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Academic article
Making the
perpetrators
of mass sexual
violence pay:
International justice for
gender-related crimes
Alison Cole
Alison Cole is the Open Society Justice Initiative
Legal Officer for International Justice. She has
worked with a range of international courts, first in
prosecutions at the International Criminal Tribunal for
Rwanda, and most recently as legal officer with the
Co-Investigating Judges at the ECCC/Khmer Rouge
tribunal in Phnom Penh. She has also worked with
investigations at the International Criminal Court,
and at the joint Appeals Chamber of the International
Criminal Tribunal for Rwanda and the Former
Yugoslavia. She has also worked on human rights
projects in Uganda, Zambia, India and Israel and
worked on death row projects in Jamaica. She holds
a BA in law from Cambridge University and obtained
her Master of Law degree from Harvard Law School.
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Making the perpetrators of mass sexual violence pay:
International justice for gender-related crimes
Throughout the world, sexual violence is endemic in armed conflict. Past and current
conflicts have demonstrated the horrific levels of suffering inflicted on women and girls
throughout Africa. During the genocide in Rwanda, women were victims of mass rape,
sexual mutilation and held as sexual slaves. There have been regular reports of gang
rape committed during the conflict in the Democratic Republic of Congo (DRC) that
have resulted in extreme physical injuries such as fistula. Most recently, in the war in
Libya, it has been documented that women were targeted for sexual violence due to
their supposed political allegiance.
International law recognises that violence
committed against women and girls during
hostilities can constitute an international
crime.1 The international community and
the UN Security Council have also affirmed
that sex crimes form part of the most serious
crimes of concern to the international
community as a whole. 2 However, obtaining
gender justice poses unique challenges.
The prevalence of sexual and gender-based
violence against women is not matched by an
equally prevalent consideration of women’s
issues by the law: sex crimes are notoriously
under-investigated and few cases make it to
the courtroom. Despite increased efforts to
address this issue, there is still much to be
done at both the national and international
level to ensure that there is sufficient
commitment and sufficient capacity to
appropriately pursue international justice
for gender-related crimes.
Gender justice:
the legal basis
One of the key challenges in investigating
and prosecuting international gender
crimes is the legal complexity of the cases.
International crimes are different from
national crimes because they require proof
of an added level of severity that would
invoke international concern – often cited
as ‘shocking the conscious of humanity’. 3
This added level of seriousness arises when
crimes that can also exist under national
law, such as rape and other forms of sexual
violence, are committed in a context that
will elevate the allegation to either a war
crime, a crime against humanity or genocide.
Purely domestic crimes require proof of
the guilty act (often known by its Latin
term ‘actus reus’) and the guilty mind
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(often known by its Latin term ‘mens
rea’). However, to rise to the level of an
international crime, additional elements
are required.4 After establishing the
act and the intent for the crime base
allegation, such as rape, it is necessary to
prove that the crime meets the ‘threshold
test’, which elevates it to the level of an
international crime. For war crimes,
this threshold test requires proof that
the crime, such as rape, took place in
the context of an armed conflict. For
crimes against humanity, it is necessary
to demonstrate that the rape took place in
the context of a widespread or systematic
attack against a civilian population.
For genocide, the crime is found to be
genocidal if it is committed with the
intent to destroy the group to which the
victim belongs.
Moreover, it is necessary to link the
international crime to a specific accused
person. This is known as the ‘mode of
liability’ and it is the means by which the
accused is to be considered responsible for
the crime base allegations. This can either
be on the basis of individual responsibility
or superior/command responsibility for
political or military leaders.
Over the past twenty years, a broad
range of crimes have been recognised
in international courts as gender crimes
if the requisite elements are satisfied,
including rape, torture, persecution, sexual
slavery, trafficking, sexual mutilation,
forced impregnation, forced marriage,
forced nudity, forced sterilisation and
forced abortion. 5 This is an unprecedented
advancement of the law.
Gender justice:
the evidentiary basis
Aside from the additional legal complexity
behind prosecuting an international
crime involving sexual violence, there
are also unique evidentiary challenges.
Forensic evidence is rarely available and
the perpetrator(s) may be unknown. For
the majority of the cases of rape as an
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international crime, the pressure of proving
the case rests on the oral testimony of the
victim, and the efforts of the prosecution
to connect this with expert or insider
witnesses to establish the threshold tests and
to demonstrate the linkage to the accused.
Often, the accused – not necessarily the
physical perpetrator – is someone far from the
battlefield, but who nonetheless had the ability
to prevent, halt or punish the crimes and failed
to do so, or who knew it was likely to occur and
failed to take necessary steps to prevent the
crimes despite a clear duty to do so.
Although there are significant efforts to
uncover the underlying facts regarding
armed conflicts around the world and in
Africa, information relating to sexual and
gender-based violence is generally the last
to come to the fore. There are many reasons
for this delay. For example, in most cultures
there is a general taboo regarding sex and
this taboo is even greater for sexual violence.
There are often grave social repercussions
against victims who raise allegations of rape.
Many survivors are wrongly stigmatised by
their communities, which in turn impacts on
their social acceptance and future prospects
for building personal security through
generating income and starting a family. In
such circumstances, there is a reluctance
to volunteer evidence or respond to those
seeking to verify acts of sexual violence,
including by family members.
Additionally, justice officials frequently
ignore sexual violence. Although there is
increasing awareness of the prevalence of
gender-based violence – and the devastating
effect these crimes have on individuals,
their families and entire communities
or associated groups – allegations are
only able to be appropriately processed
if there is a commitment from the start
of an investigation to design evidence
collection and to interview survivors in a
gender-sensitive manner. For investigations
to be most appropriate for achieving
gender justice, investigators must first
and foremost consider the security
concerns of victims and ensure that
appropriate measures are taken to ensure
confidentiality. The inclusion of female
Making the perpetrators of mass sexual violence pay:
International justice for gender-related crimes
“The Akayesu case went on to
establish the landmark finding
that rape could constitute
genocide through physical and
mental harm to the targeted
group. It was also the first
conviction of rape as a crime
against humanity.”
investigative staff, including investigators,
interpreters, security and support
personnel, has proven to be critical in
creating an appropriate atmosphere. During
trial, the inclusion of female prosecutors
and judges facilitates achieving a more
gender-sensitive trial process.
other war crimes tribunals in the former
Yugoslavia and elsewhere have made
enormous, yet still insufficient, strides in
investigating and prosecuting sex crimes.7 A
number of such courts have been established
within Africa or they have taken on
situations concerning events in Africa.
It is also critical that investigators and
prosecutors think outside the box in terms of
collating relevant evidence and identifying
alternative means of proof. For example,
photographic evidence that suggests sexual
violence such as images of female corpses
with their underclothing removed can
corroborate oral testimony from victims. In
many situations, systematically asking each
witness on the stand about the prevalence
of sexual violence, including peacekeeping
personnel, humanitarian workers and other
non-victim witnesses, can demonstrate the
extent to which sexual violence was known
to be taking place during a conflict or was
condoned by senior leaders.
The International Criminal Tribunal for
Rwanda (ICTR) was established by the United
Nations Security Council following the
genocide in 1994.8 Although Human Rights
Watch documented vast and systematic
levels of sexual violence targeting women
on the basis of their ethnicity,9 the ICTR
consistently failed to bring cases against
alleged perpetrators. The very first case,
Akayesu, omitted sexual violence charges all
together and it was only through the astute
engagement of women’s rights activists and
Judge Navi Pillay that the indictment was
amended after a witness offered information
regarding the rape of her six-year-old
daughter and a subsequent witness stated she
knew of many rapes. The Akayesu case went
on to establish the landmark finding that rape
could constitute genocide through physical
and mental harm to the targeted group. It was
also the first conviction of rape as a crime
against humanity. The Akayesu judgment
also provided a powerfully broad definition
of rape, which greatly advanced the means
of proving rape by removing the element of
consent and instead requiring an examination
of the coercive circumstances under which
Gender justice:
the courts
Gender-related crimes were prosecuted to
a limited extent in the post World War II
trials in Nuremberg and Tokyo, although
the primary focus of those trials was crimes
against peace, which were considered the
supreme crimes.6 In the past twenty years,
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the crime was committed.10 However, since
that landmark case, the ICTR has only
pursued a few other rape cases and only
a handful of these have been successful
due to a range of problems, including
flawed investigations, the death of victimwitnesses due to HIV/AIDS, failure to locate
witnesses years after the events, fear of
reprisals, judges with insufficient training in
understanding gender crimes, etc.
The Special Court for Sierra Leone
(SCSL) was established in 2002 through
an agreement between the UN and the
government of Sierra Leone.11 Unlike the
ICTR, which was purely international in
terms of the law it could apply and the staff
that it recruited, the SCSL was designed
to be a hybrid court with the capacity
to prosecute national and international
crimes and to hire both nationals and
internationals. The first SCSL case against
members of the Civil Defence Forces (CDF)
did not contain any sexual violence charges
because sexual violence was not factored
into the initial stages of the investigative
strategy. However, in the subsequent Armed
Forces Revolutionary Council (AFRC)
case, the provisions of the crime against
humanity of other inhumane acts were used
to articulate a new form of sexual violence,
namely, the crime of forced marriage.
Subsequently, the Special Court was the
first tribunal worldwide to enter convictions
for ‘sexual slavery’ in the Revolutionary
United Front (RUF) case. The Tribunal
for the former Yugoslavia had successfully
tried ‘rape’ and ‘enslavement’ jointly, but not
‘sexual slavery’. The Court is awaiting the
Trial Chamber Judgment of former Liberian
president Charles Taylor, who is charged
with responsibility for a number of crimes,
including sexual violence crimes.
Both the ICTR and SCSL are courts with
limited mandates and both are due to
close in the near future. However, the
International Criminal Court (ICC) is a
permanent institution, which is open to
all countries in the world to accept its
jurisdiction and thereby become state
parties.12 The ICC has jurisdiction over
nationals of states parties and over people
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who are on the territory of states parties
who are alleged to have committed certain
international crimes after July 2002. The
UN Security Council may also refer a
situation to the ICC.
To date, all seven of the cases under
consideration at the ICC have come from
Africa. Three state parties, Uganda, DRC and
the Central African Republic, have initiated
referrals concerning events taking place in
their countries to the ICC. There have been
two referrals from the UN Security Council
regarding the non-state parties of Libya
and Darfur, Sudan. And finally the ICC
prosecution, of its own volition, has sought
to commence proprio motu investigations
in Kenya and most recently in Ivory Coast.
All seven situations have invoked charges
for sexual violence, except the very first
case at the ICC – the Lubanga case – despite
evidence of widespread sexual violence.
It should be emphasised that national
courts hold the primary responsibility for
prosecuting international crimes. This
is known as ‘complementarity’ and is
provided for in the Rome Statue of the ICC.13
In principle, the ICC targets those most
responsible for mass atrocities, with the
remainder of the alleged perpetrators to be
addressed in national settings. Therefore,
the ICC was designed to ‘complement’, not
replace, domestic justice efforts. To date
there have been limited attempts to pursue
international criminal cases in national
courts, in part due to the complexity of the
cases and the often influential positions
of the perpetrators and the difficulty in
arresting them.
However, the mobile gender courts in South
Kivu in DRC have demonstrated a model
for prosecuting rape and other serious
crimes at the domestic level.14 These courts
have prosecuted hundreds of mostly direct
physical perpetrators of sexual violence. In
February of 2011, a mobile military court
successfully prosecuted a rape as a crime
against humanity case against four senior
army officers and five lower level soldiers for
the New Year’s Day mass rape attack in the
village of Fizi. It is a promising indication of
Making the perpetrators of mass sexual violence pay:
International justice for gender-related crimes
what can be achieved with targeted national
support when domestic courts are both
able and willing to prosecute very grave
crimes. However, international support is
often critical to the success of domestic war
crimes trials.
Conclusion
Although the legal framework is complicated, there are now nearly two decades
worth of best practices and lessons learned to inform national and international
actors pursuing gender justice. There is a great need to understand the experience of
sexual violence survivors and the legal processes following investigations in Africa,
particularly given the existence of both continuing armed conflicts and past hostilities,
which have not yet been subject to accountability efforts. This is even more critical
given that all ICC situations are currently from Africa.
Obtaining gender justice for international crimes requires commitment and
continual efforts. Even as awareness increases, there will always be a need
to maintain vigilance to respond to evolving forms of sexual and genderbased violence and to draw attention to the prevalence of crimes committed
disproportionately against women and girls in emerging crisis situations.
Ultimately, the objective behind gender justice is to reinforce the responsibility to
protect. The characterization of rape and other forms of sexual violence in conflict
as an international crime adds to the zero tolerance policy regarding sexual and
gender-based violence and the objective of universal gender justice.
E
Endnotes
1. See Kelly Askin, War Crimes Against Women: Prosecution in International War Crimes Tribunals (1997).
2. See for example: UN Security Council Resolution 1325 on women and peace and security (S/RES/1325 31 October 2000); General Assembly Resolution on eliminating rape and other forms of sexual violence in all their manifestations, including in conflict and related situations (A/RES/62/134, of
18 December 2007): http://www.un.org/womenwatch/daw/vaw/v-work-ga.htm.
3. See the Preamble of the ICC Rome Statute: http://www.icc-cpi.int/Menus/ICC/Legal+Texts+and+Tools/Official+Journal/Rome+Statute.htm.
4. See Antonio Cassese, International Criminal Law (2008).
5. See Anne-Marie L.M. de Brouwer, Supranational Criminal Prosecution of Sexual Violence (2005).
6. See Kelly Askin, War Crimes Against Women: Prosecution in International War Crimes Tribunals (1997).
7. See Alison Cole, International Criminal Law and Sexual Violence, chapter in Rethinking Rape Law (2010).
8. See www.unictr.org.
9. Binaifer, Nowrojee, Shattered Lives, Human Rights Watch (1996), http://www.hrw.org/reports/1996/Rwanda.htm
10. Alison Cole, Prosecutor v. Gacumbitsi: The New Definition for Prosecuting Rape Under International Law, International Criminal Law Review,
Volume 8, Numbers 1-2, pp. 55-85 (2008).
11. See http://www.sc-sl.org/.
12. See http://www.icc-cpi.int/.
13. See http://www.soros.org/initiatives/justice/focus/complementarity.
14. See www.­soros.­org/­initiatives/­justice/­articles_publica­tions/­publications/­congo-­mobile-­20110719.
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