To what extentrape and sexual violence should be considered a tool of genocide.
Rape and sexual violence do not currently stand as separate crimes under international law; instead they are subsumed into the area of crime such as torture, genocide and the grave breaches of the Genocide Convention (Vito, 2008, 362). As such international law recognises that rape at the least may accompany acts of Genocide and Crimes against Humanity as a tool of genocide. The definition of rape as genocide remains hazy, the ICTR and ICTY have interpreted rape in war conflict in various prosecution cases with different interpretations, this may be because that rape as genocide is a ‘recent occurrence within international law’ (Vito, 363). Rape is also seen as a product of war, a consequence of war rather than a component of war, as it should be interpreted as (Scharlach, 2009, 180). In conflicts such as Bosnia-Herzegovina, Kosovo and Rwanda, rape should be seen as a tool of genocide because of the deliberate intent of destruction as defined by The Convention on the Prevention and Punishment of Genocide 1948 , specifically Article II (ICRC, Article II). Rape at the very least demonstrates condition (b) of Article II which stipulates that there has been an act of ‘ causing serious bodily or mental harm to members of the group ’ (ICRC, Article II). This assertion can be demonstrated in the cases of Rwanda in 1994 and Bosnia-Herzegovina 1990-1994. The emphasis of genocide remains focused on the collective, since there has to be demonstrative proof of intent of destruction of the group not just the individual. Rape however is a personal, individual experience and this complicates judicial responses to defining rape as genocide. However, rape, applying the case studies of Rwanda and Bosnia-Herzegovina shows the systematic nature of the state, or state officials to integrate rape as a policy of genocide, or ‘a wartime weapon or strategy’ (Weiner, 2013,1207). The focus on Rwanda and the Former Yugoslavia is important because the approaches to rape as genocide as a concept originate from these genocides. For instance in Rwanda the transmission of HIV became widespread, there have been numerous personal testimonies citing that the Interhawame militia purposefully raped with the intention of the victim contracting Aids in the future ensuring inevitable death in the long-run. As such the victims would die ‘slowly and gruellingly from Aids’ (Scharlach, 2000, 99) with one estimate that 70% of women raped during Rwandan Genocide contracted HIV (Russell-Brown, 2003, 354). The contraction of Aids also serves as symbolic of the perpetrator forever decimating the social identity of the individual and the respect of her ethnicity equating to ‘protracted genocide’ (Scharlach, 2000, 100) and derogation and identity spoilage of the victims (Mullins, 2009, 18). Rape therefore is a tool of genocide because it demonstrates intent to destroy the culture, and social upstanding of the rape victim and her people. It has long-lasting effects that involve forced impregnation, psychological trauma, degradation and demoralization (Scharlach, 2009, 180). However many in Rwanda died as a result of the act of rape, one witness testified that:
‘They had slit her throat, torn her skirt and thrust a stick in her genitals. About ten metres away… I also found a body…the legs were apart and the body of her child… was placed on her genitals, as if she was being forced to have sexual intercourse with the mother’ (Mullins, 2009, 25).
In relation to rape as genocide this demonstrates that rape was often the pre-set to death, therefore the link between rape and death is inextricably intertwined as a use, tool or device of genocidal intent. In judicial legality the first case to acknowledge rape as an act of Genocide was by the International Criminal Tribunal for Rwanda in the case of Prosecutor v Akayesu 1998 (Weiner, 2013, 1209). This established the use of rape as a weapon against the collective, or in the case of this prosecution against the Tutsi women who were raped by the Hutu on the basis established of ethnicity. The chamber established rape as using non vaginal penetration methods of sexual intercourse such as oral, anal and sexual mutilation which rejected the conventional understanding of rape as purely of reproductive vaginal penetration. This helped to broaden the definition of rape as genocide accurately; it also serves to rebuke those who sought to establish claims of rape legitimacy on the sole grounds of forced impregnation as genocide (Scharlach, 2009, 181) and the irrelevance of whether the raped sought abortion (Weiner, 1234) since the definition of rape has expanded into other areas of rape legitimacy. The ICTR statute recognises that rape is a breach of Crimes against Humanity under section (g) Article 3 (ICLS, Article 3). Thus establishing the use of rape as a tool of genocide, but not distinct from international law categorization which unfortunately muddles the definition of rape since rape as genocide ‘is depicted in broad-brushed, undifferentiated terms’ (Buss, 2009, 161). This brings about one of the key arguments against rape as genocide by scholars who argue that rape genocide obscures ‘recreational rape’ (Richey, 2007, 122) which occupies a ‘marginal space in international law’ (Richey, 122). Rape genocide cases and terminology overshadow individual sporadic cases of rape that developed during Genocides such as Rwanda, Kosovo and Bosnia-Herzegovina. In effect they ‘obscure the mechanisms by which individual accounts of rape and sexual violence are made invisible’ (Buss, 2009, 155). The Human Rights Watch (1996) conducted a report on Watch Women’s Rights Project and argued that ‘being female is a risk factor; women and girls are often targeted for sexual abuse on the basis of their gender, irrespective of their age, ethnicity or political affiliation’ (HRW, 1996, Intro). As such the legality of genocide cannot be applied to the gender of sex alone, so under International law this would not constitute as rape genocide, the Akayesu judgement alone is gender neutral, this conclusion however places gender at the heart of the argument of rape. The conflicts of Bosnia-Herzegovina for example have shown that there is an undeniably strong gender component to the act of rape in subjugating women to the perpetrators, in the case of Bosnia ‘most of the rapists were ethnically Serbian men; most of the victims Muslim women’ (Scharlach, 2009, 184). The recommendation offered by Scharlach comprises the best recommendation of separating the discrepancies of genocide rape by applying the factor of sex to the Geneva Conventions as a separate category of the intent of destruction of category (c) Article II of the Convention on the Prevention and Punishment of Genocide (Stanton, Genocide Watch). Ethnicity, nation, and religion will ‘merit the same status’ (Scharlach, 2009, 182) as the issue of gender. This will serve to protect the rights of women since the destruction of a gender can merit the same indictment as genocide, the importance of establishing rape as genocide is that genocide has legal implications for those who ratify the treaties, it forces the international community to respond and take action and therefore is important to define as a tool of genocide. Haffajee (2006) clarifies the issue by stating that in the context of rape genocide ‘rape and sexual violence in situations of armed conflict do not represent isolated or incidental occurrences; rather they constitute grave and serious crimes used to effect genocide and widespread violence against populations’ (Haffajee, 2006, 218). This acumen is at the heart of Scharlach’s understanding of rape genocide and her recommendation which is why it should be supported as a concept of reform and re-clarification in a climate of a lack of unity amongst international law judiciaries in regards to defining rape genocide (Osuji, 2007, 252).