Shubhangi Gehlot & Chhavi Sompura (Law students)
Introduction
Recently, various parts of the world are encountering communal violence. The communal violence varies, whether intercommunal terrorism in West Africa or renewed clash between Arabs and Jewish mobs. But the most predominant yet ignored common factor in all these instances is "gender-based violence."
Communal terrorism often results in gender-communal terrorism. Hence, women are preyed upon to commence the genocide or ethnic cleansing at times of war clashes. Moreover, women are also the inevitable victims of gender inequality, sexual abuse by military forces, and several other human rights violations. These infamous scenarios are prevalent in the Sahel region of West Africa.
The 2018 co-recipient of the Nobel Peace Prize, Nadia Murad, precisely mentioned the "use of sexual violence as a weapon of war and armed conflict" in her book. Her story narrated captivity and sexual violence faced by Yazidi women in the process of ethnic cleansing by ISIS.
Historical instances
Often men who are military personnel or civilians are considered the "protectors" whereas women are always the ones who are to be protected. Women are always the subordinate ones prone to continuous violence and exploitation whereas men are meant to combat and sacrifice themselves in war. These gender biases in war times were correctly explained by Steans as he precisely mentioned, "Militarists use the myth of war's manliness to define soldierly behavior and to reward soldiers".
This is evident with historical instances like where women military personnel were present in minority numbers. The epitome of such instances was witnessed in 1991's Bosnian war where women served in the Serbian army as well as in the Kurdish army. Ironically, though women were part of "protectors", they were not acknowledged as equal to their male counterparts in the army.
The outdated gender roles in military, ethnic or religious wars have always been core parts of political superiority. In the case of Serbia in the 1990s were due to economical crisis and low birth rate, nationalists subjected the Serbs of Kosovo to socio-political genocide. Later, an anti-abortion law was passed and promoted by both the National Agency and the leading Church. Similarly, Croatia's women were forcefully impregnated as a tool to flourish their ethnic population. The State authorities faced opposition and dissent by a lot of feminists and homosexuals due to the rigid policies but they were criticized and defamed by the press for being responsible for rape and aggressive ideologies with no blame to the "men of the society". According to statistics of the Bosnian war, the death rate of civilian men was 60 percent leaving civilian women as principal victims of rape and other forms of sexual violence compared to civilian and military men. Moreover, the instances of Bosnia and Herzegovina suggested the military's hand in assembling mass rape as a means of "psychological warfare".
In addition, there were cases of violation of human rights when Muslim women and young girls were raped and impregnated in an attempt to cleanse the Muslim population and bring shame to their community.
Similarly, sexual slavery was recorded in Japan's militant-controlled areas during the 1930s and 1940s. Women were forced to enter into sexual slavery to serve Japanese soldiers. These heinous activities were to instill fear among the local public of Korea and Taiwan with a motive to destroy their ethnic population.
Most of the war clashes end up targeting women from socio-political minorities. The probability of them being victims of war crimes is more compared to other women residing in a disputed geographical area. They are considered to be sensitive targets to mortify the entire targeted community. One of the foremost examples is of Bangladesh riot against the Hindu minority after the Babri Masjid abolition incident in India. Taslima Nasrin's book, Lajja, describes how 'Hindu women were raped to humiliate the entire religious community. The book's contentions and facts of attacking women from minority communities were supported by other Human rights reports.
Most recently the govt of Ethiopia accepted the use of rape as a weapon on the Tigray women to suppress the revolt. On the other hand, Tigray women have been confirmed rape by govt soldiers as well as fighters of Tigray liberation. Around 108 rapes were reported in only 2 months and hundreds went unreported. The acceptance by the government shows the gravity and extent of the offense.
International law and its implementation
It is a shame that hair-raising cases are needed to shock the public conscience. For most of the time in the past wartime, sexual violence went unrecognized and unquestioned as it seemed normal, natural, and an inevitable consequence of war. It took several years to acknowledge this atrocious attack against humanity. United Nations established International Criminal Tribunal for former Yugoslavia (1993) and International Criminal Tribunal for Rwanda (1994) for the first recognized war rape as a crime against humanity and tried & convicted the perpetrators. These two tribunals form an important development in international humanitarian law; especially in gender crimes and systemic mass rape. Tribunals earlier such as the Nuremberg tribunal and the Tokyo tribunal didn't pay much heed to gender crimes during trials. At the Nuremberg tribunal, evidence of rape in the course of the war was introduced but there's not a single mention of rape in judgment. The Tokyo Tribunal expressly charged rape, but not one of the women victims was called to give evidence. The judgment records that approximately 20,000 cases of rape occurred in the city of Nanking during the first month of the occupation. Hence giving the incident the name “Rape of Nanking”.
In Prosecutor v Jean-Paul Akayesu, at the Rwanda Tribunal, a three-judge bench observed Rape as a form of aggression violating one's dignity causing bodily and mental harm. First time in history Rwanda tribunal convicted rape as a crime against humanity and also held systemic rape during war constitute crime of genocide. In Prosecutor v Tadic, at yugoslavia tribunal, held male sexual assault, mutilation, and assault constituted inhumane treatment, cruel treatment as war crimes and crimes against humanity. Yugoslavia tribunal also held outraging personal dignity, slavery, persecution, torture, and genocide as crimes of war.
Under international humanitarian law, gender crimes are defined in conventions & codes such as the Lieber code, 1863, the Hague convention, 1899 & 1907, the Geneva convention of 1929 & 1949. Under international criminal law, these offenses are given under ICTY statute and ICTR statute, also the SPSC, the statute of SCSL, the statute of ECCC, and the Rome statute.
Conclusion
Wartime sexual violence is a major issue that needs to be dealt with with more stringency and patience. Sexual violence is used as a strategic and planned weapon of war-making it even more horrific. Not only women but men have also been subjected to sexual assault and rape. But when we see a broader picture it is the women who have suffered this kind of assault and rapes more and of course for obvious reasons. Women are more vulnerable and easy targets for the perpetrators to overpower and control. Women are forced into prostitution or sexual slavery or are raped to wipe out their identity and community from the face of the earth. The process is also known as Gender Communal Violence as it perpetuates against a specific gender. Even after the war has come to an end these women are often subjected to sexual assault because it is believed that it has happened once then it doesn't matter anymore it is a crime.
Wartime sexual violence not only destroys its victims' lives or a community but also dismantles the social order. Moreover, it is also a reason for widespread diseases amongst communities and reinforces gender disparities, and normalizes sexual violence. Such actions not only defy the moral and legal constructs of society but also leave it haphazard and disorderly.
It is a crime against humanity and also against the years of struggle women in this world did to achieve the kind of freedom and status they own in society. It is our moral and social obligation to make sure that such a loathsome crime doesn't go unreported and unpunished. We need to legislate a separate international statute to deal with gendered communal violence. We also need to sensitize society towards the victims of these crimes and create an inclusive society that lets them start a new life with dignity and respects their right to be forgotten.