Source: (2007) North Dakota Law Review 83:915

SUMMARY: ... While the laws of warfare have, for centuries, both implicitly and explicitly prohibited rape of combatants and noncombatants, those prohibitions were enlarged by the Rome Statute and the Tribunals to include other forms of sexual violence, including sexual slavery, forced impregnation, forced maternity, forced abortion, forced sterilization, forced marriage, forced nudity, sexual molestation, sexual mutilation, sexual humiliation, and sex trafficking. ... As the result of findings of widespread and systematic rape, and "ethnic cleansing," from a commission of experts established by the United Nations Security Council, the International Criminal Tribunal for the former Yugoslavia (ICTY) was created with the mandate to prosecute "persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991." ... This definition adds sexual penetration of the mouth of the victim by the perpetrator's penis, which would generally be classified as sexual assault in many systems, and carry a lower penalty. ... Gender-related crime provisions which did not have parallels in earlier texts, and the criminalizing of atrocities in internal conflicts, however, were not deemed to be in that category. ... Progress in Prosecuting Gender Violence The jurisdiction of the Yugoslav Tribunal includes grave breaches of the Geneva Conventions, violations of the laws or customs of war, genocide and crimes against humanity. ... Since Delic raped one victim to obtain information on the whereabouts of her husband, and subsequently to brutally punish her for not providing information, to punish her vicariously for the acts of her husband, or to coerce or intimidate her, the Trial Chamber found there had been discrimination on the basis of sex because the violence was inflicted on her because she was a woman, a prohibited purpose for the offense of torture. ... Kunarac was convicted of both rape and enslavement as crimes against humanity, the Trial Chamber finding: FWS-191 was raped by Dragoljub Kunarac and... ... The Prosecutor must respect age, gender and health, and take into account the nature of the crime, particularly where it involves sexual violence, gender violence or violence against children. ... For the many gender violence victims who will never make the trip from Darfur to The Hague, and for their many perpetrators who will never be indicted there, the ICC can provide two great benefits with impact outside of, and beyond the court: (1) pressure to move Sudan toward a workable, responsible, and legitimate justice system with laws and procedures modelled on the ICC's gender violence protections; and, (2) meaningful reparations for victims. ... Among recommendations, it: calls upon all parties to armed conflict to take special measures to protect women and girls from gender-based violence, particularly rape and other forms of sexual abuse, and all other forms of violence and situations of armed conflict; emphasizes the responsibility of all states to put an end to impunity and to prosecute those responsible for genocide, crimes against humanity, and war crimes, including those relating to sexual and other violence against women and girls; calls upon all parties to armed conflict to respect the civilian and humanitarian character of refugee camps in settlements, and to take into account the particular needs of women and girls; reaffirms that consideration must be given to potential impact on the civilian population, bearing in mind the special needs of women and girls, when UN missions are undertaken; invites a Secretary-General study on the impact of armed conflict on women and girls, the role of women in peace-building and the gender dimensions of peace processes and conflict resolution; calls for incorporating women and a gender perspective in negotiating and implementing peace agreements; incorporates gender perspectives into peacekeeping operations; expands the role and contribution of women in United Nations fieldbased operations, and especially among military observers, civilian police, human rights and humanitarian personnel; urges the Secretary-General to appoint more women as special representatives and envoys; calls for an increase in participation of women at decision-making levels in conflict resolution and peace processes; urges Member States to ensure increased representation of women at all decision-making levels in national, regional, and international institutions, in mechanisms for the prevention, management, and resolution of conflict; calls for all parties to armed conflict to respect fully, international law applicable to the rights and protection of women and girls, especially as civilians and recommends training and education of all parties dealing with gender violence in war and peacekeeping.