About 5.4 million people have been killed in the wars in the Democratic Republic of
Congo (D.R.C.), the former Zaire. 45,000 die every month and hundreds of thousands of
women have been raped here in recent years. Wartime rapes are anything but new and have
been employed not only to terrorize the population but also as weapon of genocide in
Rwanda, Bosnia and Darfur. The Eastern Congolese provinces of North and South Kivu
have been affected by particular gruesome acts of violence and thousands of victims suffer
from rape-induced fistulae, ruptures of the walls which separate the victim's vagina from
her rectum. According to UN staff and doctors in the region, all armed groups in the
region are involved in rapes and despite the 2002 Pretoria Accord which put an official end
to the war, attacks and rapes continue to this very day. Many survivors are forced out of
their homes and their families abandoned and left to fend for themselves. Therefore, apart
from medical treatment and psychological counseling, there is a strong demand for justice.
But due to the weak position of women in Congolese society, justice is much harder to get
by than medical treatment. Although the Congolese Penal Code and Military Penal Code
penalize these crimes, the reaction by the Congolese government to the atrocities remains
insufficient, making a solution based on Congolese criminal law unlikely. The practical
application of the D.R.C.'s domestic laws is found wanting and the law does not have the
deterrent effect which is required to prevent future atrocities, also due to the traditional
position of women in Congolese society continues to be reflected in the law: According to
Art. 448 of the D.R.C.'s family code, a married woman has to obtain her husband's
permission to bring a case to court – which provides a major obstacle on the road to
justice. This book deals with the multidimensional aspects of the problem, which range
from medicine and psychology to social issues and the quest for justice. In the latter part
we will examine not only the background by looking at relevant rules of International
Human Rights Law and International Humanitarian Law but also look at legal responses to
these crimes both on a national level in the D.R.C. as well as on an international level and
with the question of how justice can be achieved for rape victims in a country ravaged by
war in which women continue to be second class citizens.
Outline
Preface
Abstract
Outline
Table of Cases
List of Literature
Other documents
Chapter I – Background
Chapter II – Women’s Rights under International Law
Chapter III – Denial of Justice in the DRC
Chapter IV – A Role for the International Criminal Court
Chapter V – Conclusions and Outlook
Annexes: International Treaties and Documents
Preface
Already in the 1902 novel of the same title, Joseph Conrad referred to the then Belgian Congo as “The Heart of Darkness”, describing the terror brought upon the local population by the Belgian rulers who were after the natural resources1 of this country in the heart of Africa with the size of Western Europe. Today the terror in the Eastern parts of the DRC is directed primarily at women who are raped there in numbers and ways which are virtually impossible to undestand. While wartime rape, sadly, is an ancient phenomenon, the cruelty employed in the DRC is particularly shocking. The war in the DRC may be over on paper, but the violence certainly is not. The situation is overlooked by many, also by the news media in developed countries. Despite the massive UN presence there, systematic rape continues to this very day and very little is done to alleviate the problem. Only recently have women there found the courage to speak out but with extremely limited success, if any at all. The involvement of the International Criminal Court in the situation in the DRC is a small ray of hope but it has not changed the reality on the ground for the women and girls who continue to suffer.
This book is based on a presentation by the author at the Université Paris 1 (Panthéon- Sorbonne) in the course of an interdisciplinary seminar entitled “Femmes et Conflits”. The need for detailed background led to the inclusion of a rather generous annex which contains key legal instruments in the fields of human rights, international humanitarian law and international criminal law. The crimes dealth with in this book are disturbing and I have aimed to describe the violence suffered by the victims in an appropriate manner. Words cannot capture the violence which changes the victims’ lives forever. Readers who are interested in more case studies, eyewitness reports and reports from victims are encouraged to read the material collected by Human Rights Watch on the issue. These texts are available online free of charge from www.hrw.org.
Unfortunately this book could be more timely. At the time of writing this foreword, rebel forces under General Nkunda are capturing positions near Goma2 after the ceasefire broke down yesterday,3 civilian protests against MONUC’s inability to stop the fighting are turning violent4 and the head of MONUC decided to step down after only seven weeks on the job.5 D.R.C. national forces are reported to retreat among the fleeing civilian population while General Nkunda is said to have threatened to go all the way to Kinshasa. He certainly has the military capability to do so and, not least due to the fact that the DRC army also is suspected of serious human rights violations and violations of the laws of war, including wartime rape, and due to General Nkunda’s reputation for fighting the Interhamwe, the militia responsible for the Rwanda genocide, might have the popular support to take power as well, in particular since he has shown restraint in not capturing Goma when he could.6
Thanks are due to Dr Margaret Salmon MD MPH (Harvard University) for comments on some of the medical issues, Prof. David Pike (American University, Paris), who has edited a book on crimes against women (David Pike (ed.) – Crimes against Women, Routledge Publishing, forthcoming) and who has been kind enough to include into said book a chapter on legal questions surrounding the systematic rapes in the Kivu provinces. Many aspects which, due to constraints in terms of pages, did not make it into my chapter for his book can be found in this book. Further thanks are go to Carol Mann PhD for making it possible for me to present the research which lead to this small book at the Sorbonne during the aformentioned seminar on Woman in War in October 2008 as well as to the participants of that seminar. My warmest thanks go to my friends who have supported my work through their interest and many fruitful discussions, in particular Beate Rossmanith and Ursule Mekongo. This book would not have been possible without them and it is to them that this book is dedicated.
Stefan Kirchner
Frankfurt, 3 November 2008
Abstract
About 5.4 million people have been killed in the wars in the Democratic Republic of Congo (D.R.C.), the former Zaire. 45,000 die every month and hundreds of thousands of women have been raped here in recent years. Wartime rapes are anything but new and have been employed not only to terrorize the population but also as weapon of genocide in Rwanda, Bosnia and Darfur. The Eastern Congolese provinces of North and South Kivu have been affected by particular gruesome acts of violence and thousands of victims suffer from rape-induced fistulae, ruptures of the walls which separate the victim's vagina from her rectum. According to UN staff and doctors in the region, all armed groups in the region are involved in rapes and despite the 2002 Pretoria Accord which put an official end to the war, attacks and rapes continue to this very day. Many survivors are forced out of their homes and their families abandoned and left to fend for themselves. Therefore, apart from medical treatment and psychological counseling, there is a strong demand for justice. But due to the weak position of women in Congolese society, justice is much harder to get by than medical treatment. Although the Congolese Penal Code and Military Penal Code penalize these crimes, the reaction by the Congolese government to the atrocities remains insufficient, making a solution based on Congolese criminal law unlikely. The practical application of the D.R.C.'s domestic laws is found wanting and the law does not have the deterrent effect which is required to prevent future atrocities, also due to the traditional position of women in Congolese society continues to be reflected in the law: According to Art. 448 of the D.R.C.'s family code, a married woman has to obtain her husband's permission to bring a case to court – which provides a major obstacle on the road to justice. This book deals with the multidimensional aspects of the problem, which range from medicine and psychology to social issues and the quest for justice. In the latter part we will examine not only the background by looking at relevant rules of International Human Rights Law and International Humanitarian Law but also look at legal responses to these crimes both on a national level in the D.R.C. as well as on an international level and with the question of how justice can be achieved for rape victims in a country ravaged by war in which women continue to be second class citizens.
Table of Cases
International Criminal Tribunal for Rwanda
ICTR – Prosecutor v. Akayesu, ICTR-96-4-T, Judgment, 2 September 1998.
International Criminal Tribunal for the former Yugoslavia
Prosecutor v. Delalic, IT-96-21-T, Judgment, 16 November 1998. Prosecutor v. Furundžija, IT-95-17/1, Judgment, 10 December 1998 Prosecutor v. Kunarac, IT-96-23-T, Judgment, 22 February 2001
United States Military Commission
US v. Yamashita, (1947) 4 Law Reports of Trials of War Criminals 1, 35.
List of Literature
Pierre Akele Adau – Réforme de la justice militaire en RDC: le nouveau droit judiciaire et pénal militaire transitoire: un ´soft landing´ pour la Cour d´ordre militaire, in: 42 Congo- Afrique: (2002), Issue No. 369/370, pp. 547 et seq.
Amnesty International – Democratic Republic of Congo – Mass Rape: Time for Remedies (2004), cited as: Amnesty International (Congo).
Amnesty international – Sudan, Darfur – Rape as a weapon of war – Sexual violence and its consequences, (July 2004).
Andrea Böhm – Wenn Frieden Männersache ist – Gegen die Frauen im Kongo wird noch immer Krieg geführt, in: Die Zeit, No. 50 (2006), available online at http://zeus.zeit.de/text/2006/50/kongo.
Kofi Annan – Women, Peace and Security – Study submitted by the Secretary-General pursuant to Security Council Resolution 1325 (2000).
Kelly Dawn Askin – Prosecuting Wartime Rape and Other Gender-Related Crimes Under International Law: Extraordinary Advances, Enduring Obstacles, in: 21 Berkeley Journal of International Law (2003), pp. 288 et seq., cited as: Askin (Enduring Obstacles).
Kelly Dawn Askin – Sexual Violence in Decisions and Indictments of the Yugoslav and Rwanda Tribunals: Current Status, in: 93 American Journal of International Law (1999), pp. 97 et seq., cited as: Askin (Sexual Violence in Decisions and Indictments of the Yugoslav and Rwanda Tribunals).
Kelly Dawn Askin – The Quest for Post-Conflict Gender Justice, in: 41 Columbia Journal of Transnational Law (2003), pp. 509 et seq.
Kelly Dawn Askin – War Crimes against Women: Prosecution in International War Crimes Tribunals (1997), cited as: Askin (War Crimes).
Pascale R. Bos – Feminists Interpreting the Politics of Wartime Rape: Berlin, 1945; Yugoslavia, 1992-1993, in: 31 Signs: Journal of Women in Culture and Society (2006), pp. 995 et seq.
Center for Reproductive Rights – The Protocol on the Rights of Women in Africa: An Instrument for Advancing Reproductive and Sexual Rights, Briefing Paper, www.reproductiverights.org.
Christine Chinkin – Rape and Sexual Abuse of Women in International Law, in: 5 European Journal of International Law (1994), pp. 1 et seq.
Lucy Clayton – MSF confronts sexual violence in Sierra Leone, 8 September 2003, http://www.msf.org.
C.P.M. Cleiren / M.E.M. Tijssen – Rape and Other Forms of Sexual Assault in the Armed Conflict in the Former Yugoslavia: Legal, Procedural, and Evidentiary Issues, in: 5 Criminal Law Forum (1994), pp. 481 et seq.
CNN – Thousands flee fighting as Congo rebels seize Gorilla park, 26 October 2008, available online at http://edition.cnn.com/2008/WORLD/africa/10/26/congo. gorillapark/index.html, cited as: CNN (Gorilla Park).
Helen Durham – Women, armed conflict and international law, in: 84 International Review of the Red Cross (2002), pp. 655 et seq.
Jeffrey Gettleman – In Congo, fighting brings fears that chaos will return, in: International Herald Tribune, 3 November 2008, available online at http://www.iht.com/articles/2008
/11/03/africa/03congo. php.
Sarah Gieseke – Rape as a Tool of War in the Eastern Democratic Republic of Congo (2007).
Richard Goldstone – The United Nations' War Crimes Tribunals: An Assessment, in: 12 Connecticut Journal of International Law, pp. 227 et seq.
Leslie C. Green – The contemporary law of armed conflict, 2nd ed., Manchester University Press, Manchester (2000)
Ruth Harris – The “Child of the Barbarian”: Rape, Race and Nationalism in France During the First World War, in: Past & Present, Nos. 138-141 (1993), pp. 170 et seq.
Mujo Haskovic – Psychosocial Support for Women – Victims of Sexual Violence During the War in Bosnia and Herzegovina 1992 – 1995, in: Commission for Gathering Facts on War Crimes in Bosnia and Herzegovina (ed.) – The sin of silence – risk of speech, Collection of the reports from international conference held in Sarajevo on 10th and 11th March 1999, pp. 533 et seq.
Hez Holland – Congo rebels threaten Goma in Eastern Offensive, in: International Herald Tribune, 27 October 2008, available online at http://www.iht.com/articles/reuters
/2008/10/27/africa/OUKWD-UK-CONGO-DEMOCRATIC-FIGHTING.php.
Human Rights Watch – D. R. Congo: Tens of Thousands Raped, Few Prosecuted, available online at http://www.hrw.org/english/docs/2005/03/07/congo/10258.html.
Human Rights Watch – International Justice for Women: The ICC marks a New Era, 1 July 2002, http://www.hrw.org/campaigns/icc/icc-women.htm, cited as: Human Rights Watch (ICC).
ICC – Press Release: Prosecutor receives referral of the situation in the Democratic Republic of Congo, ICC-OTP-20040419-50-En, 19 April 2004.
ICRC – Stories from the Field: Democratic Republic of the Congo: “I want my child and me to be accepted”, 2 March 2007, http://www.icrc.org.
International Herald Tribune / Reuters / Associated Press – Commander of UN peacekeepers in Congo resigns, in: International Herald Tribune, 27 October 2008, available online at http://www.iht.com/articles/2008/10/27/africa/congo.php.
Yuogindra Khushalani – Dignity and Honour of Women as Basic and Fundamental Human Rights (1982).
Stefan Kirchner – Congo, in: David W. Pike (ed.) – Crimes against Women, Ashgate Publishing (forthcoming), cited as: Kirchner (Congo).
Stefan Kirchner – Hell on Earth – Systematic Rape in Eastern Congo, in: 13 Journal of Humanitarian Assistance, (2007), 6 August 2007, http://www.jha.ac/2007/08/06/hell-on- earth-systematic-rape-in-eastern-congo/#fn-1186442655171.
Stefan Kirchner – Resource Management and Conflict Prevention in the Great Lakes Region, in: 3 Africa Policy Watch (2008), pp. 8 et seq., available online at http://www.caaglop.org/APW/apw3.pdf.
Stefan Kirchner – Wartime Rape and International Law, in: Social Science Research Network, 27 December 2007, http://ssrn.com/ abstract=1078919.
Juliane Klippenberg – Seeking Justice: The Prosecution of Sexual Violence in the Congo War, 17 Human Rights Watch Reports (March 2005), No. 1 (A), cited as: Klippenberg (Seeking Justice).
Juliane Klippenberg – The War within the War – Sexual Violence Against Women and Girls in Eastern Congo, Human Rights Watch (2002), cited as: Klippenberg (The War within the War).
René Lefort – Congo: A Hell on Earth for Women, in: Le Nouvel Observateur, 11-18 September 2003.
Scott Lyons – The African Court on Human and Peoples' Rights, 10 ASIL Insights (2006), Issue 24, 19 September 2006, http://www.asil.org/insights060919.cfm.
Polly Markandya / Fiona Lloyd-Davis – DRC: A plaster on a gaping wound, 16 April 2002, http://www.msf.org.
Chris McGreal – Hundreds of thousands raped in Congo wars, in: The Guardian, 14 November 2006, available online at http://www.guardian.co.uk/print/0,,329626772- 110889,00.html.
Medecins sans frontieres – Rape as a Weapon of War, 5 March 2004, http://www.msf.org.
Médecins sans frontières – Sexual Violence as a Weapon of War: MSF report eastern DRC, 1 April 2004, http://www.msf.org, cited as: Médecins sans frontiéres (Sexual Violence).
Theodor Meron – Rape as a Crime Under International Humanitarian Law, in: 87 American Journal of International Law (1993), pp. 424 et seq.
Gillian Mezey – Rape in War, in: 5 Journal of Forensic Psychiatry (1994), pp. 583 et seq.
Marie Mossi Mota / Mariana Duarte – Committee on the Elimination of Discrimination against Women, 36th session, 7-25 August 2006 – Report on the implementation of the Convention on the Elimination of All forms of Discrimination Against Women by the Democratic Republic of Congo, 1st ed., World Organization Against Torture, Geneva (2006).
Catherine N. Niarchos – Women, War, and Rape: Challenges Facing the International Tribunal for the Former Yugoslavia, in: 17 Human Rights Quarterly (1995), pp. 649 et seq.
Rob Nordland – Congo's Wounds of War: More Vicious than Rape – The atrocity reports from eastern Congo were so hellish that Western medical experts refused to believe them – at first, in: MSNBC, 13 November 2006, available online at http://www.msnbc. msn.com/is/15704030/site/newsweek/page/3.
Valerie Oosterveld – Sexual Slavery and the International Criminal Court: Advancing International Law, in: 23 Michigan Journal of International Law (2004), pp. 605 et seq.
Sabina Popovic – Delayed Psychological and Psychiatric Effects of Violence Committed Against Women During the War in Bosnia and Herzegovina 1992 – 1995, in: Commission for Gathering Facts on War Crimes in Bosnia and Herzegovina (ed.) – The sin of silence – risk of speech, Collection of the reports from international conference held in Sarajevo on 10th and 11th March 1999, pp. 523 et seq.
Marion Pratt / Leah Werchick – Sexual Terrorism: Rape as a Weapon of War in Eastern Democratic Republic of Congo – An assessment of programmatic responses to sexual violence in North Kivu, South Kivu, Maniema and Orientale Provinces, USAID / DCHA (2004).
Tiare Rath – In War-Riddled Congo, Militias Rape with Impunity, Women's eNews, 27 April 2003, http://www.womensenews.org/Article.cfm/dyn/aid/1307/context/cover.
Reuters / Associated Press – Defying the UN, Congo rebels launch offensive, in: International Herald Tribune, 26 October 2008, available online at http://www.iht.com/articles/2008/10/26/arts/congo.php.
Henry J. Steiner / Philip Alston – International Human Rights in Context – Law, Politics, Morals, 2nd ed., Oxford University Press, Oxford (2000)
United Nations High Commissioner for Human Rights, Sub-Commission on the Promotion and Protection of Human Rights – Systematic rape, sexual slavery and slaverylike practices, Sub-Commission resolution 1999/16, 26 August 1999.
UN News Service – DR Congo: army and police continue to violate civilians' human rights, says UN mission, 21 February 2007, http://www.un.org/apps/news/printnews Ar.asp?nid=21635.
United Nations Security Council – Report of the Secretary-General on children and armed conflict in the Democratic Republic of the Congo, 28 June 2007, UN Doc. S/2007/391.
Aiko Utsumi – How the Violence against Women were dealt with in War Crime Trials, in: Indai Lourdes Sajor (ed.) – Common Grounds (1998), pp. 187 et seq.
Emily Wax – A Brutal Legacy of Congo War – Extent of Violence Against Women Surfaces as Fighting Recedes, in: Washington Post, 25 October 2003, p. A01.
Stephanie K. Wood – A Woman Scorned for "Least Condemned" War Crime: Precedent and Problems with Prosecuting Rape as a Serious War Crime in the International Criminal Tribunal for Rwanda, in: 13 Columbia Journal of Gender and Law (2004), pp. 274 et seq.
Alexander Zahar / Göran Sluiter – International Criminal Law – A Critical Introduction, 1st ed., Oxford University Press, Oxford (2008).
Other documents
African Charter on Human and People’s Rights (27 June 1981, OAU Doc. CAB/LEG/67/ 3 rev. 5, 21 I.L.M. 58 (1982))
Code Judiciaire Militaire, Loi No 023/2002 Code Penal Militaire
Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) (18 December 1979, 1249 U.N.T.S. 13, Can. T.S. 1982 No. 31, 19 I.L.M. 33)
Convention on the Rights of the Child (United Nations General Assembly Resolution 44/25, 20 November 1989)
Declaration of Kinshasa concerning the impact of gender on peace and development in the Great Lakes Region
First Protocol Additional to the Geneva Conventions (1125 U.N.T.S. 3)
(Fourth) Geneva Convention Relative to the Protection of Civilian Persons in Time of War (75 U.N.T.S. 287) http://www.worldwidefistulafund.org/Other%20Causes.html http://www.youtube.com/watch?v=hyB2PswYX5o
Instruction for the Government of Armies of the United States in the Field, General
Orders No. 100, 24 April 1863, cited as: Lieber Code
International Convention on Civil and Political Rights (United Nations General Assembly Resolution 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171)
Loi No024/2002
Protocol for the Establishment of an African Court of Human Rights
Protocol to the African Charter on Human and Peoples' Rights concerning the Rights of Women in Africa
Report to the Economic and Social Council, E/2002/68/Add.1.
Second Protocol Additional to the Geneva Conventions (1125 U.N.T.S. 609) Statute of the International Criminal Court (37 ILM 999)
UN Doc. A/CONF.177/20, 17 October 1995, reprinted in: 35 International Legal Materials (1996), pp. 401 et seq., No. 112
Universal Declaration of Human Rights (United Nations General Assembly Resolution 217 A (III), 10 December 1948)
United Nations General Assembly Resolution 44/25, 20 November 1989. Vienna Declaration
Chapter I Background
1. Systematic Rape in Kivu
About 5.4 million7 people have died in the wars in the Democratic Republic of Congo (D.R.C.).8 45,000 die every month9 and hundreds of thousands10 of women have been raped here in recent years.11 War-time rapes are a phenomenon which is as old as human warfare and have been employed not only to terrorize the population but also as weapon of genocide, for example in Rwanda, Bosnia12 and Darfur.13 Yet, reports from the provinces of North and South Kivu in the Eastern Democratic Republic of Congo about massive and systematic rapes are so shocking that even experienced professionals who have been working with rape victims for years initially were unable to believe what was happening there.14 The Eastern Congolese provinces of North and South Kivu have been affected by particular gruesome acts of violence.
As we will see, it is extremely difficult for victims to overcome the shame and seek treatment and then to actually travel to a hospital. Many more women might never receive any treatment at all. In many cases the victims, infants and children, teenagers, mothers and elderly women,15 have been deliberately injured during or after the rape. Injuries were not only caused by gang rapes but also by the deliberate insertion of objects into the vagina, including gun barrels,16 a practice already known from the war in Bosnia.17 Often guns were fired into the victim's vagina at point blank range18 in order to cause maximum damage, often with the intention to mark the victim for life, rather than kill her.19 Some armed groups have developed what one could call “trademark injuries”20 to make it very clear to the civilian population who is terrorizing them:21 These attacks include burning women,22 raping exclusively girls age eleven to fourteen,23 and tying the hands of the victims so tight that they have to be amputated later.24 Some victims actually had "their vaginas pulled out".25
Often the women are kidnapped while working in the fields26 or on the way to fetch water, food or firewood. Often kidnappings occur during raids of villages by armed attackers, who often come in groups of two to five.27 The victims are taken from the villages into the forest where they are held captive and are gang raped for days or months.28
2. Medical Aspects
It is not one but many groups in Eastern Congo which commit such crimes. According to Medecins sans frontieres (MSF), “[a]ll armed groups have been involved in the widespread sexual violence. The intent to terrorize, punish, and humiliate communities seen as supportive of the other side made rape a weapon of war. Sexual violence has been so clearly linked to the military strategy of warring parties and has occurred in such a systematic way that it is wrong to think of it as a side effect of war.”29 Different groups have taken to inflict different types of wounds in order to make clear to everyone who was behind the attack: some insert objects, some burn women, some rape 11-14 year old girls, some tie the hands of the victims so tight that they will often have to be amputated, an other group holds the victims in slavery for months and rapes them until they get pregnant for the sole purpose of aborting the child later.30 The age range is equally shocking: in the Eastern Congolese town of Shabunda, MSF reports that the victims included eleven year old girls as well as grandmothers in their seventies31 and at Panzi Hospital, doctors have treated patients with rape-caused fistulae between 12 months and 71 years of age.32 Thousands of victims suffer from fistulae, ruptures of the walls which separate the victim's vagina from her rectum.33 Fistulae render the patients incontinent.34 The victims are unable to control their bodily functions anymore35 and are soaked in their own urine and feces,36 which essentially ends their social lives.37 Furthermore, many victims are kidnapped and held in sexual slavery for months.38 Other victims are gang-raped in front of their husbands or children, often villages are raided and most men are killed, most women raped. In some villages, two out of three women are rape victims.39
Fistulae can have many different causes, ranging from cervical cancer, lymphogranuloma venereum, coital injury to traditional rituals e.g. in different parts of Africa, including “ritual cleansing” of the vagina through a solution containing potash shortly after the woman has given birth, which can lead to the chemical destruction of the vaginal tissue, to gishiri.40 The latter is a practice found in the northern parts of West Africa and involves the insertion of a long knife into the vagina in order to make a cut with the aim of widening the vagina, since it is believed that many gynecologic problems were “caused by a vagina that is too narrow”.41 Fistulae are rarely seen in the developed world these days but in eastern Congo they have become an epidemic, that is – fistulae caused by rape. It is estimated that 250,000 women had been raped by 2006 and thousands of them have been injured so severely that they suffer from fistulae.42 At the time being, though, it is impossible for either the D.R.C. government or outside observers to give accurate victim numbers. Many women here have not only been raped but often gang-raped repeatedly,43 but “more often the damage is caused by the deliberate introduction of objects44 into the victim’s vagina when the rape itself is over. The objects might be sticks or pipes. Or gun barrels. In many cases the attackers shoot the victim in the vagina at point-blank range after the have finished raping her.”45 Often the perpetrators make sure that they don’t kill the victim but inflict as much damage as possible, leaving the victim behind “permanently and obviously marked”.46
Given that many perpetrators are HIV positive, HIV/AIDS is rapidly becoming a concern for victims. But while access to Post Exposure Prophylaxis (PEP) is crucial,47 awareness of the existence of PEP needs to be raised in order to encourage victims to seek help as soon as possible after the rape.48 Other sexually transmitted diseases (STDs) are affecting many victims, too. In Matili, MSF staff reported that on their first visit to the village after three or four month, they had to treat all rape victims for STDs.49 But the victims’ husbands are also aware of the victims’ potential exposure to STDs. This knowledge leads many husbands to reject their wives after they had been raped, because they fear that their wives might transmit STDs to them.50 Often, though, the rejection will be based on the stigma associated with having been raped rather than the risk of STDs. But even if a rape victim is allowed to return to her house, it is “normal for [the victim’s husband] to find a new wife, moving the old one into a different room and ignoring her.”51
According to UN staff and doctors in the region, all armed groups in the region are involved in rapes52 and despite the 2002 Pretoria Accord which put an official end to the war, attacks and rapes continue to this very day. As a matter of fact, UN peacekeepers reported in early 2007 that the number of reported rapes is actually increasing.53 Rather than attacking each other directly, the armed groups have taken to raiding villages accused of supporting other militias The militias are now not so much attacking each other directly but rather attack the villages that are thought to support other militias.54 Civilians have become the prime target of the violence in Eastern Congo. What used to be a series of wars between many warring factions has turned into all-out terrorism by all armed groups against unarmed civilians.
3. Social Consequences
The gravity of the situation is highlighted by a UN report on the situation of children in Ituri, North- and South-Kivu, dated 28 June 2007: “Despite all of the initiatives undertaken to counter sexual violence and the adoption of two national laws on sexual violence on 20 July 2006, the number of sexual abuses remains extremely high. Sexual violence has occurred virtually unabated, in a climate of impunity and judicial dysfunction. Although the reported rate of sexual violence remains high, such incidents are under-reported and accurate statistics are difficult to obtain because of a number of factors, including the fear of ostracism and retribution which prevents survivors from coming forward; the prohibitive distance and lack of access to medical care owing to the prevailing security situation in some areas; a lack of faith in the judicial system; and the local tendency of amicable settlement, whereby the perpetrator pays the victim an agreed upon sum. [Between June 2006 and May 2007], 12,867 survivors of sexual violence were identified by United Nations Children’s Fund (UNICEF) partners in the eastern region of the Democratic Republic of the Congo. Of those survivors, 4,222 were children (3,740 girls and 482 boys). Children represent an alarming one third of survivors of sexual violence. Of 100 survivors in Ituri, 43 were children (of whom approximately 18 per cent were boys). Of the aforementioned 4,222 children, information on the perpetrators is available in only 690 cases; in 29 cases, the perpetrators were members of [the Armed Forces of the D.R.C.] or [Congolese National Police] (4.2 per cent); in 458 cases, they were from armed groups (66 per cent); and in 203 cases, they were civilians (29 per cent).”55
In some villages, two thirds of all women are thought to have been raped56 but until recently remaining silent was all that stood between the women and complete disgrace in the eyes of their families57 and communities.58 Often the problem runs deeper than the wounds which are visible.59
Yet, it has become impossible for the women to remain silent and many finally dare to seek medical help.60 Only recently a small number women is going further and speaks about their experiences. Exact victim numbers, though, are impossible to come by since many women are still prevented from seeking medical help. Often victims will not be able to afford the trip to the nearest hospital or are simply unable to travel due to their health condition. Often traditional taboos force victims to essentially hide in the house. That is, if they are lucky enough to have a family which is decides to allow them to return and which does not force them out of the house.
But the stigma which is associated with having been raped is particularly strong in the D.R.C.:
Often women, if they survive, are forced to leave their homes. While this is devastating for women who suffer "only" from the psychological trauma of rape, it is life-threatening for women with fistulae and other traumata.
Take into account that we are talking about women from small villages who have a certain idea of identity – as wives, mothers or daughters. Young women who have been raped have virtually no chance to get married. Mothers who are forced out of their home loose the key to their identity. Often women who have been raped, if they are allowed to stay in the house, are forced to stay in one part of it, essentially hidden, while the husband takes a new, a second, wife. In many cases their cooking utensils are taken away from them. For someone from Europe that may not sound to bad. For many women there it is what finally breaks them inside because they loose the only role they ever had. They loose their identity.
Among the most severely affected victims are the women who become pregnant during the rape because they are burdened with the additional stigma of carrying the enemy’s child, making it more likely that they are being abandoned by their families.
Consequently they will often have to raise the child without the family support which is vital in traditional societies such as the rural D.R.C.61
Also many victims will never see a doctor out of shame. Often rape victims will not even be willing to refer to what the crime as rape but as “it” or “what happened” and traditional ideas concerning the status of women in the D.R.C. are a major obstacle to progress.
Chapter II
Women's Rights under International Law
The situation women in the DRC find themselves in contrasts starkly with the rights women are supposed to enjoy under International Law.62 Rape in fact violates the most fundamental rights of women.
1. International Human Rights Law
To give just a few examples: Article 3 of the Universal Declaration of Human Rights and Article 9 of the International Convention on Civil and Political Rights, the ICCPR, guarantee life, freedom and safety of the person. Article 4 of the Universal Declaration and Article 8 of the ICCPR prohibit slavery. Torture and inhuman treatment are prohibited by Article 5 of the Universal Declaration and Article 7 ICCPR. These rules are clear and yet the D.R.C. not only fails to prevent armed groups from using rape as a weapon of war – the D.R.C.'s own forces are involved, too.
The 1994 Declaration on the Elimination of Violence against Women, which, as a Resolution of the General Assembly of the United Nations, is not binding, but nevertheless a key document, requests states to take action against violence which is directed against women. The 1993 Vienna Declaration of the World Conference on Human Rights stated that "Gender based violence and all forms of sexual harassment and exploitation [...] are incompatible with the dignity and worth of the human person and must be eliminated"63 and demanded an "effective response" to systematic rape.64 We are still missing such an effective response. That's why the right to equal legal protection under Art. 2 (c) of the 1979 Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) is also at stake here, because victims or rape are not given fair access to justice, as we will see in a moment.
The international human rights system is supplemented by specific African rules. Art. 18
(3) of the African Charter on Human and Peoples' Rights requires states parties to "ensure the elimination of every discrimination against women and also to ensure the protection of the rights of the woman". This rule is violated when women are not given equal access to justice. Art. 14 (2) (a) of the 2003 Protocol to the African Charter on Human and People's Rights concerning the Rights of Women in Africa65 requires states to provide adequate, affordable and accessible health services for women. So far most African states including the D.R.C. fail to do so. But there are also more concrete rules: On a more fundamental level does the protocol require states to take appropriate measures to protect women against sexual violence66 and to create "and enforce laws to prohibit all forms of violence against women including unwanted or forced sex".67 A step further, the Protocol68 demands also that states provides appropriate remedies to women whose rights have been violated.69 Such possibilities do not even exist on paper: According to Art. 448 of the D.R.C.'s family code, a married woman has to obtain her husband's permission to bring a case to court.70 We will come back to that in a moment.
Actually, from an International lawyer's perspective, Human Rights in Africa is one of the most interesting current issues, although it is overlooked to a large extend by lawyers outside Africa. The African Court of Human Rights was established with the entry into force of a protocol to the African Charter on 25 January 2004. In 2003 the member states of the African Union agreed on the creation of an African Court of Justice. Although there are not yet enough ratifications for the statute of this African Court of Justice to enter into force, the member states of the African Union agreed on 1st of July 2008, at their meeting in Sharm El-Sheik, to merge the Human Rights Court and the African Court of Justice into one tribunal, the African Court of Justice and Human Rights. If this plan goes through it will achieve something for Africa which Europe has been attempting for some time and which is not even on the horizon for the Americas, let alone Asia or the Arab world: a unified, continent-wide system of legal protection. After all, the African Court on Human Rights can apply not only the Charter but "any instrument or source of law concerning human rights that is ratified by all states concerned".71 Ideally the future African court will resemble the United States Supreme Court – at least as far as the relationship between human rights norms and other rule is concerned. For the time being, the African system of human rights protection is the least developed and least effective of the three regional human rights systems.72 One reason is that, unlike at the European Court of Human Rights in Strasbourg, individuals and NGOs are severely restricted when it comes to bring a case before the African Court. Individuals and NGOs "can only bring cases if they have been recognized as having observer status"73 and "it is unlikely that many African States will recognize the competence of the African Court to hear individual or NGO petitions."74 Also, compliance with human rights norms in Africa is still very much a matter of what is politically desirable rather then based on states' obligations under international law.75
Not only is the African record concerning compliance with international human rights law dismal, ratifications also take a disproportionate amount of time. It is questionable when – or if – the thirty necessary ratifications will be achieved. So far, unfortunately, many African governments underestimate the potential international law gives them.
The same applies to Africa's checkered record with regard to other international human rights instruments which are designed to protect women:
2. International Humanitarian Law
Because many rapes happen in the context of armed conflict, not only International Human Rights Law but also International Humanitarian Law applies. a) The International Laws of Armed Conflict and their Applicability
International Humanitarian Law (IHL), the law of war or ius in bello, is the set of rules which applies specifically in times of war. It is the purpose of IHL "to reduce the horrors"76 of war as much as possible. An extremely important part of International Humanitarian Law are those rules which are designed to protect civilians in times of armed conflict. International Humanitarian Law is applicable not only in case of all-out war but in all situations of armed conflict. It also applies to all armed groups in the conflict areas of the Eastern D.R.C. b) Wartime Rape under International Humanitarian Law77
Rape and other forms of sexual violence in times of war are prohibited by International Humanitarian Law.78 The rapes in the Kivu provinces are shocking but not uncommon. To the contrary, wartime rape continues to be a common phenomenon.79 While it gained some international attention during the Yugoslav Wars, it is often only seen as one of many problems associated with armed conflict.
This prohibition of rape under IHL can be argued to amount even to jus cogens,80 that is, to rules of international law which take absolute precedence over other rules. In fact, as wartime rape is an old problem, the prohibition of rape in times of war has been around for some time as well: already the American Lieber Code (LC)81 prohibited rape82 and also the Hague Regulations respecting the Laws and Customs of War on Land, which were contained in annexes to the 1899 and 1907 Hague Conventions, prohibited rape through the protection of "family honour and rights".83 The Nuremberg Charter did not refer to rape expressis verbis but the Tokyo Tribunal indicted Admiral Toyoda – among other crimes
– for "ordering, directing, inciting, causing, permitting [...] and failing to prevent [...] Japanese Naval personnel [...] under his command [...] to rape, kill and commit other atrocities."84 After the end of World War II, Law No. 10 of the Allied Control Council for Germany (Control Council Law No. 10) included rape as a crime against humanity. The Second Additional Protocol to the Geneva Conventions prohibits rape "at any time and at any place",85 thereby elaborating on Art. 27 of the Fourth Geneva Convention, the Geneva Convention Relative to the Protection of Civilian Persons in the Time of War (GC IV), which calls for special protection for women in times of war, "in particular against rape, enforced prostitution, or any form of indecent assault." Art. 27 of the Fourth Geneva Convention gives particular protection to women against “rape, enforced prostitution or any form of indecent assault”.86 Although this rule does not protect women against acts by the authorities of the state of which they are citizens,87 the protection offered by the conventions is extended by the First Additional Protocol (AP I) to the Geneva Conventions to everyone who is in the territory of a party to a conflict.88 Also Articles 75
(2) and Art. 76 of the First Additional Protocol prohibit rape in times of war. Article 75 (2) prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault” with regard to both sexes.89 But the Additional Protocol goes further in protecting women in as far as it demands that women are particularly respected. Article 76 of the Second Additional Protocol to the Geneva Conventions demands that women are to be “the object of special respect and shall be protected in particular against rape, forced prostitution and any other forms of indecent assault”. These rules contain not only an obligation not to harm women, but a positive obligation, requiring that women are being protected.
Female Prisoners-of-War, internees and detainees are to be treated in accordance with Art. 13, 25, 29, 85, 97, 108 of the Third Geneva Convention and Art. 75 (6) of the First Additional Protocol. When it comes to punishments against POWs, the maximum punishments applicable to male POWs must not be exceeded with regard to women, Art.
88 of the Third Geneva Convention.90 Particular rules applied to criminal sanctions imposed on pregnant women and mothers of young children by virtue of Art. 76 (3) of the First Additional Protocol and Art. 6 (4) of the Second Additional Protocol.91
Mothers of young children and pregnant women receive an ever higher degree of protection based on Articles 18, 20, 21 of the Fourth Geneva Convention,92 in particular when it comes to receiving food (Art. 23, 50 and 89 GC IV and Art. 70 AP I)93 and medical care (Art. 50, 91 GC IV, Art. 70 AP I),94 but also with regard to their physical safety (Art. 14, 17, 18 and 20 GC IV)95 and finally with regard to their release, repatriation and their accommodation in neutral countries (Art. 132 GC IV, Art. 76 AP I).96
One important norm which also covers rape is Article 3 which is common to all Geneva Conventions which prohibits among other acts "outrages upon personal dignity, in particular humiliating and degrading treatment".97 c) Rape as a War Crime98
Wartime rape is also punishable under International Criminal Law. Some violations of International Humanitarian Law are considered to be so serious as to amount to war crimes. Rape is one of them.
Rape is prohibited under customary international law. Already the Lieber Code contains both a prohibition of wartime rape99 and a rule on its punishment100 and at least since World War II, since the United States Military Commission's decision Yamashita case101 have military leaders been held liable for rapes which have been committed by their troops.102 In 1999 the UN Sub-Commission on the Promotion and Protection of Human
Rights demanded that all acts of sexual violence be condemned and prosecuted103 and today wartime rape constitutes a war crime104 which can be prosecuted by the International Criminal Court (ICC) in The Hague105 under Article 8 of the Rome Statute and which in the past has already been prosecuted for example before the International Criminal Tribunals for Rwanda (ICTR)106 and the former Yugoslavia (ICTY):107 The modern key decisions on rape are Furundžija and Kunarac in which the ICTY defined rape as invasive vaginal, anal or oral sex108 without the consent of the victim.109 But in the context of a larger conflict rape takes on a meaning beyond the individual victim. Rape is used as a weapon or war, a means of terrorizing the civilian population. Accordingly, in Akayesu, the ICTR convicted the defendant for rape as a form of genocide,110 in Delalic, the ICTY held that sexual violence can constitute torture111 and in Kunarac the defendant was convicted for sexual slavery, rape and violations of human dignity which the ICTY considered war crimes and crimes against humanity,112 to give just a few examples.
In all of these cases, though, it has to be kept in mind what has been said initially, that is that rape is only one of many problems associated with armed conflict which brings with it the risk that systematic wartime rapes are not combated with the urgency the problem requires. d) The Protection of Children Against Wartime Rape
Young girls are particularly vulnerable in armed conflicts. International Humanitarian Law therefore grants children special protection in times of armed conflicts and demands that they are respected (“All children shall be the object of special respect and are to be protected against sexual assault.”113 AP I), at the same time the Convention on the Rights of the Child (CRC) continues to protect children in times of armed conflict (Art. 38 CRC). In times of war, states parties to the CRC undertake to respect and ensure respect for rules of IHL applicable to children.114 Furthermore, states parties to the CRC have to take all feasible measures to ensure protection and care of children who are affected by the armed conflict.115
The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography and the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict add to the protection afforded to children under international law and need to be taken into account accordingly. e) After the war
Also the aftermath of an armed conflict holds dangers to women and accordingly, international law is also concerned with “abuses associated with armed conflict or its aftermath”, such as forced prostitution and trafficking in women and girls.116 International law provides a number of tools to address this issue: the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others was adopted by the General Assembly of the United Nations (UN GA) in 1950 and is supported117 by Art. 6 CEDAW, Art. 34 and 35 CRC, the International Labour Organization’s 1999 Convention on the Worst forms of Child Labour (ILO Convention 182) and the UN Convention against Transnational Organized Crime and its supplementary protocols, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children and the Protocol against the Smuggling of Migrants by Land, Sea and Air, all adopted by the United Nations General Assembly in 2000 as well as by the relevant principles which have been established by the UN Office of the High Commissioner for Human Rights (OHCHR).118
Chapter III
Denial of Justice in the DRC119
Unfortunately, all these rules are ignored in the DRC in a most blatant manner. We have already remarked on the similarities with the conflict in Rwanda. But also when it comes to providing the victims with justice, there are sad parallels to the Rwanda genocide, in particular in so far as it appears virtually impossible to bring all perpetrators to justice. The major difference to the Rwandan genocide is that in the case of the war in the Eastern D.R.C., much less is being done for the victims.
Although thousands of women have been raped, less than a dozen perpetrators had been prosecuted by 2005.120 Since then, the numbers have not managed to keep up with the ever growing number of cases, far from it. Yet that does not mean that there are no legal rules protecting the victims. Although only a tiny fraction of the perpetrators are brought to justice, from the victims perspective, the important change is that now it is the criminals who are in the defensive – it used to be, that the victims were punished for having been raped.121 While the mindset of many Congolese men is not changed that easily and rape victims continue to be shunned,122 legislative changes are a step in the right direction.
Articles 167 to 171 of the Congolese Penal Code prohibit indecent, that is sexual, assault and rape, that is sexual assault involving penetration.123 These crimes and carry a sentence of five to twenty years in prison.124 The same punishment awaits kidnappers who physically torture their victims,125 which covers the cases in which girls and women are taken from their homes to be held as sex slaves.126 In case torture or rape lead to the death of the victim Congolese law demands life in prison or the application of the death penalty.127 Of particular importance is the fact that a serious impairment of the health of the victim by the rape is considered to be an aggravating factor, leading to one to ten years of imprisonment.128 Examples include pregnancy caused by rape on the infection with a serious and painful disease.129 The latter provision is more than necessary since it is estimated that two thirds of the perpetrators are HIV positive130 and up to 30 percent of all victims are thought to have been infected with HIV.131 Every second victim is thought to have been infected with syphilis as well.132
Although the reaction by the Congolese government to the atrocities remains insufficient, it has to be noted that there have been legislative developments in reaction to the problem of mass rapes: Art. 169 no. 7 of the 2002 Military Penal Code133 which replaced the 1972 Military Penal Code to at least formally comply with Congo's international obligations,134 now provides for the death penalty for cases of sexual violence which amount to crimes against humanity, if committed in the context of a "general or systematic attack"135 on either the D.R.C. or the civilian population.136 This includes sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and similarly grave crimes.137
Yet the practical application of the D.R.C.'s domestic laws is found wanting and the law does not have the deterrent effect which is required to prevent future atrocities. This is in part due to the enormity of the problem and to the government's inability to effectively rule the affected parts of the country. But it must also be kept in mind that the traditional position of women in Congolese society continues to be reflected in the law: Remember that a married woman has to obtain her husband's permission to bring a case to court.138 “Given that many husbands sever all contacts to their wives after they have been raped139 or refuse to support them,140 this already places a first legal obstacle on the victims' path to justice.”141 If the husband refuses to allow his wife to initiate legal proceedings, a family council may overrule the husband.142 Unmarried adult women on the other hand – in theory – do not require the consent of their male family members at all.143 Often though, they will lack the means to pursue justice in the first place.
„Articles 444 - 448 of the [Congolese Family] Code place married women in a position of dependence and submission to their husbands, to the extent that they cannot effect any legal act without their husband’s agreement. These articles are flagrant contradictions of [Article 16 (1) c)] CEDAW [...], as well as [A]rticle 330 of the Congolese Family Code, both of which grant the same rights and responsibilities to spouses during marriage and its dissolution. In practice, these provisions pass the married woman from the guardianship of her parents to that of her husband.“144
Also, many victims are simply not aware of their rights or lack the necessary means to pursue justice.
Yet this is only the tip of the iceberg which represents the most practical problem: Women are second-class citizens in the D.R.C. and are often not aware of their rights. Rape victims often have to return to their parents' house and the injuries described above unless treated
(and in many regions, only a fraction of victims will receive treatment) will make it impossible for them to participate in the everyday life of their society, not even to think of seeking justice in the courts. If they do so, often only married women of good social standing who have the support of their families stand a slight chance of finding justice.145
In fact, according to a report by France 24, of 1,400 rapes only 11 were reported to the military tribunal.146
Chapter IV
A Role for the International Criminal Court
An alternative might be provided by the International Criminal Court (ICC). While International Human Rights Law lacks sufficient enforcement mechanisms vis-a-vis the militias, wartime rapes are violations of International Humanitarian Law,147 the law governing the conduct of armed forces in times of conflict. Grave violations of the laws of war are punishable under International Criminal Law which dates back to the Nuremberg and Tokyo war crimes trials after World War II.
Consistent with the requirements of International Humanitarian Law, the UN demands that all acts of sexual violence are condemned and prosecuted.148 Today rape is a war crime and can be prosecuted by the International Criminal Court (ICC) in The Hague according to Art. 8 (2) lit. b (XXII) and Art. 8 (2) lit. e (VI) of the Statute of the International Criminal Court.149
Already the International Criminal Tribunals have dealt with wartime rape cases:150 in Delalic, the International Criminal Tribunal for the former Yugoslavia (ICTY) equated sexual violence with torture151 and in Kunarac sexual slavery, rape and violations of human dignity were considered to be war crimes and crimes against humanity,152 to give only some examples. Also Art. 8 of the ICC Statute includes rape in the list of crimes punishable by the ICC which only has jurisdiction if the state which should take action is either unwilling or unable to take adequate action. The D.R.C.'s national authorities are unable to effectively solve the problem and might also well be suspected of being unwilling to do so. After all, also the D.R.C.'s regular armed forces are involved in the atrocities.
A step in the right direction, though, was taken by the Congolese government when the situation in the D.R.C. was referred to the International Criminal Court in March 2004.153 The ICC is now actively investigating the situation in the D.R.C. and has already started to bring war crimes suspects before court.
Under Article 75 of the Statute of the ICC, victims can, in theory, receive financial compensation, if the men who raped them should ever be convicted. But as of today, the victims in North and South Kivu are still waiting for the ICC to take action in rape cases as well. For the time being, the International Criminal Court remains a far off option and more importantly an option which is not really in the hands of the victims. How then can justice be brought to the women of the Kivus? In Rwanda the judicial system, both nationally in Rwanda as well as in the ICTR was overwhelmed by the sheer number of cases. The same applies to the D.R.C. because Congo's courts also cannot handle the problem adequately.
So far, though, the ICC seems to have more of a thematic approach. For example, in dealing with the DRC it first focussed on criminal responsibility for recruiting child soldiers, because this issue had not yet been addressed by international criminal tribunals. Rape on the other hand has already been dealt with by the International Criminal Tribunals for Rwanda and the former Yugoslavia. From a purely legal perspective it makes sense to widen the understanding of war crimes. For the victims it means that justice is being delayed.
In any case does the ICC only have a supplementary role, meaning that it only has jurisdiction of a state is unwilling or unable to provide effective justice. This is why the DRC government asked the ICC to investigate. And it lacks the necessary force to apprehend criminals effectively. In the former Yugoslavia NATO forces went hunting for war crimes suspects. The United Nations' MINUC forces in the DRC are neither trained or equipped for this task.
Finally, it has to be understood that the role of the ICC – like the role of the other International Tribunals, including already the Nuremberg and Tokyo Tribunals, is largely symbolic. It is supposed to provide justice by dealing with the main war criminals, to support the national courts and to serve as a deterrent in order to avoid future atrocities. This latter role can only be fulfilled by actually sentencing war criminals, regardless of rank or affiliation.
Chapter V Conclusions and Outlook
But for the time being, it would be unrealistic in any case to assume that the ICC will be able to bring justice to all victims. At best it will bring global attention to the problem and send a message that the law also reaches to the D.R.C. Whether that will actually prevent potential rapists from committing future crimes remains to be seen, in particular since the ICC does not have a police force of its own but would have to rely on international troops on the ground. A criminal law solution providing justice for all victims is therefore not likely to be achieved anytime soon, if at all. This also means that there will be essentially no deterrent against future rapes and that the problem will continue.
But the key to ensuring both greater access to health care and improving overall support for victims is the same as to protecting women against rape in the first place: the traditional position of women in the D.R.C. (and the problem is essentially the same in many other cultures around the Earth) has to be overcome. This is certainly not “culturally sensitive”, but it is a fundamental respect for women which is lacking here. We are not talking about feminism or female liberation from a Western perspective. In the D.R.C., women continue to be second class citizens. Female self-liberation in the Western sense is not a serious possibility in the D.R.C. Protests by women exist in the D.R.C. but they are still extremely rare and raped women will be happy not to be kicked out of their families and communities. Many, maybe most, are.
Traditional taboos continue to prevent many women from seeking help and the stigma associated with having been raped places victims in danger long after the crime has been committed.
We are talking about respect.
It is necessary to create a culture of respect for women and girls. This will take generations and many obstacles will have to be overcome, such as ethnic of religious taboos and views concerning the position of women in society and in particular the relation between men and women, or low levels of education in most fundamental ethical issues. Such changes, though, cannot be imposed top down but have to start with each individual. The state, the international community or any outsider for that matter, can only help by giving impulses and by assisting in creating a favorable environment which includes better education opportunities for both genders.
In the long run, ending violence against women is in everybody's interest. As early as in its 1995 Beijing Conference, the UN state that "[v]iolence against women is an obstacle to the achievement of the objectives of equality, development and peace".154 The dissemination work of the Red Cross, which is teaching about International Humanitarian Law, could play an important role here, as well as work by religious and other groups. But the key to protecting women hold those who have the greatest impact on the perpetrators: other men. Fathers, older brothers, military commanders. By treating women with respect in everyday life and by setting examples to their children and indeed everyone else around them, it is men who have to set the standard as to how to treat women. This approach also takes into account the specific African approach to human rights.155 Unlike the European and Inter-
Annexes
Annex 1: Universal Declaration of Human Rights159
PREAMBLE
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,
Whereas it is essential to promote the development of friendly relations between nations, Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,
Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,
Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,
Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.
Article 1
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Article 2
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
Article 3
Everyone has the right to life, liberty and security of person. Article 4
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.
Article 5
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 6
Everyone has the right to recognition everywhere as a person before the law.
Article 7
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
Article 8
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
Article 9
No one shall be subjected to arbitrary arrest, detention or exile.
Article 10
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
Article 11
(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.
Article 12
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Article 13
(1) Everyone has the right to freedom of movement and residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to his country.
Article 14
(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.
(2) This right may not be invoked in the case of prosecutions genuinely arising from non- political crimes or from acts contrary to the purposes and principles of the United Nations.
Article 15
(1) Everyone has the right to a nationality.
(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
Article 16
(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.
(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
Article 17
(1) Everyone has the right to own property alone as well as in association with others.
(2) No one shall be arbitrarily deprived of his property.
Article 18
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Article 19
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 20
(1) Everyone has the right to freedom of peaceful assembly and association.
(2) No one may be compelled to belong to an association.
Article 21
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
(2) Everyone has the right of equal access to public service in his country.
(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
Article 22
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.
Article 23
(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
(2) Everyone, without any discrimination, has the right to equal pay for equal work.
(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
(4) Everyone has the right to form and to join trade unions for the protection of his interests.
Article 24
Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.
Article 25
(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
Article 26
(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
(3) Parents have a prior right to choose the kind of education that shall be given to their children.
Article 27
(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
Article 28
Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.
Article 29
(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.
(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
(3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.
Article 30
Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.
Annex 2: International Convention on Civil and Political Rights160
PREAMBLE
The States Parties to the present Covenant,
Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Recognizing that these rights derive from the inherent dignity of the human person, Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights,
Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms,
Realizing that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant,
Agree upon the following articles:
PART I
Article I
1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.
PART II
Article 2
1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
Article 3
The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.
Article 4
1 . In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.
3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.
Article 5
1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.
2. There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.
PART III
Article 6
1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
[...]
1 On the natural resources aspect of the conflict in the DRC and a proposal for a sustainable peace there cf. Stefan Kirchner – Resource Management and Conflict Prevention in the Great Lakes Region, in: 3 Africa Policy Watch (2008), pp. 8 et seq., available online at http://www.caaglop.org/APW/apw3.pdf.
2 Hez Holland – Congo rebels threaten Goma in Eastern Offensive, in: International Herald Tribune, 27 October 2008, available online at http://www.iht.com/articles/reuters /2008/10/27/africa/OUKWD-UK- CONGO-DEMOCRATIC-FIGHTING.php.
3 CNN – Thousands flee fighting as Congo rebels seize Gorilla park, 26 October 2008, available online at http://edition.cnn.com/2008/WORLD/africa/10/26/congo.gorillapark /index.html.
4 Holland, op. cit.
5 International Herald Tribune / Reuters / Associated Press – Commander of UN peacekeepers in Congo resigns, in: International Herald Tribune, 27 October 2008, available online at http://www.iht.com/articles/2008/10/27/africa/congo.php.
6 Cf. Jeffrey Gettleman – In Congo, fighting brings fears that chaos will return, in: International Herald Tribune, 3 November 2008, available online at http://www.iht.com/articles/2008/11/03/africa/03congo. php.
7 Reuters / Associated Press – Defying the UN, Congo rebels launch offensive, in: International Herald Tribune, 26 October 2008, available online at http://www.iht.com/articles/2008/10/26/arts/congo.php.
8 For the purposes of this chapter, the term "Congo" refers only to the Democratic Republic of Congo, formerly known as Zaire,m also known as Congo-Kinshasa, as opposed to Congo-Brazzaville.
9 CNN (Gorilla park), op. Cit.
10 In 2005, 42,000 rape victims were treated in South Kivu alone – Chris McGreal – Hundreds of thousands raped in Congo wars, in: The Guardian, 14 November 2006, available online at http://www.guardian.co.uk/print/0,,329626772-110889,00.html.
11 McGreal, op. cit.
12 Cf. Pascale R. Bos – Feminists Interpreting the Politics of Wartime Rape: Berlin, 1945; Yugoslavia, 1992- 1993, in: 31 Signs: Journal of Women in Culture and Society (2006), pp. 995 et seq., at p. 1012.
13 Cf. Amnesty international – Sudan, Darfur – Rape as a weapon of war – Sexual violence and its consequences, (July 2004).
14 Rob Nordland – Congo's Wounds of War: More Vicious than Rape – The atrocity reports from eastern Congo were so hellish that Western medical experts refused to believe them – at first, in: MSNBC, 13 November 2006, available online at http://www.msnbc.msn.com/is/15704030/site/newsweek/page/3.
15 Victims have been reported to age between 4 months and 84 years old, Marion Pratt / Leah Werchick – Sexual Terrorism: Rape as a Weapon of War in Eastern Democratic Republic of Congo – An assessment of programmatic responses to sexual violence in North Kivu, South Kivu, Maniema and Orientale Provinces, USAID / DCHA (2004), p. 7.
16 Emily Wax – A Brutal Legacy of Congo War – Extent of Violence Against Women Surfaces as Fighting Recedes, in: Washington Post, 25 October 2003, p. A01; McGreal, op. cit. (fn. 2).
17 The insertion of objects, including broken bottles and gun barrels, into the victim's vagina has already been described as a practice also employed in Bosnia, cf. Bos, op. cit., at p. 1019, there fn. 28.
18 Wax, op. cit.; Nordland, op. cit.
20 Stefan Kirchner – Congo, in: David W. Pike (ed.) – Crimes against Women, Ashgate Publishing (forth- coming).
21 Ibid.
22 Ibid.
23 Ibid.
24 Andrea Böhm – Wenn Frieden Männersache ist – Gegen die Frauen im Kongo wird noch immer Krieg geführt, in: Die Zeit, No. 50 (2006), available online at http://zeus.zeit.de/text/2006/50/kongo.
25 McGreal, op. cit.
26 Médecins sans frontières – Sexual Violence as a Weapon of War: MSF report eastern DRC, 1 April 2004, http://www.msf.org.
27 Ibid.
28 Cf. Polly Markandya / Fiona Lloyd-Davis – DRC: A plaster on a gaping wound, 16 April 2002, http://www.msf.org.
29 Medecins sans frontieres (Sexual Violence), op. cit.
30 Böhm, op. cit.; Nordland, op. cit. 31 Markandya / Lloyd-Davis, op. cit. 32 Nordland, op. cit.
33 Nordland, op. cit.
34 Ibid.
35 Wax, op. cit.
37 Cf. ibid.
38 Cf. Wax, op. cit.
39 Böhm, op. cit.
40 http://www.worldwidefistulafund.org/Other%20Causes.html.
41 Ibid.
42 Nordland, op. cit.
43 Ibid.
44 The insertion of objects, including broken bottles and gun barrels, into the victim’s vagina has already been described as a practice also employed in Bosnia, Bos, op. cit., at p. 1019, there fn. 28.
45 Nordland, op. cit.
46 Ibid.
47 Medecins sans frontieres – Rape as a Weapon of War, 5 March 2004, http://www.msf.org.
48 Cf. Lucy Clayton – MSF confronts sexual violence in Sierra Leone, 8 September 2003, http://www.msf.org.
49 Markandya / Lloyd-Davis, op. cit.
50 Ibid.
51 Ibid.
52 Nordland, op. cit.
53 UN News Service – DR Congo: army and police continue to violate civilians' human rights, says UN mission, 21 February 2007, http://www.un.org/apps/news/printnews Ar.asp?nid=21635.
54 Nordland, op. cit.
55 United Nations Security Council – Report of the Secretary-General on children and armed conflict in the Democratic Republic of the Congo, 28 June 2007, UN Doc. S/2007/391, p. 10.
56 Böhm, op. cit.
57 On the situation of the children born as a result of rape cf. Ruth Harris – The “Child of the Barbarian”: Rape, Race and Nationalism in France During the First World War, in: Past & Present, Nos. 138-141 (1993), pp. 170 et seq.
58 Böhm, op. cit.
59 On the psychological effects of wartime rape cf. Sabina Popovic – Delayed Psychological and Psychiatric Effects of Violence Committed Against Women During the War in Bosnia and Herzegovina 1992 – 1995, in: Commission for Gathering Facts on War Crimes in Bosnia and Herzegovina (ed.) – The sin of silence – risk of speech, Collection of the reports from international conference held in Sarajevo on 10th and 11th March 1999, pp. 523 et seq.; Mujo Haskovic – Psychosocial Support for Women – Victims of Sexual Violence During the War in Bosnia and Herzegovina 1992 – 1995, in: Commission for Gathering Facts on War Crimes in Bosnia and Herzegovina (ed.) – The sin of silence – risk of speech, Collection of the reports from international conference held in Sarajevo on 10th and 11th March 1999, pp. 533 et seq.; Gillian Mezey – Rape in War, in: 5 Journal of Forensic Psychiatry (1994), pp. 583 et seq.
60 Cf. Böhm, op. cit.
61 See ICRC – Stories from the Field: Democratic Republic of the Congo: “I want my child and me to be accepted”, 2 March 2007, http://www.icrc.org.
62 The situation under Congolese law is dealt with in Kirchner (Congo), op. cit.
63 Vienna Declaration, No. 18.
64 Vienna Declaration, No. 38.
65 From a Human Rights perspective, this protocol is at best a two-edged sword due to its insistence on a "right to abortion". Although regularly claimed even by renowned Human Rights NGOs such as Amnesty International or Human Rights Watch, a "right to abortion" cannot exist from a lawyer's perspective: Human Rights are rights of the individual (in some cases enjoyed in a group, e.g. freedom of religion) vis-a-vis the state. Only in exceptional cases will there be a conflict with rights of others. Such conflicts will always be indirect. The so called "right to abortion" does not pass the minimum test to be considered a "right" in a legal sense because its exercise always requires the end of a human life. Moreover is the concept of a "right to abortion" irreconcilible with a fundamental tenet of human rights: the legal recognition of human rights aims at protecting the weak with regard to the strong. Nobody can be weaker than an unborn child who is unable to express him- or herself. By deliberately abandoning this fundamental principle proponents of such "right" are diminishing the moral credibility of human rights as such. Furthermore, what is referred to as the "right" to abortion is simply a decision as to how to solve a conflict of interests. But not every legal solution to a conflict of interests requires recourse to rights of either interest holder. From a legal point of view, the usage of the term "right" in this context is not only technically wrong but also endangers the entire human rights "project". Women can certainly be better helped than through such artificial constructions which threaten to undermine the entire concept of legally accepted human rights – in particular since most victims of abortions (wherever the technical capbilities exist to determine the gender during pregnancy) are girls. Demanding a "right to abortion" therefore does not serve women's rights but places females at risk.
66 Art. 1 (j) Protocol to the African Charter on Human and Peoples' Rights concerning the Rights of Women in Africa.
67 Art. 3 (4) (a) Protocol to the African Charter on Human and Peoples' Rights concerning the Rights of Women in Africa.
68 Art. 25 Protocol to the African Charter on Human and Peoples' Rights concerning the Rights of Women in Africa.
69 Center for Reproductive Rights – The Protocol on the Rights of Women in Africa: An Instrument for Advancing Reproductive and Sexual Rights, Briefing Paper, www.reproductiverights.org.
70 Ibid., p. 10.
71 Scott Lyons – The African Court on Human and Peoples' Rights, 10 ASIL Insights (2006), Issue 24, 19 September 2006, http://www.asil.org/insights060919.cfm.
72 Henry J. Steiner / Philip Alston – International Human Rights in Context – Law, Politics, Morals, 2nd ed., Oxford University Press, Oxford (2000), p. 920.
73 Lyons, op. cit.; Art. 5 (3) and Art. 34 (6) Protocol for the Establishment of an African Court of Human Rights.
74 Lyons, op. cit.
75 On 25 July 2008, a UNESCO-organized meeting of ministers of women affairs from different states in Africa's Great Lakes Region adopted the Declaration of Kinshasa concerning the impact of gender on peace and development in the Great Lakes Region. If was noted in the declaration "that adherence to a number of international legal instruments on the part of countries of the Great Lakes Region has failed to translate into tangible results in the lives of women." Although the declaration correctly notes that "violence against women is widespread" and that rape is used as a weapon of war, it is an insult to the victims that representatives of the regions governments actually claim that their states adhere to International Human Rights Law. After all, all armed groups are involved in systematic rapes – including the DRC Army and National Police. Insofar the DRC can hardly claim adherence to International Human Rights Law, less so because the DRC has not fulfiled her responsibility to protect her citizens against human rights abuses. Protecting citizens is the for the formation of society in the form of a state. By failing to protect her citizens, the DRC has failed to satisfy this obligation.
76 Leslie C. Green – The contemporary law of armed conflict, 2nd ed., Manchester University Press, Manchester (2000), p. 15.
77 On this aspect cf. more briefly Kirchner (Congo), op. cit.
78 For a good overview over how international law deals with gender-related crimes cf. Christine Chinkin – Rape and Sexual Abuse of Women in International Law, in: 5 European Journal of International Law (1994), pp. 1 et seq. and Helen Durham – Women, armed conflict and international law, in: 84 International Review of the Red Cross (2002), pp. 655 et seq.
79 Cf. Stefan Kirchner – Hell on Earth – Systematic Rape in Eastern Congo, in: 13 Journal of Humanitarian Assistance, (2007), 6 August 2007, http://www.jha.ac/2007/08/06/hell-on-earth-systematic-rape-in-eastern- congo/#fn-1186442655171 with many references to literature on wartime rape in different conflicts.
80 Cf. Kelly Dawn Askin – The Quest for Post-Conflict Gender Justice, in: 41 Columbia Journal of Transnational Law (2003), pp. 509 et seq.
81 Instruction for the Government of Armies of the United States in the Field, General Orders No. 100, 24 April 1863.
82 Art. 44 Lieber Code.
83 Yuogindra Khushalani – Dignity and Honour of Women as Basic and Fundamental Human Rights (1982), p. 10.
84 So quoted by C.P.M. Cleiren / M.E.M. Tijssen – Rape and Other Forms of Sexual Assault in the Armed Conflict in the Former Yugoslavia: Legal, Procedural, and Evidentiary Issues, in: 5 Criminal Law Forum (1994), pp. 481 et seq.
85 Art. 4 (2) lit. e) Second Protocol Additional to the Geneva Conventions.
86 Kofi Annan – Women, Peace and Security – Study submitted by the Secretary-General pursuant to Security Council Resolution 1325 (2000), p. 34.
87 Ibid.
88 Ibid.
89 Ibid.
90 Cf. ibid.
91 Ibid.
92 Annan, p. 34.
93 Ibid.
94 Ibid.
95 Ibid.
96 Ibid.
97 Cf. Alexander Zahar / Göran Sluiter – International Criminal Law – A Critical Introduction, 1st ed., Oxford University Press, Oxford (2008), p. 131.
98 Cf. also Kirchner (Congo), op. cit., and Stefan Kirchner – Wartime Rape and International Law, in: Social Science Research Network, 27 December 2007, http://ssrn.com/ abstract=1078919.
99 Art. XLIV Lieber Code.
100 Art. XLVII Lieber Code.
101 United States Military Commission, US v. Yamashita, (1947) 4 Law Reports of Trials of War Criminals 1, 35.
102 Zahar / Sluiter, op. cit., p. 129.
103 United Nations High Commissioner for Human Rights, Sub-Commission on the Promotion and Protection of Human Rights – Systematic rape, sexual slavery and slaverylike practices, Sub-Commission resolution 1999/16, 26 August 1999.
104 On wartime rape as a crime cf. Theodor Meron – Rape as a Crime Under International Humanitarian Law, in: 87 American Journal of International Law (1993), pp. 424 et seq.; Aiko Utsumi – How the Violence against Women were dealt with in War Crime Trials, in: Indai Lourdes Sajor (ed.) – Common Grounds (1998), pp. 187 et seq.; Kelly Dawn Askin – Prosecuting Wartime Rape and Other Gender-Related Crimes Under International Law: Extraordinary Advances, Enduring Obstacles, in: 21 Berkeley Journal of International Law (2003), pp. 288 et seq.; Kelly Dawn Askin – War Crimes Against Women: Prosecution in International War Crimes Tribunals (1997), pp. 262 et seq.
105 Art. 8 (2) lit. b (XXII) and Art. 8 (2) lit. e (VI) ICC-Statute; cf. Human Rights Watch – International Justice for Women: The ICC marks a New Era, 1 July 2002, http://www.hrw.org/campaigns/icc/icc- women.htm; Valerie Oosterveld – Sexual Slavery and the International Criminal Court: Advancing International Law, in: 23 Michigan Journal of International Law (2004), pp. 605 et seq.
106 Kelly Dawn Askin – Sexual Violence in Decisions and Indictments of the Yugoslav and Rwanda Tribunals: Current Status, in: 93 American Journal of International Law (1999), pp. 97 et seq.; Stephanie K. Wood – A Woman Scorned for "Least Condemned" War Crime: Precedent and Problems with Prosecuting Rape as a Serious War Crime in the International Criminal Tribunal for Rwanda, in: 13 Columbia Journal of Gender and Law (2004), pp. 274 et seq.
107 Catherine N. Niarchos – Women, War, and Rape: Challenges Facing the International Tribunal for the Former Yugoslavia, in: 17 Human Rights Quarterly (1995), pp. 649 et seq. See also Askin (War Crimes), op. cit. and Richard Goldstone – The United Nations' War Crimes Tribunals: An Assessment, in: 12 Connecticut Journal of International Law, pp. 227 et seq.
108 ICTY – Prosecutor v. Furundžija, IT-95-17/1, Judgment, 10 December 1998, para. 185.
109 ICTY – Prosecutor v. Kunarac, IT-96-23-T, Judgment, 22 February 2001, para. 457.
110 ICTR – Prosecutor v. Akayesu, ICTR-96-4-T, Judgment, 2 September 1998. 111 ICTY – Prosecutor v. Delalic, IT-96-21-T, Judgment, 16 November 1998. 112 ICTY – Prosecutor v. Kunarac, IT-96-23-T, Judgment, 22 February 2001.
113 Ibid.
114 Ibid., at p. 37.
115 Ibid.
116 Ibid.
117 Cf. ibid., pp. 37 et seq.
118 Report to the Economic and Social Council, E/2002/68/Add.1.
119 On the legal situation in the DRC cf. also Kirchner (Congo), op. cit.
120 Human Rights Watch – D. R. Congo: Tens of Thousands Raped, Few Prosecuted, available online at http://www.hrw.org/english/docs/2005/03/07/congo/10258.html; for more in-depth information see Juliane Klippenberg – Seeking Justice: The Prosecution of Sexual Violence in the Congo War, 17 Human Rights Watch Reports (March 2005), No. 1 (A).
121 McGreal, op. cit.
122 Tiare Rath – In War-Riddled Congo, Militias Rape with Impunity, Women's eNews, 27 April 2003, http://www.womensenews.org/Article.cfm/dyn/aid/1307/context/cover.
123 Juliane Klippenberg – The War within the War – Sexual Violence Against Women and Girls in Eastern Congo, Human Rights Watch (2002), p. 84.
124 Ibid.; cf. Klippenberg (Seeking Justice), op. cit., pp. 28 et seq.
125 Klippenberg (The War within the War), op. cit., p. 84.
126 Ibid.
127 Amnesty International – Democratic Republic of Congo – Mass Rape: Time for Remedies (2004), p. 16.
128 Ibid.
129 Ibid.
130 René Lefort – Congo: A Hell on Earth for Women, in: Le Nouvel Observateur, 11-18 September 2003.
131 Ibid.
132 Ibid.
133 Cf. Klippenberg (Seeking Justice), op. cit., p. 28.
134 The Code Penal Militaire was changed by Loi No024/2002 of18 November 2002 in order to comply with the requirements of the Rome Statute establishing the International Criminal Court, an international treaty to which the D.R.C. is a party. Cf. also the Code Judiciaire Militaire, Loi No 023/2002 of 18 November 2002 and Pierre Akele Adau – Réforme de la justice militaire en RDC: le nouveau droit judiciaire et pénal militaire transitoire: un ´soft landing´ pour la Cour d´ordre militaire, in: 42 Congo-Afrique: (2002), Issue No. 369/370, pp. 547 et seq.
135 Art. 169 Code Penal Militaire.
136 Amnesty International (Congo), op. cit., p. 16.
137 Ibid.
138 Ibid., p. 10.
139 Lefort, op. cit.; Wax, op. cit., p. A01.
140 Cf. Sarah Gieseke – Rape as a Tool of War in the Eastern Democratic Republic of Congo (2007), p. 12.
141 Kirchner (Congo), op. cit.
142 Juliane Klippenberg (The War within the War), op. cit., p. 85.
143 Ibid.
144 Marie Mossi Mota / Mariana Duarte – Committee on the Elimination of Discrimination against Women, 36th session, 7-25 August 2006 – Report on the implementation of the Convention on the Elimination of All forms of Discrimination Against Women by the Democratic Republic of Congo, 1st ed., World Organization Against Torture, Geneva (2006), p. 16.
145 Ibid., p. 23; cf. also Kirchner (Congo), op. cit.
146 Cf. http://www.youtube.com/watch?v=hyB2PswYX5o.
147 See also Meron, op. cit.; Aiko Utsumi – How the Violence against Women were dealt with in War Crime Trials, in: Indai Lourdes Sajor (ed.) – Common Grounds (1998), pp. 187 et seq.; Askin (Enduring Obstacles), op. cit.; Askin (War Crimes), op. cit., pp. 262 et seq.; Chinkin, op. cit., and Durham, op. cit.
148 United Nations High Commissioner for Human Rights, op. cit.
149 Cf. Human Rights Watch (ICC), op. cit.; Oosterveld, op. cit.
150 Cf. Askin (Sexual Violence in Decisions and Indictments of the Yugoslav and Rwanda Tribunals); Wood, op. cit.; Niarchos, op. cit. and Goldstone, op. cit.
151 ICTY – Prosecutor v. Delalic, IT-96-21-T, Judgment, 16 November 1998.
152 ICTY – Prosecutor v. Kunarac, IT-96-23-T, Judgment, 22 February 2001.
153 ICC – Press Release: Prosecutor receives referral of the situation in the Democratic Republic of Congo, ICC-OTP-20040419-50-En, 19 April 2004.
154 UN Doc. A/CONF.177/20, 17 October 1995, reprinted in: 35 International Legal Materials (1996), pp. 401 et seq., No. 112.
155 Cf. Articles 18 and 29 ACHPR.
American Conventions on Human Rights, the African Charta contains duties of individuals, including the duty to respect others without discrimination156 and to respect the rights of others157 as well as to uphold and strengthen social solidarity.158 Respect is the key to preventing future atrocities against women – against our wives, sisters, mothers and daughters.
156 Art. 28 ACHPR.
157 Art. 27 ACHPR.
158 Art. 29 no. 4 ACHPR.
159 United Nations General Assembly Resolution 217 A (III), 10 December 1948.
160 United Nations General Assembly Resolution 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171.
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