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The Cultural Value of Sexual Violence

Published online by Cambridge University Press:  28 February 2017

Patricia Viseur Sellers
Patricia Viseur Sellers*
Affiliation:
Office of the Prosecutor at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda.
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Type
Culture
Information
Proceedings of the ASIL Annual Meeting , Volume 93 , 1999 , pp. 312 - 324
Copyright
Copyright © American Society of International Law 1999

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References

1 S.C. Res. 827, (25 May 1993) Established the International Criminal Tribunal for the Former Yugoslavia. S.C. Res. 955 (8 Nov. 1994) Established the International Criminal Tribunal for Rwanda.

2 Prosecutor v. Akayesu, Judgment and Opinion, Case No. ICTR-96-4-T, 2 Sept. 1998.

3 Prosecutor v. Zejnil Delalic et al., Judgment, IT-96-21-T, 16 Nov. 1998. (Hereafter [Delalic] Judgment. This Judgment is Informally Known As “Celebici”)

4 Prosecutor V. Anto Furundzija, 10 Dec. 1998, Case No. IT-95-17/I-T.

5 Article 2(2) Reads in Part:

Genocide Means any of the Following Acts Committed with Intent to destroy, In whole Or part a national, ethnical, racial or religious group, as such:

  1. (a)

    (a) killing members of the group;

  2. (B)

    (B) causing serious bodily or mental harm to members of the group;

  3. (C)

    (C) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

Statute of the Criminal Tribunal for Rwanda attached to the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwanda Citizens Responsible for Genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994, S.C. Res. 955, Annex (8 Nov. 1994), reprinted in 33 ILM 1158 (1994) (“Statute of the ICTR”).

6 See Akayesu, supra note 2, para. 731.

7 Id., para. 598.

8 Statute of the ICTY attached to the Report of the Secretary-General Pursuant to Paragraph 2 of the Security Council Resolution 808, U.N. Doc. S/25704, Annex (1993), reprinted in 32 ILM 1159 (“Statute of the ICTY”).

9 Delalic Judgment, supra note 3, para. 1066.

10 The Furundzija Trial Chamber set forth the elements of rape as follows:

  1. (i)

    (i) sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator;

  2. (ii)

    (ii) by coercion or force or threat of force against the victim or a third person.

11 M.H. Keen, The Law of War in the Late Middle Ages 64 (1965).

12 Monumenta Juridica, Introduction to the Book of Admiralty, App. 549 (T. Twiss ed., 1871), cited in Meron, T., Shakespeare’s Henry the Fifth and the Law of War, 86 AJIL 23, n. 32 (1992)CrossRefGoogle Scholar.

13 See Obote-Oddora, Alex, The Judging of War Criminals: Individual Criminal Responsibility under International Law 108 (1997) (unpublished doctoral thesis). University of Stockholm, Faculty of LawGoogle Scholar.

14 Id. at 12, n. 419.

15 See Treaty of Amity and Commerce, U.S.-Prussia, 10 Sept. 1785, reprinted in 2 Treaties Conventions, International Acts, Protocols and Agreements Between the U.S. and Other Powers 1776-1909 Malloy Collection (1910).

16 Id.

17 See Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, Geneva, 22 Aug. 1864. 18 Martens 607, 22 Stat. 940, T.S. No. 377. Convention with Respect to the Laws and Customs of War, The Hague, 29 July 1899.26 Martens(2n) 949, 32 Stat. 1803, T.S. No. 403. reprinted in 1 AJIL 129 (1907) (Supp.); 1 Friedman 221; Schindler & Toman 57. Laws and Customs of War on Land, Annex to the Convention Regulations Respecting the Laws and Customs of War (Hague II)—The Hague, 29 July 1899. 26 Martens (2d) 949, 32 Stat. 1803, T.S. No. 403. reprinted in AJIL 129 (1907) (Supp.); 1 Friedman 221; Schindler/Toman 57.

18 Instructions for the Government of Armies of the United States in the Field by Order of the Secretary of War, 24 Apr. 1863 (the “Lieber Code”), reprinted in the Laws of Armed Conflict 3 (Schindler & Toman eds., 3d rev. ed. 1988).

19 Id. art. 4.

20 Id. art. 25.

21 Id. art. 22.

22 Article 16 of the Lieber Code states: “Military necessity does not admit of cruelty—that is the infliction of suffering for the sake of suffering or revenge ... nor the wanton destruction of a district.”

23 Article 42 of the Lieber Code states that “Slavery, that is complicating ... the ideas of property (of a thing) and of personality (that is of humanity) exist ... in local law only” and distinguishes between property and personality, stating that to hold persons as property is incompatible with the humanity. Article 43 of the Code does not permit an any officer to enslave a person or return a person to a status of slavery, concluding that “a person so made free by the law of war is under the shield of the law of nations.”

24 Convention Respecting the Laws and Customs of War on Land, and Annex to the Convention, Regulations Respecting the Laws and Customs of War on Land, (Hague IV), The Hague, 18 Oct. 1907, 3 Martens (3d) 461, 36 Stat. 2277, T.S. No. 539 (“Hague Convention IV”), reprinted in 2 AJIL 90 (1908) (Supp). [hereinafter Hague IV].

25 Id., art. 55, Annex to the Convention.

26 W., art. 56, Annex.

27 Id., art. 48, Annex.

28 id., art. 43, Annex.

29 Id., art. 46, Annex.

30 See M. Cherif Bassiouni, Crimes Against Humanity in International Law 554 (1992).

31 See Convention Relative to the Treatment of Prisoners of War, 27 July 1929, 47 Stat. 2921, T.S. No. 846. Commentary to the 1929 Geneva Convention 20. Gustav Rasmussen, Code Des Prisioniers De Guerre: Coment Aire De La Conventions Du 27 Juillet 1929 Relative Au Treatment Des Prisonniers De Guerre (Leve & Munksgaard eds., 1931).

32 Id.

33 See discussion of how these crimes were included in the proceedings in K.D. Askin, War Crimes against Women: Prosecutions in International War Crimes Tribunals 180 (1997).

34 Id. See also McDonald, A., Sex Crimes at the ad hoc Tribunals, nr. 3, in Nemesis 72 (1999)Google Scholar. Tokyo trial documents reprinted in the Tokyo War Crimes Trial: the Complete Transcript of the Proceedings of the International Military Tribunal for the fareast at 1029, 1066 (R. Pritchard & S. Zaire eds., 1981)(“IMTFE Docs”). Substantive and Procedural Aspects of International Criminal Law (Gabrielle Kirk McDonal & Olivia Swaak-Goldman eds., forthcoming 1999).

35 See Sellers, Patricia Viseur, Rape and Sexual Assaults as Violations of International Humanitarian Law: Substantive and Procedural Aspects of International Law: The Experience of International and National Courts. Vol. 1 (Kirk-McDonald, C. and Swaak-Goldman, D., eds., Dorth)Google Scholar.

36 Id., vol. 1, at 23. Tokyo, id.

37 Trial of the Major War Criminals before the Military Tribunal, 14 Nov. 1945-1 Oct. 1946 (42 Vol., 1947), vol. 1, at 83 (“INT Docs.”).

38 Id., vol. I, at 83. IMTFE Docs, supra note 36, vol. 2, at 2, 595. IMT Docs.

39 Askin, supra note 35, at 180.

40 W. at 181-84.

41 Charter of the International Military Tribunal, annexed to the London Agreement, 8 Aug. 1945, 8 UNTS 279; 59 Stat. 1544, 8 AS No. 472 (“Nuremberg Charter”), reprinted in Bassiouni, supra note 32, at 582.

The crimes against humanity provision in Article 6(b) of the Nuremberg Carter is substantively identical to the scope of its Nuremberg counterpart in 5(c) of the Tokyo Charter and reads in part: “Crimes Against Humanity: Namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political or racial grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not a violation of the domestic law of the country where perpetrated.”

42 Bassiouni, supra note 32, at 558-59.

43 The Nuremberg Judgment discusses crimes that German political and military leaders committed against their own country’s nationals, while the IMTFE prosecuted crimes against humanity that were directed at civilians of other countries, such as China and the Philippines.

44 Universal Declaration of Human Rights, G.A. Res. 217A, 3 U.N. GAOR at 71, U.N. Doc. A/810 Art. 5 (1948).

45 Convention on the Prevention and Punishment of Genocide, done Dec. 9, 1948, 78 Unts 277 (entered into force Jan. 12, 1951) (“Genocide Convention”).

46 The Geneva Convention for the Amelioration of the Conditions of the Wounded and Sick in Armed Forces in the Field (“First Geneva Convention”) 1, 75 UNTS 31; Geneva Convention for the Amelioration of the Conditions of the Wounded and Sick and Shipwrecked Members of Armed Forces at Sea (“Second Geneva Convention”) 75 UNTS 85; Geneva Iv Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention) 75 UNTS 135; and Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) 75 UNTS 287.

47 Preliminary Remarks to the Geneva Conventions, in The Geneva Conventions of August 12, 1949, 1 (circa 1994) (“Preliminary Remarks”).

48 Geneva Conventions, supra note 49, Common Article 12 of First Geneva Convention and the Second Geneva Convention, and Article 14 of the Third Geneva Convention.

49 Article 27, Fourth Geneva Convention, supra note 49.

50 Id. The principle is contained in Common Article 12 of the First Geneva Convention and the Second Geneva Convention as well as Common Article 3 to each of the Four Geneva Conventions.

51 Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and Relating to the Protection of Victims of International Armed Conflict, done 8 June 1977, 1125 UNTS 3 (entered into force 7 Dec. 1978), reprinted in 16 ILM 1391 (1977) (“Additional Protocol I”); Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts, done 8 June 1977, 1125, UNTS 609 (entered into force 7 Dec. 1978), reprinted in 16 ILM 182 (1977) (“Additional Protocol Ii”).

52 For a comprehensive review of the late-twentieth-century phase of the drafting of international instruments that anchor the right of women in the international setting, see Askin, supra note 35, at 204-60. The final chapter of the later twentieth century is most likely the Statute of the International Criminal Court, adopted 17 July 1998 in Rome. A/CONF. 183/9 (17 July 1998).

53 Yougindra Kushalani, Dignity and Honour of Women as Basic and Fundamental Human Rights 58 (1982).

54 Id. at 59.

55 “Additional Protocol I,” supra note 54, art. 51(1), (2) and (6).

56 Id. art. 75.

57 See Kushalani, supra note 56, at 68.

58 “Additional Protocol II,” supra note 54, art. 4.

59 Akayesu, supra note 2, para. 731

60 Id.

61 Furundzija, supra note 4, paras. 183-184, and Delalic, supra note 3, at 1066.

62 Delalic, supra note 3, para. 941.

63 Id. para. 495.

64 Furundzija, supra note 4, para. 186

65 Kushalani, supra note 56, at 51.