Rape and Sexual Abuse of Women in International Law

Christine Chinkin ¹

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I. Introduction: Rape in Armed Conflict

This paper will consider the international legal response to rape and other forms of sexual abuse committed against women during the course of an armed conflict: its incidence, impact and consequences. Although both men and women can be and are raped, causing severe injury for both, in terms of numbers rape is essentially a crime committed against women. Further, women suffer from particular after-effects in rape that are not shared by men.

Women are raped in all forms of armed conflict, international and internal, whether the conflict is fought primarily on religious, ethnic, political or nationalist grounds, or a combination of all these. They are raped by men from all sides - both enemy and `friendly' forces. There have been reports of rapes and other forms of sexual abuse committed by members of United Nations peacekeeping forces;² women are not free from interference even from those who are in the territory with an international mandate to restore international peace and security. International media attention has been directed towards the widespread rapes, torture and forced pregnancies in the former Yugoslavia.³ The `mobilization of shame' which has been identified as the primary means of enforcing international humanitarian law has to some extent been activated in this instance.⁴ Nevertheless, the international response in itself carries the risk that violent offences against women will be perceived as something exceptional, peculiar to this particular conflict. The reality is that rape and violent sexual abuse of women in armed conflict has a long history.⁵

Numerous incidents of women raped in other international and internal armed conflicts can be cited to illustrate this point. During the August 1990 invasion of Kuwait it is estimated that at least 5,000 Kuwaiti women were raped by Iraqi soldiers.⁶ After the liberation large numbers of foreign domestic working women in Kuwait were attacked and subjected to sexual violence from subsequently returning Kuwaitis;⁷ women in Rwanda who are caught up in the vicious civil war in that country;⁸ women in Kashmir who have suffered rape and death under the administration of the Indian army.⁹ The following has been reported concerning a civil conflict in South America.

[T]hroughout Peru's 12 year internal war women have been targets of sustained, frequently brutal violence committed by both parties to the armed conflict ... Women have been threatened, raped and murdered by government security forces; and women have been threatened, raped and murdered by the Communist Party of Peru-Shining Path. Often, the same woman is the victim of violence by both sides;¹⁰

Liberian women have been repeatedly raped in the ethnic violence of that country's civil war¹¹ and women from East Timor have been raped as well as killed since the occupation by Indonesia commenced in 1975.¹² Another example which occurred longer ago, but which has only recently received serious attention, was the continued sustained rapes of the so-called `comfort women' by the Japanese military during the Second World War.¹³

Numerous other examples could have been cited but this selection illustrates that women are attacked in conflicts across the globe by men of all colours, religions, nationalities and ideologies.

Rape in war is not merely a matter of chance, of women victims being in the wrong place at the wrong time. Nor is it a question of sex.¹⁴ It is rather a question of power and control which is `structured by male soldiers' notions of their masculine privilege, by the strength of the military's lines of command and by class and ethnic inequalities among women'.¹⁵ Radhika Coomaraswamy has identified a number of reasons for sexual violence against women, two of which are especially applicable to rape in armed conflict: violence against women may be directed towards the social group of which she is a member because `to rape a woman is to humiliate her community'.¹⁶ Complex, combined emotions of hatred, superiority, vengeance for real or imagined past wrongs and national pride are engendered and deliberately manipulated in armed conflict. They are given expression through rape of the other side's women. For the men of the community rape encapsulates the totality of their defeat; they have failed to protect `their' women. Second, studies have indicated the connection between militarization of the nation State and violence against women.¹⁷ Other connections have been drawn between `normal' peacetime attitudes towards women and rape in armed conflict; one that has been controversial in the context of the former Yugoslavia is the direct causal link that has been made by Catharine MacKinnon between pornography in that country and the mass rapes of Muslim women.¹⁸ The connection between pornographic projections of women and the use as war propaganda of these and other media images can be readily accepted;¹⁹ but to identify these as the sole, or even major cause of the abuse of women throughout that area is simplistic and misleading.

Licence to rape has been included as a term of employment for mercenary soldiers. In determining why such a condition is repugnant, Walzer discounts the utilitarian argument that it acts as a spur to military courage. Instead he goes to the heart of the matter:

Rape is a crime, in war as in peace, because it violates the rights of the woman who is attacked. To offer her as bait to a mercenary soldier is to treat her as if she were not a person at all but a mere object, a prize, a trophy of war. It is the recognition of her personality that shapes our judgment.²⁰

Rape has also been directed as an instrument of war. In the former Yugoslavia rape has been `massive, organized and systematic'.²¹ It was perceived by the Special Rapporteur appointed by the United Nations Commission on Human Rights not only as an instrument of war but as a method of ethnic cleansing `intended to humiliate, shame, degrade and terrify the entire ethnic group.'²²

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1 Professor of Law, University of Southampton. The author would like to thank Karen Knop for her great assistance in the preparation of this article, which has been developed out of a paper delivered at the American Society of International Law, April 1993 and published as `Peace and Force in International Law', in D. Dallmeyer (ed.), Reconceiving Reality: Women and International Law (Studies in Transnational Legal Policy, No. 25, American Society of International Law (1993) 203.

2 E.g., E. Van den Haag, The War in Katanga, Report of a Mission (1962) 10. There have been press reports of abuses committed against women by UNTAC in Cambodia and by UN forces in Somalia. The Italian government has undertaken an investigation into reports of sexual abuses committed against Somalian girls by Italian troops serving with the UN forces; The Guardian 19 February 1994.

3 See especially, Amnesty International, Bosnia-Herzegovina, Rape and Sexual Abuse by Armed Forces (January 1993); Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, Report Pursuant to Commission Resolution 1992/S-1/1 of 14 August 1992, E/CN.4/1993/50 (10 February 1993); European Community Investigative Mission into the Treatment of Muslim Women in the Former Yugoslavia, Warburton Report, E/CN.4/1993/92, Women Living Under Muslim Laws, Compilation of Informations on Crimes of War against Women in Ex-Yugoslavia (3 December 1992, updated 11 January 1993). On 15 April 1994 the Commission of Experts established pursuant to SC Res. 780, 1992 stated in a Press Release, SC/94/8 that it had evidence of a large number of violations of international humanitarian law in the territory of the former Yugoslavia.

4 Roling, `Aspects of the Criminal Responsibility for Violations of the Laws of War', in A. Cassese (ed.), The New Humanitarian Law of Armed Conflict (1979) 200.

5 S. Brownmiller, Against Our Will. Men, Women and Rape (1975).

6 Middle East Watch, A Victory turned Sour, Human Rights in Kuwait since Liberation (September 1991).

7 `An American adviser to the Kuwaiti Government was quoted as saying that the reason for the prevalence of rape was a combination of shortage of police officers plus the fact that the "police don't care because they are only Filipinos or Sri Lankans".' Ibid., at 21-23.

8 Africa Watch, Rwanda, Talking Peace and Waging War: Human Rights since the October 1990 Invasion (27 February 1992).

9 Jammu and Kashmir Council for Human Rights, Torture, Rape and Death (June 1992); Asia Watch, Human Rights Crimes in Kashmir: A Pattern of Impunity (June 1993) 95-112.

10 Americas Watch and the Women's Rights Project, Untold Terror: Violence Against Women in Peru's Armed Conflict (1992) 1.

11 S. Swiss, Liberia: Women and Children Gravely Mistreated (May 1991); S. Swiss, Liberia: Anguish in a Divided Land (1992); Huband, `Where There Are Any Little Girls They Should Be Raped', The Guardian 21 May 1993.

12 McCrum, `Mass Resistance', The Guardian Weekend 19 February 1994, 24. Women in East Timor have also been forcibly sterilized in large numbers as one of the ways `the enemy has of making [our] ethnic identity disappear'. J. Taylor, Indonesia's Forgotten War The Hidden History of East Timor (1991) 159, quoting a letter from East Timor.

13 Won Soon Park, `"Comfort Women", Justice and International Law', paper delivered at the NGO Forum, World Conference on Human Rights, Vienna June 1993; Panel of Lawyers for the `Philippine Comfort Women', `"Philippine Comfort Women" Compensation Suit' (1993); U. Dolgopol and S. Paranjape, Comfort Women. The Unfinished Ordeal (Preliminary Report of a Mission, International Commission of Jurists, 1993).

14 Feminists have different views on whether rape should be analysed primarily as a crime of violence or as a sex crime; see R. Graycar and J. Morgan, The Hidden Gender of Law (1990) 342-347. In armed conflict rape occurs in the overall context of violence; rape which may not be associated with violence, such as date rape, is not at issue.

15 Enloe, `The Gendered Gulf', in C. Peters, (ed.), The `New World Order' at Home and Abroad Collateral Damage (1992) 93, at 97.

16 Coomaraswamy, `Of Kali Born: Violence and the Law in Sri Lanka', in M. Schuler (ed.), Freedom from Violence: Women's Strategies from Around the World (1992) 49.

17 See Chinkin, `Women and Peace: Militarism and Oppression', in K. Mahoney and P. Mahoney (eds), Human Rights in the 21st Century: A Global Challenge (1993) 405.

18 MacKinnon, `Turning Rape into Pornography', Ms Magazine, July/August 1992; MacKinnon made similar statements in a speech at the NGO Forum, World Conference on Human Rights, Vienna, June 1993.

19 Cf. Farmanfarmaian, `Did You Measure Up? The Role of Race and Sexuality in the Gulf War', in C. Peters (ed.), The `New World Order' at Home and Abroad Collateral Damage (1992) 111.

20 Walzer cites the example of the Moroccan soldiers fighting with Free French forces in Italy in 1943; M. Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (2nd ed. 1992) Ch. 8.

21 SC Res. 820, 17 April 1993.

22 Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, Report Pursuant to Commission Resolution 1992/S-1/1 of 14 August 1992, E/CN.4/1993/50 (10 February 1993).

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