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According to merit? : Rape – a global issue

Every Issue

Cite as: (2003) 77(6) LIJ, p.83

The International Criminal Court defines rape as a crime against humanity.

Rape has long been considered by some a spoil of war. As such it has been largely ignored as a crime and few have been indicted, much less prosecuted, in the international arena. Rape has not only been tolerated but has been promoted by some governments in an attempt to humiliate and subjugate those they seek to invade.

Throughout history rapes have been systematically conducted en masse to terrorise and humiliate. During Russia’s advance on Germany in World War II, an estimated two million women were sexually abused (including rape). In 1971, 200,000 Bengali women were raped by Pakistani soldiers. The Serb military during the Bosnian conflict gang raped Muslim women in public, while Serb police allowed the repeated abuse of Muslim women in a “rape camp” in Foca.[1]

An International Criminal Court (ICC) was established by the Rome Statute on 17 July 1998.[2] It recognised on an international level that rape and other sex-based crimes such as sex slavery, enforced prostitution and forced pregnancy are crimes against humanity (Article 7) and are now to be treated as war crimes (Article 8).

Clause 7(3), however, takes a step backwards when it attempts to define rape as to occur only between men and women. This definition was inserted as a result of religious pressure from the Vatican and other Catholic and Islamic states.[3] It appears to exclude homosexual or lesbian sex crimes, affording no protection to victims under Article 7.

Further, the acts referred to in Articles 7 and 8 are only a crime against humanity “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”.[4] They do not apply to an act against an individual citizen, presumably because the ICC does not want to encourage the investigation of each incident as though it were the local police. This is in keeping with the preamble to the Rome Statute which concerns itself with “the most serious crimes of concern to the international community as a whole...”.

On 16 April 2003, Cherie Booth QC gave a public lecture in Melbourne titled “The International Criminal Court: instrument of peace or punishment?”.[5] She discussed the composition of the ICC Bench as seven of the 18 judges sworn in on 11 July 2002 were women. Ms Booth spoke of the difference the composition of the judiciary would make, particularly in regard to sex-based crimes. Women judges would bring their own perspective to the ICC, she said.

In particular, she cited the example of Judge Navanethem Pillay’s influence in the case of Jean-Paul Akayesu in the International Criminal Tribunal for Rwanda.[6] Judge Pillay was informed by the prosecutor that although Akayesu was alleged to have raped many women, a charge of rape could not be documented because the women would not speak of it.

During the trial Judge Pillay asked two female witnesses questions about the alleged rapes. Through her ability to connect with these women they were able to give evidence about the rapes. The indictments were amended to include rape.

There are problems with the Rome Statute that may make prosecuting sex crimes difficult. First, the US is not a signatory, nor has it ratified the Statute. Being the only super power in the 21st century it is likely to be involved in conflicts. If it is not a signatory, how can it be made accountable?

Second, it is a precondition to the exercise of the ICC’s powers that a participating state must be given an opportunity to exercise or surrender its jurisdiction to the ICC before a matter can be dealt with. This means that a state will usually opt to deal with the matter internally. It would be naive to think that the US would ever allow one of its nationals to be tried on the international stage, even if it was a signatory.

If the ICC is to be a truly international court, states should not be allowed to avoid international scrutiny by dealing with these matters internally.

One hopes that over time countries like the US will ratify the Statute and there will be more accountability on a global scale. Until then it is comforting to see the crime of rape being defined no longer as a spoil of war but a crime against humanity.

SUSAN BORG is a barrister and a sessional member of the Victorian Civil and Administrative Tribunal.

[1] See Geoffrey Robertson QC, Crimes Against Humanity: The struggle for global justice (2nd edn), 2002, Penguin Books, pp325-26.

[2] It was ratified on 11 April 2002 with its jurisdiction taking effect on 1 July 2002.

[3] Note 1 above, p360.

[4] See Article 7 Rome Statute.

[5] The complete transcript can be found on the Castan Centre website

[6] Jean-Paul Akayesu was tried in 1998 for atrocities committed in 1994. He was sentenced to life imprisonment.


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