“In the light of its factual findings with regard to the allegations of sexual violence […] the [International Criminal Tribunal for Rwanda] considers the criminal responsibility of the Accused on Count 13, crimes against humanity (rape), punishable.”
Despite the conviction of rape as a component of genocide nearly twenty years ago, the international community has yet to prosecute Islamic State of Iraq and Syria (“ISIS”) fighters for similar actions.
In 1998, a decision by the International Criminal Tribunal for Rwanda entered legal history as the world’s first conviction of genocide by trial. 18 years later, The Prosecutor v Jean-Paul Akayesu (“Akayesu”) continues to garner significant international attention; The Uncondemned,a feature length documentary about the case, was released in 2015 and an international lawyer recently compared Akayesu’s importance in international criminal law to the US Supreme Court’s landmark 1954 Brown v Board of Education case which established the unconstitutionality of “separate but equal,” accommodations in US public education.
The genocide conviction is not, however, the case’s sole historical feature; Akayesu also marks the first conviction of rape as a component of genocide (at the time, there was not even a commonly accepted definition of “rape,” in international law). The judges unequivocally compared rape to torture, noting that “like torture, rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person.” In certain cases, they note, “rape in fact constitutes torture.”
Even with such clear precedent for rape in genocide prosecutions, war rape is still a common feature of modern warfare: research conducted by the Global Justice Center - and submitted to the International Criminal Court - has found that ISIS “systematically raped, enslaved, killed and tortured,” girls and women – actions potentially similar to those Akayesu was convicted for 18 years ago. Furthermore, the United Nation’s (“UN”) Commission of Inquiry (COI) on Syria recently concluded that ISIS is committing genocide, crimes against humanity, and war crimes against the Yazidi people.
Yet despite the UN’s documentation of ISIS-committed sexual slavery, rape, and sexual violence, “little to no action has been taken to investigate, document and ensure accountability.”
By prosecuting ISIS fighters for war rape – an act likened to torture by a criminal tribunal – the international community would provide a semblance of justice to war rape victims, follow and establish international legal precedent, and send a powerful message to potential ISIS fighters that they will be held accountable for their actions.