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Sexual Violence In Armed Conflicts- A Violation of International Humanitarian Law

International Humanitarian Law seeks to mitigate the effects of war. However sexual violence was an aspect which was widely prevalent during armed conflicts and the trend still continues.

Sexual Violence In Armed Conflicts- A Violation of International Humanitarian Law

International Humanitarian Law (hereinafter referred as IHL) seeks to mitigate the effects of war. However sexual violence was an aspect which was widely prevalent during armed conflicts and the trend still continues. There are various reasons as to why sexual violence still continues to be a part of the armed conflicts. IHL and Human rights law prohibit all forms of sexual violence. This paper deals with the basic rules of humanitarian law starting with its historical relevance and further talks about the regulation of sexual violence under IHL.

Introduction
International humanitarian law is a branch of the law of nations or international law. It is also called the law of armed conflict and previously known as the law of war- is a special branch of law governing situations of armed conflict. International humanitarian law mainly seeks to mitigate the effects of war. Sexual violence is one aspect which was prevalent during armed conflicts and it continues to be common even in the contemporary armed conflicts. Sexual violence was also used as a strategy and tactics by parties to threaten and embarrass their enemies. However, International humanitarian law and human rights law clearly prohibit all forms of sexual violence.

What Is International Humanitarian Law?
The International humanitarian law is one of the aspects of universal international law whose purpose is to forge and ensure peaceful relations between peoples. It makes a significant contribution to the upholding of peace in that it promotes humanity in the times of war.

The Primary aim of International Humanitarian Law is to protect the human being and to protect the dignity of man in the extreme situation of war and to put an end to – or at least to obstruct- mankind’s decline to a state of complete barbarity. The duty to respect and safeguard the individual takes on major significance when the perpetrator of the threat and violence is the State itself. Therefore, international humanitarian law is a part of that branch of the international law protecting human rights from abuse of State power.

Historical Relevance-
The horrendous act of sexual violence in armed conflicts is a not a new phenomenon. Literally all types of military conflicts of the world have witnessed sexual violence at some point of time. Two of them being:
1. wars of religion, e.g. when knights and Pilgrims committed sexual assault as they marched toward Constantinople in the First Crusade;

2. wars of independence, e.g. during Bangladesh’s nine-month war of independence from Pakistan in 1971 rape got “regrettably” out of hand on the side of the Pakistani army, which was the first case in which conflict-related rape was internationally recognized as having a political-military-strategic function.
Wartime sexual violence served different purposes from the historical perspective. Primarily, there had been a very old and traditional ideology of women as being part of the “spoils” of war to which the brave soldiers are entitled. Another firm notion was that women are property - chattel available to victorious warriors. Secondly, rape and sexual violence were used as tools to terrorize and humiliate the enemy showing their failure in protecting the women of their land. Thirdly, these were used as weapons of retaliation and revenge.

Fundamental Rules of Humanitarian Law -

1 - Persons hors de combat and such others who are not directly a part of the conflict should be taken care of and due respect must be given to their lives and integrity and therefore, must be treated humanely.

2 - It is forbidden to kill or injure an enemy who surrenders or who is hors de combat.
3 - The spirit of the Red Cross must be upheld at all cost by the parties to the conflict, thereby providing medical care and proper protection to the wounded and the sick.

4 -The captured combatants and other civilians shall be treated well giving due respect to their lives and personal rights. They shall also have the right to correspond with their respective families and earn relief.

5 - Every person shall be treated fairly and should be guaranteed their fundamental rights and no one shall be subjected to physical or mental torture or such other kinds of degrading treatment.

6 - The parties are to avoid the employment of weapons and methods which would result in excessive losses and suffering. Therefore it is said that the parties do not have an unlimited choice in this regard.

7 - It has to be taken care that the civilian persons shall not be subjected to terror or attack. Attacks shall be only against military objectives.

Sexual Violence In Armed Conflict-
Sexual violence can be broadly defined as acts of a sexual nature imposed by force, threat of force or coercion, or by taking advantage of a coercive environment or a person’s incapacity to give genuine consent.

In the Akayesu case, the International Criminal Tribunal for Rwanda (ICTR) Trial Chamber held that sexual violence is “an act of a sexual nature which is committed on a person under circumstances which are coercive”.

Yet another understanding of this term sexual violence in armed conflict, particularly rape, is sometimes as a “weapon of war” and/or as a “method of war”.

Sexual Violence has been and continues to be something which is shrouded in silence. However, its negative impacts on the individuals and the society have been better understood over the last two decades. The two historic conflicts in the former Yugoslavia and the Rwandan genocide lifted the veil and brought to the limelight the hardships of men, women, boy and girls and the entire community as a result of sexual violence.

Regulation of Sexual Violence Under IHL-
The following three are the regulatory perspectives with respect to sexual violence-
1. International and non-international armed conflict- In the case of international armed conflicts, both implicit and explicit mention of rape and other forms of sexual violence finds mention in all four Geneva Conventions of 1949 and their subsequent Additional Protocols of 1977. Further, in the case of non- international armed conflicts, Article 3 which is common to all the four Geneva Conventions is of considerable importance. It has been described by the International Court of Justice (ICJ) as reflecting “elementary considerations of humanity” applicable in all types of armed conflicts.

2. The law regulating the offense – treaty law i.e. an agreement entered into by sovereign states and international organizations in international law; and customary law which involves customs as an aspect of international law.

3. State responsibility entailing to international armed conflict- ‘grave breaches’- The noteworthy achievement of the Geneva Law was the introduction of ‘Grave Breaches’ provisions in all their conventions. Particularly, the GCs I-IV and AP I contain lists of what offenses constitute ‘grave breaches’ of their provisions. The lists contain: wilful killing, torture or inhuman treatment, wilfully causing great suffering or serious injury to body or health.

The Prohibition of Sexual Violence Under IHL-
One of the primary criticisms of the IHL treaties has been that they do not attend to the needs of the women in armed conflict as they fail to sufficiently penalize and prohibit sexual violence in a robust way. Although the provisions of the Geneva Conventions of 1949 and the Additional Protocols of 1977 may not address all the issues, they provide required protections from and prohibitions against sexual violence.

The consequences of sexual violence dawned upon the people in the communities and as result, this led to multiple initiatives from various humanitarian organizations, United Nations (UN) agencies, civil society actors, governments, militaries, and academics. Even the development of the Statute of The International Criminal Court (ICC) was one initiative that has been long awaited.

A Significant extension to the Hague law, the 1949 Geneva Conventions and their 1977 Additional Protocols were initiated by the International Committee of the Red Cross (ICRC). These key treaties aim at expanding the scope of humanitarian law from regulating the conduct of war to protecting the civilians.

Moreover, rape has always been looked down upon both in international and non-international armed conflicts. The Geneva Convention IV prohibits such conduct as an “attack on women’s honor” , with the Additional Protocols expanding the specific range of protections and introducing gender-neutral language on broad prohibitions against sexual and gender-based violence as ‘fundamental guarantees’.

The term “conflict-related sexual violence” is not legal and has not been used in international humanitarian Law treaties. However not all “conflict-related sexual violence” amounts to a violation of IHL and war crime. IHL applies only in armed conflict situations and to acts that have a direct, or at least sufficient, link or nexus to an armed conflict.

As per International law, The Charter of the United Nations prohibits war; further, the threat to use force against the territorial integrity or political independence of any State has been prohibited.

A State which resorts to the use of force against another State in order to achieve its ends contravenes international law and thereby commits an aggressive act, even when it is apparently in the right. The UN Charter does not, however, impair the right of a State to resort to force in the exercise of its right to self-defense.

Current Scenario-
Unfortunately, we have not been able to witness any change in the scenario even at present. One of the most common features of the contemporary conflicts was widespread sexual violence and use of rape as a tool of destruction. For instance, even the in the 2000s, Uganda’s Lord’s Resistance Army made use of sexual violence as their military strategy to spread terror and tension among civilians. Further, in Sudan, rape and other forms of sexual violence have been perpetrated, mainly by government forces, to destroy family and community networks and to force dwellers out of resource-rich areas by instilling fear.

Conclusion-
This paper has analyzed the legal development of the concept of sexual violence in armed conflicts in the field of international humanitarian law. IHL explicitly prohibits sexual violence and its other forms. Most importantly it calls for respect towards fellow beings and further reflecting the historical value of prohibition from the times when IHL developed. This prohibition further applies to both international and non-international armed conflicts, as per the rules of customary IHL. It is also seen that as per the international armed conflicts, sexual violence and such offenses constitute “grave breach” of the international humanitarian law and it is seen to be an act of “wilfully causing great suffering or serious injury to body or health”. Therefore, taking all this into consideration, IHL considers sexual violence to be a war crime entailing State Responsibility.

Writing award This article has been Awarded Certificate of Excellence for Original Legal Research work by our Penal of Judges

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