Berit Reiss-Andersen, Committee Chairwoman, announcing this year’s Nobel Peace Prize said ”A more peaceful world can only be achieved if women and their fundamental rights and security are recognised and protected in war.”

Rape has been regularly used as a weapon of war during various armed conflicts including the conflicts in former Yugoslavia, Democratic Republic of Congo, Sudan, Bangladesh, Cambodia, Haiti, Somalia, Liberia and Rwanda. The United Nations has rightly observed that sexual violence, when used or commissioned as a tactic of war in order to deliberately target civilians or as a part of a widespread or systematic attack against civilian populations, can significantly exacerbate situations of armed conflict and may impede the restoration of international peace and security.

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Various international instruments have repeatedly stressed upon the protection of women during wartime. The States Parties to the Convention on the Elimination of All Forms of Discrimination against Women, the Optional Protocol thereto, the Convention on the Rights of the Child and the Optional Protocols have obligations to eliminate sexual violence.

It was further resolved in the 2005 World Summit Outcome Document to eliminate all forms of violence against women and girls, including by ending impunity and by ensuring the protection of civilians, in particular women and girls, during and after armed conflicts, in accordance with the obligations States have undertaken under International Humanitarian Law and International Human Rights Law.

The Nobel Peace Prize Committee awarded the prize to Dr Denis Mukwege of Democratic Republic of Congo (DRC) and human rights activist Nadia Murad of Iraq. DRC has been embroiled in a bloody conflict for the last few decades. As per several reports, hundreds of thousands of women have been subjected to rape. The famed Congolese gynaecologist has been a global advocate against rape as a weapon of war and has helped thousands of women who were sexually assaulted during wartime by providing medical services.

He has also actively highlighted the plight of such war victims at various international fora including the United Nations. He had been previously awarded with the UN Human Rights prize in 2008 and the Sakharov prize of the European Parliament in 2014. He also founded Panzi hospital which is located on the outskirts of Bukavu and this hospital has rendered medical services to tens of thousands of victims of sexual violence.

The menace of sexual violence as a weapon of war was evident in the second Iraqi Civil War too which lasted from 2014 to 2017. One of the war victims, Nadia Murad, has been declared a joint winner of this year’s Nobel Peace Prize. Nadia is the first Iraqi to receive the Nobel Prize. Nadia was a resident of village Kojo of Sinjar province in Northern Iraq. This village was inhabited by the Yazidi minority who because of their religious beliefs have continuously been targeted by ISIS. When the ISIS invaded the area, they ruthlessly killed the Yazidi men and aged Yazidi women.

The girls of Kojo were taken as sex slaves and Nadia was one of those unfortunate girls. The girls were then transported to the northern city of Mosul and sold as sex slaves. These girls were then repeatedly raped by numerous people. Few girls killed themselves whereas many others unsuccessfully tried to end their life to stop this ordeal. Many girls were fortunate to escape from the clutches of ISIS and Nadia was one of them. She finally made it to Iraqi Kurdistan and from there she went to Europe. She then narrated the ordeal and the world community was shocked at hearing the horrendous crimes committed by the ISIS in the Sinjar province.

Nadia’s exemplary courage in detailing the abuses led to a tremendous uproar against the crimes of the ISIS and a renewed zeal to protect the persecuted Yazidi minority from the wrath of ISIS. Even after ISIS has retreated from the Sinjar province, Yazidis are yet to return. ISIS has destroyed everything in Sinjar. Nadia seeks justice against these horrors perpetrated by the ISIS and she appositely remarks that she wants to take ISIS members to a court of law and have them admit to the crimes they committed towards Yazidis and face punishment.

Rape during wartime has always been frowned upon by the international community. One of the earliest statutes prohibiting sexual violence during wartime is the Lieber Code of 1863 which prohibited rape during armed conflict. Later the Hague Conventions of 1899 and 1907 codified the existing customary rules of war. The four Geneva Conventions of 1949 and their additional Protocols revised the codification of International Humanitarian Law. Article 27 of the Convention (IV) relative to the Protection of Civilian Persons in Time of War (1949) declared that protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs and they shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity. It further specified that women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.

Article 4 of the Fundamental Guarantees of the Second Additional Protocol of 1977 to the Geneva Conventions declare that all persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices and shall in all circumstances be treated humanely, without any adverse distinction. Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault are prohibited at any time and in any place.

The United Nations has on various occasions explicitly condemned sexual violence against women during wartime. The preamble of the Declaration on the Elimination of Violence Against Women, G.A. Res/48/104, dated 20 December 1993, observes that violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women, and that violence against women is one of the crucial social mechanisms by which women are forced into subordinate position compared to men.

The preamble further records the concern that some groups of women, such as women belonging to minority groups, indigenous women, refugee women, migrant women, women living in rural or remote communities, destitute women, women in institutions or in detention, female children, women with disabilities, elderly women and women in situations of armed conflict, are especially vulnerable to violence.

The United Nations Security Council has passed multiple resolutions condemning sexual violence. UN SC resolution 1820(2008) noted that women and girls are particularly targeted by the use of sexual violence, including in some cases as a tactic of war to humiliate, dominate, instil fear in, disperse and/or forcibly relocate civilian members of a community or ethnic group. In 2009, the Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict was established by a Security Council Resolution.

Various International Tribunals have also declared rape as a crime against humanity. The International Criminal Tribunal for the former Yugoslavia (ICTY) was established by a United Nations SC Resolution in exercise of the powers vested to it under Chapter VII of the UN Charter for the prosecution of persons responsible for serious violations of International Humanitarian Law committed in the territory of the Former Yugoslavia since 1991. Article 5(g) of the Statute recognises rape as a crime against humanity.

This tribunal was the first International Tribunal to declare an accused guilty of rape as a crime against humanity. In Prosecutor v. Dragolju Kunarac and Others, Case No. IT-96-23&23/1(Appeals Chamber), 12 June 2002 the accused were sentenced to prison terms for rape characterized as a crime against humanity.

Even the Statute of the International Criminal Tribunal for Rwanda (ICTR), which was also established as a result of the United Nations Security Council Resolution 955 (1994) to prosecute and punish the persons responsible for serious violations of International Humanitarian Law during the non-international conflict in Rwanda between the Hutu and the Tutsi people, lists rape as a crime against humanity. In Prosecutor v. Akayesu (ICTR-96-4-T) the tribunal successfully prosecuted allegations of sexual violence and it was further held that rape could also constitute genocide to the extent that it was employed with an intention to destroy a particular group.

The Statute of the Special Court of Sierra Leone (SCSL) also lists rape, sexual slavery, enforced prostitution, forced pregnancy and any other form of sexual violence as a crime against humanity (Article 2(g)). Again Article 3(e) lists outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault as serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977.

The Rome statute penalises various forms of sexual violence including rape, sexual slavery, forced pregnancy and enforced prostitution. The Elements of Crimes of the ICC states that for rape to be a crime against humanity of rape there has to be the following elements: The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body and the invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.

Also, the conduct was committed as part of a widespread or systematic attack directed against a civilian population and the perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population Jean-Pierre Bemba Gombo, Commander-in-Chief of the rebel group Mouvement de Libération du Congo (MLC) and former Vice-President of the Democratic Republic of Congo, was held guilty and sentenced to eighteen years of imprisonment by ICC in 2016 of war crimes and crimes against humanity against civilians committed by his troops during an MLC operation to suppress a 2002 coup d’état in the Central African Republic.

This was the first ICC case which involved a conviction for sexual violence as well as the first case to find a perpetrator guilty of command responsibility under Article 28 of the statute. But the Appeals Chamber this year overturned his conviction holding that he could not be held responsible for the crimes of his forces.

The award of the 2018 Nobel Peace Prize to two champions fighting against the scourge of sexual violence during wartime clearly sends a stern signal that such violence as a tactic of war will no more be tolerated in today’s civilised world.

The writers are Mumbai-based advocates and legal practitioners.