Practice Relating to Rule 93. Rape and Other Forms of Sexual Violence
Germany’s Military Manual (1992) provides: “Any attack on the honour of women, in particular rape, enforced prostitution, or any other form of indecent assault, is prohibited.”
Germany’s Law Introducing the International Crimes Code (2002) provides for the punishment of anyone who, in connection with an international or non-international armed conflict,
sexually coerces, rapes, forces into prostitution or deprives a person who is to be protected under international humanitarian law of his or her reproductive capacity, or confines a woman forcibly made pregnant with the intent of affecting the ethnic composition of any population.
In 2010, in the Democratic Forces for the Liberation of Rwanda case, the Federal Prosecutor General at Germany’s Federal Court of Justice issued a press release, which stated:
On 8 December 2010, the Federal Prosecutor General brought charges before the Senate on State Protection of the Higher Regional Court Stuttgart against:
- the 47-year-old Rwandese national Dr. Ignace M. and
- the 49-year-old Rwandese national Straton M.
for crimes against humanity and war crimes …
In the charges, which have now been delivered and which are the first ones brought under the International Crimes Code, essentially the following facts are set out:
The … [Democratic Forces for the Liberation of Rwanda (FDLR)] … is a rebel group mainly comprised of members of the ethnic Hutu group and was originally founded by individuals responsible for the genocide of the Tutsi who had fled from Rwanda in 1994. Its operational base is in the Eastern Democratic Republic of Congo [DRC]. …
The accused Dr. Ignace M. has been president of the FDLR since December 2001. The accused Straton M. has been its first vice president since June 2004. Until their arrest in Germany on 17 November 2009, both accused steered the FDLR’s conduct, strategies and tactics from Germany together with Calixte M., who is residing in France and who has since been detained by the International Criminal Court in The Hague. Thus, they could have prevented the systematic commission of violent acts against the civilian population by the FDLR’s militiamen, which were part of the organisation’s strategy. Specifically, the accused are responsible for 26 crimes against humanity and 39 war crimes, which the militiamen under their control committed in the Democratic Republic of Congo between January 2009 and 17 November 2009. These crimes inter alia
include … the rape of numerous women.
1. Between April and July 1994, in the Kagarama sector in the Commune of Kicukiro, Prefecture of Kigali City (PVK) Préfecture de la Ville de Kigali, in the Republic of Rwanda, as either the perpetrator or accomplice, committed offences constituting the crime of genocide as provided for in the Convention [on the Prevention and Punishment of the Crime of Genocide] of 09/12/1948 ratified by Rwanda on 12/02/1975 with Decree No. 08/75, with these offences punishable under Organic Law No. 08/96 of 30/08/1996 [on the organization of prosecutions for offences constituting the crime of genocide or crimes against humanity committed since 1 October 1990].
5. Committing acts of sexual torture and raping Tutsi women, with these offences contained in and punishable under Article 360, second and third of the Rwandan Penal Code and Articles 2a and 14a of Organic Law No. 08/96.
6. Complicity in acts of sexual torture and in the rape of Tutsi women, with this offence being contained in and punishable under Articles 3, 2a and 14a of Organic Law No. 08/96 of 30/08/96 [on the organization of prosecutions for offences constituting the crime of genocide or crimes against humanity committed since 1 October 1990] and by Articles 89, 91,1° and 360 of the Rwandan Penal Code.
Considering that the Military Prosecutor would like the statements of certain witnesses to be received in closed session, particularly those people who are victims of rape;
Considering that counsel for the defence is opposed to the requested closed session, arguing that the Chief Warrant Officer publicly acknowledges that he raped certain women;
Considering that the Military Prosecutor states that he is requesting the closed session for the charge of complicity in sexual torture;
Considering that counsel for the defence wishes for his client to be granted permission to make his statements publicly because the defendant has decided to speak the truth;
Considering that the Military Prosecutor states that the case file contains a document containing the names of the women affected and that an extract of this document has been reserved for journalists, and so he asks the War Council consider the advisability of a closed session;
Considering that the bench withdrew to deliberate the petitions of the two parties;
Considering that, after the deliberations, the War Council found that the witness has the right to make a statement in closed sessions;
Considering that the Military Prosecutor wishes for the hearing of the … witness known as [DR] to take place;
Considering that [DR] … was born in 1980 … ;
Considering that when asked whether she had heard the Interahamwe say they were sent by Chief Warrant Officer Rwahama, [DR] replied that she learnt this later when Rwahama asked them if the Interahamwe he had sent had raped either of them, then [LN] admitted to having been raped;
In 1991, three political parties in the German parliament tabled a resolution that referred to rape as a crime in the context of the Sudanese civil war.
In 1992, in a written reply to questions in parliament concerning the systematic rape of Muslim women and girls by Serb forces in Bosnia and Herzegovina, the German Government stated that it had made “vigorous and repeated representations to the ‘Yugoslav’ government, both bilaterally and within the framework of the European Community, in connection with these rapes and other grave human rights violations”. It reaffirmed that rape was “already prohibited in armed conflict and deemed a war crime under the existing provisions of international humanitarian law” and cited Article 27 of the 1949 Geneva Convention IV and Article 4(2)(e) of the 1977 Additional Protocol II in support of its position. The Government further stated: “Should the reports of systematic mass rape of predominantly Muslim women and girls be confirmed, this would, moreover, meet the statutory definition for systematic harm to an ethnical group within the meaning of the 1948 Genocide Convention.”
In 2004, during a debate in the UN Security Council, the representative of Germany stated:
Unfortunately, the list of countries in conflict having a history of gender-based atrocities is long and includes countries from all continents, including Haiti, Afghanistan, Iraq, Myanmar, the former Yugoslavia, the Democratic Republic of the Congo and others. The fact that women account for the vast majority of victims of conflicts and are still significantly underrepresented at all levels of decision-making indicates that we need tools and instruments that promote our common vision as expressed in Security Council resolution 1325 (2000).
The continuing extreme violence against women and girls in the Darfur region is a case in point …
… Given the scope of gender-based discrimination, including violence, we need to ensure that all substantive units of a peacekeeping operation, starting with the United Nations assessment team, include specialists with gender expertise … That also requires that the United Nations continue to train its personnel, including at the level of the Special Representative of the Secretary-General, and that Member States invest more in gender training of potential peacekeeping staff. The German Government has made the latter a political priority in its endeavours. We strongly believe in the need for accountability for wartime violence against women, and in the necessity to end impunity … The International Criminal Court (ICC) certainly has a key role to play with regard to the investigation and prosecution of gender-based crimes. However, its efforts must be supplemented by national legal mechanisms.
In 2004, during a debate in the UN Security Council, the representative of Germany stated:
On this occasion, Germany would like to propose three points that we deem to be of crucial importance concerning areas where the need for progress is urgent … We propose the following.
First, let us put an end to impunity …
My second point is that we should better address the issue of humanitarian access …
Thirdly, we must stop the recent trend of using sexual violence as a weapon of conflict. The importance of reversing the escalating cycle of violence against women and children during and after conflict cannot be overstated. Women and children – be they civilians or female or child soldiers – are among the most vulnerable groups in times of conflict. Women are increasingly subject to cruel, degrading and often lethal treatment in times of conflict. Children suffer most and have the fewest defences in conflict situations if they are separated from or deprived of their parents, and their ability to cope with a quickly changing environment is very limited.
Women and children are also, to an unprecedented extent, victims of atrocious sexual violence. Worse still, sexual or gender violence is intentionally and systematically used as a weapon of warfare. We must undertake special efforts to study that phenomenon as diligently as possible to come to a swift determination on how to stop that practice. In its report, the High-level Panel proposes giving human rights components of peacekeeping operations explicit mandates and sufficient resources for investigating and reporting human rights violations against women. The Panel also proposes that the recommendations of Council resolution 1325 (2000) on women, peace and security and of the associated Independent Experts’ Assessment for the protection of women be fully implemented. The German delegation fully concurs with those proposals.
Let me end my remarks by reiterating our position: we believe that a new resolution on the protection of civilians would be a feasible option for the Council. I say that, bearing in mind that many of the points raised by the excellent Security Council resolutions 1265 (1999) and 1296 (2000) still await implementation. However, we believe that the changing character of conflict and the development of new threats, new institutions and new tools to engage more effectively in assistance should be reflected in an operational text adopted by the Council.
In 2005, in its Seventh Human Rights Policy Report, Germany’s Federal Government reported to the Bundestag (Lower House of Parliament):
3. Priorities of the German human rights policy 2005–2006
3.7 Preventing violence against women
The Federal Government still attributes highest political importance to fighting violence against women. It therefore will
- contribute to respect for international humanitarian law and to the human rights of women and girls in armed conflicts;
- demand criminal law prosecution of sexual and other violence against women in conflicts.
In 2010, in its report on German cooperation with the UN and other international organizations and institutions within the UN system in 2008 and 2009 submitted to the Bundestag (Lower House of Parliament), Germany’s Federal Government stated:
The implementation of [UN] Security Council resolutions 1325 and 1820 is a key aspect of the Federal Government’s current Development Policy Plan on Gender. Within the framework of the Action Plan II on the Suppression of Violence against Women adopted by the Federal Government in September 2007, measures are also taken to protect women and girls from gender-specific violence, in particular rape and other forms of sexual abuse as well as violence in situations of armed conflict.
In 2010, in its report on German human rights policy in the context of foreign relations and other policy areas in the period between 1 March 2008 and 28 February 2010, which was submitted to the Bundestag (Lower House of Parliament), Germany’s Federal Government stated:
On 19 July 2008 the UN Security Council adopted Resolution 1820 (S/RES/1820). This resolution is a milestone in the international fight for the elimination of violence against women because for the first time, it classifies the use of sexual violence as a means of warfare in times of armed conflict as a war crime. The Federal Government explicitly welcomes this step.