When analyzing crimes against humanity, a question often overlooked is one when, or if, we will categorize mass, systemic rape as such an offense at the international level.
As conflicts have evolved and civil wars continue to extend over long periods of time, wartime rape has become a tool wielded by military leaders, regimes and occupiers to instill fear and facilitate violence against other groups. In regards to many case studies in the modern era, these gendered attacks are just as traumatic and devastating as many official crimes against humanity.
We find these horrific acts of violence in cases such as the conflicts of Darfur, where the Sudanese government employs bands of criminals to attack its civilians and commit mass rape or in the case of the Bosnian-Serb wars where Serbian leader Milosevic employed bandits to ethnically cleanse non-Serbs through use of rape hotels, rape camps and various other means.
Since sexual crimes such as these have been used as a tool to terrorize opposing groups, why hasn’t mass, systemic rape received similar international exposure or condemnation as compared to genocide and ethnic cleansing?
If atrocious acts do receive a crime against humanity classification, they are subject to persecution in the International Criminal Court (ICC). Moreover, if the international community claims that crimes against humanity are being committed, conflicts often become subject to third party intervention, whether international, regional or non-governmental.
Third party intervention aims to manage ethnic conflict by facilitating negotiations, promoting “confidence building measures”, power sharing, protecting minority rights or advocating for regional autonomy. Third party intervention may also take form in humanitarian efforts, and although humanitarian organizations are limited in utilizing coercive force, their efforts and ability to spread awareness are still extremely powerful.
Although third-party intervention seems like a plausible solution to many conflicts wherein human rights are in jeopardy, it is not an easy resolution and requires that many standards be met beforehand. These standards are an integral component to the protection of state sovereignty, or the full right of a governing body to govern itself, as established in 1648 in the Treaty of Westphalia during the time of the Thirty Years’ War.
Considering the questionable legality of intervention, the sanctity of sovereignty and the potential backlash, many Security Council nations and various nations in the UN refrain from getting involved entirely.
Many have argued that the United States’ apprehension to intervene not only comes from respecting sovereignty, but rather, from what some call the Black Hawk Down theory, where the US no longer wishes to intervene coercively in destabilized (primarily African) states due to the risk of placing US military personnel at a greater risk.
One may find an example of the US avoiding intervention in African conflicts when George W. Bush ruled the events in South Sudan as genocide, but chose not to intervene. Overall, although the Black Hawk Down theory can be contested, it still makes for an interesting talking point and could potentially explain the apprehension of the US to intervene in African states where crimes against humanity are being committed.
In 1998, the International Criminal Court, along with 124 states, adopted the Rome Statute, which details crimes against humanity, war crimes and many other offenses punishable by the court. In the Rome Statute, it states that “crimes against humanity” is categorized as an attack committed as part of a widespread or systematic attack directed against any civilian population, further listing rape, sexual slavery, enforced prostitution, forced pregnancy, sterilization or any other form of sexual violence as an official crime against humanity.
However, it is important to highlight the use of “widespread” and “systemic” in the aforementioned description. Within these two internationally recognized categorizations, we find the root of our issue.
For mass, systemic rape to be categorized as an official crime against humanity, it must be carried out by a state organization, or simply put, a sovereign body, according to International Criminal Court Judge Hans-Peter Kaul.
Essentially, only state organizations are capable of committing crimes against humanity. Problematic, right?
Considering that many weak states exist where the regional authority is not recognized by its civilians or the United Nations, it is difficult for victims living in war-torn locations such as Darfur, former Yugoslavia or other locations, to receive crimes against humanity victim status.
Overall, we must question this idea that only internationally recognized states can be guilty of committing mass, sexual violence and by calling a spade, a spade, could allow for more possibilities of humanitarian assistance, right to asylum, regional intervention or other possible forms of aid.
In such scenarios, the problem is that we clearly have a crime, but we continuously question the will, or the legal authority, to hold the perpetrators accountable. This is an issue the international community must resolve or victims living in states where their own governments are terrorizing them, will never see an end to their suffering.