Redefining rape in war crime
On 4 January 2017, the Trial Chamber VI of the International Criminal Court (ICC) in the case of Prosecutor v Ntaganda came out with an extended interpretation of war crimes of rape and sexual slavery. The Court opined that it has jurisdiction over the crimes of rape and sexual slavery allegedly committed against the child soldiers who are the combatants from the same armed forces as the perpetrator. The ICC reasoned that the prohibition of rape has attained jus cogens status under international law. Rape is prohibited at all times, 'both in times of peace and during armed conflicts, and against all persons, irrespective of any legal status', and it does not, therefore, need to determine whether the victims were 'members' of the armed forces at the relevant time.
The Court rejected the argument of the Defence who suggested that such crimes would come within the ambit of domestic law and human rights, and were not covered by the war crimes prohibition.
The conclusion that members of the same armed force are not per se excluded as potential victims of war crimes is a very expansive interpretation of Article 8 of the ICC. According to Yvonne McDermott, the Co-Director of the Bangor Centre for International Law, the justification for the decision appears to be the widespread prohibition of rape and sexual violence under international humanitarian law. The Court considered that to limit the protection against rape to exclude members of the same armed group would be 'contrary to the rationale of international humanitarian law, which aims to mitigate the suffering resulting from armed conflict, without banning belligerents from using armed force against each other or undermining their ability to carry out effective military operations.'
Given that there could be no military objective or justification to engage in sexual violence against any person, regardless of whether or not that person was a legitimate target under the law of armed conflict, the Court considered that the prohibition of sexual violence under international humanitarian law was not limited to certain categories of persons, and that anyone could be a victim of this war crime.
This decision is clearly founded in a desire to offer the greatest level of protection to victims of sexual violence in armed conflict, regardless of their status. A similar argument was made in the ICRC's updated commentary to Common Article 3 of the Geneva Conventions, which stated that 'all Parties to the conflict should, as a minimum, grant humane treatment to their own armed forces based on Common Article 3.'
The full decision can be found at: www.icc-cpi.int/CourtRecords/CR2017_00011.PDF
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