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Rape - the hushed warcrime.

Where there is conflict, there is always gender-based violence, yet the path to recognition, accountability and reconciliation is a long one: questions of justice and equality.

by Franziska Meier

Amal Clooney at the UN Security Council Conference in 2019. © UN Photo/ Evan Schneider.

 “This is your Nuremberg moment”, urged human rights lawyer Amal Clooney at the Security at a meeting of the UN Security Council in April 2019. Speaking at the annual debate on conflict-related gender based violence, Clooney voiced the lack of support the prosecution gives victims in the context of whether Islamic State leaders should be held accountable for the genocide, rape and torture of the Yazidis, female victims can only watch as “men shave off their beards and return to their normal lives while they, the victims, never can”.

Like any other manifestation of violence, the use of gender-based violence in war is not a modern phenomenon. As the most vulnerable in conflict-ridden societies, female civilians have been subjected to torture, rape and many other forms of sexual abuse in the context of war. Widespread conflict driven sexual violence has ravaged communities throughout antiquity to most recent cases in the Democratic Republic of Congo (DRC), Iraq, Myanmar and many others. From a legal perspective, the lack of enforcement of criminal justice for those responsible for such sexual crimes has left victims treated unequally, left silenced and invisible in the eyes of international law. The concepts of equality and human dignity remain central to the crimes and their judicial handling. Silencing victims means to deny them of their dignity, the heart of human rights violations.  There can hardly be torture, murders and rapes without the discrimination and dehumanization of a human being. For the first time, the Nuremberg and the Tokyo tribunals linked the two concepts in the eye of international law. Although their public and thorough procedure was an important step to reconciliation, their greatest shortcomings were the negligence of the victims. After all, the title Kriegsverbrecherprozesse (trials of war criminals) allows no room for those who fell victim to them. No victim was able to take a stand and speak about what they had endured. Despite extensive documentation of gender-based violence, silence was cast over victim experiences in the handling of the criminals. Although the Nuremberg trials have brought forth modern international humanitarian law, it was only in 1998 that committing

“rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;”

was understood as a “serious violation” of international law under the Rome Statute. Before the 1990s, rape, torture and other forms of sexual abuse against female civilians were ignored or even trivialized as a rather unfortunate by-product of warfare.  Under the paradigm of transitional justice, the Rome Statute pledges to be “mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity”, and pledges to recognize the severity of these crimes. In terms of judicial codification, the Rome Statue marks an important shift in the legal status of a victim. However, it was only in 2000 - half a century after the onset of the Nuremberg and Tokyo tribunals - that victims of conflict-driven rape first physically appeared at international crime trials. For the first time, victims were listened to in the international public eye. Regaining the empathy and respect through such a testimony is often linked to the hope of victims to restore the dignity that was robbed during the crime.

As successful as this shift in prosecution of gender-based war crimes may be from an international legal standpoint, its impact on acknowledging, coming to terms with and compensating past injustices to victims of gender-based violence remains limited. In light of this, it is important to question whether giving a relatively young legal system, whether international or not such moral high ground in respect to restoring unimaginable psychological and physical harm. Returning to Amal Clooney’s plea in 2019, she touches upon a significant aspect that courts cannot provide: the short- and long-term support of conflict driven rape survivors. Despite testimonies, the impact of tribunals (specifically the ICTY) on civic society is limited, if any. Who will care for the victims, whose physical and psychological pain will be carried for much, if not all of their lives once a tribunal is concluded? How should conflict driven rape be represented, recognized and remembered (for both sides)?  After all, the contention that surrounds gender-based violence is the biggest detriment of the injustice that fuels conflict.

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