Distinct Aspects of Systematic Sexual Violence as a Weapon of War and Their Implications for the Victims' Needs in Transitional Justice

Introduction

Rape and other acts of sexual violence are today widely acknowledged as weapons of war. In its Resolution 1820 (2008) on acts of sexual violence against civilians in armed conflicts, the United Nations(UN) Security Council noted that ‘….women and girls are particularly targeted by the use of sexual violence, including as a tactic of war to humiliate, dominate, instil fear in, disperse and/or forcibly relocate civilian members of a community or ethnic group’.² As it will be discussed in this Chapter, a significant amount of empirical studies and reports reveal how these practices have become a viable part of military strategies directly used to achieve clearly defined political or military ends. Further, as the jurisprudence of the international (ised) criminal tribunals indicates, the nature of sexual violence as a weapon reflects one of the most brutal aspects of modern warfare. In this way, judges of the Special Court for Sierra Leone (SCSL)³ in Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao, known as the Revolutionary United Front (RUF) case⁴ noted for instance that the manner in which sexual violence have been used by RUF ‘portray a calculated and concerted pattern on the part of the perpetrators to use sexual violence as a weapon of terror’.⁵

Armed conflicts provide a fragile environment for sexual violence. As Marsh, Purdin and Navani have rightly observed, these crimes are increasingly being committed in warfare settings than in non-conflict affected areas (M. Marsh, S. Purdin and S. Navani, 2006). Horrific data on systematic sexual violence as a weapon in modern conflicts back up this assertion, and such violence even continues to be inflicted on a massive scale in current conflicts. As discussed in chapter Two, these practices of extreme violence have been described in international criminal tribunals’ jurisprudence as inhumane acts constitutive of torture⁶, acts of genocide or ethnic cleansing to destroy a specific group⁷ or to change the ethnic make-up of the next generation by purposely impregnating the victims.

For the most part, the focus of the international criminal justice institutions namely the ICC⁸, the ad hoc international criminal tribunals for the former Yugoslavia⁹ and its sister for Rwanda¹⁰, and to some extent the international(ised) criminal institutions has been on crimes committed in the context of armed conflicts. Indeed, over the recent years, international criminal tribunals and courts have contributed to a wealth of practical jurisprudential and normative developments upon which international crimes are prosecuted. Particularly, despite continued challenges highlighted in chapter two, these tribunals have issued judgments characterising systematic sexual violence crimes as war crimes, crimes against humanity, and even acts of genocide, setting out a significant framework for the effective prosecution of these crimes before international criminal tribunals. Moreover, as discussed in the previous chapter, the ICC has taken a more significant step in addressing mass crimes by introducing victims into the criminal justice process in an effort to deliver justice for those who suffered harm as a result of mass atrocities.

The relatively new idea of justice for victims in international criminal justice process suggests that the criminal justice process should attend to victims’ needs, thereby contributing in the rebuilding process of war-torn communities. Addressing the needs of victims has become an important consideration in international criminal justice system. Whilst the significance of the growing victim-centred approach in international criminal justice cannot be overstated, as discussed in the previous chapter, whether and the extent to which this approach can enable the Court to effectively address the needs of victims of mass crimes is subject to lively and ongoing debate.