Wartime Rape and the Potential of International Law [Legalese]

Using rape as a weapon of war is unfortunately nothing new, but it has been in the news lately as the stories of Gaddafi’s forces raping women come out.  Last week, the Chief Prosecutor of the International Criminal Court announced plans to add rape to the war crimes charges against Gaddafi, and the ICC is investigating claims of Libyan soldiers being given Viagra-like drugs by their commanding officers with the purpose of using rape as a weapon against the civilian population.  Feminist activists who have followed rape proceedings in domestic courts might be understandably skeptical about such a charge, and wonder how just well international law could address the problem of rape being used as a weapon of war.

The answer is, actually, surprisingly well.

In the 1990s, a series of cases before the International Criminal Tribunals on Rwanda (ICTR) and Yugoslavia (ICTY) established a somewhat progressive interpretation of the international law prohibition on rape, at least in comparison to domestic courts in many countries.  Those bodies recognized that rape can be used as a weapon of war, and that its use can fall under serious human rights violations including torture, war crimes, crimes against humanity, and (somewhat less certain) genocide.  Both the letter of the law in the form of treaties and its interpretation in these tribunals clearly support the prohibition on rape as a weapon of war, and its use has been punished in some of the most severe cases.

Unfortunately, when we’re talking about international law, the reach is always limited.  The cases brought before these tribunals, and now the ICC, are very severe cases occurring in wartime.  The ICC’s jurisdiction and resources are limited, and the cases it hears don’t even begin to cover all the rapes that are committed in a war.  There have been problems with how survivors are handled as witnesses, and sentences are often short given the degree of the crime.  What international law does provide, though, is an example.

Anti-rape advocates working on domestic rape laws can use human rights as an additional framework to support broader definitions of rape.  Even where international law doesn’t provide a remedy for a human rights violation, it does outline what a violation looks like.  This outline can then be applied at the local level.

The CEDAW 2011 website gives some concrete examples of how activists in different countries have used CEDAW, the women’s rights treaty, to enact legislation in their home countries.  Similarly, anti-rape activists can point to widely-ratified treaties such as the ICCPR (International Covenant on Civil and Political Rights) as a basis for domestic legal reform on rape, even where the treaty provides no direct remedy.

The example of rape in wartime shows that international law can be applied to severe examples of a human rights violation in a narrow area, which then trickles down to activists working in individual countries.  This is an argument both for application of human rights principles at the domestic level, and for ratification of additional treaties, such as CEDAW, to strengthen human rights protections.  Though international law can be very frustrating, I think it provides a compelling blueprint for activists working on women’s rights issues.