The Definition of Rape in International Criminal Law has Truly Evolved Affecting the Scope for Recognition of Victims and their Entitlement to Reparations

The Definition of Rape in International Criminal Law has Truly Evolved Affecting the Scope for Recognition of Victims and their Entitlement to Reparations

Author: Siofra Corr

Queen’s University, Belfast

Introduction

The large scale use of rape against women during times of war has long been established. However, the interpretation of the crime of rape in international criminal law has changed drastically over time with its recognition as a criminal act, not merely a ‘by-product’ of war. Despite this, only within recent decades has this recognition finally resulted in convictions within international criminal law. A key step in the recognition of rape in international criminal law came with the Ad Hoc Tribunals and their definitions of rape. However, there was a lack of coherence with the development of the definition;[2] at the heart of the issue when defining rape was the relationship between rape, force/coercion and consent.[3]

These contemporary tribunals represent the beginning of a new era of accountability for the crime of rape. Over time, a more coherent international criminal regime developed through better legal mechanisms and a comprehensive understanding of the definition of rape established by the ICC. With this broader understanding of the crime comes the possibility of justice via the punishment of the perpetrators and remedy to the harms suffered through access to reparations.

This research paper will provide an overview of how rape during times of war is understood within international criminal law and the reparations that are available to the victims. The main arguments will be developed over three sections. Section One will examine the concepts of rape and reparations within international criminal law through a historical lens, and provide an analysis of the theory of both rape and reparations within an international criminal framework. Section Two will trace the evolution of the international criminal definition of rape through the contributions of the Ad Hoc Tribunals and the ICC with specific reference to the Bemba[4] case and the extent to which the modern interpretation of rape has narrowed or widened the scope of legally recognised victims and their ability to claim reparations. Section Three will examine who may be recognised as a victim, the different forms of reparations available to them and whether material or symbolic reparations (or a combination) are suitable for victims. Finally, the paper will conclude with a critical examination of the extent to which the crime of rape has truly evolved within international criminal law and which reparations may be appropriate for the victims.

Section One

1.1  Introduction

The enactment of the Lieber Code in 1863 signified the first time that the use of rape against women during times of war was recognised in international law.[5] Despite this, it is only within recent decades that this recognition has finally resulted in convictions within international criminal law, e.g., the Akayesu[6] case where rape was recognised as a form of genocide. Today, victims do not only receive justice through the punishment of their perpetrators, but have gained the opportunity of redress through reparations.

This section will firstly investigate the evolution of the international legal understanding of the crime through the application of an historical lens, before tracing the history of the award of reparations within international law. Secondly, a theoretical analysis will be conducted on rape within an international criminal framework, followed by an examination of the theoretical perspectives of reparations. Finally, the various threads explored in the section will be drawn together to illustrate that whilst historically and theoretically rape may be considered serious in rhetoric, it has not always been treated as such in practice.

1.2  History

1.2.1    Rape

Historically, rape in conflict was seen merely as a violation of the honour, dignity and reputation of a woman (or even of that of her husband) and not as a crime in and of itself.[7] When recognition finally came on an international basis it did little to cease the wide scale perpetration of rape in times of conflict, or its recognition in criminal law, as military histories rarely refer to rape and military tribunals rarely charged or sanctioned it.[8] There are numerous examples throughout history, some of which are relatively recent. In the Second World War, for example, the use of rape by both Nazi and Allied soldiers went largely unredressed.[9] Similarly, the wide spread use of brothels within concentration camps for the rape of Jewish women did not figure in the proceedings against high-level Nazis before the International Military Tribunal at Nuremberg.[10] Indeed, the enactment of the Geneva Conventions (GC) and Additional Protocols[11] (AD), and the protections they afforded, did little in changing the attitudes towards mass rape in times of war.[12] In the 1970s, an estimated 200,000 Bengali women were raped during the war of independence from Pakistan, yet ultimately, amnesty was quietly traded for independence.[13] In the 1990s, two highly publicised conflicts dominated the world media, that of Rwanda and the former Yugoslavia, and brought the issue to the attention of the general public. In reporting both conflicts, the media highlighted the policy makers use of rape as a “weapon of war” to ethnically cleanse a population. For the first time, rape was transformed from a private, off-duty, inevitable and collateral crime to something that was public, political and worthy of criminalisation and prosecution.[14]

1.2.2    Reparations

There has been a move within international law and human rights law to protect individual and group rights through multiple conventions: the 1948 UN Convention on Genocide,[15] the 1948 Universal Declaration of Human Rights,[16] the four GC of 1949 and the 1977 AD I and II,[17] the 1950 European Convention of Human Rights,[18] the 1966 International Covenant on Civil and Political Rights,[19] the 1969 American Convention on Human Rights,[20] the 1981 African Charter on Human and Peoples’ Rights,[21] the 1984 UN Convention against Torture,[22] and the 1989 UN Convention on the Rights of the Child.[23]

However, over recent years, voices demanding justice beyond the punishment of perpetrators have grown ever louder. This form of justice, outside that of the purely punitive, comes in the form of reparations. Reparations contribute to justice by attempting to remedy, as far as possible, the harm suffered by victims.[24] Under UN law reparations include restitution, compensation, rehabilitation, measures of satisfaction and guarantees of non-repetition.[25] Redressing past wrongs is seen as essential to establishing conditions of justice in societies scarred by the enduring and pervasive effects of wrongs.[26] The ultimate aim of justice through remedy, of which reparations are a key part, is to involve national governments in remedying the legacy of injustice, through both legislation and court proceedings,[27] so that victims are entitled to access justice mechanisms and to prompt redress for harm suffered.[28] These mechanisms can be judicial or administrative, and should enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible.[29]

The demand for reparations can be seen throughout history; there are numerous examples from the legacy of slavery in the United States to the recent events in Iraq and the Horn of Africa.[30] However, one of the most important events, which has generated most of the reparations activities and discourse over the past half-century, was the German payment of reparations to victims of the Holocaust arising out of World War II atrocities.[31] Historically, as mentioned above, rape in times of conflict has often been ignored, although, as noted by Rubio-Marin, the rising awareness of the crime has impacted reparations discussions.[32] Post-conflict and post-authoritarian societies are now much less likely to minimise the relative importance of sexual violence when considering reparations as part and parcel of their transitional justice agenda.[33] The Bemba case[34] is considered a landmark in this area and will be discussed in Section Two. It is of particular relevance as it is the first time the ICC has moved to award reparations specifically to victims of rape. Today, the awarding of reparations is based on the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation, adopted by the UN General Assembly in 2005. Reparations for victims of rape will be considered in more detail in Section Three.

1.3  Theory

1.3.1    Rape

Feminism is based on the political, economic, and social equality of the sexes. Accordingly, as this paper is focused on the gender specific nature of rape during times of war, the literature reviewed has been heavily influenced by feminist scholars. There is general consensus that rape in times of conflict has been prolific and resigned to an inevitable ‘by-product’ of war, as stated by Copelon.[35] While rape is acknowledged to affect both men and women, West has drawn attention to the fact that women and girls can experience harm differently from men and boys resulting in ‘gender-specific injuries’ which must be taken into consideration.[36]

As Maciejczak noted, the nature and effects of rape in war are inherently distinct from that of domestic cases; in warfare, these crimes are widespread, systematic, exceedingly violent and motivated by political agenda. [37] As noted by Dartnell and Jewkes, in times of conflict, whole communities have been targets for rape, irrespective of sex, marital status or age.[38]

Dawn has highlighted, while individuals are the victims of the crime it is society that is the target. These crimes have become dangerous tools of warfare: ‘cheaper than bullets’ and readily available.[39] The effects on a targeted population can be devastating as the effects of gender violence are extensive, diverse, and persist long after the fighting stops. De Brouwer has identified that women suffer shattering physical[40] and psychological[41] effects; these will be discussed in more detail in Section Three.

It has been highlighted that the proliferation of gendered sexual violence has been allowed to thrive due to pre-conflict social inequalities. In the patriarchal societies found in many developing countries, gender roles are strictly defined; consequently, as Maciejczak documents, that while individuals are targeted, women become ‘spoiled goods’ (being considered the property of men), men become emasculated, and both become stigmatised by shame.[42] This was recognised by the aspiration of the Nairobi Declaration as reparations ‘must drive post-conflict transformation of socio-cultural injustices, and political and structural inequalities that shape the lives of women and girls’ and that ‘reintegration and restitution by themselves are not sufficient goals of reparation, since the origins of the violations of women’s and girls’ human rights predate the conflict situation’.[43]

1.3.2    Reparations

As stated in Principle 18 of the UN Basic Principles and Guidelines on the Right to Remedy and Reparation[44], “victims of gross violations of international human rights law and serious violations of international humanitarian law should, as appropriate and proportional to the gravity of the violation and the circumstances of each case, be provided with full and effective reparation”. According to de Greiff, justice via reparations is targeted at the achievement of three goals within the effected society, namely, recognition, civic trust, and social solidarity.[45] Broadly speaking however, according to Bazemore and Schiff, justice should acknowledge harm, empower victims, and help recover their autonomy.[46]

As mentioned above, in recent times there has been a surge in the demand for justice via reparations. As noted by de Brouwer, the International Court of Justice has focused more on perpetrators, crimes and legalism, and not victims and their needs.[47] In the aftermath of human rights violations victims need practical support to rebuild their lives, including economic and social provisions, medical facilities, psychological/trauma counselling, or indeed all of these.[48] Section Three will discuss in detail the reparations that may be appropriate for victims of rape in times of war, drawing from previous cases and reparations that have been awarded. Considering the documented harm rape can cause it would seem logical that justice via remedy is most appropriate. Drawing on the work of Moffett, the inclusion of reparations by the ICC is an innovation, as it had never been utilised in previous tribunals, and has the potential to satisfy a number of victims’ needs and deliver them a broader sense of justice than just the punishment of the perpetrators.[49]

Duggan has noted that feminists point out that democratic transitions continue to fail to do justice to the victims of gender-based violence despite notable advancements in international law.[50] As mentioned above, gender-based violence can be based in pre-conflict social inequalities. Rubio-Marín and Walker have identified the impact that normative concepts of masculinity and femininity have on the nature of violence committed and the reparations process that follows.[51] Thus, Duggan has suggested for this reason sexual violence against women should figure as a special category under State-sponsored programs for reparation.[52]

1.4  Conclusion

Historically, victims of rape in times of conflict have been largely ignored, specifically in terms of the lack of recognition of the harms they suffered, the lack of convictions of their perpetrators and a severe lack of remedy for the lasting physical and psychological effects of rape. However, the enactment of the Ad Hoc Tribunals and the ICC marked a new international criminal recognition of rape and the possibility of access to methods of remedy via reparation. This evolution can now be seen to go a step further with the possibility of gender specific reparations awarded by the ICC to victims of rape in the Bemba case.[53]

Section Two

2.1  Introduction

‘International criminal tribunals prosecuting crimes of sexual violence in prior conflict zones such as Rwanda, Sierra Leone, and the former Yugoslavia have struggled to develop a coherent definition of the elements of rape.’[54] However, these contemporary tribunals represented a new era of accountability for the crime of rape as a more coherent international criminal regime developed through better legal mechanisms and a comprehensive definition of the crime. Since these Ad Hoc Tribunals, international criminal law has evolved to better recognise the suffering of victims of rape by holding their perpetrators to account and through the award of reparations.

At the heart of this issue is the relationship between rape, force, coercion and consent.[55] Thus, the definition each Tribunal used will be analysed based on the extent to which the focus was on coercion, consent or force. The definition of rape used by the ICC will then be examined; the Elements of Crime is a key document when considering the definition and it too will be examined. Finally, the landmark Bemba[56] case, will be analysed for its contribution.

2.2  Ad Hoc Tribunals

2.2.1    International Criminal Tribunal for Rwanda (ICTR) 1998 – Akayesu^[57]

It should be noted that no matter how pivotal this case may be for its role in the development of the international criminal definition, rape was not originally part of the case. During the first round of hearings descriptions of attacks including rape were so common within witness statements that the court invited the prosecution to go back and adjust their case to include rape. U.N. Special Rapporteur Rene Degni-Segui stated that, “rape was the rule, and its absence the exception.”[58]

The Rwandan genocide lasted 100 days and resulted in the massacre of approximately one million Tutsis and moderate Hutus by ethnic Hutu extremists[59]. The atrocities in Rwanda took a gender specific form with up to half a million women being raped, sexually mutilated and/or murdered[60]. These mass rapes were directed at local and national levels by both political and military leaders, the objective being to destroy a particular ethnic group, the Tutsis. Jean-Paul Akayesu, the mayor of Taba, Rwanda, was charged with genocide, crimes against humanity and violations of the GC.

The ICTR used the following definition of rape:

 “[A] physical invasion of a sexual nature, committed on a person under circumstances which are coercive. Sexual violence which includes rape, is considered to be any act of a sexual nature which is committed on a person under circumstances which are coercive.” [61]

However:

“[c]oercive circumstances need not be evidenced by a show of physical force”[62]

The Akayesu[63] case is significant as it recognised that mass rape during times of war could constitute an act of genocide, termed genocidal rape.[64] This recognition has become firmly entrenched in international criminal law through Article 6 of the Rome Statute.[65]

Of particular interest, in terms of the evolution of the definition, was that –

“[R]ape is a form of aggression and that the central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts. The Convention against Torture…does not catalogue specific acts in its definition of torture, focusing rather on the conceptual frame work of state sanctioned violence. This approach is more useful in international law”.[66]

This vagueness and lack of particularities could be of benefit to victims of rape, as it may allow for more conduct to be captured within the definition, thereby providing opportunity for victims to receive justice through the prosecution of their perpetrators and possible access to reparations.

2.2.2    International Criminal Tribunal for the Former Yugoslavia (ICTY) – Furundzija and Kunarac

One group that was targeted in the atrocities that occurred in the former Yugoslavia were the Bosnian Muslim community who suffered violence of a gender specific form. Two cases arising out of the Bosnia-Herzegovina conflict are of particularly relevance to this study, namely the Furundzija[67] case and the Kunurac[68] case.

2.2.2.1 The Furundzija Case^[69]

Coming only a few months after the Akayesu[70] case, the Furundzija[71] case took a further step in the development for the international criminal legal definition of rape. This was the first case heard by the ICTY which dealt exclusively with charges for rape. Furundzija was the local commander of the “Jokers”, a unit of the Croatian Defence Council, and was convicted based on the rapes that took place during the interrogation of a Muslim woman, and was convicted of torture and outrages upon personal dignity, including rape.[72]

In its deliberations, the ICTY decided that there was no definite international legal definition of rape and questioned the specificity of the Akayesu definition. A survey of national jurisdictions was then conducted to decide what should be included in an international definition of rape.[73] The Furundzija judgement discusses this process in detail[74] and includes the following definition:

“[T]he following may be accepted as the objective elements of rape:

(i)         the sexual penetration, however slight:

(a)        of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator;

or (b) of the mouth of the victim by the penis of the perpetrator;

(ii)        by coercion or force or threat of force against the victim or a third person.”[75]

In contrast to the Akayesu definition, a reliance on specific body parts had entered as a requirement within the definition; the requirement of force was also in stark contrast to the Akayesu definition. Whilst the Furundzija definition does not mention ‘consent’ explicitly, it was discussed, and it is important to take note of the Courts position:

“[A]ny form of captivity vitiates consent. Under Rule 96 of the Rules, it is clear that no corroboration of the evidence… is required.”[76]

From this it is clear that although consent is not necessarily mentioned within the definition, it is still an underlying key aspect. The different emphasis in the Furundzija definition could be seen as limiting the scope for victims as it moves away from a context based analyses. However, there is a key evolution in the Furundzija definition as it is the first time that oral penetration had been recognised as rape in international criminal law.

2.2.2.2 The Kunurac Case^[77]

Kunarac was the leader of a reconnaissance unit of the Bosnian Serb Army who was convicted of torture, rape, enslavement, and crimes against humanity. [78] The development for the definition of rape in this case is twofold; the first is seen in the original Trial Chambers judgement which is then furthered in the judgement from the Appeals Chamber.

Trial Chamber

The original Trial Chamber generally agreed with the Furundzija definition of rape,[79] but took issue with how the requirement for force within the definition was more narrowly stated than was required by international law.[80] As there are many circumstances that may not be considered under the traditional definition of ‘force’[81], the Trial Chamber believed that the Furundzija definition may limit the scope for rape victims and consequently used the following definition of rape:

“[T]he actus reus of the crime of rape in international law is constituted by: the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances. The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim.”[82]

Whilst the definition instils key aspects noted in previous definitions, it once again brings consent to the forefront of the international definition.

Appeals Chamber

The definition of rape was revisited and further developed as a result of The Appellant’s challenge to the definition of rape in the original judgement. The Appellant proposed that a definition still requiring penetration should be accompanied by two further elements: “force or threat of force and the victim’s “continuous” or “genuine” resistance.”[83]

The Appeals Chamber stated that they concurred with the Trial Chamber’s definition of rape and, in response to the challenge, emphasised two points when considering the definition. Firstly, The Appellants “resistance” requirement was rejected as irrational and as having no basis in customary international law[84]. Secondly, the role of force was revisited within the definition of rape and its relationship to consent explained. The Trial Chamber had departed from the Tribunal’s prior definition of rape when it focused on “the absence of consent as the conditio sine qua non of rape.”[85] The Appeals Chamber supported this inclination toward presumed non-consent within certain contexts such as genocide. These circumstances are evident within the Kunarac case as the women concerned were held in detention and were at the mercy of their captors. Therefore, ‘[s]uch detentions amount to circumstances that were so coercive as to negate any possibility of consent.” [86]

Although force was not mentioned within the Trial Chambers definition, this omission may have been intentional in an attempt to ensure as wide a scope as possible for rape victims outside that of pure physical force. This sentiment was echoed by the Appeals Chamber:

“A narrow focus on force or threat of force could permit perpetrators to evade liability for sexual activity to which the other party had not consented by taking advantage of coercive circumstances without relying on physical force.”[87]

2.3  International Criminal Court

Rape is not defined in the Rome Statute,[88] but listed as both a crime against humanity and a war crime.[89] However, rape is explicitly defined in the accompanying Elements of Crimes, which states that rape may occur when:

1. The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.
2. The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent…[90]

2.3.1    The Bemba Case^[91]

The verdict delivered in the Bemba case is of landmark proportions for two reasons. Firstly, this is the first ICC case that has ended in a conviction for rape[92]. Samira Daoud, claims that the verdict marks ‘an historic moment in the battle for justice and accountability for victims of sexual violence in the Central African Republic (CAR) and around the world’.[93] Secondly, Bemba is the first ICC defendant to be convicted on the basis of command responsibility. ICC Prosecutor Fatou Bensouda illustrated the significance of the verdict as it ‘highlighted the critical need to eradicate sexual and gender-based crimes as weapons in conflict by holding accountable those who fail to exercise their duties and responsibilities that their status as commanders and leaders entail.’[94] This verdict may act as deterrence to commanders knowing they will be held accountable for the actions of their subordinates if they do not take reasonable measures to prevent such atrocities.

The Bemba judgment is of key significance as it does not employ a consent-based definition of rape. The Judgement addressed what constitutes rape[95] and utilised the definition laid out in Elements of Crime to draw on certain aspects to further expand the definition. The Judgement focused on consent, the four circumstances in which rape may occur, the meaning of ‘coercive environment’ and ‘taking advantage’, all of which will be discussed below.

On the issue of consent, the judgement stated that a ‘victim’s lack of consent is not a legal element of the crime of rape under the Statute’;[96] as it was clear that the preparatory works of the Statute carried out by the drafters viewed a requirement of the Prosecution to prove the victims non-consent ‘would, in most cases, undermine efforts to bring perpetrators to justice’.[97]  According to Grewal, ‘While consent in the context of rape laws has sometimes been a problematic concept, it has also been seen as a key means of recognizing the right of an individual to exercise freedom of choice and control over one’s body and life’.[98] Thus, it would seem appropriate, as noted in the Kunurac definition, that the capacity to freely give consent would be negated due to the coercive circumstances which war entails.

Rape may occur in four possible circumstances as set out in the Elements of Crimes. The first three circumstances being ‘“force”, “threat of force or coercion”, or “taking advantage of coercive environment”’.[99] It is only within the fourth circumstance that consent is mentioned as rape being committed “against a person incapable of giving genuine consent”[100]. The judgment went on to clarify that Elements of Crimes defines those ‘incapable’ of giving consent as being ‘affected by natural, induced or age related incapacity.’[101] This recognises that there are certain people that, no matter the circumstances, are entirely unable to give consent. This is in stark contrast to the Kunurac definition which focused on the overpowering of a victims free will via coercive circumstances. Thus, as noted by Clark, the Elements of Crimes draw a clear distinction between circumstances and consent, which the Bemba judgment reinforces,[102] as the Court finds that with the first three circumstances the Prosecution does not need to prove the victim’s lack of consent’.[103]

The judgment develops existing case law via the discussion had about the meaning of a ‘coercive environment’. The Bemba judgment relied somewhat on the definition delivered by the Akayesu judgment, as it focused on the context of circumstance rather than a mechanical list of body parts. Thus, it can be implied from the wording of the Elements of Crimes that a ‘coercive environment’ is broader than force, threat of force or coercion.

The judgement discussed what would constitute a ‘coercive environment’[104]. It was determined that ‘in addition to the military presence of hostile forces among the civilian population’[105] there were other circumstances that must be considered and that several factors may contribute to create such an environment. [106] This recognition acknowledges that in times of war there are many circumstances that may cumulate to create victims. Thus, drawing on the Kunurac definition of the effect coercive circumstances have on the ability to freely give consent, the Bemba judgement further evolves the recognition of victims in coercive circumstances.

Clark has drawn on the importance of the terminology of ‘taking advantage’ as highly significant.[107] This is due to that fact that it highlights the abuse of power which rape embodies, as noted by Brownmiller;[108] thereby effectively capturing the totality of the crime more so than an approach that places consent at the centre of the enquiry. [109]

2.4  Conclusion

Through tracing the evolution of the definition, it is clear that the debate on the relationship between rape, force, coercion and consent has the greatest impact on who can be recognised as a victim. The move away from a consent based definition, with a comprehensive examination of the circumstances in which rape can occur, as discussed in the Bemba judgement, allows for the widest scope and clearest understanding of victimhood. It is also worth noting that the Bemba judgement gives particular consideration to those who can never freely give consent, no matter the circumstances, so as to avoid an over-focus on the coercive circumstances that conflict can produce.

Section Three

3.1  Introduction

“Reparations are measures aimed at removing the effects of the violations. Their nature and amount are dependent upon the specifics of the violation and the damage inflicted at both the pecuniary and non-pecuniary levels. These measures may neither enrich nor impoverish the victim or the victim’s beneficiaries, and they must bear proportion to the breaches declared.” [110]

As previously discussed, mass rape has been recognised within international criminal law as more than a mere ‘by-product’ of war. With this broader understanding of the crime, through a comprehensive definition delivered by the ICC, comes the possibility of justice via the punishment of the perpetrators and remedy to the harms suffered via access to reparations.

This Section will discuss who is recognised as a victim and thus who has access to reparations. Reparations will then be discussed, with examples of their use, and the question of what types of reparations are most appropriate for victims of rape is explored. A debate that has come to the forefront of discussions on reparations is whether symbolic or material forms of reparations are more appropriate for victims and this too will be examined. This Section will conclude by examining some of the issues preventing victims obtaining redress.

3.2  Who Is A Victim?

It is important to identify who is a victim before debating which forms of reparations are most suitable, as only those recognised as victims will gain access to international mechanisms of justice. ‘Victims’ have been defined broadly under the Rome Statute to encompass ‘natural persons’ and ‘non-persons’ who have suffered as a result of the commission of any crime under the jurisdiction of the court.[111] In addition, the UN have a similarly wide-reaching definition for victims which embrace those who have endured: physical or mental injury, emotional suffering, economic loss, or substantial impairment of their fundamental rights.[112]

Drawing on the work of Moffett, victimisation can be distinguished by the degree to which it affects certain individuals and groups.[113] In this research, recognised victims include direct/primary victims, secondary victims and tertiary victims. The direct or primary victim is the person who is originally injured by the crime.[114] However, given the grave nature of these offences and the impact of the crime on both the primary victim and those close to them[115], ‘victim’ status can include family or dependants of the direct victim;[116] these victims are recognised as secondary victims.[117] Finally, tertiary victims are members of communities affected by the consequences of the crime, due to the primary victim being a member of such a group.[118] As stated by Moffett, the distinction can help to provide appropriate remedies to different groups of victims, such as compensation, restitution, and rehabilitation to the primary and secondary victims, to collective reparations and non-recurrence measures for tertiary victims.[119]

3.3  Reparations

As previously stated the reparations that will be discussed in this section are those recognised in the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation.[120] In principle, these remedies are meant to be reparative rather than corrective. Rombouts and Paramentier argue that returning victims to their original position may restore them to a position of inequality, such as discriminated minority, or indeed may not be possible as the victim may have been severely harmed or dead. [121] If it is not possible to restore victims to their original state, reparations can help victims and their families move on physically, psychologically and/or financially. Yet, seeking justice and reparations domestically may not be available to victims due to the State being unable or unwilling to investigate and prosecute the perpetrators. In such circumstances, the ICC can intervene, through the principle of complementarity,[122] to assist a State in delivering justice to victims.[123]

3.3.1    Restitution

Restitution includes measures that attempt to return a victim to their original position before the violation had occurred.^[124] However, with the crime of rape it is impossible to return a victim to their original position, as the physical violation cannot be undone. In such circumstances other forms of reparation are necessary.

3.3.2    Compensation

Compensation is intended to atone for harm via the quantification of damages caused and is usually applied when the harm suffered goes far beyond mere economic loss, but also has elements of psychological, physical and moral harms.[125] Compensation is often used as a means of reparation for mass atrocities as it can be calculated on the basis of the group.

Victims of rape will often suffer long-term ramifications to their economic futures and, while the quantification of awards is difficult, a gender-sensitive approach is needed which requires that all consequences flowing from sexual violence are included.[126] Consequently, it has been recommended that economic damage should not only recognise moral damages, which may include harm to the reputation and dignity of the victim as a result of stigmatisation, and impact on women’s ability to access marriage and social benefits;[127] but should also be interpreted as including loss of educational opportunities, employment benefits, the material implications of the birth of children as a result of rape, fertility issues, and lifelong reproductive health problems.[128]

Compensation can come in a number of forms including a one-off lump-sum payment giving the victim financial independence to start over, i.e., to live elsewhere.[129] It can also be delivered through a pension program, allowing victims to have a source of long-term financial security. This was the case in Chile where annual pensions were awarded to survivors of sexual abuse.[130]

It is clear that the harm caused by rape is compounded by prejudicial, stereotyped, and false beliefs about sexual violence, which direct blame towards the victim and have a devastating impact on their sense of self.[131] There is also the risk of compensatory payments seeming like the silencing of victims by ‘paying them off.’ Therefore, care must be taken not to further stigmatise victims when delivering individual awards. For example, in Guatemala, during State-sponsored ceremonies, victims were given compensation cheques which stated ‘victim of rape’, thereby contributing to their stigmatisation.[132] Monetary compensation can be of great benefit to each victim, but is insufficient unless complemented with other rehabilitative and reparative measures.[133]

3.3.3    Rehabilitation

Rehabilitation[134] may be the most important material reparation beyond the merely financial as it refers to the measures taken to provide social, medical, and psychological care.

3.3.3.1 Physical

The act of rape has many physical effects, some more complex than others, which can require years of rehabilitation. Transmission of sexually transmitted infections is one of the most commonly reported physical complications, as high as 83% in some studies of victims in conflict zones.[135] Thus, it has been recommended that victims of rape should have access to both centralised and mobile medical facilities with specially trained staff.[136] As such, a co-ordinated effort between professional medical bodies, UN agencies, voluntary and humanitarian bodies would make reparations more effective.[137]

3.3.3.2 Psychological

The psychological and social impacts of rape cannot be overstated. The trauma of rape, especially that which is committed with weapons and violence has a significant risk factor for suicide.[138] In conflict areas there will more than likely be a delay in addressing the assault, emotionally, compounding the victim’s isolation and psychological wellbeing.[139] This was highlighted in the Bemba case, where, expert evidence provided critical information about post-traumatic stress disorder and the longitudinal and inter-generational impact of sexual violence crimes.[140]

The need for psychological healing as reparation was recognised by the Inter-American Court of Human Rights (IACtHR) in the Gonzales (‘Cotton Field’) case[141] when the State was ordered to ‘provide appropriate and effective medical, psychological or psychiatric treatment, immediately and free of charge, through specialised State health institutions’. Critically, the Court emphasised that health care should specifically address ‘the psychological trauma as a result of the gender-based violence’.[142]

The various forms of reparation considered above have all been material in nature. Symbolic forms of reparation such as measures of satisfaction and guarantees of non-repetition “[a]re especially broad categories that include such dissimilar measures as the cessation of violations, verification of facts, official apologies and judicial rulings that establish the dignity and reputation of the victim, full public disclosure of the truth, searching for identifying, and turning over the remains of dead and disappeared persons, along with the application of judicial or administrative sanctions for perpetrators, and institutional reform.”^[143]These forms of reparation go towards benefiting society, not just those victims before the Court.

3.3.4    Measures of Satisfaction

Measures of satisfaction[144] publicise the wrongful nature of rape, which then awakens society to the consequences of sexual violence and in turn ‘facilitate the process of victims’ psychological and social rehabilitation;’[145] by engendering social solidarity with the victims’ plight. Measures of satisfaction were seen in the Gonzales (‘Cotton Field’) case[146] when a monument for the ‘commemoration of the victims of gender-based murder’, was ordered on the basis that it was ‘a way of dignifying them and as a reminder of the context of violence they experienced, which the State undertakes to prevent in the future.’[147] Therefore, measures of satisfaction would give scope to include the healing of tertiary victims as they would educate society of the plight suffered by the primary victims’.

3.3.5    Guarantees of Non-Repetition

Mégret described guarantees of non-repetition[148] as ‘a commitment made by the State to never engage again in the practices that led to violations, backed by a number of reforms and restructuring initiatives to make good on that promise.’[149] When violence is perpetrated against individuals for their membership of a group, the result can be harms that are collective and therefore require collective forms of redress. However, often the violence committed against these victims is based in pre-conflict social inequalities, as discussed in Section One with respect to the aspiration in the Nairobi Declaration[150]. Guarantees of non-repetition include legislative amendments and institutional reforms made by States to prevent the repetition of violations and atrocities, such as human rights training for the military and the amendment, annulment or repeal of incompatible laws.

3.4  Symbolic vs Material

The nature of material reparations is to alleviate the day-to-day suffering of victims. As discussed above, rape can have disastrous effects physically, psychologically and socially, which can impact possibly thousands of victims, especially when secondary victims are recognised. Given the potentially large numbers of victims, and the need to put reparative measures in place quickly, material forms of reparation can often be the most costly.

Symbolic reparations, also known as transformational reparations, target societal structure, awakening society to the wrongs that took place with the intention of ensuring they never happen again. As such, they are not targeted directly at individuals, but rather take the form of campaigns, ceremonies and memorials and come at much less cost. However, the importance of symbolic measures should not be underestimated as a means of helping to restore the dignity of victims. In South Africa, the Truth and Reconciliation Commission recommended that symbolic reparations be included in the reparations policy as they would facilitate the ‘communal process of remembering and commemorating the pain and victories of the past.’[151]

It has been argued that the moral and material damage caused by sexual violence requires a combination of individual and collective reparations.[152] As noted by Gerodetti, material reparations are not the only or primary form of reparation as symbolic measures can be equally effective. These might consist of, for example, public acknowledgement and public apologies, times and places of official commemoration, museums and exhibitions, revised textbooks and curricula and a strengthening of civic trust and solidarity.[153] Thus, it could be concluded that both material and symbolic forms of reparations are required in order for all victims to heal.

3.5  Conclusion

This section has discussed what forms of redress are available to victims of rape. However, it must be taken into consideration that it is often difficult for victims to come forward, particularly if, as discussed in Section One, in doing so they risk social stigmatising and discrimination. Nonetheless, UN Women in the CAR found that women were more likely than men to demand apologies, punitive measures for those responsible for violations and recognition of their suffering.[154]

A main limitation to victims seeking redress is due to the jurisdictional reach of the ICC, as the ICC can only recognise victims from within the State Parties that are signatories of the Rome Statute,[155] or those cases referred by the UN Security Council. For example, within the Bemba case there are some 5,000 recognised victims within the CAR, but there were others outside CAR that have not been recognised and therefore will not avail of the reparations awarded. Consequently, it can appear that there is justice for some, but not for all.

Conclusion

4.1  Has The Definition Of Rape In International Criminal Law Truly Evolved?

This research paper began with an analysis of how, in the past, rape was viewed merely as a by-product of war and an acknowledgment that historically victims of rape had been let down by the lack of recognition of the harms they suffered, the lack of convictions of their perpetrators and a severe lack of remedy for the lasting physical and psychological effects of rape. The enactment of the Ad Hoc Tribunals of the 1990s began a new era of accountability, resulting in criminal convictions for the perpetrators of rape and recognition of the harms suffered by victims. With this move away from a position of tacit acceptance of rape as an inevitable consequence of conflict came the search for a definition of what actually constitutes rape within international criminal law, firstly through the Ad Hoc tribunals and later in the ICC. Section Two examined this evolution, with particular emphasis on how each case analysed and modified the definition, focusing on the developing relationship between rape, force, coercion and consent including the move away from a definition involving a mechanical list of body parts to a context based definition.

The most recent definition of rape is seen in the Bemba Judgement, which incorporates many aspects of previous definitions to give a comprehensive definition of the crime in international law. Most notable in the judgement was a move away from a consent based definition towards one that recognised that the existence of a ‘coercive environment’ negated the need to prove lack of consent. This can be considered a significant advance in two respects; firstly, it removes the possibility of perpetrators escaping justice because of the need to prove lack of consent and, secondly, it arguably widens the scope and provides a clearer understanding of who should be considered a victim.

It is clear from a review of the literature that the definition of rape has changed significantly since it was first codified in the Ad Hoc Tribunals. However, evolution is more than simply change, progression is also implied. If progression is considered as extending the recognition of victims of the crime, then it can be argued that the definition of rape in international criminal law has truly evolved. Whilst the definition of rape used in the Bemba case is quite comprehensive it remains to be seen if and how further evolution takes place over time.

4.2  Which Reparations Are Suitable For Victims Of Rape?

As discussed throughout the paper, the punishment of the perpetrators of rape is fundamental for securing justice for victims. However, there needs to be real world application of this justice in an effort to remedy the harms suffered and, as such, reparation regimes are vital for the healing of victims.

As the research has shown, there are different classifications of victims – primary, secondary and tertiary – with different reparations appropriate for each classification. Primary victims are those who suffered the actual attack and thus would benefit from the most comprehensive reparations regime. Compensation and rehabilitation (both physical and psychological), would be most suitable for these victims as the effects they suffer will be the most complex and will require the attention of specialists. Secondary victims would benefit mostly from rehabilitative reparations, especially psychological rehabilitation, as they may have been forced to watch or participate in the attack. Finally, tertiary victims along with primary and secondary victims would all benefit from measures of satisfaction and guarantees of non-repetition. These types of reparations go towards educating society and remembering those who suffered thereby aiding the healing of all victims. Consequently, all forms of reparations, material, symbolic and a mixture of both, have their place in a reparations regime that recognises all victims. The exception is reparation through restitution as it is impossible to return victims of rape to their original pre-conflict status.

It could also be inferred from this research that just as the international definition of rape has evolved so too has the understanding of what constitutes appropriate reparations. This can be seen most notably in the Bemba case as it is the first time the ICC has moved to award reparations to victims of rape. In doing so the Court has effectively recognised the gender specific nature of the violence suffered by the victims and consequently the gender specific nature of the reparations required. Thus, over time the aspirations of Duggan, for sexual violence against women to figure as a special category under State-sponsored programs for reparation, may well be fulfilled.

As the international criminal definition of rape has evolved, widening the scope for recognition of victims and access to reparations, it is important to note that the definition of rape in international law, as used by the ICC, is not universally applicable. As discussed in Section Three, and witnessed in the Bemba case, it is only victims in States that fall within the ICC’s jurisdiction that are recognised and may avail of reparations regimes. Thus, as important as evolution may be, it means very little to those victims who may not be recognised in international law by the ICC as they fall outside the jurisdiction of the Court.