconciliation Commission, once remarked that “we needed to look the beast in the eye, so that past wouldn’t hold us hostage anymore”.
There has been persistent search for appropriate institutional designs that could deal with mass atrocities in conflict-ridden societies and foster justice in the post-conflict period. The scholarly discourses hover around the Transitional Justice (TJ). TJ processes deal with the aftermath of violent conflicts and systematic human rights abuses to create conditions for peaceful future for tormented societies. It comprises a number of instruments and mechanisms including criminal tribunals, truth commissions, memory work, reparation and institutional reforms. Cumulatively, these measures aim at uncovering the truth about past crimes, holding perpetrators accountable, vindicating the dignity of victims-survivors and contributing to reconciliation.
Ironically, the post-war accountability jamboree, the quest for justice of women survivors is aggravated by shame, stigma, fear and futility. In the legal and political maze of ending or transmuting conflict, women survivors rarely find space to influence policies, laws and institutional structures adversely affect them. In a sign of new hope, gender-based approaches have gained significant attention in recent years in international criminal law, transitional justice mechanisms and peace building processes.
SV not Inevitable
Due to an overwhelming emphasis on sexual and penetrative violations of women’s bodies, there has been insensitivity towards emotional harm, harm to the homes, personal spaces, to children and to others with whom women are intimately connected. It calls for sovereign states, the UN and international relief and humanitarian agencies such as the ICRC as well as scholars to come out with urgent ideational solutions.
The ICRC’s call that wartime SV is “not inevitable” is an emphatic declaration. This would, however, necessitate concrete inter-governmental legal framework of action under a global treaty, pre-emptive measures to end SV against women, socio-economic-psychological support structures for the survivors and mechanism to hold states and non-state actors accountable for violations of IHL and ICL.
An in-depth study of conceptual, legal and institutional framework for the challenge of SGBV has been provided separately in the author’s just released 2022 work, with a foreword by Peter Maurer, the President of the ICRC (Geneva): Sexual and Gender-Based Violence in International Law: Making International Institutions Work (Singapore: Springer Nature, 2022); Sexual and Gender-Based Violence in International Law | SpringerLink
Professor Dr. Bharat H. Desai is Jawaharlal Nehru Chair and Professor of International Law at the Centre for International Legal Studies of SIS, JNU. He coordinated the Making SIS Visible initiative during 2008-2013 (Making SIS Visible | Welcome to Jawaharlal Nehru University (jnu.ac.in) as well as Inter-University Consortium (Partner Universities: JNU, Jammu, Kashmir and Sikkim) during 2012-2020 (www.iucccc.in/Contact us.htm).