When rape means something more than sexual violence

‘Rape, maim kill and destroy’ is the new categorical imperative that distinguishes this contemporary period, in which the violence used by the power unleashes — as the philosopher and political theorist Hanna Arendt understood — “a destructive process that stops only when there is nothing left to walk on.” The ancient practices of extermination, renewed by contemporary ideologies, soaked in the most atrocious violence and powered by a blind, irrational and inexhaustible will, which has no other purpose in life than to assert itself continuously, showed, at the gates of the third millennium and through those characteristic processes of the twentieth century — such as desecration of life and death, dehumanization and annihilation of the enemy — their whole disruptive power. In this context even rape — transcending its semantic meaning and using the body as a means to exert ritualistically the most traumatic and symbolic violence — has taken a new and even more frightening role becoming a specific weapon of the most atrocious crimes, including genocide.

London has recently hosted the Global Summit to End Sexual Violence in conflict (June 2014) through which some main goals were established to fight and break the widespread culture of the use of rape as a weapon of war. A crime too often left unpunished. These are: to launch a new International Protocol with international standards for documenting and investigating sexual violence in conflict areas; to take practical steps to prevent the event of this atrocious crime; to support the victims and the survivors; and last but not least, trying to produce a Copernican revolution in the universe of war and violence changing once and for all the hideous attitude to apply sexual violence as a lethal arm.

Rape, as noted by the Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General (25/01/2005) — which, according to the international law, defines rape as “any physical invasion of a sexual nature perpetrated without the consent of the victim, that is by force or coercion, such as that caused by fear of violence, duress, detention or by taking advantage of a coercive environment” (1) — “may be either a war crime, when committed in time of international or internal armed conflict, or a crime against humanity (whether perpetrated in time of war or peace), if it is part of a widespread or systematic attack on civilians; it may also constitute genocide.” (2)

As it is known, the connection between rape and genocide had been first made in 1998 by the International Criminal Tribunal for Rwanda (ICTR) in the Akayesu Trial Chamber Judgment; this connection, passing through the International Criminal Tribunal for the former Yugoslavia (ICTY), was clearly confirmed by the former Prosecutor of the International Criminal Court (ICC), Mr. Luis Moreno Ocampo, who investigated the last genocide of our history. The Prosecutor presenting the second case in relation to the situation in Darfur (Sudan) on 14 July 2008, declared that the selected weapons used to perpetrate the crime of genocide in Darfur were: “rape, hunger, fear”. (3) Mr. Ocampo has classified these weapons as “the most efficient method of destruction, in the face of international scrutiny.” (4)

The term genocide is a neologism, coined in 1946 by the Polish jurist Raphael Lemkin who, declaring genocide a crime under international law, fought for its international recognition. The recognition was obtained with Resolution 96 of the General Assembly of the United Nations on 11 December 1946, (5) as noted by the same Convention on the Prevention and Punishment of the Crime of Genocide (6) (adopted on 9 December 1948, the day before the adoption of the Universal Declaration of Human Right).

Article 2 of the Convention — which clearly defines the conduct constituting the crime of genocide — is fully reflected in Article 6 of the Statute of Rome, the treaty through which, on 17 July 1998, after a conference of 160 States in Rome, the International Criminal Court (ICC) was established. According to the article 6 of the Statute of Rome, genocide “means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.”

Consequently, when rape is committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such any acts of sexual violence (and any consequence caused by them) shall be qualified as acts of the crime of genocide. Rape represents one of the possible actus reus through which — killing members of the group and causing serious bodily and or mental harm to members of a group as such (Articles 6 (a) and 6 (b) of the Statute of Rome) — the crime of genocide is perpetrated.

It is important to emphasize that the Report of the International Commission of Inquiry on Darfur “reported widespread rape and other serious forms of violence committed against women and girls in all three states of Darfur. According to these sources, the rape of individual victims was often multiple, carried out by more than one man, and accompanied by other severe forms of violence, including beating and whipping. In some cases, women were reportedly raped in public, and in some incidents, the women were further berated and called ‘slaves’ or ‘Tora Bora’.” (7) The International Commission of Inquiry on Darfur has confirmed that the rapes occurred always following the same ritual: “First, deliberate aggressions against women and girls, including gang rapes, occurred during the attacks on the villages. Second, women and girls were abducted, held in confinement for several days and repeatedly raped during that time. Third, rape and other forms of sexual violence continued during flight and further displacement, including when women left towns and IDP sites to collect wood or water. In certain areas, rapes also occurred inside towns. Some women and girls became pregnant as a result of rape.” (8) As a victim testified and summarized in the above-mentioned Prosecutor’s Statement, the perpetrator of genocide “kill our males and dilute our blood with rape. They want to finish us as a people, end our history.” (9)
As the International Commission of Inquiry on Darfur reminds, “Common article 3 to the Geneva Conventions binds all parties to the conflict and, inter alia, prohibits ‘violence to life and person, in particular cruel treatment and torture’ and ‘outrages upon personal dignity, in particular, humiliating and degrading treatment.’ While Sudan is not a party to the Additional Protocol II to the Geneva Conventions, some of its provisions constitute customary international law binding on all parties to the conflict. This includes prohibition of ‘rape, enforced prostitution and any form of indecent assault,’ and ‘slavery’.” (10) It is well worth remembering that rule 93 of Customary International Humanitarian Law asserts that “rape and other forms of sexual violence are prohibited.” (11)

Part of the changing face of war and conflict is the increasing use of sexual violence as a means to achieve economical, political and military ends. Rape is a silent, inexpensive and highly effective weapon. The sexual organ just as the oldest weapons (spear and sword) exerts its hideous action into the body of the enemy; but there is a significant difference between them: the first one is also able to produce irreversible psychological damage, both to the person who has suffered rape and to the community — for that reason many cases remain unreported due to the sensitivity of the issue and the stigma associated with rape — and it may also contribute to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. To conclude, as it is realistically and dramatically reminded by Mr. Luis Moreno Ocampo, recalling the International Criminal Tribunal for Rwanda in the Akayesu case in relation to the situation in Darfur, “rape is used to kill the will, the spirit, and life itself.” (12)

 

The author:

Ms. Elisabetta Mainenti is an independent researcher who holds a second level degree in Philosophical Sciences, has just earned  — with a dissertation on “Africa: Darfur Genocide” — her second Master’s Degree in International Strategic and Military Studies offered by the Joint Services Staff College at the Center of High Defence Studies in Rome, in conjunction with Rome Tre University. Here she earned her first Master’s Degree in Peacekeeping and Security Studies with  a dissertation on “The deep roots of violence and conflict in the contemporary genocidal culture.” Moreover, she is a Qualified Adviser for the application of International Humanitarian Law in armed conflicts and Crisis response Operations and has a certificate as civilian listener as Legal Adviser in International Humanitarian Law and in the Law of Military Operations.

 

1 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, p. 95.
http://www.un.org/news/dh/sudan/com_inq_darfur.pdf

2 Ibid.

3 Prosecutor’s Statement on the Prosecutor’s Application for a warrant of Arrest under Article 58 Against the President of Sudan, Omar Hassan Ahmad AL BASHIR, p. 3.
http://www.icc-cpi.int/NR/rdonlyres/A2BA9996-67C3-4A5F-9AD2-B20A7FD2D176/277757/ICCOTPST20080714ENG.pdf

4 Ibid.

5 “The punishment of the crime of genocide is a matter of international concern. The General Assembly, therefore, affirms that genocide is a crime under international law …”

6 “The contracting parties,having considered the declaration made by the General Assembly of the United Nations in its resolution 96 (I) dated 11 December 19462 that genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world…”

7 Ivi, p. 87.

8 Ibid

9 Prosecutor’s Statement on the Prosecutor’s Application for a warrant of Arrest under Article 58 Against the President of Sudan, Omar Hassan Ahmad Al Bashir, p. 4 (cited).

10 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, p. 95 (citated).

11 http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule93

12 Prosecutor’s Statement on the Prosecutor’s Application for a warrant of Arrest under Article 58 Against the President of Sudan, Omar Hassan Ahmad Al Bashir, p. 4 (cited).