The recent adoption of United Nations Security Council Resolution 1820 declared that crimes of sexual violence are to be excluded from amnesty provisions. In ensuing years the surviving “comfort women” and numerous supportive NGOs achieved significant moral victories and transformed human rights discourse, but did not attain their yearned-for legal redress, formal apology and official reparations. Among the arguments raised in opposition to the “comfort women” and their supporters was that rape, or more generally sexual violence, during war was not recognized as a violation of international law in the 1930s and early 1940s. It was also claimed that the treaties following World War II rendered the individuals subjected to the“comfort women”system without recourse.
There is considerable debate about those propositions, although they were sustained in litigation. One hopes, however, that developments in the 1990s and the first decade of the 21st century, particularly the Kunaric and Akayesu trials in the ICTY and the ICTR concerning the atrocities in Bosnia and Rwanda. But, one might ask, what do these developments “really mean”? The answer might be: not much; or at least not much right now.
I am a pragmatist; and comfortable with being deemed doctrinally impure if I can contribute a scintilla to easing the lives of actual women who, as a result of rape and other sexual violence in armed conflicts are often physically and emotionally scarred, scared, silent, shunned, starving, sick, shelterless and sterile. Sensitivity to particular cultural, historical, religious, social and economic contexts is of critical importance in crafting effective, remedial strategies. There is some hope for success with the “help first, theory later” approach.
It is purposefully hard to establish liability in criminal prosecutions, international or domestic. The liability theories in “official” rape or sexual violation cases that appear to hold the most promise are “command responsibility” or “participation in a joint criminal exercise”; although the theory of “conspiracy” has potential.
At the very least, the United Nations and other regional bodies should adequately supply the troops and peacekeepers that they dispatch to regions that are in upheaval, train them to not exacerbate the problems of sexual violence, and guarantee serious negative consequences when their troops or peacekeepers violate the rules. There is no “single” appropriate remedy; they should be mixed and matched as the situations demand. The time to act is now.