“Weaponizing” Sexual Violence In War – An IHL Problem
As the war in Ukraine approaches the six-month mark, reports of sexual violence against women and girls, and also men and boys, mount almost daily. In an extraordinary step, trials of Russian soldiers accused of rape have already begun in Ukraine, some of them in absentia. What challenges does this unfolding tragedy pose for international humanitarian law (IHL)?
In 2008, the UN Security Council’s Resolution 1820 recognized that sexual violence can be “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.” This was a significant public step for the UNSC and for its approach to its international peace and security jurisdiction. This is despite the fact that the connection had been drawn years earlier, including in early reporting of widespread rape and sexual assault during the conflict in the former Yugoslavia.
Discourse on conflict-related sexual violence (CRSV) has evolved since 2008 so that the current international armed conflict in Ukraine has been described as including the “weaponization of rape” by Russian forces. This use of language is important because it begs the question of what a military response by a conflict participant should look like. Something that is “weaponized” suggests a kinetic response, using military tools – weapons, maneuver of forces, and tactics such as bombardment from air, land, or sea. How could they be used in war to respond lawfully to an enemy tactic of rape?
Posing the question in these terms brings to mind jus ad bellum debates about an international responsibility to protect (R2P). It was in the context of R2P that the phrase “humanitarian intervention,” or sometimes “humanitarian bombing,” was applied to the 1999 air campaign in Kosovo. There, NATO argued that the legal and moral basis for the campaign was the humanitarian need to end atrocities by Serbian forces. The conceptual premise of R2P is that offensive force is used lawfully to defeat an adversary, who has become an adversary because they are threatening civilians. As an ad bellum doctrine, R2P does not inherently challenge IHL, because it still calls for a traditional military campaign against adversary forces to achieve the humanitarian objective.
However, the tactical application of force to prevent or respond to CRSV brings out significant in bello problems. In this post, I pose a range of IHL problems for targeting CRSV, through its perpetrators or the places in which it is occurring.
The easiest targeting response to weaponized rape would be to attack those using it as a weapon. If Russian armed forces are using “weaponized rape” to advance Russia’s strategic goals in Ukraine, for example, then they would be targetable. But they are targetable because of their status and not their participation in alleged international crimes. Similarly, in a non-international armed conflict, certain members of an organized armed group are targetable whether or not they are participating in CRSV, noting that there remains debate about the extent to which that involves a “continuous combat function” or status-based test based on the armed component of the group. In each case, participation in CRSV neither adds to nor changes the targetable status of combatants. However, targeting individual perpetrators in the act of rape would almost certainly create unacceptable collateral risks to the civilian victims, disproportionate to military advantage.
Direct participation in hostilities (DPH) is more difficult. The characterization of rape as “weaponized,” and its use to further a party’s conflict aims, seems to assert that those engaging in it who are not already targetable by status might, during an act of CRSV, directly participate in hostilities. It is difficult to see how this could be established to any reasonable level of certainty, because it would require some means of characterizing the individual participatory act as conflict-related.
A key insight into prosecuting CRSV at the ICTY was the need to understand that there is a conflict spectrum from “opportunistic” rape for private ends to “strategic violence” (p. 173) – that is, rape can be used as a tactic of war, but not all rapes in war are in this category. Where perpetrators of sexual violence are correlated to persons otherwise taking direct part in hostilities, or where the acts of sexual violence take place as part of an ongoing military attack on civilians, an inference might be drawn that the DPH continues through the act of CRSV and extends the targeting window. However, where the act stands alone, it is the connection to conflict aims that is difficult to infer. Thus, targeting perpetrators creates a critical problem of distinction, even if the underlying premise of rape as DPH is accepted.
Identifying a Military Objective?
Given the problems of targeting perpetrators, are there other lawful targeting opportunities? IHL prohibits attacks on civilian objects, allowing only collateral death, injury or damage to civilians and their property when proportionate (technically, not excessive) to the concrete and direct military advantage anticipated to be gained. “Military objectives” are those which by their nature, location, purpose or use make an effective contribution to military action, and whose partial or total destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.
The risk applies to facilities that would not otherwise be classed as military. A barracks is targetable, for example, whether or not CRSV is being perpetrated there. Like DPH, accepting the possibility that a civilian facility may lose protection if used for CRSV, to the extent that it makes an effective military contribution, requires a step forward for IHL.
The immediate issue is twofold: first, how should the conduct of CRSV be assessed as an “effective” contribution? Can “effectiveness” be assessed not in a qualitative way measuring success, but according to the intent to deploy it as a tactic – in the same way as a rifle legally makes an effective contribution whether or not it is wielded by a soldier who can aim it?
As an example, if the sexual enslavement of Yazidi women and girls was demonstrably part of the military campaign waged by the so-called Islamic State in Iraq and Syria, and those conducting it were targetable because of that or other status, then would the markets where girls were sold, or the houses in which women were held captive, lose protection as civilian objects? The risk is that extending IHL in this way, to accommodate one party’s deliberate engagement in crimes against civilians, undermines the basic principle of distinction which IHL uses to limit force to combatants.
Secondly, even if that is conceptually sound, there is still a reasonable certainty problem. Where there is doubt, the facility remains civilian in nature. The IHL prohibition against the targeting of civilians allows no scope for humanitarian intent.
What is the Military Advantage?
The second aspect of the military objective test is that of military advantage – the gain that an attacker anticipates from the attack, viewed as a whole, which is also to be weighed in assessing the proportionality of expected civilian injury and damage. It is traditionally required to be military in nature, to satisfy the requirement of military necessity. In recent years, commentators have disputed whether military advantage can include national strategic goals, such as the overriding concerns in the combatant’s own civilian population about casualty minimization and general deterrence.
In this context, if one party is engaged in CRSV to further its objectives, can it be to the military advantage of the other to launch attacks to prevent or respond to it? A humanitarian intent to protect civilians from CRSV is not well aligned with the traditional understanding of military necessity and advantage in attack. This is particularly so where the targets are not otherwise typically military objectives, such as adversary perpetrators or facilities.
Where an adversary is demonstrably engaging in CRSV, in pursuit of its own war aim such as terrorizing a civilian population, there may be a strategic goal in responding to it to build support for one’s own campaign. However, these are really national information effects, that is, the purpose of the activity is to change the civilian population’s mindset. There should be a question as to the military necessity of a kinetic strike causing casualties to achieve that advantage rather than one which is military in nature. In part, elevating to strategic goals re-introduces the problem of certainty – or rather, the necessary connection between the attack and the strategic goal. Further, whether it is a “definite” advantage, given the legal risks to basic principles such as distinction and the proportionality of civilian harm, would be difficult to measure in an information effects paradigm.
A comparison to United Nations peacekeeping offers an interesting contrast. In that context, what UNSC Resolution 1820 and subsequent resolutions call for is an end to impunity for CRSV. The measures sought are education, investigation, prosecution, and protective force in a defensive construct. Importantly, UN peacekeeping forces, with the exception of some elements in the Democratic Republic of Congo, are not conflict participants, and so stand apart from some of the IHL problems identified here. Instead, they have specific protective mandates as part of missions combining military, police, and civilian contingents. Not only does this resolve the problem of military advantage, because none is needed, but it allows the situation of military responses in a whole of mission approach – this is a topic that warrants more detailed examination on its own merits.
Military Roles in a Wartime Criminal Justice Response?
A response more likely to be lawful is to situate non-kinetic military responses as part of a whole of government approach to preventing or responding to adversary crimes against civilians, including CRSV. This takes the form of either direct information operations, focused on publicly identifying criminal behavior to undermine domestic and international support for perpetrating forces, or direct military support to criminal justice measures.
Criminal justice measures deal with sexual violence, even when conflict related, as a problem for investigation, prosecution, and punishment rather than kinetic attack. This is practically difficult during armed conflict. Experiences of treating insurgency as a criminal justice problem, particularly in Iraq during the period 2005-08, are instructive. Problems included the admissibility of evidence taken by foreign forces in local courts, the skills of military personnel (which would here especially include skills in dealing with survivors of sexual violence), the effective functioning of civilian courts in war, and, above all, the prioritization of military support to investigation and detention relative to the pursuit of military advantage. Moreover, mid-conflict, there is also the difficulty of understanding the full context of CRSV, to prosecute systematic or command crimes successfully.
In favor of this approach, however, is its ability to preserve the basic protections of IHL from the challenges posed by the emotive language of weaponization and its implicit call for weaponized protective response. In Ukraine, investigations are being led by civilian prosecutors, with support from local and international investigators (including a contingent of Dutch military police). They may be supported by reports from Ukrainian military forces in the field, and by the identification of alleged perpetrators among captured Russian personnel. But they are not calling on the armed forces as primary responders.
While the CRSV context is new, the in bello problem of humanitarian targeting is not. In an example that deserves closer contemporary analysis, Jewish agencies and officials urged Allied forces to bomb Auschwitz and the rail lines leading to it early in 1944. The bombing never happened, with one historian concluding that the prioritization of military objectives by American commanders in particular, directed to “final victory” in Europe, did not leave resources for other goals. It highlights the problem of military advantage, and the balance between the fastest effective means of military defeat of the adversary (protection by ending the war) and immediate measures (interim protection now) as the best military response to CRSV. More importantly in this historical example was the objection by others in the international Jewish community and in Allied command, who considered it unethical to bomb the people held in Auschwitz even with the intent to help them.
This is really the problem, even above the IHL issues for CRSV. Our military conundrum is this: if war is bad, can a combatant be a “force for good” in law or otherwise? Or does the language of “weaponizing” rape simply draw us further into an Orwellian world where to risk killing civilians targeted by sexual violence is to save them?
Wing Commander Angeline Lewis is a senior legal officer in the Royal Australian Air Force. Dr Lewis writes on a range of topics of legal and historical interest, representing only her personal views and not those of the Australian government or any international organization.
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