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How Rape Became Recognized as a War Crime

Sexual violence has been used as a weapon of war for centuries, but it was only recently acknowledged as a crime against humanity. We talked to one of the key architects of that change.

by Nell Frizzell
Dec 16 2016, 2:00pm

Photo by Alexey Kuzma via Stocksy

War is the theater of our worst impulses.

Yet somewhere in the mud and dust, the blood and bullets, the lying and the dying, the rule of law holds firm. Even when man's inhumanity to man seems to bring us to our knees, the law still stands. Perhaps, most strikingly, on the issue of sexual violence.

In 2008, the UN Security Council adopted Resolution 1820, which noted that "rape and other forms of sexual violence can constitute war crimes, crimes against humanity, or a constitutive act with respect to genocide." Just this week, a Syrian rebel leader reported that women in East Aleppo are choosing to kill themselves rather than face rape at the hands of Assad's troops, and groups like Amnesty International warn that potential war crimes are occurring in the beseiged city.

If this is the case, it is groundbreaking legal conventions like Resolution 1820 that will bring the perpetrators to justice. It is, of course, scant comfort to those trapped in the conflict—but for Helen Durham, who helped to define rape as a war crime, the delivery of justice is an integral part of the peace process.

As the ICRC launch their new report, People on War, which surveyed 17,000 people in 16 countries—some, like Afghanistan and South Sudan, that are experiencing conflict, as well as permanent members of the UN Security Council like the UK—I caught up with Durham in a small meeting room overlooking the roofs of Moorgate at the Red Cross office in London, to ask how such a definition came about, and how it can actually change things in the real, messy world of war.

Read more: Meet the Terrorists in the War on Women

"In the late 1980s and early 90s, it's was clearly outrageous that there wasn't clear jurisprudence that rape was a war crime," says Durham. She was part of a dedicated group of lawyers and international humanitarians who fought for decades to get rape recognized as a war crime and crime against humanity, and is now the first woman to direct law and policy at the International Committee of the Red Cross (ICRC). "Back then, someone needed to say, 'It's unacceptable that there is more prosecution for the damage of cultural property than for the destruction of women's bodies.'"

"But now that's done, and we've got jurisprudence on that," she adds, "What next? What about compensation [for victims]? And women's agency? There's a whole new generation of thinking about it now."

Photo by Maja Topcagic via Stocksy

The history of rape as a war crime goes back further and spreads wider than you may imagine. Homer's Iliad opens with a discussion of rape as a military tool; at the end of World War Two, millions of German women were raped by Soviet soldiers. According to Medicins Sans Frontiers, "systematic rape was used as part of the strategy of ethnic cleansing" during the Bosnian War by Serbian troops so that victims would "give birth to a Serbian baby." During the Rwandan genocide, cites Global Justice Center senior counsel Akila Radhakrishnan, "sexual violence was a step in the process of destruction of the Tutsi group—destruction of the spirit, of the will to live, and of life itself." Recently, adherents of the so-called Islamic State have practiced sexual slavery in Iraq and Syria.

In short, rape and sexual violence has been, for too long, an accepted part of warfare right across the world, despite the fact that it violates Article 27 of the Fourth Geneva Convention.

Durham's campaign to get the effects of rape and sexual violence recognized as a war crime involved collecting evidence from women refugees who had fled the former Yugoslavia in the 90s, after the Bosnian War, and come to Australia. She and her team provided evidence to the International Criminal Tribunal for the former Yugoslavia to support the claim that these cases of rape constituted war crimes and should therefore be prosecuted as such.


Watch: Virginie Despentes on Killing Rapists

Now, if you're thinking—understandably but cynically—that having something defined as a war crime won't make a difference on the ground, you might be interested to hear that the International Criminal Court convicted someone based on charges of sexual violence for the first time this year. In June, former Democratic Republic of the Congo vice-president Jean-Pierre Bemba was sentenced to 18 years in prison on five charges—including one charge of rape as a war crime and one as a crime against humanity—for abuses committed by his troops in Central African Republic. It may have taken over a decade to reach this landmark ruling, but it does, hopefully, set a precedent.

"As humanitarians, we can't solve the problems, we can only raise the issues for discussion," says Durham, when I ask how the international community can eradicate the use of sexual violence during conflict. The UN, for its part, has already put forward a number of recommendations,including the deployment of sexual health experts in conflict zones, excluding perpetrators of sexual violence from government positions, and reparations and financial aid for victims.

For Durham, the answer lies in making the connection between peace and war. Sexual violence during conflict, she says, doesn't happen in a vacuum. It is, to a great extent, the second skin of sexual violence during peacetime.

There's a clear correlation that the treatment of women can act as a warning sign for when society is slipping towards conflict.

"There's a clear correlation that the treatment of women can act as a warning sign for when society is slipping towards conflict, and that armed conflict exacerbates preexisting inequalities in society," Durham says. "We need to see sexual violence as a holistic issue; in peacetime, pre-conflict, post-conflict, whatever. If conflict exacerbates existing inequalities in society, then it's not something disconnected from society as a whole. It occurs in societies where ethnic, tribal and gender hatred is being pushed. One of the answers I would suggest for more humane treatment of women during conflict is more equal treatment of women during peace. I mean, it sounds so obvious," she laughs, throwing up her hands.

We also, warns Durham, need to be careful about the way we talk about sexual violence, gender, and the nature of victimhood. "Twenty years ago, when I moved into this area, I was desperate to make sure that women were protected during conflict," says Durham. "But also that their resilience was recognized; that they weren't just categorized as victims... I've spent a lot of time in the field in Asia, Africa and the Middle East during times of conflict, in refugee camps and in detention, and women are incredibly tenacious in those situations. They say that women hold up half the sky but I say that during conflict they hold up the whole thing. Often they're exhausted, they're in grief, but they hold communities together. And that needs to be recognized as much as the fact that they're victims."

"Women and girls are often the repository for cultural identity: we are the first storytellers, we bring up our children, we teach them how to behave," Toyin Saraki, the former lawyer and first lady of Nigeria's Kwara State, and member of the board of the Global Foundation for the Elimination of Domestic Violence, told me earlier this year. "So they are attacked by violent extremists and terrorist groups who want to break that cultural identity." Recognizing the role of women as cultural, social, economic, and domestic guardians may help us move away from black and white understandings of women as simply victims.

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Sexual violence also doesn't only happen to women during conflict. The ICRC notes that there is substantial evidence to show that sexual violence is perpetrated against men, in detention, as part of torture practices, in initiation rituals, and in the field. As a result, the organization now explicitly distinguishes between sexual violence against women and girls and men and boys in their literature. "There's a need to widen the debate, so it's not just a women's issue or a women's problem," says Durham. "We need to open it out to talk about men who experience sexual violence and what can be done to stop that."

Thanks to her work on getting better jurisprudence around wartime sexual violence, Durham, in her own words, "discovered the Geneva Conventions and just fell in love." Here were these things, she said, that tried to reduce suffering during the most horrific times that a human can experience. And, according to the ICRC's new report, eight out of ten people surveyed do think you should differentiate between civilians and combatants. We do still recognize each other's humanity, even during war, during conflict, when humanity can seen bruised, battered and sour. "What the Geneva Conventions are to me is a very clear statement that what unites us is bigger and deeper than what divides us," she smiles. "It's something that says, even in conflict we're still humans."

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