Engendering the Responsibility to Protect doctrine – time to include rape and sexual violence?

Engendering the Responsibility to Protect doctrine would be an effective strategy in response to the hitherto unhindered trend of sexual violence and rape in war.

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Conflict Background

GCCT

By Kirthi Jayakumar

Under the ambit of the UN Charter, the use of force is prohibited.(1) There are only two exceptions to the norm – a) the right to self-defence as under Article 51 of the UN Charter, whereby states have the right to use force in response to an armed attack (2) and b) the Security Council is allowed to enjoy the power (and responsibility) to address challenges to international peace and security.(3) While these are the only exceptions in writing, state practice has a different story to tell. Although “humanitarian intervention does exist in state practice, and although state practice is deemed a source of law as under Article 38 (1) (a) of the Statute of the ICJ, (4) considering the hegemony of the sources of law in the same provision, there is a generally-accepted notion that state practice cannot over rule treaty and customary law, both of which denounce the use of force except in self-defence.(5)” (6)

Despite the explicit prohibition of intervention by one state in the affairs of another state, a lack of regard for the territorial sovereignty or political independence of the other state has continued unhindered. Sometimes covert through coercive policy, sometimes overt through military intervention, there have always been instances where one state imposes itself on another state in the name of “humanitarian” cause. In some cases, these instances of humanitarian intervention came to be authorised by the Security Council. Adding this to the mix is the Responsibility to Protect, where in 2005, for the first time ever, the global community endorsed the notion that the world at large has an obligation to protect a community that is facing mass atrocity. The doctrine of Responsibility to Protect makes the approach to the same issue from a different angle – one which endorses that sovereignty is a responsibility – and that a state has a duty to take care of its people. When it fails to do just that, the responsibility to take over devolves to the international community.

With these principles in-place, the arguments in favour of humanitarian intervention have found legitimisation. Intervention in cases of mass atrocities has taken place where there have been instances of genocide, ethnic cleansing, crimes against humanity and war crimes that specifically relate to casualties. While the lure of intervention has always been a decision made in the light of political interests, it has been coated with the overarching cause that is sought to be fought for – that of stopping genocide or ethnic cleansing. One seldom hears of the need for intervention on the basis of gender-based violence on a mass scale. Rape continues unabated in the Democratic Republic of Congo after the Rwandan Genocide.(7) It unfolded in a systematic fashion in the thirty-year long civil war in Guatemala.(8) There were mass rapes in Bosnia-Herzegovina, Sri Lanka, Bangladesh, Darfur, Iraq and even in contemporary peacekeeping missions. But none of them had the world’s attention enough to beg intervention.

The Responsibility to Protect doctrine aimed at protecting global populations in different communities from mass atrocities. The basis for the international community’s responsibility was explained to be a situation where a state is either unwilling or unable to protect its citizens from actual or apprehended large scale loss of life – with or without genocidal intent, or, a large scale ‘ethnic cleansing’, the principle of non-intervention in the internal affairs of other states yields to the international responsibility to protect.(9) The doctrine therefore adopts a view of sovereignty which emphasizes as its defining characteristic the capacity to provide protection, rather than territorial control.(10) In all the occasions of intervention in international relations and history, the basis has been genocide or mass atrocity of any kind – but without a specific angle on the gender tone. International efforts have, on balance, paid “only the most limited attention to the vulnerability of the group most typically targeted” in genocide – younger, “battle-age” males.(11) In the field of genocide studies, “the gender variable has been “invisible or barely visible, an “obfuscation” that “may reflect the fact that it is non-combatant males who tend overwhelmingly to be the victims of gender-selective mass killing, and this remains a powerful taboo in the feminist-dominated discussion of gender.”(12)

Defined under the Genocide Convention, Genocide refers to acts that are carried out with an intent to destroy in whole or in part, a national or an ethnic group, through a) killing members of the group; b) causing serious bodily or mental harm to members of the group; c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d) imposing measures intended to prevent births within the group; and e) forcibly transferring children of the group to another group.(13)

Acts of rape and sexual violence can amount to genocide.(14) In the Akayesu case, the Trial Chamber of the ICC ruled that acts of rape can form an integral part of the process of destruction of a group. “These rapes resulted in physical and psychological destruction of Tutsi women, their families and their communities. Sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and to the destruction of the Tutsi group as a whole.”(15) Rape in war is not a by-product, nor an effect of war. It is, instead, a weapon of war; a strategy that is deployed in war in order to defeat the enemy. As a weapon of war, for the warring factions, rape is a cheap tool and extremely effective in targeting the enemy’s society. Armed groups, combatants and non-combatants use rape as a means to terrorize and control women and communities. Subjecting women to sexual violence stigmatizes the woman and her family, besides harming her physically and psychologically. To avoid bearing the stigma, families have been known to spurn these women out of their homes, men have been known to refuse to marry women who have been subjected to sexual violence, and those that are married have been known to send their wives out of their homes. When women are spurned the backbone of a societal structure is broken.

Sexual violence is calculated, brutal and absolutely bereft of humanity. Using sexual violence as a modus operandi in warfare is intricately woven with the hegemonic desire for power. Sexual violence in conflict is a preferred method to reinforce gendered and political hierarchies. This has been seen time and again in many of the world’s conflicts: whether the Holocaust (16), Rwanda (17), Bosnia-Herzegovina (18), Libya (19), or more recently, Syria (20). When rape and sexual violence are systematically deployed as a war tactic, it has the potential to be seen as a factor that can culminate in genocide.(21) As defined under Article 2 of the Genocide Convention, 1948, genocide as a term is wide enough to include anything that is done to destroy the ability of a population to procreate (22).

Rape and sexual violence have tremendous potential to wreak damage on any community. There is plenty of literature – jurisprudential and otherwise – that indicate that rape and sexual violence constitute acts of genocide. The Trial Chambers of the International Criminal Tribunal for Rwanda (ICTR) in Prosecutor v. Akayesu (23) held that acts of rape can form an integral part of the process of destruction of a group, holding thus:

“…rapes resulted in physical and psychological destruction of Tutsi women, their families and their communities. Sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and to the destruction of the Tutsi group as a whole.” (24)

In the same decision, it was also held:

“[I]mposing measures intended to prevent births within the group” include: “sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages. In patriarchal societies, where membership of a group is determined by the identity of the father, an example . . . is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother’s group.” The Chamber noted that the measures may be mental as well as physical. “For instance, rape can be a measure intended to prevent births when the person raped refuses subsequently to procreate, in the same way that members of a group can be led, through threats or trauma, not to procreate.” (25)

Rape and sexual violence are oftentimes strategic tools in conflict. In the 2011 Libya conflict, Muammar Gaddhafi reportedly had Viagra distributed among his armed forces to get them to take it in order to carry out rapes (26). During the Guatemala Civil War, Efrain Rios Montt’s trial revealed that he was complicit in the rape, torture and murder of indigenous civilians carried out by his troops during a counter-insurgency campaign in the heartlands of the leftist guerrilla movement (27). In the DR Congo, sexual violence and rape have been carried out by soldiers from armed groups and the national army, especially in the Eastern part of the country (28). In Darfur, Sudan, armed militias continue to rape women and girls with impunity (29).

At this point, it is also important to understand that women are not the only ones who suffer rape and sexual violence. The impunity that war provided in Afghanistan allowed the festering of the age-old practice of bacha-baazi, where young boys are forced to dress as women and dance for men, and are later used sexually (30). During the Bosnian War, vilest forms of castration took place (31). In the DR Congo, men suffered sexual violence at the hands of the rebels (32). Currently, in Syria, men are being subjected to sexual violence in detention centres (33). At the outset, it is important to understand that sexual violence against men in a conflict setting is not something confined to being perpetrated by homosexual men exclusively, but by heterosexual men as well, and in some instances by women too (34). As it happens with women who suffer sexual violence in conflict, sexual violence towards men is not about lust. It is directed towards men with the same intention as it is directed towards women – that of asserting dominance. The stakes are “higher” to the perpetrator if a man is subjected to sexual violence, for not only have they imposed dominance, but they have also emasculated their enemy, or to “feminise” the enemy.” (35) The purpose of using sexual violence against men is to break the men who are supposed to be guardians of society, the breadwinners of families in a social setting, and to erode the sanctity attached to their masculinity. In this backdrop, it is definitely true therefore, that these are planned and anticipated results.

As it stands currently, the Responsibility to Protect doctrine is “entirely gender-blind, despite the existence of multiple international mandates for integrating gender concerns into peace and security initiatives.”

Given that both men and women alike face sexual violence in a conflict, how will engendering the rhetoric help? Engendering the Responsibility to Protect doctrine would be an effective strategy in response to the hitherto unhindered trend of sexual violence and rape in war. Sexual violence occurs irrespective of gender, and it has potential for destroying the future of a community entirely. If crimes of rape and sexual violence are permitted as a basis for the international community to intervene in an issue, sexual crimes in conflict can be stymied and nipped in the bud. Sexual violence and rape in conflict is a violation of the laws of war, or the body of law called international humanitarian law. In conflict, because of the state of disarray, in which the laws remain unenforced, sexual violence and rape thrives without restraint. Heretofore, all commitments made by international organisations and states at international organisations in connection with gender and the Responsibility to Protect doctrine have largely remained goals confined to policy and have remained legally non-binding. But with the massive change in scenario in the nature of armed conflict, alongside the lack of implementation of the non-binding resolutions (37), there is an urgent need to focus international policy, particularly intervention-based policy and conduct, with a more gender-centric approach.

Kirthi Jayakumar is a Lawyer, specialized in public international law and human rights. A graduate of the School of Excellence in Law, Chennai, Kirthi has diversified into research and writing on public international law and human rights. She has worked as a UN Volunteer, specializing in human rights research in Africa, India and Central Asia and the Middle East. She also runs a journal and consultancy that focuses on international law, called A38.

This article is a shorter version of a larger publication.

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Footnotes

1) Article 2(4), Charter of the United Nations

2) Article 51, Charter of the United Nations

3) Chapter VII, Charter of the United Nations

4) Owing to a lack of any other legal instrument suggesting a list of sources, this article has been cited.

5) W.D. Verwey, Humanitarian Intervention Under International Law, 32 Netherlands International Law Review 357 (1985); Franck & Nigel S. Rodley, After Bangladesh: The Law of Humanitarian Intervention by Military Force, 67 American Journal of International Law 275, 305 (1973)

6) Kirthi Jayakumar, Humanitarian Intervention: A Legal Analysis, (February 6, 2012)

7) See generally Women Under Siege Project, “Profile: Democratic Republic of Congo

8) See generally Michele L Leiby, “Wartime Sexual Violence in Guatemala and Peru“, 2009 International Studies Quarterly 53, 445-468.

9) International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect, International Development Research Centre, Ottawa, 2001, pp. XI and XII, available at – http://www.iciss.ca/pdf/Commission-Report.pdf

10) Anne Orford, ‘Jurisdiction Without Territory: From the Holy Roman Empire to the Responsibility to Protect’, Michigan Journal of International Law, Vol. 30, No. 3, 2009, pp. 984–1015, at p. 990

10) Adam Jones, “Genocide and Humanitarian Intervention: Incorporating the Gender Variable”, Paper presented to the Fourth International Bi-Annual Conference of the Association of Genocide Scholars Minneapolis, MN, June 10-12, 2001.

12) Adam Jones, ed. “Gendercide and Genocide” Nashville: Vanderbilt University Press, 2004, p. 197

13) Article 2, Convention on the Prevention and Punishment of the Crime of Genocide, 1948

14) Prosecutor v. Akayesu, (ICTR) Case No. ICTR-96-4  (Trial Chamber), September 2, 1998, para. 504 – http://www.unictr.org/Cases/tabid/127/PID/18/default.aspx?id=3&mnid=4

15) Prosecutor v. Akayesu, (ICTR) Case No. ICTR-96-4  (Trial Chamber), September 2, 1998, para. 504; – http://www.unictr.org/Cases/tabid/127/PID/18/default.aspx?id=3&mnid=4

16) See generally Women Under Siege Project, “Profile: Holocaust

17) See generally Women Under Siege Project, “Profile: Rwanda

18) See generally Women Under Siege Project, “Profile: Bosnia

19) See generally Women Under Siege Project, “Profile: Libya

20) See generally Lauren Wolfe (Women Under Siege Project), “Syria has a massive rape crisis” April 3, 2013

21) Prosecutor v. Akayesu, (ICTR) Case No. ICTR-96-4  (Trial Chamber), September 2, 1998, para. 504; –http://www.unictr.org/Cases/tabid/127/PID/18/default.aspx?id=3&mnid=4

22) Specific clause under Article 2.

23) Prosecutor v. Akayesu, (ICTR) Case No. ICTR-96-4  (Trial Chamber), September 2, 1998, para. 506; – http://www.unictr.org/Cases/tabid/127/PID/18/default.aspx?id=3&mnid=4

25) Prosecutor v. Akayesu, (ICTR) Case No. ICTR-96-4  (Trial Chamber), September 2, 1998, para. 507-8; – http://www.unictr.org/Cases/tabid/127/PID/18/default.aspx?id=3&mnid=4

27) Guatemala: Efrain Rios Montt and Genocide Charges, The Guardian, May 10, 2013

28) “Africa Tales of Rape in DR Congo“. BBC News. Retrieved 6 April 2010.

29) “UNICEF adviser says rape in Darfur, Sudan continues with impunity“. 19 October 2004. UN News Centre.

30) “Bacha Bazi in Afghanistan” Washington Post, April 4, 2012,

31) IWPR, “Bosnia struggle to overcome male rape taboo

32) “The Rape of Men” (July 17,  2011)

33) Sandesh Sivakumaran, Why the world must stop ignoring male victims of wartime sexual violence (BBC) March 13, 2013

34) “Sex used to break Muslim prisoners, book says” (January 27, 2005)

36) Jennifer Bond and Laurel Sherret, A sight for sore eyes: Bringing Gender Vision to the Responsibility to Protect Framework, (August 1, 2006). INSTRAW: New Voices, New Perspectives

37) UN Security Council resolution 1325 (2000); Security Council resolution 1820 (2008); Security Council resolution 1888 (2009); Security Council resolution 1889 (2009); Security Council resolution 1960 (2010)

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