RAPE AS A WAR CRIME

Fordham

As we prepare to embark on a new millennium and chart a course toward a
stronger world built on peace, security and a healthy respect for the
rule of law, it is appropriate that we reflect and take stock of where
we are in the advancement of international humanitarian law. As
Ambassador at Large for War Crimes Issues, I have to focus on conflicts
and related atrocities across the globe. My work requires me to meet
with victims and survivors who are traumatized, demoralized and weak. As
a result I have traveled to many war zones and have seen the abominable
effects of war be it in Sudan or Kosovo, Sierra Leone or Cambodia. An
integral component of each crisis is the systematic attack against a
civilian population.

Canvassing the globe, what becomes clear, regardless of the internal or
international, character of the conflict, is that no one is safe. Worse
yet perpetrators do not consider any act off limits. And nowhere is this
more apparent than it is in attacks committed against women. Uniformly,
these crimes are becoming more blazoned and more horrific in their
character and commission. It is almost as if the attackers are boldly
defying and challenging the acceptable moral standards set by humankind
and daring anyone to take action even as they threaten escalated
inhumanity if outside forces intervene in any way or begin to record the
crimes committed. But fortunately, the tide is turning.

In the past, as many in this room are all too aware, rape and acts of
sexual violence against women went unrecognized and unchallenged. In
many conflicts, some soldiers, perpetrators and world leaders viewed
rape as a fringe benefit of war, an unspoken perk. While some observers
have dismissed incidents of rape, with the reason that men, or as so
often seen, boys, simply get out of hand or out of control after a rough
day on the battlefield, recent history has shown that organized,
systematic patterns of rape are a component of deliberate ethnic
cleansing. The world community on occasion ignored the truth that these
acts are not simply acts of recklessness, but acts of torture.

Fortunately, thanks in large part to the noble effort of many in this
room, today we have a new weapon: THE LAW. Specifically defined
prohibitions against rape evolved against the backdrop of its all too
frequent use as a weapon of war. Despite the fact that the prohibition
against rape was not specifically identified, what many consider to be
the first recorded international criminal tribunal, held in 1474,
convicted Peter von Hagenbach and ordered his execution on a number of
offenses which included rape.

The crime of rape has long existed under customary international law.
The Leiber Code listed rape as a specific offense, and made it a capital
offense. The Hague Conventions, World War II prosecutions, and the
Geneva Conventions all reinforced the prohibitions on rape and other
sexual violence. Although it was not codified in their Charter, some
evidence of sexual violence was presented before the International
Military Tribunals, after World War II, most notably, before the
International Military Tribunal for the Far East where rape was first
specifically referenced in the judgments. Unfortunately, in the Tokyo
Trials, acts of sexual violence and rape were not placed at a level that
would allow them to stand alone. The Tribunal and its lawyers, while
deserving ample credit for presenting the evidence and recognizing the
atrociousness of the offenses committed upon women in places such as
Nanking, Borneo, the Philippines and French Indo-China, lumped the acts
of sexual violence under the residual umbrella of Crimes Against
Humanity - Inhumane Treatment.

This resulted in a blur. Rape was lost in the barbarous mass of the
overall crimes. It became a passing reference in a tale of horror. In
the end, no one knew whether rape in time of conflict could be
prosecuted as a separate substantive crime standing on its own merits
under international law. It was left to scholars and interested people
like you to opine and speculate. The only solace arose from the Allied
Control Council Law No. 10, *Punishment of Persons Guilty of War Crimes,
Crimes Against Peace and Against Humanity*, which specifically mentioned
rape in its charter.

But today, we find ourselves in an enormously stronger position to
investigate, document and prosecute rape and other forms of sexual
violence. Rape and sexual violence now have a firm foothold as
specifically enumerated offenses under international humanitarian law.
This cementing began in 1993 and 1994 after rape, and sexual violence,
was specifically codified for the first time as a recognizable and
independent crime within the statutes of the International Criminal
Tribunals for the Former Yugoslavia and for Rwanda. These two historic
international instruments are now the foundation upon which crimes of
rape and sexual violence are punished.

As a result, there is now solid caselaw holding that rape and sexual
violence are a form of genocide. The ICTY and ICTR cases have also
reinforced the legal basis for arguing that rape and sexual violence are
individual crimes against humanity, and also constitute violations of
the laws and customs of war. This jurisprudence handed down from both ad
hoc tribunals has forever altered the landscape of criminal prosecution
and affected the scope of consequences that any potential perpetrators
must consider.

And it all started quietly within the International Criminal Tribunal
for Rwanda in the case of the *Prosecutor v. Jean-Paul Akayesu.* In that
case, for the first time rape and acts of sexual violence were put on
equal footing with all other offenses. The Chamber in its progressive
decision captured the essence of the crime holding that

> "like torture, rape is used for such purposes as intimidation,
> degradation, humiliation, discrimination, punishment, control or
> destruction of the person." Like torture, rape is a violation of
> personal dignity, and ... in fact constitutes torture when it is
> inflicted by or at the instigation of or with the consent or
> acquiescence of a public official or other person acting in an
> official capacity."

The *Akayesu* decision also held that rape or sexual violence can be
prosecuted as genocide if the evidence shows that it is accomplished
with the intent to physically or psychologically destroy a group. This
landmark case is now the cornerstone of all future genocide and crimes
against humanity prosecutions. I am proud to say that I now have as a
member of my staff the prosecutor of the case, Pierre Prosper. We
support the legal strategy of the ICTR's Legal Advisor for Gender,
Patricia Sellers and others who put gender on the agenda.

In late 1998, the ICTY, produced equally historic precedents in the
*Celebici,* *Furudzija,* and *Delalic* cases. These judgments recognized
rape as a violation of the Laws and Customs of War and as a basis of
torture under the Geneva Conventions. The Trial Chamber of the ICTY held
in *Celebici* that it "considers the rape of any person to be a
despicable act which strikes at the core of human dignity and physical
integrity." *Furudzija* was a watershed because it was the first case to
consist exclusively of rape charges. The ICTY Trial Chamber in *Delalic*
adopted the *Akayesu* definition of rape as a "physical invasion of a
sexual nature, committed on a person under circumstances which are
coercive." The judges of ICTY will soon hear evidence in the *Konarac*
and *Kovac* cases that will be the first to allege sexual violence as a
form of enslavement. Next year before the ICTR, will be the first ever
case of a woman being prosecuted for rape as an aider and abettor.

The law of rape and sexual violence continues to evolve. Nowhere is that
more apparent then it is with the International Criminal Court. Next
month, in New York, governments will reconvene for the third session of
the Preparatory Committee meeting on the Rome Statute for the
International Criminal Court. The United States will renew discussions
regarding the elements of the offences within the statute. The crimes of
rape and other forms of sexual violence have already received extensive
discussion among the nations represented at the PrepCom. Throughout the
many debates surrounding the creation of the ICC, the United States has
been a strong advocate for the inclusion of rape and sexual violence as
specific offences for the world body to punish. We fought hard for laws
that help ensure the protection of women in times of conflict throughout
the world. And in New York we will continue to insist on elements of
crimes and rules of procedure and evidence that respect the dignity of
victims and the sensitivity of world cultures.

We are following many of the principles set forth in the *Akayesu*,
*Celebici, and Furudzija* cases and believe that the ability of a victim
of sexual assault to consent, whether a man or a woman, can be stripped
away by acts of force or the threat of force or coercion. Acts that can
eliminate consent are any acs that cause fear of violence, duress,
detention, or other forms of psychological oppression or abuse of power.
In short, an individual cannot take advantage of a coercive environment
and claim that a victim was a willing participant. As the Trial Chamber
held in *Furudzija*, conditions of captivity can combine to vitiate even
an apparent consent by the victim. Nevertheless, the United States'
position has been that the perpetrator has a fundamental right to
present a defense. In other words, a lack of consent cannot simply be
inferred or assumed. The United States has fought to retain the lack of
consent as a core component of the crime that cannot be ignored. That is
why in the last session of the PrepCom, we insisted and supported the
inclusion of language from this line of cases that recognizes the
effects an environment can have upon a victim. We also pushed for a
broader definition of rape that is gender neutral and treats physical
invasions by any object or body part no differently in the eyes of the
law, thus further protecting victims from the horror of inhumanity. The
ICTY has already recognized this principle in its *Tadic* decision, and
the current text of the elements of crimes for the ICC includes a
footnote that the concept of physical invasion is intended to be gender
neutral.

But as I mentioned, there are cultural sensitivities that must be
respected, in particular the question of how descriptive the elements
should be and to what level of detail a victim must describe the
horrendous events inflicted upon her or him. Should the word
"penetration" be used, or is the phrase "physical invasion" as captured
by the *Akayesu* decision be enough to provide sufficient notice and
information to all parties involved in the proceedings?

The United States feels that we must balance the degree of specificity
that some nations are demanding with the need not to unduly offend
victims and the court with mechanical descriptions of body parts. The
weighty decision to convict and punish a rapist should be made based on
clear and established criteria. We also do not want to see a proceeding
become a perverted process insulting to victims and adding to the
traumatization. We want a process that is fair to the victim and ensures
that an accused is fully informed of the nature of the charges against
him or her and can mount a defense. We are committed to working with
other delegations to ensure that the language of the final text will
balance all interests while embodying a significant advancement in the
law applicable to international enforcement of rape and other sexual
crimes.

We also want to see an expansion of the scope of criminal
responsibility. We want to ensure that the jurisprudence is such that no
one who is culpable escapes punishment. We welcome recent advancements
of international humanitarian law in the area of rape and sexual
violence that broaden the scope of individual criminal responsibility to
leaders and commanders who lend their influence and tacitly encourage
crimes against women. The *Akayesu* and *Furudzija* decisions hold that
officials and leaders can be directly responsible when they witness acts
of sexual violence and rape committed by attackers, even when those
attackers are not strictly under their chain of command. This is
reasonable case law in all armed conflicts, both internal and
international, as well as situations of genocide. This is ever so
important given that today's paramilitary and militia command structures
are often covertly organized and not easily defined. We must combat
these intentionally loosely knit paramilitary and militia by creating
laws that are flexible, thus piercing the shields that are designed to
hide the true culprits.

We are living in a world that continues to see abhorrent behavior. In
Kosovo and Rwanda, women and girls are still reeling from the aftermath
of having been herded and sexually violated in manners that shock the
conscience of civilized humans. In places like East Timor and Sierra
Leone, we are learning the full extent of the horror a vulnerable
population can experience. The violence has too often been widespread
and the crimes horrendous.

The United States will continue to stand strong against these forms of
inhumanity. We will continue to be a voice of reason and justice that
works to meet the needs of victims and punish the perpetrators of these
atrocities.

At the end of the day, the nations of the world must face the cruel
reality of our present situation. I believe that with the effective use
of international humanitarian law and a continued determination by all
of us as individuals to raise awareness and ensure the protections
against these evil acts, we can guide the course of history and
permanently provide equal status and equal punishment for crimes against
women.

Thank you.