Coercion, Consent and Sexual Violence in Wartime

Coercion, Consent and Sexual Violence in Wartime JONATHAN CROWE∗ This talk considers the definitions of the crime of rape adopted by the International Criminal Tribunals for Rwanda and the Former Yugoslavia. I argue that that rape in wartime is best defined by reference to the element of coercion, as was done by the ICTR in the Akayesu decision, rather than by reference to consent, as suggested in the ICTY cases of Furundzija and Kunarac. I then suggest that domestic approaches to defining rape may have something to learn from the ICTR’s approach to sexual assault in wartime. Tonight’s panel focuses on the very important topic of sexual violence in armed conflict. I am going to take primarily a legal perspective. I will make some comments on how rape has been defined under international law – as a war crime, an act of genocide, an act of torture and a crime against humanity – and compare these definitions to the way rape has been defined domestically. I am going to start, however, with a historical perspective. Rape has always been a feature of warfare. For a long time, it was tolerated or even encouraged. Prohibitions on rape appeared in military codes of conduct from at least the mid 19th Century. The four Geneva Conventions of 1949 prohibit rape, prostitution and other forms of sexual violence against both combatants and civilians. However, enforcement has been very sporadic. Nobody was charged with rape at the Nuremberg Trials. There were a few other trials following the Second World War where sexual violence was mentioned on the indictment, but it was not the central focus of any of the cases. This is despite widespread rape during the conflict. For example, the most recent estimates show that around 400,000 Chinese, Korean and South-East Asian women were coerced into sexual slavery by the Japanese armed forces. Nobody was ever formally brought to account.2 ∗ Professor of Law, Bond University. This is an edited version of a talk presented to the University of Queensland Red Cross Society on 29 April 2015. 2 For further discussion, see Constance Youngwon Lee and Jonathan Crowe, Sexual Violence in Wartime 2 Recent decades have seen some positive developments in this area. This has been largely driven by the jurisprudence of the International Criminal Tribunals for Rwanda and the Former Yugoslavia. Sexual assault has been charged in these tribunals as a war crime, as genocide, as an act of torture and as a crime against humanity. The Akayesu case before the ICTR marked the first international conviction for genocide partly on the basis of the incitement of sexual violence.3 The Akayesu case was also notable for how it defined rape as a war crime. A central issue in defining rape as a crime is determining what distinguishes it from other kinds of sexual intercourse. There are two main responses to this issue found in legal systems around the world.4 The first response is to distinguish rape from other forms of sex by focusing on its coercive nature. The second approach is to focus on the lack of consent. These approaches are not mutually exclusive. Many jurisdictions combine them. For example, in Australia, rape is defined as sexual intercourse without full and voluntary consent. However, lack of consent can be established by showing the existence of certain kinds of coercive circumstances – including violence, threats, fraud and so on.5 The Australian approach therefore interweaves the notions of coercion and consent. The Akayesu judgment was notable for ruling that rape in wartime is best defined by reference to coercion. The ICTR Trial Chamber defined rape as ’a physical invasion of a sexual nature committed on a person under circumstances which are coercive’.6 The absence of consent is not an element of the offence as defined in that case. The Trial Chamber further observed that ’[c]oercive circumstances need not be evidenced by a show of physical force’, but ’can be ’The Deafening Silence of the "Comfort Women": A Response Based on Lyotard and Irigaray’ (2015) 2 Asian Journal of Law and Society 339. 3 Prosecutor v Akayesu, ICTR Trial Chamber Judgment, 2 December 1998. 4 For further discussion, see Jonathan Crowe, ’Consent, Power and Mistake of Fact in Queensland Rape Law’ (2011) 23(1) Bond Law Review 21. 5 For further discussion, see Jonathan Crowe, ’Fraud and Consent in Australian Rape Law’ (2014) 38 Criminal Law Journal 236. 6 Prosecutor v Akayesu, [688]. Sexual Violence in Wartime 3 inherent in circumstances like armed conflict or military presence of threatening forces on an ethnic basis’.7 The Trial Chamber in Akayesu, then, essentially took the view that where allegations of sexual assault are made in the context of an armed conflict – particularly one of an ethnically charged nature – any focus on the issue of consent was bound to be misleading. The context of warfare is so loaded with coercive factors – not least the constant threat of violence associated with the presence of the armed forces – that where soldiers initiate sex with civilians aligned with the other side to the conflict in circumstances of armed attack or occupation, coercion can effectively be presumed. The Akayesu case established that sexual assault can constitute genocide if committed with the requisite intention. Genocide is defined as any of a list of criminal acts committed with the intention to destroy an ethnic, racial, religious or national group, in whole or in part. Ethnically motivated sexual violence was a prominent feature of the Rwandan and Yugoslavian conflicts – as well as many others throughout history. Akayesu, a Hutu leader, was found responsible for encouraging sexual violence against Tutsi women for the purpose of destroying the Tutsi as a group. The ICTY established in the Furundzija and Kunarac cases that sexual assault could amount to torture under international law. The Furundzija case involved threatened and actual rape committed against a female civilian during an interrogation.8 The Kunarac case later examined a campaign of systematic rape of Bosnian women by Serbian armed forces.9 The women were kept imprisoned in camps where they were repeatedly raped by soldiers. The ICTY found that the rapes amounted to enslavement and a crime against humanity. Crimes against humanity are distinguished from ordinary war crimes by their widespread and systematic character. Genocide was not charged in the case, although it seems that it could have been, given the clear ethnic motivation for the sexual violence. It is clear from these cases that rape not 7 Prosecutor v Akayesu, [688]. v Furundzija, ICTY Trial Chamber Judgment, 10 December 1998. 9 Prosecutor v Kunarac, ICTY Trial Chamber Judgment, 22 February 2001. 8 Prosecutor Sexual Violence in Wartime 4 only amounts to a war crime, but can also constitute genocide, torture, enslavement or a crime against humanity. An interesting feature of the ICTY’s jurisprudence on sexual crimes is how it has equivocated about following Akayesu in placing the focus squarely on coercion. The Furundzija judgment seems to adopt the Akayesu definition of rape, but also refers to rape being ’without the consent of the victim’.10 The Kunarac Trial Chamber undertook a survey of domestic definitions of rape and noted that ’the basic underlying principle’ is that ’sexual penetration will constitute rape if it is not truly voluntary or consensual’.11 It may be true that domestic definitions of rape focus mainly on consent – although I think it could equally be said that they focus on coercion. However, this reversion to a partially consent-based definition misses the main point behind the approach in Akayesu: namely, that in a context of systematic, ethnically motivated rape, it makes little sense to examine individual cases to see whether the victim consented. This is surely equally true in the circumstances of mass rape examined in Kunarac. Wartime rape, in this sense, differs significantly from rape under domestic legal systems and should be defined accordingly. The wartime definition of rape cannot be based on a survey of domestic laws, as the ICTY purported to do in both Furundzija and Kunarac. I wonder, however, whether domestic approaches to defining rape have something to learn from the approach of international tribunals to sexual assault in wartime. The central insight of the Akayesu definition of rape is that the coercive context of armed conflict makes free and voluntary consent to sexual intercourse between soldiers and civilians aligned with different sides of the conflict improbable, if not impossible. There are many circumstances of peacetime life where something similar would seem to be true. If a man threatens a woman’s family with knives and a gun,12 drives her to a remote area and threatens 10 Prosecutor v Furundzija, [460]. v Kunarac, [440]. 12 Compare R v Parsons [2001] 1 Qd R 655. 11 Prosecutor Sexual Violence in Wartime 5 to leave her there without transport13 or takes her car keys and refuses to return them,14 asking whether she freely consented to sex seems a little beside the point. The Australian definition of rape, like many other consent-based definitions, makes consent a central focus at rape trials even when it seems likely to confuse, rather than illuminate, the issue.15 There are, of course, some cases where coercive circumstances may not be obvious and the issue of consent rightly comes to the fore. However, Australian and other domestic courts would arguably often be well served to follow international criminal tribunals in foregrounding the issue of coercion. The international criminal bodies, for their part, would be best served by recognising the principled foundation for the Akayesu definition of rape in armed conflicts. Any discussion of consent in scenarios like those presented byAkayesu, Furundzija and Kunarac makes a mockery of the notion of sexual autonomy and misunderstands the nature of coercion in wartime. 13 Compare R v IA Shaw [1996] 1 Qd R 641. State v Rusk, 406 A.2d 624 (1979) (Maryland Court of Special Appeals); 424 A.2d 720 (1981) (Court of Appeals of Maryland). 15 For further discussion, see Crowe, ’Consent, Power and Mistake of Fact in Queensland Rape Law’. 14 Compare