Author: Darshan Patel
IV Year | The Maharaja Saiyajirao University of Baroda, Vadodara
Armed conflicts, and sexual violence and other macro-criminal acts, affect almost every law and human right, and their relationship is indubitable. It is unjust how long it takes to serve justice or just to serve it at all. The International Criminal Court (ICC)’s initial sitting in 2002 under the validation of the Rome Statute of 1998 was popular for ending impunity for crimes, specifically sexual violence, under International Law.
The ICC Statute defines a wide range of sexual crimes and illustrates against the precedent of gender biases in international criminal law. However, fulfilment of these bases hasn’t happened yet as expected in the contemporary international justice system. Surprisingly, since its inauguration (20 years ago), ICC has adjudicated only a single final conviction relating to sexual crimes.
Conflict-Related Sexual Violence in Ukraine:
News about Russian army vehicles crossing the Ukraine border surfaced in February 2014, with Russia attempting to hide it. Along with this news came a few instances of sexual violence by the Russian soldiers reported by the victims and locals in the local media. However, there has been less to no coverage of violence along with the warfare in the news and in the United Nations (UN) assembly.
In February 2022, Russia invoked a full-fledged invasion of Ukraine, with several crimes occurring, the most heinous being sexual violence. As of June 3, 2022, 124 cases of alleged acts of sexual crimes have been registered to the Human Rights Monitoring Team of the UN High Commissioner for Human Rights.
“Still, this has to be the tip of the iceberg,” says Pramila Patten, UN special representative on sexual violence in conflict. She said this isn’t only limited to women and girls; even men and boys have been derogated by this violence, and it happens to be even scarier for them. She added that for every reported crime of sexual violence, there are numbers of not reported ones.
Until now, nearly 6.8 million people have fled the country. They are facing the enormous risks of trafficking in persons, including sexual exploitation and prostitution, which have been “alarmingly evident” since the start of the conflict. There are remarks that “An active battle-ground is never conducive to accurate ‘book-keeping’; if we wait for hard data and statistics, it will always be too late”.
Reports of Sexual Violence in Ukraine:
Ukrainian President Volodymyr Zelensky, in his address to the United Nations Security Council, mentioned the issue of sexual violence. Ukrainian MPs Lesia Vasylenko, Alona Shkrum, Maria Mezentseva and Olena Khomenko stated that most elderly women in Russian-occupied cities “were executed after being raped or took their own lives”.
The Times of London published an account on March 28 2022, of a woman who claimed that her husband was killed and she was raped in the village of Shevchenkove by Russian soldiers on March 9, 2022. In another case, the Mariupol City Council had claimed that Russian forces had forcibly deported several thousand Ukrainian women and children from the city to Russia.
There have been reports of sexual violence among Ukrainian citizens also. For instance, a man from Ukrainian defence services was arrested in Vinnytsia after reportedly attempting to rape a female teacher trying to flee the area.
Kateryna Cherepakha, the president of La Strada Ukraine, said, “We have had several calls to our emergency hotline from women and girls seeking assistance, but in most cases, it’s been impossible to help them physically due to the ongoing fight”.
History of Sexual Violence During Conflicts:
The Ukraine conflict is not the first instance of sexual violence during wartime:
- The civil war in Sierra Leone (1991-2002) witnessed sexual assault on around 60,000 women.
- Approximately 50,000 women during the Bosnian War of 1992-1995.
- Estimated 1,00,000 to 2,50,000 women during the Rwandan genocide.
There are many more instances, most of which are against women and girls.
UN and Wartime Sexual Crimes:
Till the ICC’s establishment, ad hoc courts were there for the following –
- The UN and the Government of Sierra Leone enacted an agreement to set up a Special Court for Sierra Leone,
- The Yugoslav Wars (the ICTY) and
- The Rwandan Genocide (the ICTR) had convicted the defendants of sexual violence crimes.
In fact, the ICTY Statute defined rape for the first time as a war crime, after which the ICTR Statute listed it as a crime against humanity.
ICC and Prosecution of Sexual Violence Crimes:
The high recognition of sexual (gender-based) offences emerged with the adoption of the ICC Statute. The Statute included rape and enforced prostitution in international criminal law along with including rape, sexual slavery, forced pregnancy and enforced sterilization in international humanitarian laws.
Unquestionably, it is essential to define the term sexual violence in wartime. It refers, and as read from the ICC Statute, includes females and males. Thus, it happens to be a gender-neutral view.
Disappointment of ICC on Prosecution of Sexual Crimes:
As has been noted, in its two decades of establishment, ICC struggles to deliver ultimate verdicts (with one conviction overturned on appeal and another currently subject to verdict on appeal). It stands with only one final conviction for sexual crimes.
The first ICC trial which explicitly dealt with sexual charges was in the case of Germain Katanga. Katanga was acquitted of all sexual crimes, but was convicted for all remaining charges. Later, the Jean-Pierre Bemba Gombo case was tried in 2016, where the accused was convicted of sexual crimes. However, the Appeals Chamber overturned the decision.
Reasons for Negative Track Record:
The approach of former Prosecutor Luis Moreno Ocampo has been criticized for failing to properly investigate and bring charges in the first place and refusing to amend charges at a later stage of proceedings when more evidence appeared before judges themselves, stating that the “chamber strongly deprecates the attitude of the former Prosecutor in relation to issue of sexual violence.”
The Prosecution being short of strong evidence leads to the Pre-Trial Chambers’ repudiation on the grounds of the charges being too weak. Markedly, there is a lack of prioritization of investigation. This often leads to the uncovering of evidence at a relatively late stage. Simultaneously, there has been suspension of investigation of matters due to findings not fitting to meet crimes against humanity.
Survivors’ reluctance to testify plays a major role in degrading a strong prosecution. Due to the agony of stigmatization, there is often an unwillingness to share their encounter. Moreover, the investigation should be in a sensitive manner. In other words, investigators must understand the aftermath of the violence on a human being.
Reluctance in convicting leaders on account of the crimes committed by their inferiors goes against the morals of convictions. In this context, common purpose liability happens to be more effective, though appears to be excessive. Therefore, there has to be stricter construction of command responsibility.
Also, there has been an instance of judges refusing to confirm charges on the grounds of it not being sexual due to ethnic prejudice. This instance has gone through heavy criticism.
Collective Nostrum for Serving Justice:
There are way more instances of ICC and its mistakes. Undeniably, this makes justice a mere hoax around the globe, a bigger misery for the victims. Justice isn’t rendered by giving compensation but by properly eradicating the root cause and deterring others from such thoughts.
Indeed, this ongoing war may come up with a large number of these cases and challenge the whole justice system to get over its previous nuisances and serve proper, timely and effective justice to the victims. Discussing, thinking and talking about sexual violence and its victims are clearly easy. However, ensuring the serving of justice is relatively difficult.
A victim of sexual violence in warfare goes through mass killings, bombarding, gunshots, missile attacks, and the atrocities (s)he physically incurs. Resultantly, there will be aftermath traumas to their mental health. The ICC and all the officers working have to work hard for proper and timely investigation, against prosecution nibbling, and most importantly, to transpire constructive verdicts.
Surely, the UN should ensure that these kinds of conflicts do not erupt in the first place. However, in the event that they do erupt, the UN should make timely safety arrangements for the victims to evacuate.
 Saumya Uma, Where Does International Criminal Law Stand When It Comes to Sexual and Gender-Based Violence?, The Wire (Sept. 6, 2021), https://thewire.in/rights/where-does-international-criminal-law-stand-when-it-comes-to-sexual-and-gender-based-violence.
 ICC, Prosecutor v. Ntaganda, ICC-01/04-02/06; ICC, Prosecutor v. Ntaganda, ICC-01/04-02/06 A A2.
 Ukraine Refugee Crisis, Operational data Portal (Aug. 29, 2022, 11:00 AM), https://data.unhcr.org/en/situations/ukraine.
 Sexual Violence ‘Most Hidden Crime’ Being Committed against Ukrainians, Civil Society Representative Tells Security Council, United Nations (June 6, 2022), https://press.un.org/en/2022/sc14926.doc.htm.
 Monique Beals, UN official presses for action on sexual violence in Ukraine before it is ‘too late’, Yahoo News (June 7, 2022), https://www.yahoo.com/news/un-official-presses-action-sexual-001638042.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAAMnNJm4Z3jISLJlZazcE9QdRbEZbpqu4Hu4VGo5H4i3HQb9AYueYlhGSSyyOIjQMVfkh87r93BV16saOVvVjCiOKTyIj0dZVUQPLKX4119YICyZssPXdSCATYxdRssBsIx0hiH2rD_lLN20lrQZ71njGZ_lId5cCVojOXtb6–C.
 Jack Guy, Richard Roth and Laura Ly, UN warns of rape and sexual violence against women and children in Ukraine, CNN (Apr. 12, 2022), https://edition.cnn.com/2022/04/12/europe/ukraine-sexual-violence-united-nations-intl/index.html.
 Audra Heinrichs, Ukrainian Mps Detail Disturbing Sexual Violence Perpetrated By Russian Soldiers, Jezebel (Mar. 18, 2022), https://jezebel.com/ukrainian-mps-detail-disturbing-sexual-violence-perpetr-1848673361.
 Russian soldiers killed my husband, gangraped me as my 4-yr-old son cried: Ukrainian woman, DNA (Mar. 29, 2022), https://www.dnaindia.com/viral/report-russian-soldiers-killed-my-husband-gangraped-me-as-my-4-yr-old-son-cried-ukrainian-woman-2942841.
 Justin McCurry and Lorenzo Tondo, Ukraine crisis: claims Mariupol women and children forcibly sent to Russia, The Guardian (Mar. 20, 2022), https://www.theguardian.com/world/2022/mar/20/ukraine-crisis-claims-mariupol-women-and-children-forcibly-sent-to-russia.
 Bethan McKernan, Rape as a weapon: huge scale of sexual violence inflicted in Ukraine emerges, The Guardian (Apr. 4, 2022), https://www.theguardian.com/world/2022/apr/03/all-wars-are-like-this-used-as-a-weapon-of-war-in-ukraine.
 Sexual Violence: a Tool of War, Outreach Programme On The Rwanda Genocide And The United Nations (2013), https://www.un.org/en/preventgenocide/rwanda/pdf/Backgrounder%20Sexual%20Violence%202013.pdf.
 Statute of the International Criminal Tribunal for the Former Yugoslavia, 1993, U.N. Doc. S/25704, art. 5(g); Statute of the International Criminal Tribunal for Rwanda, 1994, U.N. Doc. S/RES/955, art. 3(g).
 Rome Statute of the International Criminal Court, Jul. 17, 1998, 2187 U.N.T.S. 3, arts. 7(1)(g), 8(2)(b)(xxii), 8(2)(e)(vi).
 Supra note 2.
 ICC, Prosecutor v. Katanga and Chui, ICC-01/04-01/07.
 ICC, Prosecutor v. Bemba, ICC-01/05-01/08.
 Bemba Appeals Judgment, ICC-01/05-01/08 A.
 Prosecutor v. Lubanga, ICC-01/04-01/10, ¶ 60.
 See Kelly Dawn Askin, Holding Leaders Accountable in the International Criminal Court (ICC) for Gender Crimes Committed in Darfur, 1 Genocide Stud. & Prevention 13, 24 (2016).
Editor: Anugra Anna Shaju