The History of a Crime

The History of Rape and Sexual Violence as a War Crime Prior to UN Resolution 1820.

Wendy M. Taube, Esq.
Wendy Taube is a Chicago based lawyer. Her practice focuses on corporate transactional law. Her firm's commitment to legally protect and obtain justice for her clients includes support for global human rights issues.

Within the last two and a half years I have been connected with an amazing group of human rights activists that are in the midst of filming a documentary entitled “The Prosecutors.” This documentary follows prosecutors from the Democratic Republic of Congo, Bosnia and Herzegovina, and Colombia, who are using the legal system to bring perpetrators of sexual violence during armed conflict to justice; up to 20 plus years after the crime was committed. The film’s director Leslie Thomas, brought up a topic where there has been some debate. Was there, prior to UN Resolution 1820, other laws that considered rape and sexual violence a war crime? The short answer is yes.

Using rape as a weapon during armed conflict appears as far back as 750 BC. As depicted in the Abduction of the Sabine Women, where the early Romans sexually violated women from the Sabine families and took them for their wives. This type of psychological warfare has continued through the ages. It wasn’t until centuries later that laws were enacted and sexual violence and rape during armed conflict was considered a crime and some perpetrators were tried and punished.

In October 1861, American law professor, Francis Lieber, a German-born veteran of the Napoleonic Wars started teaching a series of lectures on the “The Laws and Usages of War” which he pulled from his own personal experience as a soldier. In the middle of the American Civil War (1861-1865), Lieber suggested that a code based on his “The Law and Usages of War” be prepared     as a guide for military commanders in their treatment of prisoners of war and others. In April 1863, President Abraham Lincoln signed the “Lieber Instructions” or “Lieber's Code” under the title "Instructions for the Government of Armies of the United States in the Field." The “Code” was to be a tenant during wartime in which all military soldiers were to conduct themselves. This is the first time we see sexual violence during armed conflict called a crime and is punishable. In article 44 of the Code it states, “…all rape…of such inhabitants, are prohibited under the penalty of death” and in article 47 it states that “…rape, if committed by an American soldier in a hostile country against its inhabitants, are not only punishable as at home, but in all cases in which death is not inflicted, the severer punishment shall be preferred.” Shortly thereafter, the Code was used by other countries in Europe, but many did not include the specifics of sexual violence during war as a punishable crime.

The Hague Conventions of 1899 and 1907 were the first treaties that addressed the conduct of warfare and war crimes and were based largely on the Code. While the regulations don’t specifically state that rape is a crime, it has been held that the language in Article 46 of the 1907 Hague Convention implies this; “Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice must be respected.”

After World War II, the Control Council Law No. 10 was put into effect, under Article II 1. Each of the following acts is recognized as a crime (c) Crimes Against Humanity. Atrocities and offences, including but not limited to …rape, or other inhumane acts…” This law was not in effect for the Nazi’s that were the major offenders like Göring, but rather just for those considered lower-level offenders such as judges and doctors. From 1946-1948 the Tokyo War Crimes Tribunal were held. They classified war crimes in three categories. Class B crimes were for crimes against humanity. The Tokyo Tribunal convicted criminals of rape and based this on Article 46 of the 1907 Hague Convention.

In Article 27 of the Fourth Geneva Convention (1949) it states, “Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.” Also in Article 75 Additional Protocol I and Article 4 of Protocol II both state that during times of armed conflict that women need to be protected, and the later specifically states against protected from rape.

In 1993 and 1995 the International Criminal Tribunals for the Former Yugoslavia and Rwanda both listed rape as a crime against humanity. In 1998 The International Criminal Court more specifically listed crimes against humanity during armed conflict to include rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and other forms of sexual violence.

On June 19, 2008, UN Resolution 1820, was adopted by the Security Council and thus is binding on its member states. This Resolution delves more deeply than any other law or code of conduct that I have seen on the subject matter of using sexual violence as a weapon during armed conflict. The Resolution goes into detail about the different forms of sexual violence as a weapon, as a tactic of war to instill fear, as a form of genocide and ethnic cleansing and what is the state’s duty in the protection of its civilians. It goes a step further and declares that each state should have a zero tolerance policy; and “that in times of armed conflict women and children particularly need to be protected due to the fact that they are usually targeted.”

You might be asking yourself, “what about now, do the persecutors of such crimes ever get convicted?” Sadly, the answer to this is seldom; and if it is officially reported, it is taking a long, long time to prosecute. In March 2016, Chad’s ex-ruler Hissene Habre was convicted and sentenced to life in prison for rape, sexual slavery and ordering the killings of 40,000 people during his rule from 1982-1990. Unfortunately, there was not a lot of publicity about this conviction, even though this was a landmark trial. It was the first time that a Union-backed court (set up by the African Union) tried a former ruler for human rights abuses. In May 2016, the court ordered him to pay £26,000 (approximately 40 times the average income in Chad) to each of his victims, and the victims of sexual violence were awarded the highest amounts. To the family members, witnesses and victims who have been campaigning for Habre’s trial since 1990, some justice has been served. On August 22, 2016, Human Rights Watch reported that between July 8-25, 2016 there were over 217 cases of sexual assault; mainly rape and gang rape that occurred to girls and women, carried out mainly by government soldiers in South Sudan. Currently, there has not been a single soldier reported to the courts for these rapes.

If you Google “war use rape as a weapon” you will find over 1,700,000 results. It is an epidemic. The hope is that UN Resolution 1820 will make a difference, however it is only binding on member states. Thus it lies in the hands of those that are aware. What can you do to make a difference?