Open UKLSR Volume 1(2) - Uklsa

UK Law Students’ Review – 2013 – Volume 1, Issue 2
violence alone. The Tribunal also confirmed how oral sex could be considered a form
of rape as well as other ‘serious sexual assault[s] falling short of penetration’. 47
The ICTR’s contribution to the sexual violence discourse has also been highly
influential. In Akayesu 48 , the Court proclaimed that sexual violence can form an
essential element to a genocide campaign. The ICTR applied a broad definition to
what can amount to a crime of sexual violence by claiming that acts other than sexual
penetration- such as forced nudity- can also fall within this notion. 49 The International
Tribunals have taken a much broader understanding of what constitutes ‘rape’ than
many domestic legal systems have been willing to recognise. This is a positive
advancement in international law because it aims to prevent impunity for all forms of
violence that may be committed against women during conflicts.
Another recent achievement has been the creation of the ad hoc ‘Women’s
International War Crimes Tribunal’ that was set up in the year 2000 in Japan. This
Tribunal had to consider the liability of Japanese military and political officials for the
State-endorsed ‘comfort system’ that was used in the 1930’s and 1940’s to rape and
sexually enslave women from all across the Asia-Pacific region. The Tribunal was set
up 56 years after the actual crimes had been committed, which reveals how human
rights activists had worked relentlessly to ensure that crimes against women were not
left forgotten and unprosecuted.
The Women’s Tribunal decided that the fact that the comfort system lasted over 13
years with ‘literally thousands of facilities’ across some dozen countries, adequately
proved how the top authorities must have been involved in implementing the
system. 50 Therefore, Japan had breached many of its treaty obligations and
international laws- so the State should apologise to the rape victims and provide them
with compensation. This demonstrates how outside actors can help to bring State’s to
accountability for their actions, which is a remarkable step forward for women’s
rights. Nevertheless, the Tokyo Tribunal’s recommendations can only ‘encourage’
and ‘influence’ the State of Japan, providing no binding rules that must be followed. 51
Therefore, Japan is able to ignore the findings and recommendations that have been
made by the Tribunal in the same way that they have been denying their responsibility
for the comfort systems for the past 56 plus years.
III(b) – The ICC and UN Security Council Resolutions
Another major turning point has been the UN’s recognition that violence against
women during conflicts needs to end. Security Council Resolutions 1325(2000) and
1820(2008) have been passed, which call on all parties to a conflict to take special
measures to protect women and girls against violence. This significantly portrays how
the UN regards the prevention of violence against women to be a peace and security
issue 52 as well as a humanitarian concern. It also means that the need to protect
47 Ibid at [186].
48 ICTR- 96-4-T (2 nd October 1998).
49 (n6)12-13.
50 Transcript of the Oral Judgement delivered on 4 th December 2001 by the Judges of the Women’s
International War Crimes Tribunal on Japan’s Military Sexual Slavery [90]-[91].
51 Ibid at [70].
52 M.Ndulo (n24) 133.
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