Rape as a Weapon of War in Ukraine
Emi Barker, YSC Research Fellow and Lara Brett, Head of Communications YSC
TW – Mention of rape and other forms of sexual violence
This article was written and researched from December 2022-January 2023. Given the nature of the topic, more information may have come to light since publication.
Activists protest rape during war and gather to support Ukraine in front of the Russian Consulate in New York on May 28, 2022. (Photo credit: Kena Betancur / AFP via Getty Images)
Legal channels for prosecuting rape as a weapon of war in Ukraine
One in three women around the world will experience physical and/or sexual violence in their lifetime (UN Women Headquarters, 2021). In Ukraine, and at in multiple other countries, rape is used as a weapon of war, mainly to subjugate and terrorise women.
France has become “the first major western state to publicly back the creation of a special tribunal to try senior Russian officials” for war crimes in Ukraine (Koshiw & Rankin, 2022). The creation of an ad hoc Special Tribunal would solely focus on “the crime of aggression,” which does not encompass the sexual violence perpetrated by Russian forces (Ibid). This article will outline the effect that rape has on its survivors, its use by Russian soldiers in Ukraine, current international frameworks for punishing such cases and how the international community must urgently improve these mechanisms to help the people of Ukraine.
What is rape?
The UN defines rape as “Penetration – even if slightly – of any body part of a person who does not consent with a sexual organ and/or the invasion of the genital or anal opening of a person who does not consent with any object or body part.” Rape as a weapon of war is the use of rape “as a tool to punish, terrorize and destroy populations.” This includes, but is not limited to, the use of gang rape, forced prostitution, rape with the use of weapons or other objects and the rape of children.
In the literature, there is a debate over the terms ‘victim’ versus ‘survivor.’ Researchers argue that the latter demonstrates a person’s agency and ability to rebuild their lives after trauma, whereas the former presents the person as more “passive” (Rahila, 2014). For this reason, this article uses the term ‘survivor’ to refer to those who have experienced rape as a weapon of war. It is important to note that there are no ‘typical’ survivors. Anyone, regardless of their gender, ethnicity, age or other characteristics may experience sexual violence. Men and boys may also experience sexual violence and women may be the perpetrators (De Brouwer & Ruiz, 2019). However, research shows that sexual violence is mainly gendered, with women and girls constituting the majority of the survivors (White, Majeed-Ariss, Gadd, 2020).
First and foremost, rape is a dehumanising act. It objectifies survivors, denying them their bodily autonomy and depriving the perpetrators of the ability to see the person as a human being. This has a number of physical and psychological effects on survivors. Rape survivors may experience cuts, bruising and contract a sexually transmitted infection (Rape Crisis England & Wales, 2022). Rape may cause fistula, whereby the tissue between the vagina and bladder or rectum are torn. This causes the leakage of urine and/or faeces, with many sufferers experiencing social exclusion as a result (Fistula Care Plus, 2021).
The stigmatisation of rape survivors is not uncommon. It may not be safe for them to report the rape to the police and societal victim-blaming may frame the rape as their fault, rather than blame the perpetrator (Nallu, 2015). Consequently, survivors feel responsible for a situation that was entirely out of their control. This grants perpetrators impunity and survivors may be the ones to feel guilty, which can cause depression and impact their relationships (Thust & Estey, 2020). Furthermore, female survivors of rape may face social ostracisation. For example, within Bosnia, the use of sexual violence within predominantly muslim communities carried religious and cultural implications; changing the survivors standing in the community (Sitkin, et al., 2019; p. 221). In some communities, husbands leave their wives due to fear of contracting HIV/AIDs or due to feelings of emasculation, if they themselves have survived rape (Thust & Estey, 2020; De Brouwer, 2015, p. 650). Men may also abuse their wives, knowing they have survived sexual violence, as has been the case also in Bosnia (Turton, 2017). However, it is important to note that sexual violence is not particular to any one culture or location and is a pervasive tactic that is present is most conflicts both around the world and throughout history.
Research on former soldiers who had perpetrated sexual violence in the Democratic Republic of Congo (DRC) showed that they had a territorial attitude towards women’s bodies, using words such as “basic needs” and “domination” to justify their behaviour. When reflecting on acts of sexual violence perpetrated by their opponents, however, interviewees condemned the act, viewing perpetrators as barbaric (Thust & Estey, 2020). This shows some understanding of the brutality of rape but also implies a cognitive dissonance. Such an inability to humanise the people they assaulted distances perpetrators from the need to take accountability, facilitating violence and shattering communities.
Many perpetrators are never brought to justice (Thust & Estey, 2020). This is due to the difficulties of bringing a rape case to court. Under normal circumstances, the gathering of evidence may need survivors to provide the police with access to their phones and social media accounts, which many feel to be a violation of privacy. Cases may collapse due to lack of evidence before making it to court, with lack of funding and support for victims as further deterrents to seeking justice (BBC, 2022). In conflict zones, this naturally becomes much harder, as judicial systems may have broken down entirely and the safety of survivors may be at risk. This may result in some perpetrators retaining their positions of power in the government and army. The lack of accountability mechanisms institutionalises rape which means that the successful prosecution of cases requires the reinvention of state structures to counteract sexual violence. Usually this is done by having legal systems use available evidence and the testimonies of survivors to prosecute and end impunity for perpetrators (Nallu, 2015).
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Rape as a weapon of war – trials in international courts
When it comes to the legal basis for the prosecution of rape, condemnation of sexual violence during wartime has been present in legal writings and codes of warfare for centuries (Askin, 2003). However, international recognition of sexual and gender based violence (SGBV) as a war crime was only first solidified by the 1919 War Crimes Commission which listed ‘rape’ and “the abduction of women and girls for the purpose of forced prostitution” as punishable offences during war, making it the first multinational criminal law organisation to explicitly class SGBV as an international crime (Askin, 2003, p. 13; Plesch et al., 2014). Follow-up treaties such as the 1949 Geneva Conventions and a host of United Nations (UN) resolutions have condemned and prohibited the use of sexual violence in conflict since the end of the second World War. However, while attitudes towards sexual violence have changed massively within the last few decades, its continued use as a tactic in war, the continual stigmatisation of victims, and the difficulty in securing prosecutions all highlight that the battle of eradicating the issue is not yet over.
As a result of the historic disregard for SGBV as worthy of serious legal attention, a clear definition of rape has been slow to arrive under international law (Eriksson, 2011). The first attempts to define rape on the global stage emerged during the International Criminal Tribunals for Rwanda (ICTR), and shortly after, the International Tribunal for Yugoslavia in the late 90s (ibid). Within the ICTR, the case against war criminal Jean-Paul Akayesu in 1998 was the first attempt to define rape within international law. Taking a broad approach, the final judgement of the case recognised that the “central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts” (UN, 1998; para 687). Ultimately, the case concluded that rape was “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive” (ibid; para 688). Importantly, under this definition, “sexual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact.” (UN, 1988; para 688). These cases provide essential legal precedent for any future prosecutions of sexual violence within international law, including any prosecutions that may be pursued in the aftermath of the ongoing Ukrainian conflict. However, as will be discussed, securing these prosecutions will not be without their challenges.
Case study: Rape as a weapon of war in Ukraine
In the case of Ukraine, when addressing the United Kingom’s Parliament in November 2022, Ukraine’s First Lady, Olena Zelenska stated that Russia is “systematically and openly” using rape as a weapon of war (Norris, 2022). Accounts of survivors now living in Moldova, Poland and Romania corroborate this statement (Foreign, Commonwealth & Development Office, 2022a).
There are emerging reports of gang rape (rape of a person from multiple perpetrators at one time), of Russian soldiers murdering their victims and committing rape in front of, and on, children. In Bucha, 25 women and girls aged 14 to 24 were held in a basement and ‘systematically raped.’ Soldiers impregnated nine of them, reportedly stating that they wanted to deter them from future sexual relations with men and prevent the births of Ukrainian children (Limaye, 2022). Men and boys have also experienced such treatment (Nekrasova, 2022). Children’s bodies have been found naked and mutilated (Ferris-Rotman, 2022) and Russian soldiers tore off one woman’s fingernails and shot her in the leg before killing her (Myroniuk, 2022). Experts believe that more cases will come to light (Ferris-Rotman, 2022).
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Organisations such as La Strada Ukraine and the Feminist Workshop network are working online and in cooperation with local governments to disseminate information to support survivors (McKernan, 2022). Moreover, non-government organisations endeavour to provide access to emergency contraception. As of April 2022, the UN had sent forty metric tons of reproductive health supplies to Ukraine, alongside thirty three Clinical Management of Rape and Post-Exposure Prophylaxis kits to nineteen hospitals. These efforts are somewhat hampered by supply-chain breakdowns and safety concerns for volunteers (Strzyżyńska & Koshiw, 2022).
Ukraine’s prosecutor general and the ICC will both conduct investigations into sexual violence committed by Russian soldiers (McKernan, 2022). Ukraine attended the UK’s Preventing Sexual Violence in Conflict conference, pledging to improve its cooperation with the UN regarding prevention of and response to “conflict-related sexual violence” and to update its National Action Plan on UN Security Council Resolution 1325 (Foreign, Commonwealth & Development Office, 2022b). The UN is trying to verify reports of sexual violence (Ferris-Rotman, 2022).
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Although one must emphasise that sexual violence is not exclusive to one social group, it does provide an example of the devaluation of women and marginalised groups with patriarchal societies. Rape used as a weapon of war dehumanises those who experience it, destroys communities and provides perpetrators with a free and effective weapon that mostly absolves them from accountability. Existing international measures and sanctions are clearly ineffective in convicting perpetrators and aiding survivors. Justice is often limited and leaders in Ukraine and around the world must ensure this is not the case for Ukrainian survivors.
Policy recommendations
Recommendations for helping survivors of sexual violence in Ukraine
Policy-makers must consider the voices of civil society organisations (CSO) that work with survivors. They must consider their wishes when generally rebuilding Ukraine after the war but also when designing specific tools for rape survivors, such as safe houses and when allocating resources and funding for such centres (Die Maecenata Stiftung, 2022).
CSOs work directly with those affected and the people behind them may also have lived experiences, meaning that their expertise is invaluable. This not only concerns domestic organisations but also those working abroad. Consequently, there must be international funding for organisations in host countries such as Poland, that endeavour to assist Ukrainian survivors of sexual violence but face restrictive legislation for abortion.
Policy-makers could also look to the work of Dr Denis Mukwege as an example of best practice. In the DRC, he provides space for men and boys to discuss issues of violence and for survivors to share their stories in an effort to secure justice. He emphasises the importance of pairing demobilisation with long-term psychological support for both survivors in processing their experiences and for perpetrators in taking accountability and changing their mindsets (Nallu, 2015). Beyond the immediate support of Ukrainians and various CSO’s on the ground, there are also questions raised around border punitive justice for the perpetrators of these crimes in Ukraine. However, these debates are complicated by legal technicalities and highlight the possibly long road ahead for holding perpetrators to account.
Recommendations for taking Russia to international criminal courts
Regarding the legal prosecution of sexual violence, among other war crimes committed in Ukraine, there a variety of potential options, although none are without their obstacles. Regarding the work of the International Criminal Court (ICC), Ukraine has accepted potential jurisdiction of the court over war crimes committed in the territory since 2014, giving the court the power to trial such crimes. Additionally, since the start of the invasion, the ICC has sent a team of 42 investigators (it’s biggest ever) to the country to collect evidence on war crimes suggesting an interest and commitment from the court to deal with war crimes in the region (Cormier, et al. 2022). However, Russia is not a member state of the ICC, massively restricting the court’s influence. As the court is dependent on the cooperation of states to bring the accused to trial, Russian war criminals could avoid trial simply by refusing to leave Russia (ibid).
Although the ICC has the power to try Russian individuals for committing war crimes in the course of the conflict, recent debates have centred around trialling Russia for the invasion of the Ukrainian territory in the first place. As has been recently reported, France has become one of the first Western states to back the creation of a Special Tribunal for the Crime of Aggression in Ukraine (Koshiw & Rankin, 2022). However, the creation of such a tribunal would likely have to go through the UN General Assembly to gain the more legitimacy, a process which would take time, and it would also have a very narrow mandate (Coracini, 2022). Such a tribunal would focus singularly on the crime of aggression, meaning the illegal use of force to invade another state. This tribunal would therefore not investigate any of the war crimes committed since the invasion went underway as this is technically the responsibility of the ICC, as discussed above.
Additionally, there is the possibility for a domestic trial within Ukraine. State level trials in the aftermath of war and genocide have been utilised in a multitude of examples from Guatemala, Sierra Leone, and Cambodia (Burt, 2019; Dougherty, 2004). These trials have set landmark legal precedents and give hope for the utility of domestic level trials in the future. In Guatemala, for example, 2016 trials dealing with conflict related sexual violence during the state’s civil war charged sexual violence as a crime against humanity – the first time in history this judgement has been given at state level (Burt, 2019). This trial also took great pains to protect the female witnesses involved in the case, providing great lessons for sexual violence trials to take forward in the future (ibid). However, domestic level trials are once again likely to be long in coming as states must recover robust legal institutions capable of dealing with crimes of such a nature. For example, the trial in Guatemala was held in 2016, dealing with a series of crimes that had been committed in 1982, highlighting the long road to justice (Burt, 2019).
Further possibilities for punitive justice mechanisms in Ukraine could include the establishment of a hybrid court in Ukraine. Hybrid courts are courts with a mixed composition- based in the state they are dealing with and partially staffed by a team of locals but also partially overseen and funded by international bodies (Heller, 2022). In the case of Ukraine, there have been calls for a court based in Ukraine but supported by the Council of Europe. Such a court would have the advantage of building on Ukraine’s existing judicial system while drawing on the expertise of the Council of Europe in prosecuting grave crimes. However, as academics such as Heller (2022) point out, one key drawback would be issues over immunity with charges unlikely to be successfully applied to high ranking Russian officials such as Putin as sitting head of state or Sergey Lavrov as Russian foreign minister.
Ultimately, the difficulties in being able to reach Russia as a non-member state to organisations such as the ICC combined with calls for narrowly defined tribunals means that punitive justice for war crimes committed in Ukraine is likely to be a long time coming. Tribunals can take a long time to establish and can run for several years before reaching their conclusion. While this does not mean that all hope is lost, it underscores the complicated and long-term nature of the pursuit of legal justice and further highlights the necessity of supporting localised efforts on the ground in the meantime to truly help survivors of the ongoing conflict.
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Gender and sexual violence Published February 7, 2023
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