Investigating sexual violence as a war crime: a slow and complicated process

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-By Alice Turati

When thinking about World War II, sexual violence is probably not the first thing that comes to our minds. However, it has been estimated that the number of women raped by Soviet troops in Germany alone is around 2 million.  Since then, there has been a slow shift in the perception of sexual violence within conflicts, which was often seen as inevitable, and it is now understood to be used as an arm of terror. The first legal reference to this aspect is found in the Geneva Convention of 1949, which included an article providing protection against rape, enforced prostitution, and indecent assault, but the issue was never really taken into consideration until the nineties. Indeed, the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, founded respectively in 1993 and in 1994, were the first to actually prosecute sexual violence as a war crime. In 2008, the United Nations also adopted a resolution stating that “rape and other forms of sexual violence can constitute war crimes, crimes against humanity or a constitutive act with respect to genocide.” One year later, the Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict was established, in order to fight sexual violence and to offer protection to the victims. However, while international prosecutions are always complicated to carry out, the investigation of sexual crimes is particularly hard, due to the stressful and deeply traumatic nature of the crime, which, as a result, often goes unreported. In addition to that, rape and assault can be linked to other types of war crimes, such as murder and pillaging, making the gathering of information even more complicated.  


For example, Nigeria, which has been particularly touched by this issue, does not appear in the list of the countries that are being monitored by the Office. Similarly, the International Criminal Court has been examining the country since 2011, but so far it has not initiated any official investigation. The Nigerian terrorist group Boko Haram has been using sexual violence as a way to spread fear and terror, especially among women, young girls, and the LGBT community. It is known to the international public for the abduction of 276 schoolgirls who have been subject to enslavement, violence, and forced marriage. Within the civil war, however, Boko Haram is not the only side implicated in systematic rape. Indeed, the Nigerian security forces have been repeatedly accused of sexual violence, even by the same girls who managed to escape Boko Haram and found another source of pain in those who were supposed to protect them. Although in this case violence mainly regards women, it is important to note that males too are affected by sexual and gender-based violence, which is sadly marginalized due to the controversial perception of the topic in many cultures. Despite multiple reports and a fair media coverage of the dramatic situation in Nigeria, the global community has not been able (or willing) to address the issue.


A major achievement on this front was reached during the Bemba case of 2016, when the ICC ruled that a person can be convicted with the accusation of war crimes – including sexual violence – even if not directly involved, provided that they held a position of command over the material perpetrators of such crimes. This set a fundamental precedent in customary international law, which allows to prosecute the highest leaders orchestrating the most horrific crimes or turning a blind eye to their subordinates’ actions. Nevertheless, in 2018 the Appeal Chamber decided to acquit the Congolese former vice-President Bemba from the charges of crimes against humanity and of war crimes, stating that he would have faced “logistical difficulties” in controlling the troops. However, since the Trial and Appeal Chambers are independent from each other, the precedent still stands. We will now see what the decision of the ICC will be in relation to the investigations on Nigeria and how the international community will respond to the increasingly violent actions of rebel groups and soldiers in countries like Iraq, Sudan and Congo. Surely, the acknowledgement of the “efforts to end the use of sexual violence as a weapon of war and armed conflict” of Nadia Murad and Denis Mukwege, who have been awarded the Nobel Peace Prize in 2018, has brought the issue to the attention of the international public. Both Ms. Murad and Dr. Mukwege called out global leaders on putting economic interests first and urged to draw a “red line” against mass rape in war. However, Ms. Murad herself admitted that while many say to be moved by her story, no one dares to make any promise on taking concrete actions. Is the formal recognition of these crimes just a way to ease the global conscience? The hope is that the momentum can be used to put pressure on the international community and on the institutions in charge of investigating them.

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