Rape as a deliberate strategy of war and prosecuting ISIS

There are several terrorist extremist groups currently using women’s bodies as a deliberate strategy and tool of war. Some of these extremist groups include ISIS in Iraq and Syria, Al-Shabaab in Somalia and Boko Haram in Nigeria. It is not just a by-product of war or a result of sexual gratification. It is a deliberate strategy used by terrorist extremist groups using mass rape in order to punish, humiliate, displace and control communities. Rape is further used to recruit new fighters and to generate revenue through ransoms, sex trafficking and slave trade. If you destroy the women’s dignity, you destroy the whole community.

This strategy works in these countries as many victims of rape are left both traumatised but then stigmatised by their communities. The victims are in fact blamed for the abuses they have suffered. Perpetrators understand the strategy corrodes from within the very core of enemy communities. Victims become outcasts due to the shame inflicted upon them. Men are unable to look at their wives, fathers at their daughters and the children conceived through rape are a life-long reminder of the most awful day of their lives.

Jeanna Mukuninwa, a 28-year-old woman from Shabunda, in the Democratic Republic of Congo says “Rape is a weapon even more powerful than a bomb or a bullet. At least with a bullet, you die. But if you have been raped, you appear to the community like someone who is cursed. After rape, no one will talk to you; no man will see you. It’s a living death.”

Rape as a weapon of war is nothing new, and was widely utilised in the Balkan conflicts, especially in Bosnia, in the 1990s. To ISIS however rape is part of their propaganda campaign in their bid to wipe out the Yazidis. There is a method in their brutality above control, subjugation and violence for its own sake; the Yazidi culture dictates that women who form relationships with non-Yazidis automatically take on the religion of their partner. Isis is effectively raping the Yazidis out of existence, one assault at a time.

In many nations the collapse of the rule of law leaves the country unable to prosecute allegations of rape, while in other countries women feel too exposed to stigma to accuse their attackers. To put an end to rape in war, rather than merely healing it, requires that theses extremist terrorist groups actions are treated as a war crime and not just a “second-class crime that happens to second-class citizens,” according to Zainab Bangura, the U.N.’s special representative on sexual violence in conflict.

The landscape to justice is changing. The Rome Statute of the International Criminal Court “ICC” recognises sexual violence as a war crime, a crime against humanity and a constituent act of genocide. The UN recognises rape and other forms of sexual violence as deliberate strategies used in campaigns of terror. Under the doctrine of command responsibility, leaders can be prosecuted for war crimes when they knew or should have known that their subordinates were committing such crimes and failed to take adequate steps to prevent the crimes or punish those responsible.

In 2016 Jean-Pierre Bemba Gombo leader of the movement for the liberation of the Congo (MLC) was found guilty in the ICC and sentenced to 18 years. He was convicted of two counts of crimes against humanity (murder and rape) and three counts of war crimes (murder, rape, and pillaging). This was the first time that an ICC prosecution had focused on rape as a tool of war and to employ the doctrine of command responsibility: that leaders are accountable for the crimes of their subordinates.

This ICC decision sends a message that high-ranking soldiers and militia leaders are responsible for preventing sexual violence committed by fighters under their command. Given ISIS’s use of rape as a tool of war particularly against the Yazidi people, how may the perpetrators be brought to justice?

Russia and China vetoed the referral of the situation in Syria to the ICC on May 22, 2014 despite an outpouring of support by 64 UN members states and over 100 NGOs. Iraq has not joined the ICC; the Islamic State is not a recognized state so may not join the ICC and why would it? Iraq could potentially accept limited ICC jurisdiction with respect to “the crime in question” under Article 12(3) of the Rome Statute, which provides for a non-party to the Statute to accept the jurisdiction of the Court. If Iraq chooses not to, the UN Security Council may refer the case to the ICC under Article 13(b) of the Rome Statute, as it did with genocide allegations in the Darfur region of Sudan.

In this case the Council would refer the “situation” and not a leader. The situation being the massacre in Sinjar, or it could designate the situation as the territory controlled by the Islamic State, which includes parts of Iraq and Syria.

Although the ICC prosecutor could investigate crimes committed by the governments and militaries of Iraq or Syria, as a practical matter, the Office of the Prosecutor typically narrows the investigation to particular incidents or patterns of crimes, and would thus likely only focus on crimes committed by the Islamic State if the “situation” is limited. The security council is left though with the challenge of securing the necessary votes.

If Iraq and the Security Council fail to act, the ICC Prosecutor may, on her own motion, initiate an investigation under Article 15(1) of the ICC Statute “on the basis of information on crimes within the jurisdiction of the Court.” As the ICC Prosecutor began receiving reports of the Islamic State’s atrocities against the Yazidi, she did not act as Islamic State was essentially being led by nationals of Iraq and Syria and neither country being a signatory to the Statute. There are however foreign fighters from a significant number of State Party nationals from, inter alia, Tunisia, Jordan, France, the United Kingdom, Germany, Belgium, the Netherlands and Australia who could face prosecution.

Most importantly though Iraq may and should send a letter to the security council requesting an investigation into ISIS’s crimes while the evidence is still fresh and witnesses are still alive. This has not been done yet bizarrely even though UN involvement is what Iraq originally sought.

Victim response is beginning to change in some of the Isis-controlled zones of Iraq and Syria. So many women have suffered sexual violence which appears to be creating a potential tipping point. In both Syria and Iraqi some families are choosing not to reject or stigmatize their mothers and daughters returning from captivity by Isis as it is harder to blame a woman for having been raped when it has happened to so many.

A change was also seen in Rwanda, where rape was a systematic weapon of genocide. Afterwards, the critical mass of survivors triggered a new national conversation on sexual violence, on the morality of ostracising survivors and on women’s human rights more broadly. A similar shift may be possible now.

Survivors of sexual violence in war zones need to be recognised as legitimate victims of conflict and terrorism – they must not be blamed, stigmatised or shamed. If Iraqi, Syrian and women’s rights advocates can spread this message then the utility of rape as a weapon of war is diminished.

The UN’s deputy secretary-general, Amina Mohammed, told the Security Council:

At the international and national level she said: “there is a gradual shift from a reality in which it is cost-free to rape a woman, child or man in conflict, to one where there are consequences for anyone who commits, commands or condones such crimes”.

Hilary Lennox is a barrister at 5 St Andrew’s Hill

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