L AW 4 1 9 : I N T E R N AT I O N A L A N D C O M PA R AT I V E

CRIMINAL JUSTICE

Academic Year 2015/16, Term 2

Research Report

Prepared By
Emily Koh Jia Ling, S9448391C
Joy Lim Zhi In, S9411107B
Verna Goh Shilei, S9448557F

Word Count
2648

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 Breaking the Silence: War Rape Victims Demand Down with the Patriarchy!
Empowering women and making men accountable through international criminal law

I. Introduction

Every day, women are subject to sexual violence. Rape has existed as one of mens vicious
pleasures throughout the course of human history. 1 In wartime and peacetime, men rape to
subjugate and dominate women.2 The terminal difference is that in wartime, every man can
be a king.3 War gives men free reign to act with impunity and commit barbaric acts that they
would not dare think of in peacetime.4 Nevertheless, in both situations, women are victims
and men are perpetrators.5

This paper will focus specifically on rape in the context of war. The case studies selected will
show how rape has emerged as a concrete war strategy a deliberate choice made by men
and not merely a by-product of war. Part II explains rape as a weapon of war. Part III
discusses the potential of international criminal law (ICL) as a site for enhancing womens
rights and whether reality has met these expectations. Part IV expounds on patriarchy in
international law. Part V proposes recommendations to improve efficacy of ICL in providing
justice and reconciliation for women victims. Lastly, this paper will asserts that ICL
represents an opportunity for humanity to end to rape in war by empowering women and
making men accountable.

II. Rape as a weapon of war

To the victor go the spoils is an oft-cited battle cry, with women being one of the spoils
of war.6 The endemic use of rape as a weapon of warfare has been documented in countless
armed conflicts.7 The chaos of war, coupled with brute military power and the gender-
specific vulnerabilities of women, provide the perfect backdrop8 for men to vent their
animosity on women. The great disparity in age of victims, from infancy to elderly, further
cements the destructive capacities of these weapons.9

1
See Lance Morrow, Unspeakable, TIME, February 22, 1993. Retrieved from
http://content.time.com/time/magazine/article/0,9171,977808,00.html, March 12, 2016.
2
Darren Anne Nebesar, Gender-based Violence as a Weapon of War, 4 University of California Davis Journal
of International Law and Policy 1998, p. 148.
3
Morrow, supra n1.
4
Nebesar, supra n2, at p. 180.
5
Nebesar, id, at p. 179.
6
Askin (1997), p. 10 21.
7
United Nations Childrens Fund, News Feature: Sexual Violence as a Weapon of War, Retrieved from
http://www.unicef.org/sowc96pk/sexviol.htm, March 12, 2016.
8
Takemae, Eiji, Ricketts, Robert, Swann, Sebastian, The Occupiers and The Occupied in Inside GHQ: The
Allied Occupation of Japan and Its Legacy, p. 67, A&C Back, 2003, Retrieved from
https://books.google.com.sg/books?id=Ba5hXsfeyhMC&pg=PA67&dq=Kanagawa+prefecture+rape&sig=ACf
U3U3_7MFOnBKgutBavggHUGIPQw9Vrg&redir_esc=y#v=onepage&q=Kanagawa%20prefecture%20rape&f
=false, March 12, 2016.
9
Clifford, Cassandra, Rape as a Weapon of War and Its Long-Term Effects on Victims and Society, 7th Global
Coference, Violence and the Contexts of Hostility, Monday 5 th May Wednesday 7th May 2008, Budapest,
Hungary, Retrieved from http://ts-si.org/files/BMJCliffordPaper.pdf, March 12, 2016.

2
Rather than being a private crime, rape plays a strategic role in war to procure specific
military objectives. It is used to assert control over new territory and force civilians into
submission through instilling fear. In Perus Emergency Zones, rape occurred alongside
conflict to punish civilians for perceived collaboration with armed insurgents, and establish
military domination.10

Rape also functions as the means to destroy entire communities via ethnic cleansing. In
traditional societies, women are viewed as repositories of their communitys cultural values.11
The scourge of rape shatters the identity, pride and culture of their communities in a way no
weapons can. This was demonstrated in the sexual violence inflicted on Muslim and Roman
Catholic women by Serbian men during the Bosnian conflict. 12 The sheer scale, highly public
and humiliating nature of the rapes served to erode the fabric of these communities.13

Rape may also be utilised to terrorise and intimidate enemy civilians. In the former
Yugoslavia,14 gender crimes perpetrated by the Serbian military were intended to force the
non-Serbian population into flight.15 In Burma, rape also played a key role in the campaign to
drive the Rohingya out of the country.16 Apart from strategic functions, rape serves the

10
Human Rights Watch, Untold Terror: Violence Against Women in Perus Armed Conflict, Report by
Americas Watch and the Womens Rights Project, New York: Human Rights Watch, 1992, p. 29, 39.
In March 1992, Florencia lost her husband to a Shining Path execution squad and then was raped by the
guerrillas. The army arrived in her village a week later and accused the villagers of collaborating with the
guerrillas. Florencia was gang-raped by soldiers as the men of her village were beaten. Rape during
interrogation by Peru's counterinsurgency forces is committed in order to get information or frighten and
intimidate an individual into complying with the wishes of her captors. Arrested and detained by Civil Guards
for alleged guerilla activity, Flora Elisa Aliaga, twenty-nine years old and pregnant, was raped by eight of her
captors, once with a machine gun.
11
Nebesar, Darren A., Gender-Based Violence as a Weapon of War, 4 University of California Davis Journal of
International Law and Policy 1998, p. 151.
The notion of honour is central to the traditional cultures of the former Yugoslavia. Loss of honour creates
profound shame. Mens honour is largely determined by the women they own. If wa women has sex outside
the marriage, the men related to her, including her husband, father and brother, temporarily lose their honour.
The womans honour, however, is lost forever.
12
Women were regarded as the property of men in these societies, and when men raped the property of their
enemy, they became tainted and devalued. In Karadzic and Mladic, the ICTY found that the rape was used to
achieve the objective of ethnic cleansing, so such acts were targeted at the very foundations of the group.
The ICTY noted that the systemic rape of women was in some cases committed to transit a new ethnic identity
to the child and in others to dismember the group through terror and humiliation, and thus it found that
genocidal intent could be derived at least in part from the systemic rape perpetrated during the Bosnian conflict.
SaCouto, Susana, Advances and Missed Opportunities in the International Prosecution of Gender-Based
Crimes, (2006) Volume 10 Number 1, Gonzaga Journal of International Law, p. 52.
13
Ibid.
14
Nebesar (1998), p. 152.
15
B., a forty-year old Muslim woman, remained in her home with her husband when Serbian forces began
shelling Doboj. Ground troops moved through the city, forced people from their houses and ordered the women
and children onto buses. B. was taken to an abandoned high school where she was raped repeatedly for almost
one month: "It began there as soon as I arrived. On [one] occasion I was raped with a gun ... Others stood
watching. Some spat on us."
Nizich, Ivana, War Crimes in Bosnia, Hercegovina, Helsinki Watch Report, p. 216, 218, Human Rights Watch.
16
Human Rights Watch, Asia: Burma, Retrieved from https://www.hrw.org/legacy/wr2k/Asia-01.htm, March
12, 2016.

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perverse sexual gratification of perpetrators. Thousands of Japanese women were forced to
serve as comfort women during the Second World War to satisfy the sexual proclivities of
soldiers.17

III. International criminal law as a site for enhancing womens rights?

A. Expectations

Prior to the Rome Statute, the foundation of international criminal law for protection of
female war-rape victims was laid.18 Article 27(2) of the Fourth Geneva Convention and
Article 76 of Additional Protocol I both state that women shall be protected against any
attack on their honour, in particular, rape, enforced prostitution and any form of indecent
assault. If unjustified by military necessity, such acts constitute a grave breach of Article
147 of the Fourth Geneva Convention and amount to war crimes under Additional Protocol
I.19 Further, other international treaties such as Article II of the 1948 Genocide Convention20
and the 1993 Vienna Declaration21 condemns genocidal and systematic rape respectively, and
the 1995 Beijing Declaration22 even explicitly recognized forced pregnancy as a war tactic.23

Protection of female rape victims soon became a worldwide phenomenon over the work of a
century, resulting in high hopes of legal redress. With the inception of the ICC in 1998 along
with existing legal infrastructure, there had been optimism that they would serve as a source
of justice and reconciliation24 through the trial process for women who have suffered as
weapons of war25 and victims of gender discrimination. This held true particularly in nations

Eslam Khatun, wife of the village headman, was at home in the village of Imuddinpara with her children and
sister-in-law, Layla, when soldiers forced open the door. The soldiers stripped Layla and began molesting her
as they took her away. Eslam found Layla's body a week later; she appeared to have bled to death from her
vagina. The next week, after the mutilated bodies of Eslam's husband and his brother were found, Eslam and
her six children fled to a refugee camp, which then housed two-thirds of her village. Having driven more than
200,000 refugees into neighboring Bangladesh, the Burmese government maintained that the Rohingyas were
illegal immigrants from Bangladesh and never belonged in Burma in the first place."
17
Many were used at comfort stations, where rules established when different ranks of soldiers could visit.
Vanderweert, Susan Jenkins, Seeking Justice for Comfort Women: Without an International Criminal Court,
Suits Brought by World War II Sex Slaves of the Japanese Army May Find Their Best Hope of Success in US
Federal Courts, (2001), North Carolina Journal of International Law and Commercial Regulation, 141 183.
18
Article 46 of the Hague Convention states that family honour and rights, individual lives and private
property, as well as religious convictions and liberty, must be respected.
19
Jessie, Soh Sie, Forced Pregnancy: Codification in the Rome Statute and Its Prospect as Implicit Genocide'
(2006) 4(2) New Zealand Journal of Public and International Law 311-38 at p 317.
20
United Nations Convention on the Prevention and Punishment of the Crime of Genocide (9 December 1948)
78 UNTS 277.
21
UNGA Vienna Declaration and Programme of Action (12 July 1993).
22
UN Beijing Declaration and the Platform for Action, Fourth World Conference on Women (15 September
1995).
23
It further identified the need to focus international and domestic attention on the effects of armed conflict on
women.
24
Steele, Sarah Louise, Victim-Witnesses in the International Criminal Court: Justice for Trauma, or the
Trauma of Justice? (2005) 12 Australian International Law Journal, 99 108 at p 100.
25
Seneviratne, Wasantha, International Legal Standards Pertaining to Sexual Violence Against Displaced
Women in times of Armed Conflict with Special Reference to the Emerged Jurisprudence at the ICTY and the
ICTR (2008) 20 (No 2) Sri Lanka Journal of International Law at p 2.

4
where the collapse of rule of law left women unable to deal with allegations of rape, with
many feeling too vulnerable to even name their attackers.

B. Reality

While the world turned its attention to the protection of womens rights through formal legal
institutions, they fell short of substantive victim empowerment. The absence of a reference to
sexual violence implied that it would be read into family honour. 26 This reveals an
unfortunate but pervasive stereotype that sexual violence attacks ones honour, and is
premised on the belief that honour is something lent to women by men, and that a raped
woman is therefore dishonoured.27 Defining rape as a crime against the honour and
dignity of women under international humanitarian law is a serious faultline in the law.
Rape should be recognized as an assault motivated by gender, not as a crime against honour.

One would expect the ICC and other international criminal trial institutions to be a platform
for legal redress for crimes against women in the ICC. 28 However, victim witnesses desire
for truth, fact-finding, retribution and revenge have not been met. It would be nave to think
that the trauma of the rape victims would end at the end of trial. While the articulation and
recording of the trauma is conceived as a therapeutic approach for the victim, in reality, the
trial process remains largely adversarial, exposing victim witness to perpetrator and in-court
attacks by the legal counsel, combined with the fear of reprisals29 and the looming
stigmatization which they face upon return to their communities.30

Instead, seeking redress through international criminal law has led to further victimization.
The International War Crimes Tribunal in the Hague was particularly ineffective in dealing
with rape in Kosova in the 1998-1999 war, where Kosovar women had been convinced to
testify as anonymous witnesses at the Tribunal, but later found out that their identities were
revealed back in Kosova by the Miloevi team. Such feelings of betrayal by the Tribunal
led to reports of suicide attempts to escape returning to Kosova.31 The patriarchal society fails

26
Jessie, Soh Sie, Forced Pregnancy: Codification in the Rome Statute and Its Prospect as Implicit Genocide'
(2006) 4(2) New Zealand Journal of Public and International Law 311-38 at p 318.
27
Seneviratne, Wasantha, International Legal Standards Pertaining to Sexual Violence Against Displaced
Women in times of Armed Conflict with Special Reference to the Emerged Jurisprudence at the ICTY and the
ICTR (2008) 20 (No 2) Sri Lanka Journal of International Law at p 9.
28
These institutions include the Nuremberg International Military Tribunal (1945-1948), the International
Military Tribunal for the Far East (1946-1948), the International Criminal Tribunal for the former Yugoslavia
(ICTY), the International Criminal Tribunal for Rwanda (ICTR), Special Panels for Serious Crimes in East
Timor (2002-2005), Special Court for Sierra Leone, and the Extraordinary Chambers in the Courts of
Cambodia.
29
From the applications of domestic laws that punish the victim witness for testifying.
30
Steele, Sarah Louise, Victim-Witnesses in the International Criminal Court: Justice for Trauma, or the
Trauma of Justice? (2005) 12 Australian International Law Journal, 99 108 at p 101.
31
Sevdije Ahmeti, who had convinced the Kosovar women to testify, said that she would never again counsel
women to testify under such circumstances, If the Tribunal had understood the importance of family honor in
Kosova, it would never have requested them to testify, or at the very least, it would have worked harder to
maintain anonymity. She explained that only women without any close living male relative would ever
consider reporting a rape. Retrieved from http://www.juancole.com/2015/06/hanging-remember-kosova.html,
02 February 2016.

5
to recognize the social stigma surrounding victim witnesses from speaking out about
atrocities committed against them. It was only after fifty years of silence when the first
survivors of sexual slavery during the Second World War came forward to give their
testimony,32 only to be subjected to criticism, harassment and rejection.33

The suffering of victim witnesses is further exacerbated by the evasion of legal liability by
the governments responsible for these war crimes. In the Kan-Pu Trial in 1992, ten South
Korean women34 sought an apology and monetary compensation for the war crimes they
endured. Instead, the Japanese court rejected the public apology sought and refused legal
redress.35 In 1995, the Japanese government created the Asian Womens Fund, to collect
donations for the women victims of the war. Strikingly, many former comfort women
refused the sympathy money and felt that it was simply a wall for the Japanese government
to hide behind instead of owning up and offering genuine remorse.36 Despite more recent
efforts by the Japanese government in recognising the suffering of comfort women, it still
failed to accept legal liability for the crimes committed nor take responsibility on behalf of
the military.37 It was only in 2000 that the Womens International War Crimes Tribunal for
the Trial of Japanese Military Sexual Slavery granted jurisdiction over rape and sexual
slavery as a crime against humanity, and allowed adjudication of individual criminal
responsibility and state responsibility.

Appallingly, the ostracizing not only came from men, but from other women as well,
indicating the depths of patriarchal customs embedded in society. There were comfort
women who were returned to prisoner-of-war camps before the end of war and further
victimized by those who had remained within the camps. The comfort women were placed
in Hoeren Camp (Camp of Whores),38 where other women would shout abusive names at

32
Askin, Kelly, Comfort Women - Shifting Shame and Stigma from Victims to Victimisers' (2001) 1(1-2)
International Criminal Law Review 5-32 at p 13. On Aug 14, 1990, Kim Hak-Sun, a Korean woman, after the
loss of her last remaining family member, ignored the social stigma and misplaced shame of war-rape survivors
and became the first former comfort woman to speak out publicly about the ordeals she suffered. She filed the
first lawsuit in Dec 1991 together with other survivors from South Korea. They demanded an official apology
and acknowledgment by the Japanese government, compensation, a rewriting of the Japanese history texts, and
prosecution of surviving suspected war criminals.
33
Askin, Kelly, Comfort Women - Shifting Shame and Stigma from Victims to Victimisers' (2001) 1(1-2)
International Criminal Law Review 5-32 at p 25.
34
Which included three former comfort women and seven former members of the Female Volunteer Corps.
35
Fielding, Lizabeth, Japan's Sex Slaves' (2000) 6 New England Journal of International and Comparative
Law 191 at p 192.
36
Fielding, Lizabeth, Japan's Sex Slaves' (2000) 6 New England Journal of International and Comparative
Law 191 at p 193.
37
Fielding, Lizabeth, Japan's Sex Slaves' (2000) 6 New England Journal of International and Comparative
Law 191 at p 193. The apology was given on the fiftieth anniversary of the Second World War, made by
Japanese Prime Minister Tomiichi Murayama who stated, the scars of the war still run deep and the problem of
the so-called wartime comfort women is one such scar, which, with the involvement of the Japanese military
forces of the time, seriously stained the honor and dignity of many women. This is entirely inexcusable. I offer
my profound apology to all those who, as wartime comfort women, suffered emotional and physical wounds
that can never be closed.
38
Which was a camp within the Kramat camp.

6
them, under the belief that the comfort women had been voluntary workers in brothels for
the Japanese in exchange for special treatment and food.39

The horrors that plague these victims of sexual violence do not end at the close of war.40
Many war-rape survivors dared not return to their communities for fear of intense
stigmatization. In rural Sierra Leone, a rape victim is viewed as impure, contaminated, and
as an abomination thought to bring misfortune and bad luck to her community.41 Asian
Confucianism, which upheld female chastity as a virtue greater than life, believed that any
woman who survived such a degrading experience was an affront to society. 42 The
survivor was consequently rejected by her community, and inevitably turned to prostitution,
the only employment available to them.43

IV. The patriarchy in international law

Structurally, international legal institutions, such as the International Criminal Court (ICC),
are highly patriarchal as well. The ICC has historically been run and adjudicated by elite
White men from Western industrialized states.44 The ICC is both a thoroughly gendered
system and a product of neocolonialism, a far cry from the neutral normative moral order it
champions,45 which does not accommodate the experiences or needs of women. It has been
noted that [m]any of the gendered problems in international law have stemmed from the
absence of womens voices in the highest echelons of international governance.46 Only
recently has gender composition of these institutions been questioned.

Attempts by the ICC in responding to gender-based violence have been rendered even more
ineffective because of statism47 that permeates international law. Since its inception, primacy
has been given to state sovereignty, political independence, territorial integrity, and
legitimation of force.48 Vis--vis the aforementioned, violence against women has been
overlooked and sometimes completely omitted from the agenda as security is prioritized over
justice.

39
Askin, Kelly, Comfort Women - Shifting Shame and Stigma from Victims to Victimisers' (2001) 1(1-2)
International Criminal Law Review 5-32 at p 22.
40
In other communities, the survivors of rape during war are subjected to sexual violence even after
displacement. Seneviratne, Wasantha, International Legal Standards Pertaining to Sexual Violence Against
Displaced Women in times of Armed Conflict with Special Reference to the Emerged Jurisprudence at the ICTY
and the ICTR, (2008) 20 (No 2) Sri Lanka Journal of International Law at p 2.
41
Kostelny, Kathleen, What About the Girls? (2004) Cornell International Law Journal, 505 51 at p 506.
42
Askin, Kelly, Comfort Women - Shifting Shame and Stigma from Victims to Victimisers' (2001) 1(1-2)
International Criminal Law Review 5-32 at p 23.
43
Askin, Kelly, Comfort Women - Shifting Shame and Stigma from Victims to Victimisers' (2001) 1(1-2)
International Criminal Law Review 5-32 at p 19.
44
Suzan M. Pritchett, Entrenched Hegemony, Efficient Procedure, or Selective Justice?: An Inquiry into
Charges for Gender-Based Violence at the International Criminal Court, 17 Transnational Law and
Contemporary Problems 265 (2008), p. 270.
45
Ibid.
46
Prichett, supra n40, at p. 271.
47
Ibid. Statism is a concept in political science which refers to the belief that state sovereignty is paramount.
48
Prichett, supra, n42.

7
This is exacerbated by the traditional classification of rape as a domestic dispute that occurs
in the private domain as opposed to an international public issue.49 The significance of this
dichotomy is twofold: first, ICL only interferes in international matters;50 second, human
rights law is only applicable if the violation takes place in the public arena.51 The
consequence is the silencing of female voices altogether by characterizing the harm they have
suffered as non-justiciable.

Even when ICL does attempt to address gender-based violence, its efforts have only served to
reinforce these established patriarchal structures. For instance, rape is defined as a crime
against humanity in Article 5 of the Statute of the Tribunal.52 However, it fails to account for
additional harm inflicted on women just on the basis of their gender.53 The reality that
women are specifically targeted for rape by virtue of being the fairer sex is ignored. By
failing to recognize discriminatory gendered violence as a crime against humanity, it suggests
that what is inhumane is tailored to the experience of men,54 further entrenching the pre-
existing patriarchy in ICL.

V. Recommendations

A) Legal Instruments

Despite gender-sensitive ideals encapsulated in humanitarian law instruments, the protective

mechanisms provided in the Rome Statute of the ICC55 are not well-utilized. It is proposed
that such provisions should always be available to female witnesses as an option and offered
to them as part of procedure during the judicial process.

One identified problem is the lack of coordination and communication of the ICC with
humanitarian agencies working with victim witnesses.56 Victims are questioned repeatedly,
increasing the likelihood of uncertainty and stress. Instead, provisions should be tailored to
increase stability for witnesses and better coordinate evidence-gathering procedures. As the
ICC is external to the state where the crime occurred, courts may not be sensitive to various
cultural and class differences of female witnesses.57 Provisions that alert courts to the

49
Prichett, supra n40, at p. 273. See generally Kiran Kaur Grewal, International Criminal Law as a Site for
Enhancing Womens Rights? Challenges, Possibilities, Strategies, Femist Legal Studies (2015) 23:149165.
50
Darren Anne Nebesar, Gender-based Violence as a Weapon of War, 4 University of California Davis Journal
of International Law and Policy 1998, p. 177.
51
Nebesar, ibid.
52
Statute of the International Criminal Tribunal for the Former Yugoslavia (adopted 25 May 1993 by
Resolution 827). See Updated Statute of the International Criminal Tribunal for the Former Yugoslavia 2009,
retrieved from http://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf on March 17, 2016.
53
Darren Anne Nebesar, Gender-based Violence as a Weapon of War, 4 University of California Davis Journal
of International Law and Policy 1998, p. 172.
54
Nebesar, id, at p. 179.
55
Steele, Sarah Louise, Victim-Witnesses in the International Criminal Court: Justice for Trauma, or the
Trauma of Justice?, (2005) 12 Australian International Law Journal, p. 102.
56
Nice, Geoffrey, Trials of Imperfection, (2001) 14 Leiden Journal of International Law 383, p. 388.
57
Nikolic-Risktanovic, Vesna, Victmisation by War Rape: The International Criminal Tribunal for the Former
Yugoslavia, (2000) 19 Canadian Woman Studies 28.

8
victims societal contexts should be included, and there should be a re-evaluation of court
staff to ensure proper training in gender and cultural sensitization.

Despite efficiency provisions in the Statute, the long waiting periods and lengthy evidence-
giving process58 may leave the victim more vulnerable.59 Courts should implement policies
that prioritize minimizing stress on victims, while shortening unnecessary parts of the trial.
Relevant personnel should continuously maintain contact and keep victims notified of new
developments.60

B) Trial Transformation

To end impunity for gender crimes, a more holistic trial paradigm is proposed one that
identifies women as the victim constituency, and that can produce truth and outcomes that
foster inclusion and reconciliation,61 to empower female victims62 to regain control over their
lives.63

First, a coherent prosecutorial strategy should be developed to investigate gender violence

charges, ensuring that victim voices inform trial deliberations.64 Gender crimes may be
challenging to prosecute, given the paucity of documentary evidence and reluctance of
victims to testify. However, use of proper investigative methods by sensitive support
personnel may elicit invaluable testimony and empower women to participate effectively in
prosecutions. Additionally, women and gender experts should be appointed to positions of
influence requiring contact with victims.65 Due to heavy reliance on oral testimony, witness
proofing66 should be adopted, 67 as victims with little courtroom experience may not testify

58
Spanning multiple days.
59
Zepter, Maria, Suada R: Witness for the Prosecution in In the Aftermath of Rape: Womens Rights, War
Crimes and Genocide (1997) 139.
60
Steele (2005), p.107.
61
Henham, Ralph, Evaluating Sentencing as a Force for Achieving Justice in International Criminal Trials,
Chapter 10 in Exploring the Boundaries of International Criminal Justice, p. 247, Burlington: Ashgate 2011.
62
Dixon, Rosalind, Rape as a Crime in International Humanitarian Law: Where to from Here?, European
Journal of International Law 13 (2002), p. 710, Retrieved from
http://www.ejil.org/article.php?article=492&issue=31, February 26, 2016.
63
Feldthusen, Hankisky and Greaves, Therapeutic Consequences of Civil Actions for Damages and
Compensation Claims by Victims of Sexual Abuse, 12 Canadian Journal of Women and the Law (2000) 66 at 80.
64
Findlay, Mark, Transforming International Criminal Justice, Chapter 4, in International and Comparative
Criminal Justice: A Critical Introduction, Routledge, 2013, p. 115.
65
Jefferson, LaShawn R., In War as in Peace: Sexual Violene and Womens Status, in Human Rights Watch
World Report 325, 337 (2007), Retrieved from http://www.hrw.org/legacy/wr2k4/download/wr2k4,pdf, which
notes that the ICTR had fewer women personnel and this likely undermined its ability to indict for sex crimes.
66
Taylor, Don B., Witness Proofing in International Criminal Law: Is Widening Procedural Divergence in
International Criminal Tribunals a Cause for Concern? (2008), Retrieved from
http://www.isrcl.org/Papers/2008/Taylor.pdf, March 13, 2016.
67
This approach has been taken by the ICTR, where both parties are allowed to meet with witnesses in advance
of their testimony to refresh their recollection of events, review any prior statements, fully identify relevant
facts, work on presenting their evidence in a more complete, orderly and structured manner and prepare for
cross-examinaton. Having witnesses take the stand cold threatens to render them unreprared to testify
effectively before the Court. It may also re-traumatise victim witnesses during cross-examination or discredit
them where their testimony is stilted or confised or diverges from statements that may have been taken years
prior.

9
effectively, or may be re-traumatised during cross-examination. Witness proofing will allow
victims to deliver a complete testimony, and prepare them psychologically for aggressive
trials, enhancing the rehabilitative potential of the trial process.

Secondly, courts should safeguard the rights and well-being of victim witnesses during the
trial,68 and utilise protective legal mechanisms when necessary. Victims have opportunities to
testify confidentially,69 or deliver evidence in camera or electronically.70 Courts should fully
utilise rape shield provisions71 and coordinate with the Victims and Witnesses Unit and civil
society organizations72 to provide victims with the requisite social and psychological support.

Thirdly, prosecutorial discretion should be carefully exercised in framing charges to avoid

exclusion of gender violence charges.73 Rape may be cumulatively charged with multiple
genus crimes such as genocide and crimes against humanity74 to solidify a conviction.75
Gender crimes should also be regarded as on par with other acts of physical violence in terms
of gravity, to prevent their subordination to other prosecutorial priorities. Furthermore, the
doctrine of command responsibility should be applied to find superiors guilty despite being
distant from the physical commission of gender crimes, particularly if they instigated them.76
This doctrine was successfully utilised in charging Lebanons ex-Minister of Defense and ex-
Lieutenant General for sexual violence against the Palestinian population.77

C) Restoration Beyond the Trial

The problems do not end after the accused is sentenced. Often, victim witnesses may fear
returning to their communities due to harsh stigmatisation of rape victims.78 Thus,

68
Rome Statute, Article 68(1), which recognizes concerns for the safety, physical and psychological well-
being, dignity, and privacy of victims and witnesses.
69
Via voice distortion.
70
ICTR Rules, Rule 69(A), which allows a judge to order the non-disclosure of a witnesss identity to the
defendant in pre-trial proceedings, and Rule 75(A) and (B) which allow for measures to ensure a witnesss
privacy and protection, such as in camera proceedings, so long as the measures are consistent with the rights of
the accused.
71
Rules and Procedure and Evidence of the ICTR, and Rules of Procedures and Evidence of the ICC, which
embody such rape shield provisions.
72
Backer, David, Civil Society and Transitional Justice, 2 Human Rights Journal 297, p. 300, 2003.
73
This was the case in the Lubanga case before the ICC, which addresses only the conscription, enlistment and
use of child soldiers in armed conflict, despite the fact that evidence in the public realm strongly suggested the
existence of other potential charges, including charges of sexual violence.
74
Preparatory Commission for the International Criminal Court, Report of the Preparatory Commission for the
International Criminal Court: Part II: Finalised Draft Text of the Elements of Crimes, Nov 2, 2000, which
provides that particular conduct may constitute one or more crimes.
75
However, the use such generic charges may in fact obscure the gendered nature of these crimes. Van Schaack
(2009), p. 381.
76
Or had knowledge that their subordinates committed them. Van Schaack (2009), p. 393.
77
Russell-Brown, Sherrie L., The Last Line of Defense: The Doctrine of Command Responsibility and Gender
Crimes in Armed Conflict, Volume 22, Number 1, Wisonsin International Law Journal, p. 131, 148.
78
For example, communities in rural Sierra Leone view women who are raped as contaminated and an
abomination, thought to bring misfortune and bad luck to those around her. Kostelny, Kathleen, What About the
Girls?, (2004) Cornell International Law Journal, p. 506.

10
humanitarian organisations should coordinate with courts to design reintegration programs79
for victims to re-assimilate into their communities. One component could involve utilising
local beliefs such as purification rituals to heal the women. Sensitisation activities should
be conducted in traditional communities to increase awareness and transform norms about
gender crimes. This could be the first step in ridding the deep-seated patriarchy inherent in
traditional societies.80

VI. Conclusion

In the final analysis, this paper concludes that ICL represents an opportunity for humanity to
end rape in war. To achieve this, women not only need to be empowered, men need to be
made accountable. Simply put, men rape women because they know they can get away with
it.81 Rape has been and will continue to be used as a weapon of war, as evinced from how it
features prominently even in conflicts today.82 Change can happen. For instance, if ISIS
sexual slavery in Syria and Iraq is persecuted as a war crime, it could serve as a template for
the future. Rape in war is not inevitable, it is a reflection of the unequal power relationship
between the sexeswartime rape will end when the shame lands on perpetrators and not
victims.83

79
One example of such a program would be the Sealing the Past, Facing the Future Program that aims to
support the community reintegration of young women and girls formerly associated with armed groups and
forces in Sierra Leone. Ager, Alastair, Stark, Lindsay, Olsen, Joanna, Sealing the Past, Facing the Future,
Program on Forced Migration & Health, Mailman School of Public Health, Columbia University, Retrieved
from http://www.cpcnetwork.org/wp-content/uploads/2015/06/Girlhood-Studies-SEFAFU-evaluation-1.pdf,
March 13, 2016.
80
Manjoo, Rashida, McRaith, Calleigh, Gender-Based Violence and Justice in Conflict and Post-Conflict Areas,
(2011) Cornell International Law Journal Volume 44, Retrieved from
http://www.lawschool.cornell.edu/research/ilj/upload/manjoo-mcraith-final.pdf, March 13, 2016.
81
See generally Kiran Kaur Grewal, International Criminal Law as a Site for Enhancing Womens Rights?
Challenges, Possibilities, Strategies, Femist Legal Studies (2015) 23:149165.
82
Last year, it was reported that ISIS had captured over 5,000 Yezidi women and forced them into sexual
slavery in Iraq and Syria. There were also reports of Boko Haram abducting hundreds of schools in Nigeria
where they were subject to forced marriage, rape and other atrocities.
83
See Aryn Baker, The Secret of War Crime: The most shameful consequence of conflict comes out in the open,
TIME, 2016. Retrieved from http://time.com/war-and-rape/, March 17, 2016.

11
 Annotated Bibliography

Askin, Kelly, Comfort Women - Shifting Shame and Stigma from Victims to
Victimisers' (2001) 1(1-2) International Criminal Law Review 5-32
This article provides an insight into the comfort system established by Japan during World
War II. The article highlights the stigmatization that plagued the former comfort women,
who only broke their silence fifty years after the war ended. Notably, patriarchal customs
towards non-virgins especially in an Asian society means that the survivors continue to suffer
from the physical and mental trauma inflicted by the comfort system, long after the war.
These former comfort women were outcast by their family and communities. This article
reveals the stigma that is cast upon the victims, as opposed to their perpetrators, and the
testimonies of the women who came forward in the 1990s. Further, this article explores how
even though legal institutions are in place, collective amnesia about the crimes committed
during the World War II, as well as long-lasting injustice that plagues the women long after
the war. This was useful to our research because it provided a contextual background through
the stories of the war-rape survivors, as well as insights as to how the trial does little to meet
their needs and interests in reality.

Aryn Baker, The Secret of War Crime: The most shameful consequence of conflict comes
out in the open, TIME, 2016. Retrieved from http://time.com/war-and-rape/ (Assessed
March 17, 2016)
In this article, Baker provides a good overview to the consequences of rape in war across
several of the most devastating conflicts in recent decades. She collates recounts of victims
from the various conflict zones to show not only the debilitating effects of rape on the
individual, but also how it destroys families and breaks down societies. However, her
exposition eventually ends on a positive note where she shows that notwithstanding the
corrosive effects of rape being used as a weapon of war, recovery has already begun and
these survivors will no longer allow themselves to be silenced. This article was useful to our
research as it provided a broad understanding of what happens post-conflict, and also an
awareness of some of the concrete measures that have been taken within the respective
societies to begin the slow but necessary process of healing and reconciliation.

Beth Van Shaack, Obstacles on the Road to Gender Justice: The International Criminal
Tribunal for Rwanda as Object Lesson, American University Journal of Gender, Social
Policy & the Law 2009. Retrieved from
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1328370 (Assessed March 15, 2016)
The article shows that a solid prosecutorial strategy is necessary in dealing with gender
violence, in order to avoid dispensing with charges when victim witnesses are subjected to
the adversarial criminal justice system. The ICCs constitutive statute contains enlightened
procedural and substantive provisions to uphold gender justice, but it still remains an ideal as
many mechanisms have yet to be put into practice to produce greater results for women
victims and make sure that the ignorance and mistakes characterising gender violence justice

12
in the ICTR are not repeated. Van Shaack examines each phase of the justice process in
greater detail, providing recommendations in order to make the justice process more inclusive
and rehabilitative for victim witnesses, such as ensuring that the testimonies of victims and
trial ready, using witness proofing, and tapping on procedural mechanisms to safeguard the
rights and safety of victim witnesses and ensure that they are not threatened, alienated or re-
traumatised by their participation in the trial process. This article was therefore of great use to
us because it not only outlined the loopholes in the current trial process and the mistakes
made by the ICTR, but also gave us a detailed idea of the various ways the justice process
could be revamped in order to ensure greater accountability of perpetrators and
empowerment of women.

Darren Anne Nebesar, Gender-based Violence as a Weapon of War, 4 University of

California Davis Journal of International Law and Policy 1998
This paper gives an introduction to the use of gender-based violence as a concrete war
strategy, focusing specifically on rape. The contextual battleground that Nebesar selects for
this discussion is the former Yugoslavia, where rape was used as a carefully conceived plan
for the purpose of annihilating an entire ethnic group of people. Though the scope of this
paper was somewhat limited, due to its specificity, it was still very useful to our research as
the problems Nebesar identified are not applicable only to the former Yugoslavia. Most
pertinently, the public/private dichotomy regarding violence against women is an issue that
recurs in every conflict where rape is involved. Thus, it was helpful as we could use what was
observed in the former Yugoslavia and draw similar parallels to other conflicts such as the
one in Congo and in Sierra Leone. Another part of the paper that was useful was the
discussion on the effectiveness of existing legal remedies such as the Geneva Convention and
The Hague conventions. Though they were discussed in the context of the persecution for the
mass rape in Bosnia, it was still helpful in enabling us to understand how these legal
instruments work how they might apply in other conflicts and if a similar outcome would be
obtained.

Fielding, Lizabeth, Japan's Sex Slaves' (2000) 6 New England Journal of International
and Comparative Law 191
This article was useful in highlighting even though the Japanese government rendered a
public apology, it still failed to accept legal liability for the crimes committed against the
former comfort women during the World War II. It specifically highlights how the needs of
these victims are not met, where the former comfort women have refused to accept
compensatory money under the Asian Womens Fund because they felt that that was simply a
wall for the Japanese government to hide behind and evade accepting responsibility. Further,
this article was particularly useful in pointing out that even though the Kan-Pu Trial was
held, the trial process is still one step behind in ensuring that perpetrators of sexual violence
during war take legal liability for their actions.

Jessie, Soh Sie, Forced Pregnancy: Codification in the Rome Statute and Its Prospect
as Implicit Genocide' (2006) 4(2) New Zealand Journal of Public and International Law
311-38

13
This article delves into the crime of forced pregnancy as a military strategy used in ethnic
cleansing, where it is a policy-based crime of a collective nature committed on a large scale,
involving not only forcible impregnation, but the confinement of vicitmised women. Forced
pregnancy is explicitly categorised as a war crime and a crime against humanity under the
Rome Statute, and may be considered as implicit genocide. This article was useful in
providing case studies in which forced pregnancy was featured, as well as the legal
environment prior to the Rome Statute which criminalised sexual violence. This statutory
analysis was particularly useful in our research, especially in light of the significant
developments in international law, and the codification of forced pregnancy provisions and
the Akayesu decision.

Kathleen Kostelny, What About the Girls?, (2004) Cornell International Law Journal,
505 512
This article taps on the case study of Sierra Leone to highlight specific issues and experiences
of girls during war and postconflict, the impact of such occurrences on them, as well as the
challenges of assimilating them back into their communities. It specifically addresses the
consequences of violent sexual abuse perpetrated on these girls, socially, psychologically and
physically. It raises the example of the Sealing the Past, Facing the Future project which aids
in the reintegration of girl victims back into their communities, allow them to regain control
over their lives and restore some hope for the future. This project incorporates economic,
health, religious aspects, and forms the basis for our recommendations beyond the trial for
women witnesses. As such, this article was useful, as it allowed us to gain a greater
understanding of the cultural and societal context of rape in war, as well as a possible
solution to transform such community values and increase the acceptance of women victims
postconflict.

Kiran Kaur Grewal, International Criminal Law as a Site for Enhancing Womens
Rights? Challenges, Possibilities, Strategies, Femist Legal Studies (2015) 23:149165
This journal is a reflection on both the possibilities and challenges facing feminists in
international criminal justice. Grewal does this by focusing on the interaction between
feminist activism and international criminal law institutions in relation to crimes of sexual
and gender-based violence. This journal was useful as it was written just last year, so it
provided us with valuable insight into what the ongoing feminist engagement with the
International Criminal Court (ICC) is at present. What made it most useful, however, was
how Grewal provided a unique perspective on how feminist strategies deployed to get sexual
violence on the international agendathough pursued with good intentionshave
inadvertently produced problematic outcomes. As such, it was helpful to us when considering
our recommendations as we reflected upon the issues that Grewal pointed out as we
attempted to learn from these lessons to develop a more subversive strategy for engagement.

Rashida Manjoo & Calleigh McRaith, Gender-Based Violence and Justice in Conflict
and Post-Conflict Areas, (2011) Cornell International Law Journal Volume 44.
Retrieved from http://www.lawschool.cornell.edu/research/ilj/upload/manjoo-mcraith-
final.pdf (Accessed March 13, 2016).

14
War is an inherently patriarchal activity, and rape is one of the most extreme expressions of
the patriarchal drive toward masculine domination over the woman. This patriarchal ideology
is further enforced by the aggressive character of the war itself to dominate and control
another nation or people. This article provides an overview of the prevalence of gender-
based violence in conflict and post-conflict settings, touches on recent international law
developments towards addressing such crimes, and several continuing challenges for victims.
This article proposes greater action and cooperation from domestic governments as well
international bodies to address the continued impunity towards sexual violence crimes and
the absence of suitable implementation mechanisms to tackle these crimes. Both legal and
non-legal measures are crucial the ideals in international legal instruments, such as
decreasing the social stigma attached to rape victims and incorporating more women into
justice processes. Therefore, this article was extremely useful because it not only laid out the
current situation in the prosecution of rape in war, but also proposes measures to ensure the
effective implementation of legal instruments to stem the occurrence of such crimes in
conflict and postconflict settings.

Rosalind Dixon, Rape as a Crime in International Humanitarian Law: Where to from

Here?, European Journal of International Law 13 (2002). Retrieved from
http://www.ejil.org/article.php?article=492&issue=31 (Accessed February 26, 2016)
Dixon examines in detail several current international developments in the prosecution of
crimes relating to sexual violence, driven by an impetus for greater empowerment of women
victims. She strongly believes that the international criminal law and justice system will not
be sufficient to meet the needs of victims, through past experiences of victims and an in-
depth analysis of the shortcomings of the prosecution process. The article proposes an
International Victims Compensation Tribunal, targeted at victims of gender violence to
achieve recognition of the gender-specific nature of sexual violence crimes, and to counter
the traditional tendency to play down and trivialize sexual crimes against women. This article
was of great use because it gave us a deeper understanding of the inherently patriarchal
nature of international criminal law and alerts us to the need to change the language of
prosecutions in order to make them more gender-sensitive.

Seneviratne, Wasantha, International Legal Standards Pertaining to Sexual Violence

Against Displaced Women in times of Armed Conflict with Special Reference to the
Emerged Jurisprudence at the ICTY and the ICTR (2008) 20 (No 2) Sri Lanka Journal
of International Law

In this article, Seneviratne focuses on the vulnerability of displaced women to all forms of
violence at every stage of their flight and how they are subjected to sexual violence in all
phases of displacement before, during and after. Displacement opens up avenues for
secondary victimization. The impact of sexual violence on women is enormous and victims
are physically, emotionally and psychologically traumatized. This is particularly useful in
our research because this meant that the trauma faced by war-rape victims do not simply end
once the war is over. Such victims face a lifetime of pain and suffering as they are often
shunned or ostracized by their society and hence live in silence with the knowledge and

15
consequences of the atrocity committed against them. Further, this article highlights the
failure of legal frameworks such as the Geneva Conventions of 1949 and the Protocol I and II
in seriously considering the actual impact of sexual violence upon the victim, as none of them
has designated it as a grave breach of the law of armed conflict. This article aided us in
turning out attention to possible solutions or recommendations to make the current
international criminal justice system a better one for such war-rape victims who do not truly
get the redress they seek.

Sherrie Russell-Brown, The Last Line of Defense: The Doctrine of Command

Responsibility and Gender Crimes in Armed Conflict, Volume 22, Number 1, Wisconsin
International Law Journal 148.
This article argues that it is unacceptable for superiors to escape criminal liability for the
gender crimes committed by their subordinates. It thus suggests the use of the doctrine of
command responsibility, which allows military commanders to be held criminally liable for
crimes committed by their subordinates, if certain conditions are fulfilled, in order to increase
the prevention of sexual crimes in military conflict. Article 28 of the Rome Statute of the ICC
provides for the doctrine of command responsibility and lays out the three requirements a
commander/subordinate relationship, knowledge of the commission of the crimes by
subordinate and the failure to prevent their occurrence. As such, this article was helpful to
give us a general understanding of the doctrine of command responsibility and its increasing
role in the prosecution of commanders. Despite its presence in statute, this doctrine has not
been frequently used we thus advocate for increased use of such legal mechanisms.

Steele, Sarah Louise, Victim-Witnesses in the International Criminal Court: Justice for
Trauma, or the Trauma of Justice?, (2005) 12 Australian International Law Journal, 99
108.
This article gives a comprehensive summary of the trauma of legal processes for victim
witnesses and the deficiencies of the ICC Statute in addressing such secondary
traumatisation, such as procedural and substantive rules. Despite the proliferation of
provisions integrating gender into Courts, these provisions fail to provide real relief from the
traumas of witnessing. The article then goes on to provide several amendments that would
ensure that victim witnesses are not traumatised by their participation in the trial process,
while guaranteeing that valuable testimonies and evidence would be available to the Court.
One important proposal of the article would be to provide measures and procedures that
minimise the stress and uncertainty of victims and ensure their safety and well-being.
Therefore, this article was extremely useful as it allowed us to generate ideas to make the
justice process a more communitarian, inclusive, and restorative one. It also allowed us to
understand the sources of secondary traumatisation for victims, in order that we could
formulate a more holistic prosecutorial strategy that dealt away with these sources and
increased the rehabilitative potential of the justice process.

Susana SaCouto, Advances and Missed Opportunities in the International Prosecution of

Gender-Based Crimes, (2006) Volume 10 Number 1, Gonzaga Journal of International
Law, 49 56.

16
This journal article provides a very in-depth overview of the functions that sexual and
gender-based violence plays in the context of mass conflict. It highlights the inadequacies of
the ICTR and ICTR and their approach towards gender crimes, particularly their failure to
explore the mens rea of these crimes, because this may influence the way the crime is
investigated and subsequently prosecuted. It draws our focus to the role of sexual violence in
the destruction of whole ethnic groups and to shame, humiliate and tear at the fabric of these
communities. As such, this article was of use to us because it gave us a greater awareness of
one of the key functions of rape and other gender crimes, and also the general context in
which these crimes occur.

Suzan M. Pritchett, Entrenched Hegemony, Efficient Procedure, or Selective Justice?: An

Inquiry into Charges for Gender-Based Violence at the International Criminal Court, 17
Transnational Law and Contemporary Problems 265 (2008)
This paper was a very comprehensive study of the International Criminal Court and how it
could serve as a source of justice and reconciliation for the women who have suffered as
weapons of war and as a result of gender discrimination in the conflict that took place in the
Democratic Republic of Congo (DRC). The reason why Pritchett chose to focus her analysis
on the conflict of the DRC is because this was a conflict where the gender-specific
vulnerabilities of women and girls have been used as weapons of war through systematic
rape. As such, she posits that this conflict has a womans face. This paper was useful as it
revealed the costs of selective justice for the women victims of the DRC conflict and thus
proved to be helpful when we considered our recommendations. The post-structural feminist
critique of international law helped us in better understanding how we could apply our own
analysis to the existing legal framework so that we could make recommendations on how
international criminal law can live up to its full feminist jurisprudential potential.

Vesna Nikolic-Risktanovi, Victmisation by War Rape: The International Criminal

Tribunal for the Former Yugoslavia, (2000) 19 Canadian Woman Studies 28. Retrieved
from cws.journals.yorku.ca/index.php/cws/article/download/7927/7058. (Accessed
March 15, 2016)
This article deals with rape during the war in the Former Yugoslavia and stresses the serious
consequences of the victimisation of women by rape. Although legal mechanisms have been
put in place to protect the rights of women, and the Statute of the ICTY should be a
considered a positive step in this arena, it is crucial to note that it does not teat rape in war as
a gender-specific crime nor furnish victim witnesses with proper and comprehensive
protection before, during and after the trial process. Through this article, Nikolic-Risktanovi
analyses the provisions in the Statute of the ICTY and its Rules of Procedure in order to
identify certain problems that make proving war rape and making perpetrators accountable
difficult, as well as to provide greater protection to women victims as witnesses. Rape as a
war crime is also emphasized in the article as primarily committed as a strategy for ethnic
cleansing and perceived as a natural outcome of war. This article was helpful because it
displayed the context in which rape in war occurred, particularly in the Former Yugoslavia
and laid out certain shortcomings currently present in international law instruments, as well
as proposes areas for reform. This greatly increased our understanding of the functions of

17
rape in war as a strategy for ethnic cleansing, and gave us ideas as to how we could transform
international legal instruments to make them more inclusive and victim-friendly.

18