International Legal Prohibitions against Sexual V iolence

Sexual violence against women and girls both inside and outside conflict has a long history. Mass rape of women and girls was documented during World War II, as well as in more recent conflicts in the former Yugoslavia, Rwanda, Sierra Leone, and the Democratic Republic of Congo.[250] Sexual violence has often in the past been considered as an inevitable by-product of armed conflict and has been mischaracterized by military and political leaders as a private crime or the unfortunate behavior of renegade soldiers. Rape is increasingly recognized, however, as a weapon of war, meaning that it is not a private or incidental crime. Rape as a weapon of war serves a strategic function and acts as an integral tool for achieving military and political objectives, not merely an act of violence that targets sexuality. It functions to subjugate and humiliate both the women and men within the targeted community. Furthermore, rape is generally not committed in isolation and victims are often subjected to multiple human rights abuses, which serve to further traumatize them. In conflicts in which civilians are the principal targets, sexual violence has become an even more deliberate and insidious weapon of war.

Sexual Violence as a War Crime

International law has prohibited rape and other forms of sexual violence against women during armed conflict for over a century.[251] International humanitarian law, also known as the laws of war, sets out protections for civilians, prisoners of war, and other non-combatants during international and internal armed conflicts.[252] Depending on the broader context within which the crimes are committed, perpetrators can be held accountable for rape and other forms of sexual violence as war crimes, crimes against humanity, and acts of genocide.[253] The four Geneva Conventions and their two Additional Protocols implicitly and explicitly condemn rape as well as other forms of sexual violence as serious violations of humanitarian law in both international and internal conflicts. In international armed conflicts, such crimes are grave breaches of the Geneva Conventions and are considered war crimes. Violations involving direct attacks on civilians during internal armed conflicts are increasingly recognized as war crimes.

Common Article 3 to the Geneva Conventions applies to all parties in an internal armed conflict, including armed opposition groups. Through its prohibition of "outrages upon personal dignity, in particular humiliating and degrading treatment," Common Article 3 implicitly condemns sexual violence. The Fourth Geneva Convention on the protection of civilians in international armed conflicts provides a basis for defining the protections provided under Common Article 3. Article 27 on the treatment of protected persons states that "women shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault."[254] Article 147 specifies that "torture or inhuman treatment" and "willfully causing great suffering or serious injury to body or health" are grave breaches of the conventions.[255] According to the International Committee of the Red Cross (ICRC), rape and other forms of sexual violence are considered to be grave breaches. Even a single act of sexual violence can constitute a war crime.[256]Article 4 of Protocol II, which governs internal armed conflicts and applied to the conflict in Cote d'Ivoire, expressly forbids "violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment, such as torture, mutilation or any form of corporal punishment" and "outrages upon personal dignity, in particular humiliating and degrading treatment, rape and enforced prostitution and any form of indecent assault" as well as "slavery and the slave trade in all their forms."[257]

Sexual Violence as a Crime against Humanity

Unlike war crimes, crimes against humanity may be committed in times of peace or in periods of unrest that do not rise to the level of an armed conflict. The definition of and prohibition on crimes against humanity has been incorporated into a number of international treaties and statutes of international criminal tribunals, including the Rome Statute of the ICC.[258] There is no single international treaty that provides an authoritative definition of crimes against humanity, but such crimes are generally considered to be serious and inhumane acts committed as part of a widespread attack against the civilian population, during peacetime or war. The statutes of both the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) make explicit mention of rape, when committed as part of a widespread attack against the civilian population, as a crime against humanity.[259]

Both tribunals have played a critical role in setting precedents in the prosecution of conflict-related sexual violence, including articulating definitions and elements of many gender-related crimes.[260] The statute of the ICC also explicitly identifies the acts of rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity as acts that can be crimes against humanity.[261] Crimes against humanity, as serious international crimes, may also be subject to universal jurisdiction, meaning that national courts can be given jurisdiction to try a person suspected of a crime against humanity even if neither the suspect nor the victim are nationals of the country where the court is located and the crime took place outside that country. Acts of sexual violence committed as part of widespread attacks against civilians in Cote d'Ivoire can be classified as crimes against humanity and prosecuted as such.

Sexual Violence as Torture

International human rights instruments provide safeguards for women and girls at all times, including during armed conflict. These include protection from rape and sexual assault as forms of torture and other prohibited ill-treatment, slavery, forced prostitution, and discrimination based on sex. Armed opposition groups, particularly those in control of territory, have increasingly been under obligation to respect international human rights standards.[262]

Cote d'Ivoire is a party to the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the regional African [Banjul] Charter on Human and Peoples' Rights (African Charter), which all prohibit torture and other cruel, inhuman, or degrading treatment by officials or persons acting in an official capacity.[263] The Convention on the Rights of the Child (CRC) provides for the right to freedom from torture, sexual exploitation, and abuse as well as liberty and security of person.[264] The United Nations Special Rapporteur on torture has recognized that rape can constitute torture,[265] as have the ICTY[266] and ICTR.[267]

Under the ICCPR, the African Charter and CEDAW, sexual slavery and forced prostitution in times of armed conflict constitute a basic violation of the right to liberty and security of person.[268] Furthermore, slavery is a jus cogens norm from which no derogation is permitted and is prohibited under Article 8 of the ICCPR (which also prohibits forced labor), as well as the 1926 Slavery Convention.[269]

Sexual Violence as Discrimination: A Violation of International Human Rights Law

Sexual violence generally violates women's rights to be free from discrimination based on sex as provided for under the ICCPR.[270] Under Article 1 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),[271] the definition of discrimination is considered to include "gender-based violence precisely because gender-based violence has the effect or purpose of impairing or nullifying the enjoyment by women of human rights" on a basis of equality with men.[272] The CEDAW Committee enumerated a wide range of obligations for states related to ending sexual violence, including ensuring appropriate treatment for victims in the justice system, counseling, support services, medical treatment, and psychological assistance.[273] In a 1993 resolution, the UN General Assembly declared that prohibiting gender discrimination includes eliminating gender-based violence, and that states "should pursue by all appropriate means and without delay a policy of eliminating violence against women."[274] The Convention on the Rights of the Child (CRC) also provides for freedom from discrimination on the basis of gender (Article 2). The African Charter on Human and Peoples' Rights, guarantees the "[e]limination of every discrimination against womenand protection of the rights of the woman and the child"[275] as well as the right to integrity of one's person, and the right to be free of "[a]ll forms of exploitation and degradationparticularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment."[276] In February 2004, Cote d'Ivoire signed the African Union Protocol to the African Charter on Human and Peoples' Rights on the Right of Women in Africa, which came into force in November 2005; of these, Article 11 on armed conflict and Article 14 regarding illegal abortion are particularly relevant to this report.[277]

Criminal responsibility for sexual violence

Individual acts of rape or other sexual assault can be prosecuted as criminal acts. However an individual case of serious sexual violence can also be prosecuted as a crime against humanity if the crime was committed as part of a widespread or systematic attack against the civilian population.[278] Each enumerated type of act, such as murder, torture, or rape, does not need to be committed on a widespread or systematic basis-it is the attack that must be widespread or systematic.

Individual criminal responsibility for a crime against humanity, or for a serious violation of human rights or international humanitarian law can be established when an accused is proved to have either planned, instigated, ordered, committed or otherwise aided or abetted in the commission or the crime.

Superior officers may also be liable for crimes committed by their subordinates on the basis of command responsibility.[279] Although the concept of command responsibility originated in military law, it now embraces the responsibility of civil authorities for the abuses committed by those persons under their effective authority. Both state and non-state actors (such as commanders of armed rebel groups) can be held accountable on the basis of command responsibility for crimes against humanity.[280]Under the doctrine of command responsibility, commanders, or other superiors may be culpable for failing to prevent or punish crimes committed by their subordinates. A superior is responsible for the crimes of his or her subordinates when the superior knew or had reason to know that the criminal acts were about to be or had been committed, and the superior failed to take necessary and reasonable measures to prevent the commission of the offense and/or punish the perpetrators.[281] The superior must either have actual knowledge of the criminal acts, or have information available to him or her that would put him or her on notice of the facts.[282] However, it should be noted that the superior is under no duty to acquire such knowledge, and neglect to do so is not a basis for liability,[283] although he or she cannot willfully ignore information available to him or her.[284] The duty to prevent and or punish arises as soon as the superior acquires the knowledge that his or her subordinates are about to commit crimes, or have committed crimes.

A commander will therefore be found guilty of rape if he or she stood by while the subordinate committed rape. In Cote d'Ivoire, if individual commanders and civilian officials had reason to know that subordinates committed rape, and failed to use all necessary and reasonable measures under their command to prevent and punish this abuse, they may also be found guilty of rape.[285]