Pramila Patten, the UN Secretary General's Special Representative for Sexual Violence in Armed Conflict, stated that Russian forces have been carrying out sexual assaults as a "deliberate tactic to dehumanize the victims" as part of their military strategy because "when you hear women testify about Russian soldiers equipped with Viagra, it's clearly a military strategy." Patten stated that the UN had verified that the first cases of rape were reported just three days after the Russian invasion in February. She observed that the reported cases are only the tip of the iceberg because maintaining reliable statistics is difficult during an active conflict, and sexual violence against women is largely a “silent crime.”
The Office for Democratic Institutions and Human Rights (ODIHR) of the Organization for Security and Cooperation in Europe (OSCE) issued in April a Report on Violations of International Humanitarian and Human Rights Law as a result of their investigation between February and March 2022. The report found numerous law violations, including “instances of conflict-related gender-based violence, such as rape, sexual violence or sexual harassment.” In March of 2022, the ICC prosecutor opened an investigation into alleged serious crimes in Ukraine. Shortly thereafter, the UN Human Rights Council established an Independent Commission of Inquiry (IICI) to investigate human rights and humanitarian law violations associated with the war. In October, the IICI published its report, reporting that war crimes and numerous violations of human rights have been committed in Ukraine.
The Ukrainian Prosecutor, Iryna Didenko, stated in January 2023 that her office had opened prosecutions into acts of sexual violence committed by Russian soldiers and added that the actual number of incidents is far higher because Russian invaders have a clear pattern of behavior when seizing territory: “ground forces arrive, and rapes start on the second or third day.”
All of the various reports and investigations confirm that Ukrainian women are targeted for rape and other forms of sexual violence in order to intimidate and demoralize Ukrainian civilians, with youngest victim reported to be just four years old and the oldest over 80.
This development is not entirely surprising as the Russian military has a long and inglorious history in that area. For example, during WWII, the Russian army engaged in mass rapes of women in Germany, which were sometimes “justified” by the fact that these German women were Nazi party members or Nazi sympathizers. Plus, the Russian army engaged in mass looting everywhere they went. While the exact numbers of rapes committed are debated, historical sources suggest that as many as two million German women were victimized, and many were raped multiple times by several soldiers until they died of pain, wounding, and exhaustion. It is reported that after being told about the Red Army’s mass rapes of women in Germany, Poland, and elsewhere, Stalin is supposed to have said, "what is so awful in having fun with a woman after such horrors?” Even if this anecdote is apocryphal, it does reflect the Russian military attitudes prevalent at that time and seemingly now. And even if one would argue that after four years of German atrocities, the mass rapes of German women were somehow a one-off expression of pent-up anger and a form of retribution, the Russian army engaged in the mass rape of Polish women while they were advancing West toward Berlin while “liberating” Poland. Since Polish women who were being brutally raped by the Russian ”liberators” were not German nor Nazis, the “explanation” of Russian behavior lies elsewhere. One explanation is a longstanding culture of permissiveness, lack of discipline, and professionalism in the Russian military; another is the ingrained culture of violence against women, misogyny, as well as prevailing ideals of masculinity. Interviews with some of the Russian soldiers showed that they believed that rape was a form of restitution and that they had a “right” to rape as part of the reward. Natalya Gesse, a war correspondent who observed the behavior of the Red Army in 1945, remarked that the Russian army was “an army of rapists. The documents show that Russian soldiers raped even fellow Russian women while liberating them from the concentration camps.
The use of rape by armies may be as old as human aggression. However, there are significant variations among armies and cultures in the magnitude of rapes and the cultural permission to weaponize rape. Rape may be the cheapest weapon known to man, yet it is quite effective. Rape can shame and humiliate and break the nation's fighting spirit; it can be used to destroy the biological potential of the nation by maiming women of reproductive age, it can be a form of genocide or terrorism. Rape communicates dominance over a victim and establishes the dominance of one population over another, demonstrating the loss of agency and independence. It reinforces the traditional role of women as the property of men. Rape has also been known to be used by military commanders as a tool to create bonds of solidarity among enlisted soldiers and to create fear among them for being exposed later, which can be helpful in disciplining and managing them.
Various national laws have prohibited rape during wartime. Unfortunately international law has been slow in recognizing the uses of rape during wartime as a significant crime.
The Fourth Geneva Convention (GC) and the Additional Protocols do prohibit rape; specifically, Article 27 provides 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 76 of Additional Protocol I to the GC states women are deemed as an ‘object of special respect’ and “shall be protected in particular against rape, forced prostitution and any other form of indecent assault.” However, these documents do not include rape among the “grave crimes” subject to universal jurisdiction.
Some scholars have argued that Article 46 of the Hague Convention IV, stating the “family honor and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected” could be construed to cover military rape. But that is quite a generous interpretation, and in practice, that law has not been effective in supporting such prosecutions. The Hague Conventions contain no obligation for state parties to prevent rape by their armed forces. Article 46 concerns itself primarily with vague ideas of respect for “family honor and rights” rather than creating an explicit prohibition and punishment for wartime rape. Ironically, the Hague Conventions prohibit war-related “pillage” protecting private property more adequately than protecting women. Few or no women were involved in drafting these documents.
Wartime use of rape was not prosecuted during the Nuremberg trials as a war crime under customary international law, albeit it was prosecuted in Tokyo as a war crime.
The more recent Rome Statute (RS) of the International Criminal Court (ICC) has a comprehensive catalog of crimes against humanity, and it explicitly includes rape. The Statute defines crimes against humanity as one of the enumerated acts when those acts are committed as part of a widespread or systematic attack directed against any civilian population, among them rape, sexual slavery and similar crimes.
From the 1990s on, various ad hoc tribunals, the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL), largely adopted the Rome Statute’s definitions and produced case law establishing international precedents for prosecuting rape as a crime against humanity, a form of genocide and a war crime. These international tribunals established and clarified legal protections against the use of tactical rape and sexual violence in conflict, reaffirming that the use of rape contravenes the existing international law and is subject to prosecution while recognizing that weaponized rape can be a form of genocide.
Judgments of these tribunals helped to change the old conceptions of rape as a crime against a woman's or her family's "honour” (as seen in the Geneva and Hague Conventions) to rape as a violation of women’s bodily integrity and as actual crime causing severe bodily injury and grave psychological harm, a significant step forward.
In June of 2000, Mary Robinson, High Commissioner for Human Rights, presented a report on “Systematic rape, sexual slavery and slavery-like practices during armed conflict." This was followed by Security Council (SC) Resolution 1325 on Women and Peace and Security (WPS), which stated that all parties to an armed conflict must “respect fully international law applicable to the rights and protection of women and girls, especially as civilians” and called upon parties to “take special measures to protect women and girls from gender-based violence, particularly rape and other forms of sexual abuse, and all other forms of violence in situations of armed conflict.” Resolution 1325 created international recognition that women are vulnerable during conflict and subject to sexual violence, including tactical rape. Human Rights Watch called Resolution 1325 historic because, for the first time, SC addressed various ways conflict affects women and recognized the link between peace and women’s life experience. Nevertheless, Resolution 1325 did not include proper mechanisms for monitoring implementation or prevention, Hence, while undeniably a sign of progress, Resolution 1325 is largely lacking teeth.
In June 2008, the Security Council passed another WPS resolution: Resolution 1820 which demanded parties to an armed conflict to take measures to protect women from sexual violence. The language of Resolution 1820 is weak; for example, Clause 4 states that rape can be a war crime, a crime against humanity, or an act of genocide, yet rape and sexual violence have already been recognized as such by other international instruments (e.g., Rome Statute). Hence Resolution 1820 could be interpreted as potentially undermining these previously existing protections.
In total, ten resolutions on WPS have been adopted by the SC, all attempting to build on previous work. However, more than ten years after Resolution 1325, the briefing member, Phumzile Mlambo-Ngcuka, an Executive Director of the UN Entity for Gender Equality and the Empowerment of Women observed that “progress is too slow, political will is not strong enough, and pushback against the needs and interests of women is threatening the progress made."
The progress in criminalizing and preventing rape and other sexual violence from being used as tools of war has indeed been painfully slow and these behaviors continue, seemingly with impunity and brutality. Effective prosecution of such crimes is time-consuming and difficult, and assuring jurisdiction is challenging.
That is especially the case in the case of Russian aggression against Ukraine. While this war is distinctive in that many crimes are being actively documented soon after they occurred by using modern technologies and internet connectivity, rape is often not one of these crimes. Rape is particularly hard to document as the victims are often ashamed and traumatized and may need a longer time to describe their ordeals. It is relatively recently that the international community began to develop instruments aimed at creating international standards for collecting evidence of rape and other sexual crimes while doing so ethically and without re-victimizing the survivors.
Even with proper evidence, the path to actual prosecution of these crimes is neither clear nor assured. Neither Russia nor Ukraine are parties to the ICC Statute, albeit in 2015, Ukraine made a declaration under Art. 12(3) of the Statute allows the ICC to have jurisdiction over war crimes and crimes against humanity committed on its territory. Both countries are parties to the four Geneva Conventions of 1949, the 1977 Additional Protocol I, and the 1907 Hague Convention IV with its annexed Regulations (Hague Regulations). However, as discussed, these Conventions do not adequately address the uses of rape, as these are examples of older laws drafted at a time when women’s input and opinions were neither considered valid nor included. Besides, rape was not conceptualized as a violation of women's fundamental human rights at that time. There are ongoing deliberations on whether to create a special tribunal for Ukraine, albeit the main focus at the moment appears to be the "crime of aggression" and not rape and other sexual violence against women.
Pramila Patten, the UN Secretary-General's Special Representative for Sexual Violence in Armed Conflict, while speaking in May 2022 to Olga Stefanishyna, Ukraine's Deputy Prime Minister, stated: "My promise to you is that international law will not be an empty promise. Today's documentation will be tomorrow's prosecution. And I want you to know that your rights don't end when wars begin."
Rape and gender-based sexual abuse is not an inevitable “byproduct” of war. Instead, these are assaults and violent crimes. Nations need to increase education and awareness, create support mechanisms for the survivors, enact laws and create an adequate international system that deters potential perpetrators. Most of all, we must change the appalling reality that rape and other sexual violence remain to be low-risk and cost-free crime to most perpetrators and their leaders.
