Defining Rape in War: Challenges and Dilemmas

Dr Olivera Simić, Jean Collings

Abstract


This paper is an analysis of the International Criminal Court (‘ICC’) decision in the case of The Prosecutor v Jean-Pierre Bemba, handed down in 2016. This case was the first at the ICC to deliver a conviction for the crime of rape during armed conflict and marks the most recent attempt to accurately and comprehensively define the crime of wartime rape. In assessing the ICC’s definition, we have drawn significantly from the case law in relation to wartime rape that emerged from the International Tribunal for Rwanda and the International Tribunal for the Former Yugoslavia. These international tribunals provided a space for significant development in this area of law and were the catalyst for rich feminist academic discourse. We argue that the ICC has inadequately addressed gender stereotypes that have dominated the process of criminalising wartime rape since it was first introduced into international law.  

We base this argument on the ICC’s decision to adopt a definition of wartime rape that is over-reliant on a consideration of the surrounding circumstances of the act and does not link these circumstances to a consideration of the victim’s lack of consent. We identify three ways in which the Bemba definition has failed to challenge the generalising and over-simplification of gender roles in armed conflict. The first is that it has diminished female sexual agency by representing armed conflict as a zone in which consensual sexual penetration is a legal impossibility. Second, this has contributed to the perpetuation of the ideal victim archetype that plagues narratives of wartime rape and sexual violence. The representation of victims as powerless, female civilians or refugees creates a dangerous binary construct of the victim and perpetrator roles that only serves to flatten the complex and nuanced ways in which sexual agency is exercised during times of war. Finally, the perpetuation of the ideal victim/perpetrator archetype also threatens the ICC’s ability to appropriately protect the right of the accused to a fair trial and a presumption of innocence.


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References


A Articles/Books/Reports

Askin, Kelly D, ‘Prosecuting Wartime Rape and Other Gender-Related Crimes under International Law: Extraordinary Advances, Enduring Obstacles’ (2003) 21 Berkeley Journal of International Law 288

Baaz, Maria Eriksson, and Maria Stern, ‘The Complexity of Violence: A Critical Analysis of Sexual Violence in the Democratic Republic of Congo’ (Working Paper on Gender Based Violence, The Nordic Africa Institute and SIDA, May 2010)

Baines, Erin, I am Evelyn Amony: Reclaiming My Life from the Lord's Resistance Army (University of Wisconsin Press, 2015)

Boon, K, ‘Rape and Forced Pregnancy under the ICC Statute: Human Dignity, Autonomy, and Consent’ (2000) 32 Columbia Human Rights Law Review 625

Buss, Doris E, ‘Knowing Women: Translating Patriarchy in International Criminal Law’ (2013) 23(1) Social and Legal Studies 73

Buss, Doris E, ‘Rethinking “Rape as a Weapon of War”’ (2009) 17 Feminist Legal Studies 145

Casey-Maslen, Stuart (ed), The War Report (Oxford University Press, 2012)

Cassese, Antonio (ed), The Oxford Companion to International Criminal Justice (Oxford Scholarly Authorities on International Law, January 2009)

Clark, Janine Natalya, ‘The First Rape Conviction at the ICC: An Analysis of the Bemba Judgment’ (2016) 14 Journal of International Criminal Justice 667

Cole, Alison, ‘Prosecutor v Gacumbitsi: The New Definition for Prosecuting Rape under International Law’ (2008) 8 International Criminal Law Review 55

D’Aoust, Marie-Alice, ‘Sexual and Gender-Based Violence in International Criminal Law: A Feminist Assessment of the Bemba Case’ (2017) 17 International Criminal Law Review 208

Engle, Karen, ‘Feminism and Its (Dis)Contents: Criminalizing Wartime Rape in Bosnia and Herzegovina’ (2005) 99 American Journal of International Law 778

Grewal, Kiran, ‘Rape in Conflict, Rape in Peace: Questioning the Revolutionary Potential of International Criminal Justice for Women's Human Rights’ (2010) 33 The Australian Feminist Law Journal 57

Grewal, Kiran, ‘The Protection of Sexual Autonomy under International Criminal Law’ (2012) 10 Journal of International Criminal Justice 373

Halley, Janet, ‘Rape in Berlin: Reconsidering the Criminalisation of Rape in International Law of Armed Conflict’ (2008) 9 Melbourne Journal of International Law 78

Helms, Elissa, Innocence and Victimhood: Gender, Nation, and Women’s Activism in Postwar Bosnia-Herzegovina (The University of Wisconsin Press, 2013)

Henry, Nicola, ‘Theorizing Wartime Rape: Deconstructing Gender, Sexuality and Violence’ (2016) 30(1) Gender and Society 44

Lai, Sarah Y, and Regan E Ralph, ‘Female Sexual Autonomy and Human Rights’ (1995) 8 Harvard Human Rights Journal 201

Lee, Roy S, ‘An Assessment of the ICC Statute’ (2001) 25(3) Fordham International Law Journal 750

MacKinnon, Catharine, ‘Defining Rape Internationally: A Comment on Akayesu’ (2006) 44 Columbia Journal for Transnational Law 940

MacKinnon, Catharine, ‘Rape, Genocide, Women’s Human Rights’ (1994) 17 Harvard Women’s Law Journal 5

MacKinnon, Catharine, ‘Rape Redefined’ (2016) 10 Harvard Law and Policy Review 431

MacKinnon, Catharine, ‘The Recognition of Rape as an Act of Genocide — Prosecutor v Akayesu’ (2008) 14(2) New England Journal of International and Complementary Law 101

Nedelsky, Nadya, and Lavinia Stan (eds), Encyclopedia of Transitional Justice (Cambridge University Press, 2012)

Patel, Krishna R, ‘Recognising the Rape of Bosnian Women as Gender-Based Persecution’ (1994) 60 Brooklyn Law Review 929

Schomburg, Wolfgang, and Ines Peterson, ‘Genuine Consent to Sexual Violence under International Criminal Law’ (2007) The American Journal of International Law 121

Simić, Olivera, ‘Challenging Bosnian Women’s Identity as Rape Victims, as Unending Victims: The “Other” Sex in Times of War’ (2012) 13(4) Journal of International Women’s Studies 129

Simić, Olivera ‘Engendering Transitional Justice: Silence, Absence and Repair’ (2016) 17 Human Rights Review 1

Simić, Olivera, ‘Feminist Research in Transitional Justice Studies: Navigating Silences and Disruptions in the Field’ (2016) 17 Human Rights Review 95

Simić, Olivera, Silenced Victims of Wartime Sexual Violence (Routledge, 2018)

Tabak, Shana, ‘The False Dichotomies of Transitional Justice: Gender, Conflict and Combatants in Columbia’ (2011) 44 International Law and Politics 103

Utas, Mats, ‘Victimcy, Girlfriending, Soldiering: Tactic Agency in a Young Woman's Social

Navigation of the Liberian War Zone’ (2005) 78(2) Anthropological Quarterly 403

Weiner, Phillip, ‘The Evolving Jurisprudence of the Crime of Rape in International Criminal Law’ (2013) 54(3) Boston College Law Review 1207

Weissbrodt, David, and Kristen K Zinsmaster, ‘Protecting the Fair Trial Rights of the Accused in International Criminal Law: International Criminal Court and the Military Commissions in Guantanamo’ in Research Handbook on International Criminal Law (Edward Elgar Publishing Ltd, 2011)

Women in the Law Project, ‘No Justice, No Peace: Accountability for Rape and Gender-Based Violence in the Former Yugoslavia’ (1994) 5(1) Hastings Women’s Law Journal 91

Zawati, Hilmi M, ‘Book Review: Rethinking Rape Law’ (2014) 10 Journal of International Law and International Relations 31

B Cases

The Prosecutor v Akayesu (Judgement) (International Criminal Tribunal for Rwanda, Judgment, Trial Chamber, Case No ICTR-96-4-T, 2 September 1998)

The Prosecutor v Anto Furundžija (Judgement) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No IT-95-17/1-T, 10 December 1998)

The Prosecutor v Delalic, Mucic, Delic, and Landzo (Judgment) (International Criminal Tribunal for Former Yugoslavia, Trial Chamber, Case No IT-96-21-T, 16 November 1998) (‘Celebici Trial Judgment’)

The Prosecutor v Gacumbitsi (Judgement) (International Criminal Tribunal for Rwanda, Appeals Chamber, Case No ICTR-2001-64-A, 7 July 2006)

The Prosecutor v Gacumbitsi (Judgement) (International Criminal Tribunal for Rwanda, Trial Chamber, Case No ICTR-2001-64-T, 17 June 2004)

The Prosecutor v Germain Katanga (Judgment) (International Criminal Court, Judgment, Trial Chamber II, Case No ICC-01/04-01/07, 7 March 2014)

The Prosecutor v Jean-Pierre Bemba Gombo (Judgement) (International Criminal Court, Trial Chamber III, Case No ICC-01/05-01/08-3343, 21 March 2016)

The Prosecutor v Kunurac, Kovac, and Vukovic (Judgement) (International Criminal Tribunal for Former Yugoslavia, Appeals Chamber, Case No IT-96-23-I & IT-96-23/1-A, 12 June 2002)

The Prosecutor v Kunurac, Kovac, and Vukovic (Judgement) (International Criminal Tribunal for Former Yugoslavia, Trial Chamber, Case No IT-96-23-T & IT-96-23/1-T, 22 February 2001)

C Others

Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950)

International Criminal Court, Elements of Crimes, Doc No ICC-RC/11 (adopted 31 May–11 June 2010)

International Criminal Court, ‘Policy Paper on Sexual and Gender-Based Crimes’ (Policy Paper, June 2014)

International Criminal Court, Rules of Procedure and Evidence, Doc No ICC-ASP/1/3 (adopted 9 September 2002)

Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002)