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Wartime Rape

Sexual Terrorism in the Eastern Provinces of the Democratic Republic of Congo - International Law and Human Rights

Fachbuch, 2008, 263 Seiten

Jura - Europarecht, Völkerrecht, Internationales Privatrecht

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Fachbuch

Institution / Hochschule

Univ. Pantheon-Sorbonne (Paris 1)

Stefan Kirchner

Wartime Rape

Sexual Terrorism in the Eastern Provinces

of the Democratic Republic of Congo

International Law and Human Rights

Für

B.R. & U.M.

Preface

Already in the 1902 novel of the same title, Joseph Conrad referred to the then Belgian

Congo as "The Heart of Darkness", describing the terror brought upon the local

population by the Belgian rulers who were after the natural resources

of this country in the

heart of Africa with the size of Western Europe. Today the terror in the Eastern parts of

the DRC is directed primarily at women who are raped there in numbers and ways which

are virtually impossible to undestand. While wartime rape, sadly, is an ancient

phenomenon, the cruelty employed in the DRC is particularly shocking. The war in the

DRC may be over on paper, but the violence certainly is not. The situation is overlooked

by many, also by the news media in developed countries. Despite the massive UN presence

there, systematic rape continues to this very day and very little is done to alleviate the

problem. Only recently have women there found the courage to speak out but with

extremely limited success, if any at all. The involvement of the International Criminal Court

in the situation in the DRC is a small ray of hope but it has not changed the reality on the

ground for the women and girls who continue to suffer.

This book is based on a presentation by the author at the Université Paris 1 (Panthéon-

Sorbonne) in the course of an interdisciplinary seminar entitled "Femmes et Conflits". The

need for detailed background led to the inclusion of a rather generous annex which

contains key legal instruments in the fields of human rights, international humanitarian law

and international criminal law. The crimes dealth with in this book are disturbing and I

have aimed to describe the violence suffered by the victims in an appropriate manner.

Words cannot capture the violence which changes the victims' lives forever. Readers who

are interested in more case studies, eyewitness reports and reports from victims are

encouraged to read the material collected by Human Rights Watch on the issue. These

texts are available online free of charge from www.hrw.org.

Unfortunately this book could be more timely. At the time of writing this foreword, rebel

forces under General Nkunda are capturing positions near Goma

after the ceasefire broke

down yesterday,

civilian protests against MONUC's inability to stop the fighting are

turning violent

and the head of MONUC decided to step down after only seven weeks on

the job.

D.R.C. national forces are reported to retreat among the fleeing civilian

population while General Nkunda is said to have threatened to go all the way to Kinshasa.

He certainly has the military capability to do so and, not least due to the fact that the DRC

army also is suspected of serious human rights violations and violations of the laws of war,

including wartime rape, and due to General Nkunda's reputation for fighting the

Interhamwe, the militia responsible for the Rwanda genocide, might have the popular

On the natural resources aspect of the conflict in the DRC and a proposal for a sustainable peace there cf.

Stefan Kirchner Resource Management and Conflict Prevention in the Great Lakes Region, in: 3 Africa

Policy Watch (2008), pp. 8 et seq., available online at http://www.caaglop.org/APW/apw3.pdf.

Hez Holland Congo rebels threaten Goma in Eastern Offensive, in: International Herald Tribune, 27

October 2008, available online at http://www.iht.com/articles/reuters /2008/10/27/africa/OUKWD-UK-

CONGO-DEMOCRATIC-FIGHTING.php.

CNN Thousands flee fighting as Congo rebels seize Gorilla park, 26 October 2008, available online at

http://edition.cnn.com/2008/WORLD/africa/10/26/congo.gorillapark /index.html.

Holland, op. cit.

International Herald Tribune / Reuters / Associated Press Commander of UN peacekeepers in Congo

resigns,

in:

International

Herald

Tribune,

October

2008,

available

online

http://www.iht.com/articles/2008/10/27/africa/congo.php.

support to take power as well, in particular since he has shown restraint in not capturing

Goma when he could.

Thanks are due to Dr Margaret Salmon MD MPH (Harvard University) for comments on

some of the medical issues, Prof. David Pike (American University, Paris), who has edited a

book on crimes against women (David Pike (ed.) Crimes against Women, Routledge

Publishing, forthcoming) and who has been kind enough to include into said book a

chapter on legal questions surrounding the systematic rapes in the Kivu provinces. Many

aspects which, due to constraints in terms of pages, did not make it into my chapter for his

book can be found in this book. Further thanks are go to Carol Mann PhD for making it

possible for me to present the research which lead to this small book at the Sorbonne

during the aformentioned seminar on Woman in War in October 2008 as well as to the

participants of that seminar. My warmest thanks go to my friends who have supported my

work through their interest and many fruitful discussions, in particular Beate Rossmanith

and Ursule Mekongo. This book would not have been possible without them and it is to

them that this book is dedicated.

Stefan Kirchner

Frankfurt, 3 November 2008

Cf. Jeffrey Gettleman In Congo, fighting brings fears that chaos will return, in: International Herald

Tribune, 3 November 2008, available online at http://www.iht.com/articles/2008/11/03/africa/03congo.

php.

Abstract

About 5.4 million people have been killed in the wars in the Democratic Republic of

Congo (D.R.C.), the former Zaire. 45,000 die every month and hundreds of thousands of

women have been raped here in recent years. Wartime rapes are anything but new and have

been employed not only to terrorize the population but also as weapon of genocide in

Rwanda, Bosnia and Darfur. The Eastern Congolese provinces of North and South Kivu

have been affected by particular gruesome acts of violence and thousands of victims suffer

from rape-induced fistulae, ruptures of the walls which separate the victim's vagina from

her rectum. According to UN staff and doctors in the region, all armed groups in the

region are involved in rapes and despite the 2002 Pretoria Accord which put an official end

to the war, attacks and rapes continue to this very day. Many survivors are forced out of

their homes and their families abandoned and left to fend for themselves. Therefore, apart

from medical treatment and psychological counseling, there is a strong demand for justice.

But due to the weak position of women in Congolese society, justice is much harder to get

by than medical treatment. Although the Congolese Penal Code and Military Penal Code

penalize these crimes, the reaction by the Congolese government to the atrocities remains

insufficient, making a solution based on Congolese criminal law unlikely. The practical

application of the D.R.C.'s domestic laws is found wanting and the law does not have the

deterrent effect which is required to prevent future atrocities, also due to the traditional

position of women in Congolese society continues to be reflected in the law: According to

Art. 448 of the D.R.C.'s family code, a married woman has to obtain her husband's

permission to bring a case to court which provides a major obstacle on the road to

justice. This book deals with the multidimensional aspects of the problem, which range

from medicine and psychology to social issues and the quest for justice. In the latter part

we will examine not only the background by looking at relevant rules of International

Human Rights Law and International Humanitarian Law but also look at legal responses to

these crimes both on a national level in the D.R.C. as well as on an international level and

with the question of how justice can be achieved for rape victims in a country ravaged by

war in which women continue to be second class citizens.

Outline

Preface ... 5

Abstract ... 7

Outline... 9

Table of Cases ...11

List of Literature ...13

Other documents

African Charter on Human and People's Rights (27 June 1981, OAU Doc. CAB/LEG/67/

3 rev. 5, 21 I.L.M. 58 (1982))

Code Judiciaire Militaire, Loi N

023/2002

Code Penal Militaire

Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW)

(18 December 1979, 1249 U.N.T.S. 13, Can. T.S. 1982 No. 31, 19 I.L.M. 33)

Convention on the Rights of the Child (United Nations General Assembly Resolution

44/25, 20 November 1989)

Declaration of Kinshasa concerning the impact of gender on peace and development in the

Great Lakes Region

First Protocol Additional to the Geneva Conventions (1125 U.N.T.S. 3)

(Fourth) Geneva Convention Relative to the Protection of Civilian Persons in Time of War

(75 U.N.T.S. 287)

http://www.worldwidefistulafund.org/Other%20Causes.html

http://www.youtube.com/watch?v=hyB2PswYX5o

Instruction for the Government of Armies of the United States in the Field, General

Orders No. 100, 24 April 1863, cited as: Lieber Code

International Convention on Civil and Political Rights (United Nations General Assembly

Resolution 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966),

999 U.N.T.S. 171)

Loi N

024/2002

Protocol for the Establishment of an African Court of Human Rights

Protocol to the African Charter on Human and Peoples' Rights concerning the Rights of

Women in Africa

Report to the Economic and Social Council, E/2002/68/Add.1.

Second Protocol Additional to the Geneva Conventions (1125 U.N.T.S. 609)

Statute of the International Criminal Court (37 ILM 999)

UN Doc. A/CONF.177/20, 17 October 1995, reprinted in: 35 International Legal

Materials (1996), pp. 401 et seq., No. 112

Universal Declaration of Human Rights (United Nations General Assembly Resolution 217

A (III), 10 December 1948)

United Nations General Assembly Resolution 44/25, 20 November 1989.

Vienna Declaration

Chapter I

Background

1. Systematic Rape in Kivu

About 5.4 million

people have died in the wars in the Democratic Republic of Congo

(D.R.C.).

45,000 die every month

and hundreds of thousands

of women have been

raped here in recent years.

War-time rapes are a phenomenon which is as old as human

warfare and have been employed not only to terrorize the population but also as weapon of

genocide, for example in Rwanda, Bosnia

and Darfur.

Yet, reports from the provinces

of North and South Kivu in the Eastern Democratic Republic of Congo about massive and

systematic rapes are so shocking that even experienced professionals who have been

working with rape victims for years initially were unable to believe what was happening

there.

The Eastern Congolese provinces of North and South Kivu have been affected by

particular gruesome acts of violence.

As we will see, it is extremely difficult for victims to overcome the shame and seek

treatment and then to actually travel to a hospital. Many more women might never receive

any treatment at all. In many cases the victims, infants and children, teenagers, mothers and

elderly women,

have been deliberately injured during or after the rape. Injuries were not

only caused by gang rapes but also by the deliberate insertion of objects into the vagina,

including gun barrels,

a practice already known from the war in Bosnia.

Often guns were

fired into the victim's vagina at point blank range

in order to cause maximum damage,

often with the intention to mark the victim for life, rather than kill her.

Some armed

Reuters / Associated Press Defying the UN, Congo rebels launch offensive, in: International Herald

Tribune, 26 October 2008, available online at http://www.iht.com/articles/2008/10/26/arts/congo.php.

For the purposes of this chapter, the term "Congo" refers only to the Democratic Republic of Congo,

formerly known as Zaire,m also known as Congo-Kinshasa, as opposed to Congo-Brazzaville.

CNN (Gorilla park), op. Cit.

In 2005, 42,000 rape victims were treated in South Kivu alone Chris McGreal Hundreds of thousands

raped

Congo

wars,

in:

The

Guardian,

November

2006,

available

online

http://www.guardian.co.uk/print/0,,329626772-110889,00.html.

McGreal, op. cit.

Cf. Pascale R. Bos Feminists Interpreting the Politics of Wartime Rape: Berlin, 1945; Yugoslavia, 1992-

1993, in: 31 Signs: Journal of Women in Culture and Society (2006), pp. 995 et seq., at p. 1012.

Cf. Amnesty international Sudan, Darfur Rape as a weapon of war Sexual violence and its

consequences, (July 2004).

Rob Nordland Congo's Wounds of War: More Vicious than Rape The atrocity reports from eastern

Congo were so hellish that Western medical experts refused to believe them at first, in: MSNBC, 13

November 2006, available online at http://www.msnbc.msn.com/is/15704030/site/newsweek/page/3.

Victims have been reported to age between 4 months and 84 years old, Marion Pratt / Leah Werchick

Sexual Terrorism: Rape as a Weapon of War in Eastern Democratic Republic of Congo An assessment of

programmatic responses to sexual violence in North Kivu, South Kivu, Maniema and Orientale Provinces,

USAID / DCHA (2004), p. 7.

Emily Wax A Brutal Legacy of Congo War Extent of Violence Against Women Surfaces as Fighting

Recedes, in: Washington Post, 25 October 2003, p. A01; McGreal, op. cit. (fn. 2).

The insertion of objects, including broken bottles and gun barrels, into the victim's vagina has already been

described as a practice also employed in Bosnia, cf. Bos, op. cit., at p. 1019, there fn. 28.

Wax, op. cit.; Nordland, op. cit.

Nordland, op. cit.

groups have developed what one could call "trademark injuries"

to make it very clear to

the civilian population who is terrorizing them:

These attacks include burning women,

raping exclusively girls age eleven to fourteen,

and tying the hands of the victims so tight

that they have to be amputated later.

Some victims actually had "their vaginas pulled

out".

Often the women are kidnapped while working in the fields

or on the way to fetch water,

food or firewood. Often kidnappings occur during raids of villages by armed attackers,

who often come in groups of two to five.

The victims are taken from the villages into the

forest where they are held captive and are gang raped for days or months.

2. Medical Aspects

It is not one but many groups in Eastern Congo which commit such crimes. According to

Medecins sans frontieres (MSF), "[a]ll armed groups have been involved in the widespread

sexual violence. The intent to terrorize, punish, and humiliate communities seen as

supportive of the other side made rape a weapon of war. Sexual violence has been so

clearly linked to the military strategy of warring parties and has occurred in such a

systematic way that it is wrong to think of it as a side effect of war."

Different groups

have taken to inflict different types of wounds in order to make clear to everyone who was

behind the attack: some insert objects, some burn women, some rape 11-14 year old girls,

some tie the hands of the victims so tight that they will often have to be amputated, an

other group holds the victims in slavery for months and rapes them until they get pregnant

for the sole purpose of aborting the child later.

The age range is equally shocking: in the

Eastern Congolese town of Shabunda, MSF reports that the victims included eleven year

old girls as well as grandmothers in their seventies

and at Panzi Hospital, doctors have

treated patients with rape-caused fistulae between 12 months and 71 years of age.

Thousands of victims suffer from fistulae, ruptures of the walls which separate the victim's

vagina from her rectum.

Fistulae render the patients incontinent.

The victims are unable

to control their bodily functions anymore

and are soaked in their own urine and feces,

Stefan Kirchner Congo, in: David W. Pike (ed.) Crimes against Women, Ashgate Publishing (forth-

coming).

Ibid.

Andrea Böhm Wenn Frieden Männersache ist Gegen die Frauen im Kongo wird noch immer Krieg

geführt, in: Die Zeit, No. 50 (2006), available online at http://zeus.zeit.de/text/2006/50/kongo.

McGreal, op. cit.

Médecins sans frontières Sexual Violence as a Weapon of War: MSF report eastern DRC, 1 April 2004,

http://www.msf.org.

Ibid.

Cf. Polly Markandya / Fiona Lloyd-Davis DRC: A plaster on a gaping wound, 16 April 2002,

http://www.msf.org.

Medecins sans frontieres (Sexual Violence), op. cit.

Böhm, op. cit.; Nordland, op. cit.

Markandya / Lloyd-Davis, op. cit.

Nordland, op. cit.

Ibid.

Wax, op. cit.

Nordland, op. cit.

which essentially ends their social lives.

Furthermore, many victims are kidnapped and

held in sexual slavery for months.

Other victims are gang-raped in front of their husbands

or children, often villages are raided and most men are killed, most women raped. In some

villages, two out of three women are rape victims.

Fistulae can have many different causes, ranging from cervical cancer, lymphogranuloma

venereum

, coital injury to traditional rituals e.g. in different parts of Africa, including "ritual

cleansing" of the vagina through a solution containing potash shortly after the woman has

given birth, which can lead to the chemical destruction of the vaginal tissue, to gishiri.

The latter is a practice found in the northern parts of West Africa and involves the

insertion of a long knife into the vagina in order to make a cut with the aim of widening

the vagina, since it is believed that many gynecologic problems were "caused by a vagina

that is too narrow".

Fistulae are rarely seen in the developed world these days but in

eastern Congo they have become an epidemic, that is fistulae caused by rape. It is

estimated that 250,000 women had been raped by 2006 and thousands of them have been

injured so severely that they suffer from fistulae.

At the time being, though, it is

impossible for either the D.R.C. government or outside observers to give accurate victim

numbers. Many women here have not only been raped but often gang-raped repeatedly,

but "more often the damage is caused by the deliberate introduction of objects

into the

victim's vagina when the rape itself is over. The objects might be sticks or pipes. Or gun

barrels. In many cases the attackers shoot the victim in the vagina at point-blank range after

the have finished raping her."

Often the perpetrators make sure that they don't kill the

victim but inflict as much damage as possible, leaving the victim behind "permanently and

obviously marked".

Given that many perpetrators are HIV positive, HIV/AIDS is rapidly becoming a concern

for victims. But while access to Post Exposure Prophylaxis (PEP) is crucial,

awareness of

the existence of PEP needs to be raised in order to encourage victims to seek help as soon

as possible after the rape.

Other sexually transmitted diseases (STDs) are affecting many

victims, too. In Matili, MSF staff reported that on their first visit to the village after three or

four month, they had to treat all rape victims for STDs.

But the victims' husbands are

also aware of the victims' potential exposure to STDs. This knowledge leads many

husbands to reject their wives after they had been raped, because they fear that their wives

might transmit STDs to them.

Often, though, the rejection will be based on the stigma

associated with having been raped rather than the risk of STDs. But even if a rape victim is

Cf. ibid.

Cf. Wax, op. cit.

Böhm, op. cit.

http://www.worldwidefistulafund.org/Other%20Causes.html.

Ibid.

Nordland, op. cit.

Ibid.

The insertion of objects, including broken bottles and gun barrels, into the victim's vagina has already been

described as a practice also employed in Bosnia, Bos, op. cit., at p. 1019, there fn. 28.

Nordland, op. cit.

Ibid.

Medecins sans frontieres Rape as a Weapon of War, 5 March 2004, http://www.msf.org.

Cf. Lucy Clayton MSF confronts sexual violence in Sierra Leone, 8 September 2003,

http://www.msf.org.

Markandya / Lloyd-Davis, op. cit.

Ibid.

allowed to return to her house, it is "normal for [the victim's husband] to find a new wife,

moving the old one into a different room and ignoring her."

According to UN staff and doctors in the region, all armed groups in the region are

involved in rapes

and despite the 2002 Pretoria Accord which put an official end to the

war, attacks and rapes continue to this very day. As a matter of fact, UN peacekeepers

reported in early 2007 that the number of reported rapes is actually increasing.

Rather

than attacking each other directly, the armed groups have taken to raiding villages accused

of supporting other militias The militias are now not so much attacking each other directly

but rather attack the villages that are thought to support other militias.

Civilians have

become the prime target of the violence in Eastern Congo. What used to be a series of

wars between many warring factions has turned into all-out terrorism by all armed groups

against unarmed civilians.

3. Social Consequences

The gravity of the situation is highlighted by a UN report on the situation of children in

Ituri, North- and South-Kivu, dated 28 June 2007: "Despite all of the initiatives undertaken

to counter sexual violence and the adoption of two national laws on sexual violence on 20

July 2006, the number of sexual abuses remains extremely high. Sexual violence has

occurred virtually unabated, in a climate of impunity and judicial dysfunction. Although the

reported rate of sexual violence remains high, such incidents are under-reported and

accurate statistics are difficult to obtain because of a number of factors, including the fear

of ostracism and retribution which prevents survivors from coming forward; the

prohibitive distance and lack of access to medical care owing to the prevailing security

situation in some areas; a lack of faith in the judicial system; and the local tendency of

amicable settlement, whereby the perpetrator pays the victim an agreed upon sum.

[Between June 2006 and May 2007], 12,867 survivors of sexual violence were identified by

United Nations Children's Fund (UNICEF) partners in the eastern region of the

Democratic Republic of the Congo. Of those survivors, 4,222 were children (3,740 girls

and 482 boys). Children represent an alarming one third of survivors of sexual violence. Of

100 survivors in Ituri, 43 were children (of whom approximately 18 per cent were boys).

Of the aforementioned 4,222 children, information on the perpetrators is available in only

690 cases; in 29 cases, the perpetrators were members of [the Armed Forces of the D.R.C.]

or [Congolese National Police] (4.2 per cent); in 458 cases, they were from armed groups

(66 per cent); and in 203 cases, they were civilians (29 per cent)."

In some villages, two thirds of all women are thought to have been raped

but until

recently remaining silent was all that stood between the women and complete disgrace in

Ibid.

Nordland, op. cit.

UN News Service DR Congo: army and police continue to violate civilians' human rights, says UN

mission, 21 February 2007, http://www.un.org/apps/news/printnews Ar.asp?nid=21635.

Nordland, op. cit.

United Nations Security Council Report of the Secretary-General on children and armed conflict in the

Democratic Republic of the Congo, 28 June 2007, UN Doc. S/2007/391, p. 10.

Böhm, op. cit.

the eyes of their families

and communities.

Often the problem runs deeper than the

wounds which are visible.

Yet, it has become impossible for the women to remain silent and many finally dare to seek

medical help.

Only recently a small number women is going further and speaks about

their experiences. Exact victim numbers, though, are impossible to come by since many

women are still prevented from seeking medical help. Often victims will not be able to

afford the trip to the nearest hospital or are simply unable to travel due to their health

condition. Often traditional taboos force victims to essentially hide in the house. That is, if

they are lucky enough to have a family which is decides to allow them to return and which

does not force them out of the house.

But the stigma which is associated with having been raped is particularly strong in the

D.R.C.:

Often women, if they survive, are forced to leave their homes. While this is devastating for

women who suffer "only" from the psychological trauma of rape, it is life-threatening for

women with fistulae and other traumata.

Take into account that we are talking about women from small villages who have a certain

idea of identity as wives, mothers or daughters. Young women who have been raped

have virtually no chance to get married. Mothers who are forced out of their home loose

the key to their identity. Often women who have been raped, if they are allowed to stay in

the house, are forced to stay in one part of it, essentially hidden, while the husband takes a

new, a second, wife. In many cases their cooking utensils are taken away from them. For

someone from Europe that may not sound to bad. For many women there it is what finally

breaks them inside because they loose the only role they ever had. They loose their identity.

Among the most severely affected victims are the women who become pregnant during the

rape because they are burdened with the additional stigma of carrying the enemy's child,

making it more likely that they are being abandoned by their families.

Consequently they will often have to raise the child without the family support which is

vital in traditional societies such as the rural D.R.C.

Also many victims will never see a doctor out of shame. Often rape victims will not even

be willing to refer to what the crime as rape but as "it" or "what happened" and traditional

ideas concerning the status of women in the D.R.C. are a major obstacle to progress.

On the situation of the children born as a result of rape cf. Ruth Harris The "Child of the Barbarian":

Rape, Race and Nationalism in France During the First World War, in: Past & Present, Nos. 138-141 (1993),

pp. 170 et seq.

Böhm, op. cit.

On the psychological effects of wartime rape cf. Sabina Popovic Delayed Psychological and Psychiatric

Effects of Violence Committed Against Women During the War in Bosnia and Herzegovina 1992 1995, in:

Commission for Gathering Facts on War Crimes in Bosnia and Herzegovina (ed.) The sin of silence risk

of speech, Collection of the reports from international conference held in Sarajevo on 10th and 11th March

1999, pp. 523 et seq.; Mujo Haskovic Psychosocial Support for Women Victims of Sexual Violence

During the War in Bosnia and Herzegovina 1992 1995, in: Commission for Gathering Facts on War Crimes

in Bosnia and Herzegovina (ed.) The sin of silence risk of speech, Collection of the reports from

international conference held in Sarajevo on 10th and 11th March 1999, pp. 533 et seq.; Gillian Mezey Rape

in War, in: 5 Journal of Forensic Psychiatry (1994), pp. 583 et seq.

Cf. Böhm, op. cit.

See ICRC Stories from the Field: Democratic Republic of the Congo: "I want my child and me to be

accepted", 2 March 2007, http://www.icrc.org.

Chapter II

Women's Rights under International Law

The situation women in the DRC find themselves in contrasts starkly with the rights

women are supposed to enjoy under International Law.

Rape in fact violates the most

fundamental rights of women.

1. International Human Rights Law

To give just a few examples: Article 3 of the Universal Declaration of Human Rights and

Article 9 of the International Convention on Civil and Political Rights, the ICCPR,

guarantee life, freedom and safety of the person. Article 4 of the Universal Declaration and

Article 8 of the ICCPR prohibit slavery. Torture and inhuman treatment are prohibited by

Article 5 of the Universal Declaration and Article 7 ICCPR. These rules are clear and yet

the D.R.C. not only fails to prevent armed groups from using rape as a weapon of war

the D.R.C.'s own forces are involved, too.

The 1994 Declaration on the Elimination of Violence against Women, which, as a

Resolution of the General Assembly of the United Nations, is not binding, but nevertheless

a key document, requests states to take action against violence which is directed against

women. The 1993 Vienna Declaration of the World Conference on Human Rights stated

that "Gender based violence and all forms of sexual harassment and exploitation [...] are

incompatible with the dignity and worth of the human person and must be eliminated"

and demanded an "effective response" to systematic rape.

We are still missing such an

effective response. That's why the right to equal legal protection under Art. 2 (c) of the

1979 Convention on the Elimination of all Forms of Discrimination against Women

(CEDAW) is also at stake here, because victims or rape are not given fair access to justice,

as we will see in a moment.

The international human rights system is supplemented by specific African rules. Art. 18

(3) of the African Charter on Human and Peoples' Rights requires states parties to "ensure

the elimination of every discrimination against women and also to ensure the protection of

the rights of the woman". This rule is violated when women are not given equal access to

justice. Art. 14 (2) (a) of the 2003 Protocol to the African Charter on Human and People's

Rights concerning the Rights of Women in Africa

requires states to provide adequate,

The situation under Congolese law is dealt with in Kirchner (Congo), op. cit.

Vienna Declaration, No. 18.

Vienna Declaration, No. 38.

From a Human Rights perspective, this protocol is at best a two-edged sword due to its insistence on a

"right to abortion". Although regularly claimed even by renowned Human Rights NGOs such as Amnesty

International or Human Rights Watch, a "right to abortion" cannot exist from a lawyer's perspective: Human

Rights are rights of the individual (in some cases enjoyed in a group, e.g. freedom of religion) vis-a-vis the

state. Only in exceptional cases will there be a conflict with rights of others. Such conflicts will always be

indirect. The so called "right to abortion" does not pass the minimum test to be considered a "right" in a legal

sense because its exercise always requires the end of a human life. Moreover is the concept of a "right to

abortion" irreconcilible with a fundamental tenet of human rights: the legal recognition of human rights aims

at protecting the weak with regard to the strong. Nobody can be weaker than an unborn child who is unable

to express him- or herself. By deliberately abandoning this fundamental principle proponents of such "right"

are diminishing the moral credibility of human rights as such. Furthermore, what is referred to as the "right"

to abortion is simply a decision as to how to solve a conflict of interests. But not every legal solution to a

affordable and accessible health services for women. So far most African states including

the D.R.C. fail to do so. But there are also more concrete rules: On a more fundamental

level does the protocol require states to take appropriate measures to protect women

against sexual violence

and to create "and enforce laws to prohibit all forms of violence

against women including unwanted or forced sex".

A step further, the Protocol

demands

also that states provides appropriate remedies to women whose rights have been violated.

Such possibilities do not even exist on paper: According to Art. 448 of the D.R.C.'s family

code, a married woman has to obtain her husband's permission to bring a case to court.

We will come back to that in a moment.

Actually, from an International lawyer's perspective, Human Rights in Africa is one of the

most interesting current issues, although it is overlooked to a large extend by lawyers

outside Africa. The African Court of Human Rights was established with the entry into

force of a protocol to the African Charter on 25 January 2004. In 2003 the member states

of the African Union agreed on the creation of an African Court of Justice. Although there

are not yet enough ratifications for the statute of this African Court of Justice to enter into

force, the member states of the African Union agreed on 1

of July 2008, at their meeting

in Sharm El-Sheik, to merge the Human Rights Court and the African Court of Justice into

one tribunal, the African Court of Justice and Human Rights. If this plan goes through it

will achieve something for Africa which Europe has been attempting for some time and

which is not even on the horizon for the Americas, let alone Asia or the Arab world: a

unified, continent-wide system of legal protection. After all, the African Court on Human

Rights can apply not only the Charter but "any instrument or source of law concerning

human rights that is ratified by all states concerned".

Ideally the future African court will

resemble the United States Supreme Court at least as far as the relationship between

human rights norms and other rule is concerned. For the time being, the African system of

human rights protection is the least developed and least effective of the three regional

human rights systems.

One reason is that, unlike at the European Court of Human Rights

in Strasbourg, individuals and NGOs are severely restricted when it comes to bring a case

before the African Court. Individuals and NGOs "can only bring cases if they have been

recognized as having observer status"

and "it is unlikely that many African States will

conflict of interests requires recourse to rights of either interest holder. From a legal point of view, the usage

of the term "right" in this context is not only technically wrong but also endangers the entire human rights

"project". Women can certainly be better helped than through such artificial constructions which threaten to

undermine the entire concept of legally accepted human rights in particular since most victims of abortions

(wherever the technical capbilities exist to determine the gender during pregnancy) are girls. Demanding a

"right to abortion" therefore does not serve women's rights but places females at risk.

Art. 1 (j) Protocol to the African Charter on Human and Peoples' Rights concerning the Rights of Women

in Africa.

Art. 3 (4) (a) Protocol to the African Charter on Human and Peoples' Rights concerning the Rights of

Women in Africa.

Art. 25 Protocol to the African Charter on Human and Peoples' Rights concerning the Rights of Women in

Africa.

Center for Reproductive Rights The Protocol on the Rights of Women in Africa: An Instrument for

Advancing Reproductive and Sexual Rights, Briefing Paper, www.reproductiverights.org.

Ibid., p. 10.

Scott Lyons The African Court on Human and Peoples' Rights, 10 ASIL Insights (2006), Issue 24, 19

September 2006, http://www.asil.org/insights060919.cfm.

Henry J. Steiner / Philip Alston International Human Rights in Context Law, Politics, Morals, 2

ed.,

Oxford University Press, Oxford (2000), p. 920.

Lyons, op. cit.; Art. 5 (3) and Art. 34 (6) Protocol for the Establishment of an African Court of Human

Rights.

recognize the competence of the African Court to hear individual or NGO petitions."

Also, compliance with human rights norms in Africa is still very much a matter of what is

politically desirable rather then based on states' obligations under international law.

Not only is the African record concerning compliance with international human rights law

dismal, ratifications also take a disproportionate amount of time. It is questionable when

or if the thirty necessary ratifications will be achieved. So far, unfortunately, many

African governments underestimate the potential international law gives them.

The same applies to Africa's checkered record with regard to other international human

rights instruments which are designed to protect women:

2. International Humanitarian Law

Because many rapes happen in the context of armed conflict, not only International

Human Rights Law but also International Humanitarian Law applies.

a) The International Laws of Armed Conflict and their

Applicability

International Humanitarian Law (IHL), the law of war or ius in bello, is the set of rules

which applies specifically in times of war. It is the purpose of IHL "to reduce the horrors"

of war as much as possible. An extremely important part of International Humanitarian

Law are those rules which are designed to protect civilians in times of armed conflict.

International Humanitarian Law is applicable not only in case of all-out war but in all

situations of armed conflict. It also applies to all armed groups in the conflict areas of the

Eastern D.R.C.

b) Wartime Rape under International Humanitarian Law

Rape and other forms of sexual violence in times of war are prohibited by International

Humanitarian Law.

The rapes in the Kivu provinces are shocking but not uncommon. To

Lyons, op. cit.

On 25 July 2008, a UNESCO-organized meeting of ministers of women affairs from different states in

Africa's Great Lakes Region adopted the Declaration of Kinshasa concerning the impact of gender on peace

and development in the Great Lakes Region. If was noted in the declaration "that adherence to a number of

international legal instruments on the part of countries of the Great Lakes Region has failed to translate into

tangible results in the lives of women." Although the declaration correctly notes that "violence against women

is widespread" and that rape is used as a weapon of war, it is an insult to the victims that representatives of

the regions governments actually claim that their states adhere to International Human Rights Law. After all,

all armed groups are involved in systematic rapes including the DRC Army and National Police. Insofar the

DRC can hardly claim adherence to International Human Rights Law, less so because the DRC has not

fulfiled her responsibility to protect her citizens against human rights abuses. Protecting citizens is the for the

formation of society in the form of a state. By failing to protect her citizens, the DRC has failed to satisfy this

obligation.

Leslie C. Green The contemporary law of armed conflict, 2

ed., Manchester University Press,

Manchester (2000), p. 15.

On this aspect cf. more briefly Kirchner (Congo), op. cit.

the contrary, wartime rape continues to be a common phenomenon.

While it gained some

international attention during the Yugoslav Wars, it is often only seen as one of many

problems associated with armed conflict.

This prohibition of rape under IHL can be argued to amount even to jus cogens,

that is, to

rules of international law which take absolute precedence over other rules. In fact, as

wartime rape is an old problem, the prohibition of rape in times of war has been around

for some time as well: already the American Lieber Code (LC)

prohibited rape

and also

the Hague Regulations respecting the Laws and Customs of War on Land, which were

contained in annexes to the 1899 and 1907 Hague Conventions, prohibited rape through

the protection of "family honour and rights".

The Nuremberg Charter did not refer to

rape expressis verbis but the Tokyo Tribunal indicted Admiral Toyoda among other crimes

for "ordering, directing, inciting, causing, permitting [...] and failing to prevent [...]

Japanese Naval personnel [...] under his command [...] to rape, kill and commit other

atrocities."

After the end of World War II, Law No. 10 of the Allied Control Council for

Germany (Control Council Law No. 10) included rape as a crime against humanity. The

Second Additional Protocol to the Geneva Conventions prohibits rape "at any time and at

any place",

thereby elaborating on Art. 27 of the Fourth Geneva Convention, the Geneva

Convention Relative to the Protection of Civilian Persons in the Time of War (GC IV),

which calls for special protection for women in times of war, "in particular against rape,

enforced prostitution, or any form of indecent assault." Art. 27 of the Fourth Geneva

Convention gives particular protection to women against "rape, enforced prostitution or

any form of indecent assault".

Although this rule does not protect women against acts by

the authorities of the state of which they are citizens,

the protection offered by the

conventions is extended by the First Additional Protocol (AP I) to the Geneva

Conventions to everyone who is in the territory of a party to a conflict.

Also Articles 75

(2) and Art. 76 of the First Additional Protocol prohibit rape in times of war. Article 75 (2)

prohibits "outrages upon personal dignity, in particular humiliating and degrading

treatment, enforced prostitution and any form of indecent assault" with regard to both

sexes.

But the Additional Protocol goes further in protecting women in as far as it

For a good overview over how international law deals with gender-related crimes cf. Christine Chinkin

Rape and Sexual Abuse of Women in International Law, in: 5 European Journal of International Law (1994),

pp. 1 et seq. and Helen Durham Women, armed conflict and international law, in: 84 International Review

of the Red Cross (2002), pp. 655 et seq.

Cf. Stefan Kirchner Hell on Earth Systematic Rape in Eastern Congo, in: 13 Journal of Humanitarian

Assistance, (2007), 6 August 2007, http://www.jha.ac/2007/08/06/hell-on-earth-systematic-rape-in-eastern-

congo/#fn-1186442655171 with many references to literature on wartime rape in different conflicts.

Cf. Kelly Dawn Askin The Quest for Post-Conflict Gender Justice, in: 41 Columbia Journal of

Transnational Law (2003), pp. 509 et seq.

Instruction for the Government of Armies of the United States in the Field, General Orders No. 100, 24

April 1863.

Art. 44 Lieber Code.

Yuogindra Khushalani Dignity and Honour of Women as Basic and Fundamental Human Rights (1982),

p. 10.

So quoted by C.P.M. Cleiren / M.E.M. Tijssen Rape and Other Forms of Sexual Assault in the Armed

Conflict in the Former Yugoslavia: Legal, Procedural, and Evidentiary Issues, in: 5 Criminal Law Forum

(1994), pp. 481 et seq.

Art. 4 (2) lit. e) Second Protocol Additional to the Geneva Conventions.

Kofi Annan Women, Peace and Security Study submitted by the Secretary-General pursuant to Security

Council Resolution 1325 (2000), p. 34.

Ibid.

demands that women are particularly respected. Article 76 of the Second Additional

Protocol to the Geneva Conventions demands that women are to be "the object of special

respect and shall be protected in particular against rape, forced prostitution and any other

forms of indecent assault". These rules contain not only an obligation not to harm women,

but a positive obligation, requiring that women are being protected.

Female Prisoners-of-War, internees and detainees are to be treated in accordance with Art.

13, 25, 29, 85, 97, 108 of the Third Geneva Convention and Art. 75 (6) of the First

Additional Protocol. When it comes to punishments against POWs, the maximum

punishments applicable to male POWs must not be exceeded with regard to women, Art.

88 of the Third Geneva Convention.

Particular rules applied to criminal sanctions

imposed on pregnant women and mothers of young children by virtue of Art. 76 (3) of the

First Additional Protocol and Art. 6 (4) of the Second Additional Protocol.

Mothers of young children and pregnant women receive an ever higher degree of

protection based on Articles 18, 20, 21 of the Fourth Geneva Convention,

in particular

when it comes to receiving food (Art. 23, 50 and 89 GC IV and Art. 70 AP I)

and medical

care (Art. 50, 91 GC IV, Art. 70 AP I),

but also with regard to their physical safety (Art.

14, 17, 18 and 20 GC IV)

and finally with regard to their release, repatriation and their

accommodation in neutral countries (Art. 132 GC IV, Art. 76 AP I).

One important norm which also covers rape is Article 3 which is common to all Geneva

Conventions which prohibits among other acts "outrages upon personal dignity, in

particular humiliating and degrading treatment".

c) Rape as a War Crime

Wartime rape is also punishable under International Criminal Law. Some violations of

International Humanitarian Law are considered to be so serious as to amount to war

crimes. Rape is one of them.

Rape is prohibited under customary international law. Already the Lieber Code contains

both a prohibition of wartime rape

and a rule on its punishment

100

and at least since

World War II, since the United States Military Commission's decision Yamashita case

101

have military leaders been held liable for rapes which have been committed by their

troops.

102

In 1999 the UN Sub-Commission on the Promotion and Protection of Human

Cf. ibid.

Ibid.

Annan, p. 34.

Ibid.

Cf. Alexander Zahar / Göran Sluiter International Criminal Law A Critical Introduction, 1

ed.,

Oxford University Press, Oxford (2008), p. 131.

Cf. also Kirchner (Congo), op. cit., and Stefan Kirchner Wartime Rape and International Law, in: Social

Science Research Network, 27 December 2007, http://ssrn.com/ abstract=1078919.

Art. XLIV Lieber Code.

100

Art. XLVII Lieber Code.

101

United States Military Commission, US v. Yamashita, (1947) 4 Law Reports of Trials of War Criminals 1,

35.

102

Zahar / Sluiter, op. cit., p. 129.

Rights demanded that all acts of sexual violence be condemned and prosecuted

103

and

today wartime rape constitutes a war crime

104

which can be prosecuted by the International

Criminal Court (ICC) in The Hague

105

under Article 8 of the Rome Statute and which in

the past has already been prosecuted for example before the International Criminal

Tribunals for Rwanda (ICTR)

106

and the former Yugoslavia (ICTY):

107

The modern key

decisions on rape are Furundzija and Kunarac in which the ICTY defined rape as invasive

vaginal, anal or oral sex

108

without the consent of the victim.

109

But in the context of a

larger conflict rape takes on a meaning beyond the individual victim. Rape is used as a

weapon or war, a means of terrorizing the civilian population. Accordingly, in Akayesu, the

ICTR convicted the defendant for rape as a form of genocide,

110

in Delalic, the ICTY held

that sexual violence can constitute torture

111

and in Kunarac the defendant was convicted for

sexual slavery, rape and violations of human dignity which the ICTY considered war crimes

and crimes against humanity,

112

to give just a few examples.

In all of these cases, though, it has to be kept in mind what has been said initially, that is

that rape is only one of many problems associated with armed conflict which brings with it

the risk that systematic wartime rapes are not combated with the urgency the problem

requires.

d) The Protection of Children Against Wartime Rape

Young girls are particularly vulnerable in armed conflicts. International Humanitarian Law

therefore grants children special protection in times of armed conflicts and demands that

they are respected ("All children shall be the object of special respect and are to be

103

United Nations High Commissioner for Human Rights, Sub-Commission on the Promotion and

Protection of Human Rights Systematic rape, sexual slavery and slaverylike practices, Sub-Commission

resolution 1999/16, 26 August 1999.

104

On wartime rape as a crime cf. Theodor Meron Rape as a Crime Under International Humanitarian Law,

in: 87 American Journal of International Law (1993), pp. 424 et seq.; Aiko Utsumi How the Violence

against Women were dealt with in War Crime Trials, in: Indai Lourdes Sajor (ed.) Common Grounds

(1998), pp. 187 et seq.; Kelly Dawn Askin Prosecuting Wartime Rape and Other Gender-Related Crimes

Under International Law: Extraordinary Advances, Enduring Obstacles, in: 21 Berkeley Journal of

International Law (2003), pp. 288 et seq.; Kelly Dawn Askin War Crimes Against Women: Prosecution in

International War Crimes Tribunals (1997), pp. 262 et seq.

105

Art. 8 (2) lit. b (XXII) and Art. 8 (2) lit. e (VI) ICC-Statute; cf. Human Rights Watch International

Justice for Women: The ICC marks a New Era, 1 July 2002, http://www.hrw.org/campaigns/icc/icc-

women.htm; Valerie Oosterveld Sexual Slavery and the International Criminal Court: Advancing

International Law, in: 23 Michigan Journal of International Law (2004), pp. 605 et seq.

106

Kelly Dawn Askin Sexual Violence in Decisions and Indictments of the Yugoslav and Rwanda

Tribunals: Current Status, in: 93 American Journal of International Law (1999), pp. 97 et seq.; Stephanie K.

Wood A Woman Scorned for "Least Condemned" War Crime: Precedent and Problems with Prosecuting

Rape as a Serious War Crime in the International Criminal Tribunal for Rwanda, in: 13 Columbia Journal of

Gender and Law (2004), pp. 274 et seq.

107

Catherine N. Niarchos Women, War, and Rape: Challenges Facing the International Tribunal for the

Former Yugoslavia, in: 17 Human Rights Quarterly (1995), pp. 649 et seq. See also Askin (War Crimes), op.

cit. and Richard Goldstone The United Nations' War Crimes Tribunals: An Assessment, in: 12 Connecticut

Journal of International Law, pp. 227 et seq.

108

ICTY Prosecutor v. Furundzija, IT-95-17/1, Judgment, 10 December 1998, para. 185.

109

ICTY Prosecutor v. Kunarac, IT-96-23-T, Judgment, 22 February 2001, para. 457.

110

ICTR Prosecutor v. Akayesu, ICTR-96-4-T, Judgment, 2 September 1998.

111

ICTY Prosecutor v. Delalic, IT-96-21-T, Judgment, 16 November 1998.

112

ICTY Prosecutor v. Kunarac, IT-96-23-T, Judgment, 22 February 2001.

protected against sexual assault."

113

AP I), at the same time the Convention on the Rights

of the Child (CRC) continues to protect children in times of armed conflict (Art. 38 CRC).

In times of war, states parties to the CRC undertake to respect and ensure respect for rules

of IHL applicable to children.

114

Furthermore, states parties to the CRC have to take all

feasible measures to ensure protection and care of children who are affected by the armed

conflict.

115

The Optional Protocol to the Convention on the Rights of the Child on the sale of

children, child prostitution and child pornography and the Optional Protocol to the

Convention on the Rights of the Child on the involvement of children in armed conflict

add to the protection afforded to children under international law and need to be taken

into account accordingly.

e) After the war

Also the aftermath of an armed conflict holds dangers to women and accordingly,

international law is also concerned with "abuses associated with armed conflict or its

aftermath", such as forced prostitution and trafficking in women and girls.

116

International

law provides a number of tools to address this issue: the Convention for the Suppression

of the Traffic in Persons and of the Exploitation of the Prostitution of Others was adopted

by the General Assembly of the United Nations (UN GA) in 1950 and is supported

117

Art. 6 CEDAW, Art. 34 and 35 CRC, the International Labour Organization's 1999

Convention on the Worst forms of Child Labour (ILO Convention 182) and the UN

Convention against Transnational Organized Crime and its supplementary protocols, the

Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and

Children and the Protocol against the Smuggling of Migrants by Land, Sea and Air, all

adopted by the United Nations General Assembly in 2000 as well as by the relevant

principles which have been established by the UN Office of the High Commissioner for

Human Rights (OHCHR).

118

113

Ibid.

114

Ibid., at p. 37.

115

Ibid.

116

Ibid.

117

Cf. ibid., pp. 37 et seq.

118

Report to the Economic and Social Council, E/2002/68/Add.1.

Chapter III

Denial of Justice in the DRC

119

Unfortunately, all these rules are ignored in the DRC in a most blatant manner. We have

already remarked on the similarities with the conflict in Rwanda. But also when it comes to

providing the victims with justice, there are sad parallels to the Rwanda genocide, in

particular in so far as it appears virtually impossible to bring all perpetrators to justice. The

major difference to the Rwandan genocide is that in the case of the war in the Eastern

D.R.C., much less is being done for the victims.

Although thousands of women have been raped, less than a dozen perpetrators had been

prosecuted by 2005.

120

Since then, the numbers have not managed to keep up with the ever

growing number of cases, far from it. Yet that does not mean that there are no legal rules

protecting the victims. Although only a tiny fraction of the perpetrators are brought to

justice, from the victims perspective, the important change is that now it is the criminals

who are in the defensive it used to be, that the victims were punished for having been

raped.

121

While the mindset of many Congolese men is not changed that easily and rape

victims continue to be shunned,

122

legislative changes are a step in the right direction.

Articles 167 to 171 of the Congolese Penal Code prohibit indecent, that is sexual, assault

and rape, that is sexual assault involving penetration.

123

These crimes and carry a sentence

of five to twenty years in prison.

124

The same punishment awaits kidnappers who physically

torture their victims,

125

which covers the cases in which girls and women are taken from

their homes to be held as sex slaves.

126

In case torture or rape lead to the death of the

victim Congolese law demands life in prison or the application of the death penalty.

127

particular importance is the fact that a serious impairment of the health of the victim by the

rape is considered to be an aggravating factor, leading to one to ten years of

imprisonment.

128

Examples include pregnancy caused by rape on the infection with a

serious and painful disease.

129

The latter provision is more than necessary since it is

estimated that two thirds of the perpetrators are HIV positive

130

and up to 30 percent of all

victims are thought to have been infected with HIV.

131

Every second victim is thought to

have been infected with syphilis as well.

132

119

On the legal situation in the DRC cf. also Kirchner (Congo), op. cit.

120

Human Rights Watch D. R. Congo: Tens of Thousands Raped, Few Prosecuted, available online at

http://www.hrw.org/english/docs/2005/03/07/congo/10258.html; for more in-depth information see

Juliane Klippenberg Seeking Justice: The Prosecution of Sexual Violence in the Congo War, 17 Human

Rights Watch Reports (March 2005), No. 1 (A).

121

McGreal, op. cit.

122

Tiare Rath In War-Riddled Congo, Militias Rape with Impunity, Women's eNews, 27 April 2003,

http://www.womensenews.org/Article.cfm/dyn/aid/1307/context/cover.

123

Juliane Klippenberg The War within the War Sexual Violence Against Women and Girls in Eastern

Congo, Human Rights Watch (2002), p. 84.

124

Ibid.; cf. Klippenberg (Seeking Justice), op. cit., pp. 28 et seq.

125

Klippenberg (The War within the War), op. cit., p. 84.

126

Ibid.

127

Amnesty International Democratic Republic of Congo Mass Rape: Time for Remedies (2004), p. 16.

128

Ibid.

129

Ibid.

130

René Lefort Congo: A Hell on Earth for Women, in: Le Nouvel Observateur, 11-18 September 2003.

131

Ibid.

132

Ibid.

Although the reaction by the Congolese government to the atrocities remains insufficient,

it has to be noted that there have been legislative developments in reaction to the problem

of mass rapes: Art. 169 no. 7 of the 2002 Military Penal Code

133

which replaced the 1972

Military Penal Code to at least formally comply with Congo's international obligations,

134

now provides for the death penalty for cases of sexual violence which amount to crimes

against humanity, if committed in the context of a "general or systematic attack"

135

either the D.R.C. or the civilian population.

136

This includes sexual slavery, enforced

prostitution, forced pregnancy, enforced sterilization and similarly grave crimes.

137

Yet the practical application of the D.R.C.'s domestic laws is found wanting and the law

does not have the deterrent effect which is required to prevent future atrocities. This is in

part due to the enormity of the problem and to the government's inability to effectively

rule the affected parts of the country. But it must also be kept in mind that the traditional

position of women in Congolese society continues to be reflected in the law: Remember

that a married woman has to obtain her husband's permission to bring a case to court.

138

"Given that many husbands sever all contacts to their wives after they have been raped

139

or refuse to support them,

140

this already places a first legal obstacle on the victims' path to

justice."

141

If the husband refuses to allow his wife to initiate legal proceedings, a family

council may overrule the husband.

142

Unmarried adult women on the other hand in

theory do not require the consent of their male family members at all.

143

Often though,

they will lack the means to pursue justice in the first place.

,,Articles 444 - 448 of the [Congolese Family] Code place married women in a position of

dependence and submission to their husbands, to the extent that they cannot effect any

legal act without their husband's agreement. These articles are flagrant contradictions of

[Article 16 (1) c)] CEDAW [...], as well as [A]rticle 330 of the Congolese Family Code, both

of which grant the same rights and responsibilities to spouses during marriage and its

dissolution. In practice, these provisions pass the married woman from the guardianship of

her parents to that of her husband."

144

Also, many victims are simply not aware of their rights or lack the necessary means to

pursue justice.

Yet this is only the tip of the iceberg which represents the most practical problem: Women

are second-class citizens in the D.R.C. and are often not aware of their rights. Rape victims

often have to return to their parents' house and the injuries described above unless treated

133

Cf. Klippenberg (Seeking Justice), op. cit., p. 28.

134

The Code Penal Militaire was changed by Loi N

024/2002 of18 November 2002 in order to comply with

the requirements of the Rome Statute establishing the International Criminal Court, an international treaty to

which the D.R.C. is a party. Cf. also the Code Judiciaire Militaire, Loi N

023/2002 of 18 November 2002

and Pierre Akele Adau Réforme de la justice militaire en RDC: le nouveau droit judiciaire et pénal militaire

transitoire: un ´soft landing´ pour la Cour d´ordre militaire, in: 42 Congo-Afrique: (2002), Issue No. 369/370,

pp. 547 et seq.

135

Art. 169 Code Penal Militaire.

136

Amnesty International (Congo), op. cit., p. 16.

137

Ibid.

138

Ibid., p. 10.

139

Lefort, op. cit.; Wax, op. cit., p. A01.

140

Cf. Sarah Gieseke Rape as a Tool of War in the Eastern Democratic Republic of Congo (2007), p. 12.

141

Kirchner (Congo), op. cit.

142

Juliane Klippenberg (The War within the War), op. cit., p. 85.

143

Ibid.

144

Marie Mossi Mota / Mariana Duarte Committee on the Elimination of Discrimination against Women,

session, 7-25 August 2006 Report on the implementation of the Convention on the Elimination of All

forms of Discrimination Against Women by the Democratic Republic of Congo, 1

ed., World Organization

Against Torture, Geneva (2006), p. 16.

(and in many regions, only a fraction of victims will receive treatment) will make it

impossible for them to participate in the everyday life of their society, not even to think of

seeking justice in the courts. If they do so, often only married women of good social

standing who have the support of their families stand a slight chance of finding justice.

145

In fact, according to a report by France 24, of 1,400 rapes only 11 were reported to the

military tribunal.

146

145

Ibid., p. 23; cf. also Kirchner (Congo), op. cit.

146

Cf. http://www.youtube.com/watch?v=hyB2PswYX5o.

Chapter IV

A Role for the International Criminal Court

An alternative might be provided by the International Criminal Court (ICC). While

International Human Rights Law lacks sufficient enforcement mechanisms vis-a-vis the

militias, wartime rapes are violations of International Humanitarian Law,

147

the law

governing the conduct of armed forces in times of conflict. Grave violations of the laws of

war are punishable under International Criminal Law which dates back to the Nuremberg

and Tokyo war crimes trials after World War II.

Consistent with the requirements of International Humanitarian Law, the UN demands

that all acts of sexual violence are condemned and prosecuted.

148

Today rape is a war crime

and can be prosecuted by the International Criminal Court (ICC) in The Hague according

to Art. 8 (2) lit. b (XXII) and Art. 8 (2) lit. e (VI) of the Statute of the International

Criminal Court.

149

Already the International Criminal Tribunals have dealt with wartime rape cases:

150

Delalic

, the International Criminal Tribunal for the former Yugoslavia (ICTY) equated

sexual violence with torture

151

and in Kunarac sexual slavery, rape and violations of human

dignity were considered to be war crimes and crimes against humanity,

152

to give only some

examples. Also Art. 8 of the ICC Statute includes rape in the list of crimes punishable by

the ICC which only has jurisdiction if the state which should take action is either unwilling

or unable to take adequate action. The D.R.C.'s national authorities are unable to

effectively solve the problem and might also well be suspected of being unwilling to do so.

After all, also the D.R.C.'s regular armed forces are involved in the atrocities.

A step in the right direction, though, was taken by the Congolese government when the

situation in the D.R.C. was referred to the International Criminal Court in March 2004.

153

The ICC is now actively investigating the situation in the D.R.C. and has already started to

bring war crimes suspects before court.

Under Article 75 of the Statute of the ICC, victims can, in theory, receive financial

compensation, if the men who raped them should ever be convicted. But as of today, the

victims in North and South Kivu are still waiting for the ICC to take action in rape cases as

well. For the time being, the International Criminal Court remains a far off option and

more importantly an option which is not really in the hands of the victims. How then can

justice be brought to the women of the Kivus? In Rwanda the judicial system, both

nationally in Rwanda as well as in the ICTR was overwhelmed by the sheer number of

cases. The same applies to the D.R.C. because Congo's courts also cannot handle the

problem adequately.

So far, though, the ICC seems to have more of a thematic approach. For example, in

dealing with the DRC it first focussed on criminal responsibility for recruiting child

147

See also Meron, op. cit.; Aiko Utsumi How the Violence against Women were dealt with in War Crime

Trials, in: Indai Lourdes Sajor (ed.) Common Grounds (1998), pp. 187 et seq.; Askin (Enduring Obstacles),

op. cit.; Askin (War Crimes), op. cit., pp. 262 et seq.; Chinkin, op. cit., and Durham, op. cit.

148

United Nations High Commissioner for Human Rights, op. cit.

149

Cf. Human Rights Watch (ICC), op. cit.; Oosterveld, op. cit.

150

Cf. Askin (Sexual Violence in Decisions and Indictments of the Yugoslav and Rwanda Tribunals); Wood,

op. cit.; Niarchos, op. cit. and Goldstone, op. cit.

151

ICTY Prosecutor v. Delalic, IT-96-21-T, Judgment, 16 November 1998.

152

ICTY Prosecutor v. Kunarac, IT-96-23-T, Judgment, 22 February 2001.

153

ICC Press Release: Prosecutor receives referral of the situation in the Democratic Republic of Congo,

ICC-OTP-20040419-50-En, 19 April 2004.

soldiers, because this issue had not yet been addressed by international criminal tribunals.

Rape on the other hand has already been dealt with by the International Criminal Tribunals

for Rwanda and the former Yugoslavia. From a purely legal perspective it makes sense to

widen the understanding of war crimes. For the victims it means that justice is being

delayed.

In any case does the ICC only have a supplementary role, meaning that it only has

jurisdiction of a state is unwilling or unable to provide effective justice. This is why the

DRC government asked the ICC to investigate. And it lacks the necessary force to

apprehend criminals effectively. In the former Yugoslavia NATO forces went hunting for

war crimes suspects. The United Nations' MINUC forces in the DRC are neither trained or

equipped for this task.

Finally, it has to be understood that the role of the ICC like the role of the other

International Tribunals, including already the Nuremberg and Tokyo Tribunals, is largely

symbolic. It is supposed to provide justice by dealing with the main war criminals, to

support the national courts and to serve as a deterrent in order to avoid future atrocities.

This latter role can only be fulfilled by actually sentencing war criminals, regardless of rank

or affiliation.

Chapter V

Conclusions and Outlook

But for the time being, it would be unrealistic in any case to assume that the ICC will be

able to bring justice to all victims. At best it will bring global attention to the problem and

send a message that the law also reaches to the D.R.C. Whether that will actually prevent

potential rapists from committing future crimes remains to be seen, in particular since the

ICC does not have a police force of its own but would have to rely on international troops

on the ground. A criminal law solution providing justice for all victims is therefore not

likely to be achieved anytime soon, if at all. This also means that there will be essentially no

deterrent against future rapes and that the problem will continue.

But the key to ensuring both greater access to health care and improving overall support

for victims is the same as to protecting women against rape in the first place: the traditional

position of women in the D.R.C. (and the problem is essentially the same in many other

cultures around the Earth) has to be overcome. This is certainly not "culturally sensitive",

but it is a fundamental respect for women which is lacking here. We are not talking about

feminism or female liberation from a Western perspective. In the D.R.C., women continue

to be second class citizens. Female self-liberation in the Western sense is not a serious

possibility in the D.R.C. Protests by women exist in the D.R.C. but they are still extremely

rare and raped women will be happy not to be kicked out of their families and

communities. Many, maybe most, are.

Traditional taboos continue to prevent many women from seeking help and the stigma

associated with having been raped places victims in danger long after the crime has been

committed.

We are talking about respect.

It is necessary to create a culture of respect for women and girls. This will take generations

and many obstacles will have to be overcome, such as ethnic of religious taboos and views

concerning the position of women in society and in particular the relation between men

and women, or low levels of education in most fundamental ethical issues. Such changes,

though, cannot be imposed top down but have to start with each individual. The state, the

international community or any outsider for that matter, can only help by giving impulses

and by assisting in creating a favorable environment which includes better education

opportunities for both genders.

In the long run, ending violence against women is in everybody's interest. As early as in its

1995 Beijing Conference, the UN state that "[v]iolence against women is an obstacle to the

achievement of the objectives of equality, development and peace".

154

The dissemination

work of the Red Cross, which is teaching about International Humanitarian Law, could

play an important role here, as well as work by religious and other groups. But the key to

protecting women hold those who have the greatest impact on the perpetrators: other men.

Fathers, older brothers, military commanders. By treating women with respect in everyday

life and by setting examples to their children and indeed everyone else around them, it is

men who have to set the standard as to how to treat women. This approach also takes into

account the specific African approach to human rights.

155

Unlike the European and Inter-

154

UN Doc. A/CONF.177/20, 17 October 1995, reprinted in: 35 International Legal Materials (1996), pp.

401 et seq., No. 112.

155

Cf. Articles 18 and 29 ACHPR.

American Conventions on Human Rights, the African Charta contains duties of

individuals, including the duty to respect others without discrimination

156

and to respect the

rights of others

157

as well as to uphold and strengthen social solidarity.

158

Respect is the key

to preventing future atrocities against women against our wives, sisters, mothers and

daughters.

156

Art. 28 ACHPR.

157

Art. 27 ACHPR.

158

Art. 29 no. 4 ACHPR.

Annexes

Annex 1: Universal Declaration of Human Rights

159

PREAMBLE

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all

members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which

have outraged the conscience of mankind, and the advent of a world in which human

beings shall enjoy freedom of speech and belief and freedom from fear and want has been

proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to

rebellion against tyranny and oppression, that human rights should be protected by the rule

of law,

Whereas it is essential to promote the development of friendly relations between nations,

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in

fundamental human rights, in the dignity and worth of the human person and in the equal

rights of men and women and have determined to promote social progress and better

standards of life in larger freedom,

Whereas Member States have pledged themselves to achieve, in co-operation with the

United Nations, the promotion of universal respect for and observance of human rights

and fundamental freedoms,

Whereas a common understanding of these rights and freedoms is of the greatest

importance for the full realization of this pledge,

Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL

DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all

peoples and all nations, to the end that every individual and every organ of society, keeping

this Declaration constantly in mind, shall strive by teaching and education to promote

respect for these rights and freedoms and by progressive measures, national and

international, to secure their universal and effective recognition and observance, both

among the peoples of Member States themselves and among the peoples of territories

under their jurisdiction.

Article 1

All human beings are born free and equal in dignity and rights. They are endowed with

reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without

distinction of any kind, such as race, colour, sex, language, religion, political or other

opinion, national or social origin, property, birth or other status. Furthermore, no

distinction shall be made on the basis of the political, jurisdictional or international status

of the country or territory to which a person belongs, whether it be independent, trust,

non-self-governing or under any other limitation of sovereignty.

159

United Nations General Assembly Resolution 217 A (III), 10 December 1948.

Article 3

Everyone has the right to life, liberty and security of person.

Article 4

No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited

in all their forms.

Article 5

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or

punishment.

Article 6

Everyone has the right to recognition everywhere as a person before the law.

Article 7

All are equal before the law and are entitled without any discrimination to equal protection

of the law. All are entitled to equal protection against any discrimination in violation of this

Declaration and against any incitement to such discrimination.

Article 8

Everyone has the right to an effective remedy by the competent national tribunals for acts

violating the fundamental rights granted him by the constitution or by law.

Article 9

No one shall be subjected to arbitrary arrest, detention or exile.

Article 10

Everyone is entitled in full equality to a fair and public hearing by an independent and

impartial tribunal, in the determination of his rights and obligations and of any criminal

charge against him.

Article 11

(1) Everyone charged with a penal offence has the right to be presumed innocent until

proved guilty according to law in a public trial at which he has had all the guarantees

necessary for his defence.

(2) No one shall be held guilty of any penal offence on account of any act or omission

which did not constitute a penal offence, under national or international law, at the time

when it was committed. Nor shall a heavier penalty be imposed than the one that was

applicable at the time the penal offence was committed.

Article 12

No one shall be subjected to arbitrary interference with his privacy, family, home or

correspondence, nor to attacks upon his honour and reputation. Everyone has the right to

the protection of the law against such interference or attacks.

Article 13

(1) Everyone has the right to freedom of movement and residence within the borders of

each state.

(2) Everyone has the right to leave any country, including his own, and to return to his

country.

Article 14

(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.

(2) This right may not be invoked in the case of prosecutions genuinely arising from non-

political crimes or from acts contrary to the purposes and principles of the United Nations.

Article 15

(1) Everyone has the right to a nationality.

(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his

nationality.

Article 16

(1) Men and women of full age, without any limitation due to race, nationality or religion,

have the right to marry and to found a family. They are entitled to equal rights as to

marriage, during marriage and at its dissolution.

(2) Marriage shall be entered into only with the free and full consent of the intending

spouses.

(3) The family is the natural and fundamental group unit of society and is entitled to

protection by society and the State.

Article 17

(1) Everyone has the right to own property alone as well as in association with others.

(2) No one shall be arbitrarily deprived of his property.

Article 18

Everyone has the right to freedom of thought, conscience and religion; this right includes

freedom to change his religion or belief, and freedom, either alone or in community with

others and in public or private, to manifest his religion or belief in teaching, practice,

worship and observance.

Article 19

Everyone has the right to freedom of opinion and expression; this right includes freedom

to hold opinions without interference and to seek, receive and impart information and

ideas through any media and regardless of frontiers.

Article 20

(1) Everyone has the right to freedom of peaceful assembly and association.

(2) No one may be compelled to belong to an association.

Article 21

(1) Everyone has the right to take part in the government of his country, directly or

through freely chosen representatives.

(2) Everyone has the right of equal access to public service in his country.

(3) The will of the people shall be the basis of the authority of government; this will shall

be expressed in periodic and genuine elections which shall be by universal and equal

suffrage and shall be held by secret vote or by equivalent free voting procedures.

Article 22

Everyone, as a member of society, has the right to social security and is entitled to

realization, through national effort and international co-operation and in accordance with

the organization and resources of each State, of the economic, social and cultural rights

indispensable for his dignity and the free development of his personality.

Article 23

(1) Everyone has the right to work, to free choice of employment, to just and favourable

conditions of work and to protection against unemployment.

(2) Everyone, without any discrimination, has the right to equal pay for equal work.

(3) Everyone who works has the right to just and favourable remuneration ensuring for

himself and his family an existence worthy of human dignity, and supplemented, if

necessary, by other means of social protection.

(4) Everyone has the right to form and to join trade unions for the protection of his

interests.

Article 24

Everyone has the right to rest and leisure, including reasonable limitation of working hours

and periodic holidays with pay.

Article 25

(1) Everyone has the right to a standard of living adequate for the health and well-being of

himself and of his family, including food, clothing, housing and medical care and necessary

social services, and the right to security in the event of unemployment, sickness, disability,

widowhood, old age or other lack of livelihood in circumstances beyond his control.

(2) Motherhood and childhood are entitled to special care and assistance. All children,

whether born in or out of wedlock, shall enjoy the same social protection.

Article 26

(1) Everyone has the right to education. Education shall be free, at least in the elementary

and fundamental stages. Elementary education shall be compulsory. Technical and

professional education shall be made generally available and higher education shall be

equally accessible to all on the basis of merit.

(2) Education shall be directed to the full development of the human personality and to the

strengthening of respect for human rights and fundamental freedoms. It shall promote

understanding, tolerance and friendship among all nations, racial or religious groups, and

shall further the activities of the United Nations for the maintenance of peace.

(3) Parents have a prior right to choose the kind of education that shall be given to their

children.

Article 27

(1) Everyone has the right freely to participate in the cultural life of the community, to

enjoy the arts and to share in scientific advancement and its benefits.

(2) Everyone has the right to the protection of the moral and material interests resulting

from any scientific, literary or artistic production of which he is the author.

Article 28

Everyone is entitled to a social and international order in which the rights and freedoms set

forth in this Declaration can be fully realized.

Article 29

(1) Everyone has duties to the community in which alone the free and full development of

his personality is possible.

(2) In the exercise of his rights and freedoms, everyone shall be subject only to such

limitations as are determined by law solely for the purpose of securing due recognition and

respect for the rights and freedoms of others and of meeting the just requirements of

morality, public order and the general welfare in a democratic society.

(3) These rights and freedoms may in no case be exercised contrary to the purposes and

principles of the United Nations.

Article 30

Nothing in this Declaration may be interpreted as implying for any State, group or person

any right to engage in any activity or to perform any act aimed at the destruction of any of

the rights and freedoms set forth herein.

Annex 2: International Convention on Civil and Political Rights

160

PREAMBLE

The States Parties to the present Covenant,

Considering that, in accordance with the principles proclaimed in the Charter of the United

Nations, recognition of the inherent dignity and of the equal and inalienable rights of all

members of the human family is the foundation of freedom, justice and peace in the world,

Recognizing that these rights derive from the inherent dignity of the human person,

Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal

of free human beings enjoying civil and political freedom and freedom from fear and want

can only be achieved if conditions are created whereby everyone may enjoy his civil and

political rights, as well as his economic, social and cultural rights,

Considering the obligation of States under the Charter of the United Nations to promote

universal respect for, and observance of, human rights and freedoms,

Realizing that the individual, having duties to other individuals and to the community to

which he belongs, is under a responsibility to strive for the promotion and observance of

the rights recognized in the present Covenant,

Agree upon the following articles:

PART I

Article I

1. All peoples have the right of self-determination. By virtue of that right they freely

determine their political status and freely pursue their economic, social and cultural

development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources

without prejudice to any obligations arising out of international economic co-operation,

based upon the principle of mutual benefit, and international law. In no case may a people

be deprived of its own means of subsistence.

3. The States Parties to the present Covenant, including those having responsibility for the

administration of Non-Self-Governing and Trust Territories, shall promote the realization

of the right of self-determination, and shall respect that right, in conformity with the

provisions of the Charter of the United Nations.

PART II

Article 2

1. Each State Party to the present Covenant undertakes to respect and to ensure to all

individuals within its territory and subject to its jurisdiction the rights recognized in the

present Covenant, without distinction of any kind, such as race, colour, sex, language,

religion, political or other opinion, national or social origin, property, birth or other status.

2. Where not already provided for by existing legislative or other measures, each State Party

to the present Covenant undertakes to take the necessary steps, in accordance with its

constitutional processes and with the provisions of the present Covenant, to adopt such

160

United Nations General Assembly Resolution 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N.

Doc. A/6316 (1966), 999 U.N.T.S. 171.

legislative or other measures as may be necessary to give effect to the rights recognized in

the present Covenant.

3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are

violated shall have an effective remedy, notwithstanding that the violation has been

committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto

determined by competent judicial, administrative or legislative authorities, or by any

other competent authority provided for by the legal system of the State, and to

develop the possibilities of judicial remedy;

granted.

Article 3

The States Parties to the present Covenant undertake to ensure the equal right of men and

women to the enjoyment of all civil and political rights set forth in the present Covenant.

Article 4

1 . In time of public emergency which threatens the life of the nation and the existence of

which is officially proclaimed, the States Parties to the present Covenant may take

measures derogating from their obligations under the present Covenant to the extent

strictly required by the exigencies of the situation, provided that such measures are not

inconsistent with their other obligations under international law and do not involve

discrimination solely on the ground of race, colour, sex, language, religion or social origin.

2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made

under this provision.

3. Any State Party to the present Covenant availing itself of the right of derogation shall

immediately inform the other States Parties to the present Covenant, through the

intermediary of the Secretary-General of the United Nations, of the provisions from which

it has derogated and of the reasons by which it was actuated. A further communication

shall be made, through the same intermediary, on the date on which it terminates such

derogation.

Article 5

1. Nothing in the present Covenant may be interpreted as implying for any State, group or

person any right to engage in any activity or perform any act aimed at the destruction of

any of the rights and freedoms recognized herein or at their limitation to a greater extent

than is provided for in the present Covenant.

2. There shall be no restriction upon or derogation from any of the fundamental human

rights recognized or existing in any State Party to the present Covenant pursuant to law,

conventions, regulations or custom on the pretext that the present Covenant does not

recognize such rights or that it recognizes them to a lesser extent.

PART III

Article 6

1. Every human being has the inherent right to life. This right shall be protected by law. No

one shall be arbitrarily deprived of his life.

2. In countries which have not abolished the death penalty, sentence of death may be

imposed only for the most serious crimes in accordance with the law in force at the time of

the commission of the crime and not contrary to the provisions of the present Covenant

and to the Convention on the Prevention and Punishment of the Crime of Genocide. This

penalty can only be carried out pursuant to a final judgement rendered by a competent

court.

3. When deprivation of life constitutes the crime of genocide, it is understood that nothing

in this article shall authorize any State Party to the present Covenant to derogate in any way

from any obligation assumed under the provisions of the Convention on the Prevention

and Punishment of the Crime of Genocide.

4. Anyone sentenced to death shall have the right to seek pardon or commutation of the

sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all

cases.

5. Sentence of death shall not be imposed for crimes committed by persons below eighteen

years of age and shall not be carried out on pregnant women.

6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital

punishment by any State Party to the present Covenant.

Article 7

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or

punishment. In particular, no one shall be subjected without his free consent to medical or

scientific experimentation.

Article 8

1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be

prohibited.

2. No one shall be held in servitude.

(a) No one shall be required to perform forced

or compulsory labour;

(b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment

with hard labour may be imposed as a punishment for a crime, the performance of

hard labour in pursuance of a sentence to such punishment by a competent court;

not include:

(i) Any work or service, not referred to in subparagraph (b), normally

required of a person who is under detention in consequence of a lawful

order of a court, or of a person during conditional release from such

detention;

(ii) Any service of a military character and, in countries where conscientious

objection is recognized, any national service required by law of

conscientious objectors;

(iii) Any service exacted in cases of emergency or calamity threatening the

life or well-being of the community;

(iv) Any work or service which forms part of normal civil obligations.

Article 9

1. Everyone has the right to liberty and security of person. No one shall be subjected to

arbitrary arrest or detention. No one shall be deprived of his liberty except on such

grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his

arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a

judge or other officer authorized by law to exercise judicial power and shall be entitled to

trial within a reasonable time or to release. It shall not be the general rule that persons

awaiting trial shall be detained in custody, but release may be subject to guarantees to

appear for trial, at any other stage of the judicial proceedings, and, should occasion arise,

for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take

proceedings before a court, in order that that court may decide without delay on the

lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an

enforceable right to compensation.

Article 10

1. All persons deprived of their liberty shall be treated with humanity and with respect for

the inherent dignity of the human person.

(a) Accused persons shall, save in exceptional circumstances, be segregated from

convicted persons and shall be subject to separate treatment appropriate to their

status as unconvicted persons;

(b) Accused juvenile persons shall be separated from adults and brought as speedily

as possible for adjudication. 3. The penitentiary system shall comprise treatment of

prisoners the essential aim of which shall be their reformation and social

rehabilitation. Juvenile offenders shall be segregated from adults and be accorded

treatment appropriate to their age and legal status.

Article 11

No one shall be imprisoned merely on the ground of inability to fulfil a contractual

obligation.

Article 12

1. Everyone lawfully within the territory of a State shall, within that territory, have the right

to liberty of movement and freedom to choose his residence.

2. Everyone shall be free to leave any country, including his own.

3. The above-mentioned rights shall not be subject to any restrictions except those which

are provided by law, are necessary to protect national security, public order (ordre public),

public health or morals or the rights and freedoms of others, and are consistent with the

other rights recognized in the present Covenant.

4. No one shall be arbitrarily deprived of the right to enter his own country.

Article 13

An alien lawfully in the territory of a State Party to the present Covenant may be expelled

therefrom only in pursuance of a decision reached in accordance with law and shall, except

where compelling reasons of national security otherwise require, be allowed to submit the

reasons against his expulsion and to have his case reviewed by, and be represented for the

purpose before, the competent authority or a person or persons especially designated by

the competent authority.

Article 14

1. All persons shall be equal before the courts and tribunals. In the determination of any

criminal charge against him, or of his rights and obligations in a suit at law, everyone shall

be entitled to a fair and public hearing by a competent, independent and impartial tribunal

established by law. The press and the public may be excluded from all or part of a trial for

reasons of morals, public order (ordre public) or national security in a democratic society,

or when the interest of the private lives of the parties so requires, or to the extent strictly

necessary in the opinion of the court in special circumstances where publicity would

prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit

at law shall be made public except where the interest of juvenile persons otherwise requires

or the proceedings concern matrimonial disputes or the guardianship of children.

2. Everyone charged with a criminal offence shall have the right to be presumed innocent

until proved guilty according to law.

3. In the determination of any criminal charge against him, everyone shall be entitled to the

following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he understands of

the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to

communicate with counsel of his own choosing;

(d) To be tried in his presence, and to defend himself in person or through legal

assistance of his own choosing; to be informed, if he does not have legal assistance,

of this right; and to have legal assistance assigned to him, in any case where the

interests of justice so require, and without payment by him in any such case if he

does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the

attendance and examination of witnesses on his behalf under the same conditions

as witnesses against him;

(f) To have the free assistance of an interpreter if he cannot understand or speak

the language used in court;

(g) Not to be compelled to testify against

himself or to confess guilt.

4. In the case of juvenile persons, the procedure shall be such as will take account of their

age and the desirability of promoting their rehabilitation.

5. Everyone convicted of a crime shall have the right to his conviction and sentence being

reviewed by a higher tribunal according to law.

6. When a person has by a final decision been convicted of a criminal offence and when

subsequently his conviction has been reversed or he has been pardoned on the ground that

a new or newly discovered fact shows conclusively that there has been a miscarriage of

justice, the person who has suffered punishment as a result of such conviction shall be

compensated according to law, unless it is proved that the non-disclosure of the unknown

fact in time is wholly or partly attributable to him.

7. No one shall be liable to be tried or punished again for an offence for which he has

already been finally convicted or acquitted in accordance with the law and penal procedure

of each country.

Article 15

1 . No one shall be held guilty of any criminal offence on account of any act or omission

which did not constitute a criminal offence, under national or international law, at the time

when it was committed. Nor shall a heavier penalty be imposed than the one that was

applicable at the time when the criminal offence was committed. If, subsequent to the

commission of the offence, provision is made by law for the imposition of the lighter

penalty, the offender shall benefit thereby.

2. Nothing in this article shall prejudice the trial and punishment of any person for any act

or omission which, at the time when it was committed, was criminal according to the

general principles of law recognized by the community of nations.

Article 16

Everyone shall have the right to recognition everywhere as a person before the law.

Article 17

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family,

home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

Article 18

1. Everyone shall have the right to freedom of thought, conscience and religion. This right

shall include freedom to have or to adopt a religion or belief of his choice, and freedom,

either individually or in community with others and in public or private, to manifest his

religion or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have or to adopt

a religion or belief of his choice.

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as

are prescribed by law and are necessary to protect public safety, order, health, or morals or

the fundamental rights and freedoms of others.

4. The States Parties to the present Covenant undertake to have respect for the liberty of

parents and, when applicable, legal guardians to ensure the religious and moral education of

their children in conformity with their own convictions.

Article 19

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom

to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either

orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special

duties and responsibilities. It may therefore be subject to certain restrictions, but these shall

only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of

public health or morals.

Article 20

1. Any propaganda for war shall be prohibited by law.

2. Any advocacy of national, racial or religious hatred that constitutes incitement to

discrimination, hostility or violence shall be prohibited by law.

Article 21

The right of peaceful assembly shall be recognized. No restrictions may be placed on the

exercise of this right other than those imposed in conformity with the law and which are

Textauszug: 54 von 263 Seiten - nach oben

Beschreibung

Titel:

Wartime Rape

Untertitel:

Sexual Terrorism in the Eastern Provinces of the Democratic Republic of Congo - International Law and Human Rights

Veranstaltung:

Keine

Autor:

Rechtsanwalt Stefan Kirchner

Jahr:

2008

Seiten:

263

Archivnummer:

V118118

ISBN (eBook):

978-3-640-21248-4

ISBN (Buch):

978-3-640-21259-0

DOI:

10.3239/9783640212484

Dateigröße:

1370 KB

Sprache:

Englisch

Reihe:

European and International Human Rights Law

Anmerkungen:

The author is admitted to the bar in Germany and specializes in international law and human rights. He currently teaches at the University of Göttingen. The boolk is based on a presentation given by the author at Sorbonne University, Paris, and includes a large collection of background materials.The author is admitted to the bar in Germany and specializes in international law and human rights. He currently teaches at the University of Göttingen. The boolk is based on a presentation given by the author at Sorbonne University, Paris, and includes a large collection of background materials.

Schlagworte:

Wartime Rape

Arbeit zitieren:

Rechtsanwalt Stefan Kirchner, 2008, Wartime Rape, München, GRIN Verlag GmbH

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