July-December 2015
ISSN 2050-005X (Online); 978-1514857861 (ISBN-13); 1514857863 (ISBN-10)
Genocide is the intent to destroy a particular group. Indeed, systematic mass murder is the most obvious way this intent materializes. Rape, while not readily apparent, is also an effective technique for perpetrators to execute genocide. During such a campaign, the targeted population is brutally tortured and murdered; however women, having a unique ability to carry the next generation, are strategically and perversely taken advantage of. The criminals responsible for such heinous acts are either not tried, or, even if they do stand trial, are held accountable for sexual violence, but not the genocide intent that motivates the rape. Sexual violence in the context of genocide is difficult to prosecute. While international laws have evolved over the years, they do not specifically identify how certain criminal acts fall under genocidal rape, making it problematic to determine liability. International courts and tribunals have struggled with defining rape as a tool of genocide. This article proposes a solution: an eight-factor balancing test that helps determine when a particular act of sexual violence crosses the line into genocide. The majority of these factors are drawn from international court cases as well as a famous psychological experiment.
3. Peter Balakian, Black Dog of Fate (Broadway Books, New York 1997) 219.
4. Donald Bloxham, ‘The Armenian Genocide of 1915-1916: Cumulative Radicalization and the Development of a Destruction Policy’ (2003) 181 Past & Present 141, 180.
5. Karen Remmler, ‘Gender Identities and the Remembrance of the Holocaust’ (1994) 10 Women in German Y.B. 167, 175.
6. Loung Ung, First They Killed My Father (revd edn HarperCollins Publishers, New York 2000) 131.
7. Philip Verwimp, ‘Machetes and Firearms: The Organization of Massacres in Rwanda’ (2006) 43 J. Peace & Res. 5, 5.
8. In “total war,” sexual violence during genocide is not only used to destroy the existence of a particular group, but it can also be a technique to demoralise that group and take away their will to fight. Statement by Caroline C. Morales, Lieutenant Colonel, US Army, (Personal email correspondence 2 December 2014).
9. Throughout this article, I use the word “woman” but am not necessarily referring to a female over the age of eighteen years. To say that I am referring to a woman of childbearing age would also be inadequate since a young girl could get raped without yet entering adolescence. While she cannot bear a child at that stage in her life, she may be traumatised and not have sexual intercourse for a long time, and thus not have children of her own to further the race she identifies with. In other words “woman” in this paper broadly refers to any female.
10. M C Bassiouni, Crimes Against Humanity in International Criminal Law (2nd edn Kluwer Law International, The Hague 1999) 344.
11. Lemkin, a Polish Jew, was a lawyer who played a primary role in defining genocide. While still a young student studying law in Europe, following the acquittal of Solomon Tehlirian who was accused for murdering Talaat Pasha, Lemkin hotly debated with his professor, arguing that instead the perpetrators should have been on trial. Philippe Sands, ‘A Memory of Justice: The Unexpected Place of Lviv in International Law – A Personal History’ (2011) 43 Case W. Res. Int’l L. 739, 784.
12. Benjamin B. Ferencz, ‘International Trials for Internal Armed Conflicts’ (2001) 95 Am. J. Int’l L. 35.
13. Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature Dec. 9, 1948, 102 Stat. 3045, 78 UNTS 277.
14. Ibid.
15. Paul R. Bartrop and Samuel Totten, Dictionary of Genocide (Greenwood, Westport 2007) 303.
16. Norman Davies, ‘Foreword’ in Richard C. Lukas, Forgotten Holocaust: The Poles Under German Occupation, 1939–1994 8 (Hippocrene Books rev. ed. 2001). Richard C. Lukas, Forgotten Holocaust: The Poles Under German Occupation, 1939–1944 (revd edn Hippocrene Books, USA 2001) 8.
17. Lecture by Ronald Hassner, Professor, University of California, Berkeley entitled ‘War!’ (12 November 2009).
18. Ibid.
19. Matthew Lippman, ‘Humanitarian Law: War on Women’ (2000) 9 MSU-DCL J. Int’l L. 33, 37.
20. Bassiouni, supra n 8, 331.
21. Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)) (UDHR).
22. Id.
23. Id.
24. Ung, supra note at 4, 56-57.
25. International Court of Justice (ICJ): Bosnia and Herzegovina v. Serbia and Montenegro, 46 Int’l Legal Materials, 188, 254 (2007).
26. Universal Declaration of Human Rights, supra note at 18.
27. Hurst Hannum, ‘The Status of the Universal Declaration of Human Rights in National and International Law’ (1995/1996) 25 Ga. J. Int’l & Comp. L. 287, 342.
28. Universal Declaration of Human Rights, supra note at 18.
29. During the Bosnian Genocide, Edina’s family was separated several times while they were fleeing from place to place. At some point, when her father discovered his brother was blown up by a bomb, he and his son went to retrieve his various body parts to give him a proper funeral with the family. Telephone interview with Edina Fifić, Bosnian Genocide survivor conducted by the author on 24 September 2013.
30. Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.
31. Id.
32. Rosemary H. Cohen, The Survivor (Lico Publishing 2002) 158.
33. Id.
34. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 6 U.S.T. 3316, 75 UNTS 135.
35. Id.
36. Id.
37. Balakian, supra note 1, at 52-53.
38. Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125 UNTS 3.
39. Id.
40. Id.
41. Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), June 8, 1977, 1125 UNTS 609.
42. Henry Morgenthau, Jr., former U.S. Secretary of Treasury and son of Henry Morgenthau, Sr., was also present. Henry T. King, Jr., ‘The Legacy of Nuremberg’ (2002) 34 Case W. Res. Int’l L. 335, 336
43. Bassiouni, supra note 8, at 344.
44. Id.
45. IV Trials Of War Criminals Before The Nuremberg Military Tribunals Under Control Council Law No. 10 411 (1947-1948).
46. Id. at 166 para. 3.
47. Id. at 166.
48. Id. at 170.
49. Lippman, supra note 16, at 48.
50. Emma Lindsay, ‘Lysistrata, Women, & War: International Law’s Treatment of Women in Conflict and Post-Conflict Situations’ (2005) 12 Tex. Wesleyan L. Rev. 345, 352
51. Robert Gellately, ‘The Gestapo and German Society: Political Denunciation in the Gestapo Case Files’ (1988) 60 The J. of Modern History 654, 671
52. Rome Statute of the International Criminal Court, U.N. Doc A/CONF. 183/9 (1998) 2187 UNTS 90.
53. Id.
54. Id.
55. Id.
56. Id.
57. Id.
58. Rome Statute, supra note 48.
59. Id.
60. Id.
61. Donald E. Miller and Lorna Touryan Miller, Survivors: An Oral History of the Armenian Genocide (University of California Press, Berkeley 1999) 103-104.
62. Ibid.
63. Ibid.
64. Writer and director Pier P. Pasolini, before being assassinated after the conclusion of his horrific film, expressed such views as the basis for the notorious film in the DVD extra features. Salo (Produzioni Europee Associati 1975).
65. Merril D. Smith, Encyclopedia of Rape (Greenwood, Westport 2004) 79.
66. Ravished Armenia (First National Pictures 1919). Considered a “lost work” a portion of the film was recently recovered. The film documents all the tragedies that teenager Aurora Mardiganian witnessed and experienced. She actually stars in the film. Henry Morgenthau, Sr., ambassador to Turkey during the Armenian Genocide, was also in the film. Auction of Souls, IMDb, <http://www.imdb.com/title/tt0009892/> (last visited 13 January 2015).
67. Iris Chang, The Rape of Nanking: The Forgotten Holocaust of World War II (Penguin Books, New York 1997) 90
68. Id. at 91.
69. Aurora Mardiganian was one of the many women traumatised at the touch of a man after her experiences in the Armenian Genocide. Anthony Slide, Writer and Film Expert, Glendale Public Library: Ravished Armenia Lecture (24 March 2013).
70. Cohen, supra note 30, at 59.
71. Chang, supra note 65, at 91.
72. Bina D’Costa, ‘1971: Rape and its consequences’ Bangladesh News 24 (Bangladesh 15 December 2010) <http://opinion.bdnews24.com/2010/12/15/1971-rape-and-itsconsequences> accessed 10 May 2015.
73. Telephone interview with Edina Fifić, supra note 26.
74. Id.
75. Beth Stephens, ‘Humanitarian Law and Gender Violence: An End to Centuries of Neglect?’ (1999) 3 Hofstra L. & Pol’Y Symp. 87, 90
76. Id. at 91.
77. Id.
78. Kristen Renwick Monroe, Ethics in an Age of Terror and Genocide: Identity and Moral Choice (Princeton University Press, Princeton 2011) 356-357
79. Id.
80. Case No. IT-96-23-T & IT-96-23/1-T, Judgment (Int’l Crim. Trib. for the Former Yugoslavia Feb. 22, 2001).
81. While most of the crimes the perpetrators were charged with were direct violations of the Geneva Conventions as well as other international laws, each tribunal had its own charging statute created for the trials to help draw parameters to prosecute the accused. Interview with Scott Gordon, Judge at Stanley Mosk Courthouse (Los Angeles 18 October 2013).
82. Kunarac para. 7-8.
83. Id. para. 32.
84. Id. para. 71.
85. Id. para. 178.
86. Id. para. 259.
87. Kunarac para. 259.
88. Id.
89. Id. para. 417.
90. Id.
91. Id. para. 259.
92. Siobahn K. Fisher, ‘Occupation of the Womb: Forced Impregnation as Genocide’ (1996) 46 Duke L.J. 91, 91-128.
93. Id. at 114.
94. Alexandra A. Miller, ‘From the International Criminal Tribunal for Rwanda to the International Criminal Court: Expanding the Definition of Genocide to Include Rape’ (2003) 108 Penn. St. L. Rev. 349, 350.
95. Prosecutor v. Akayesu (Judgment) Case No. ICTR-96-4-T (2 September 1998).
96. Akayesu para. 734.
97. Id. para. 692.
98. Id. para. 732.
99. Id.
100. Genocide Convention, supra note 10.
101. Sherrie L. Russell-Brown, ‘Rape as an Act of Genocide’ (2003) 21 Berkeley J. Int’l L. 350, 352.
102. Akayesu para. 557.
103. José E. Alvarez, ‘Lessons From the Akayesu Judgment’ (1999) 5 ILSA J. Int’l & Comp. L. 359, 361.
104. Manus I. Midlarsky, The Killing Trap: Genocide in the Twentieth Century (Cambridge University Press, New York 2005) 159-160.
105. Stephens, supra note 67, at 89.
106. Id.
107. Fisher, supra note 82, at 92
108. Id.
109. Id.
110. M C Bassiouni, Introduction to International Criminal Law (2nd revd edn Martinus Nijhoff Publishers, Leiden 2013) 192-93.
111. Smith, supra note 63, at 79.
112. Bassiouni, supra note 108, at 192-93.
113. William B. Wood ‘Geographic Aspects of Genocide: A Comparison of Bosnia and Rwanda’ (2001) 26 Transactions of the Institute of British Geographers 57, 68
114. Catherine A. MacKinnon ‘Rape, Genocide, and Women’s Human Rights’ (1994) 17 Harv. Women’s L. J. 5, 12.
115. Taner Akçam, The Young Turks’ Crime Against Humanity: The Armenian Genocide and Ethnic Cleansing in the Ottoman Empire (Human Rights and Crimes Against Humanity, Princeton University Press, Princeton 2013) 312.
116. Kunarac para. 39.
117. Stanley Milgram, Obedience to Authority: An Experimental View (Perennial Classics, New York 2009) 1 Milgram’s motivation for this experiment came from the fact that his parents were Holocaust survivors.
118. Id. at 12-13.
119. José E. Alvarez, ‘Crimes of State/Crimes of Hate: Lessons From Rwanda’ (1999) 24 Yale J. Int’l L. 365, 424-425.
120. See Press Release, Presiding Judge Florence Mumba, Judgement of Trial Chamber II in the Kunarac, Kovac and Vukovic Case (22 February 2001) <http://www.icty.org/sid/8018>.
121. Prosecutor v. Furundzija, IT-95-17/1 P 185 (Trial Judgment) (10 December 1998).
122. Milgram, supra note 102, at 16.
123. MacKinnon, supra note at 48, at 12.
124. Debra Bergoffen, Contesting the Politics of Genocidal Rape: Affirming the Dignity of the Vulnerable Body (Routledge, New York 2012) 62.
125. Id.
126. Interview with Judge Scott Gordon (18 October 2013).
127. Id.
128. Monroe, supra note 76, at 356.
129. Balakian, supra note 1, at 237.
130. Cohen, supra note 30, at 158.
131. Cassia Sophn and Julie Horney, Rape Law Reform: A Grassroots Revolution and Its Impact (The Plenum Series in Crime and Justice, Plenum Press New York 1992) 88.
132. United States Supreme Court Justice Jackson, who was a prosecutor in the Nuremberg Trials, voiced this famous line in his opening statement. King, Jr., supra note 39, at 335.
133. Amos Guiora, Professor at S. J. Quinney College of Law, University of Utah, “Southwestern Law School SBA Presents: Global Perspectives on Counterterrorism: Detention, Targeted Assassinations, Intelligence Gathering and Information Sharing” (5 March 2012).
134. Interview with Scott Gordon, supra note 71.
135. Id.
136. Ellis Washington, ‘The Nuremberg Trials: The Death of the Rule of Law (In International Law)’ (2003) 49 Loy. L. Rev. 471, 487.
137. Howard S. Levie ‘The Statute of the International Tribunal for the Formal Yugoslavia: A Comparison with the Past and a Look at the Future’ (1995) 21 Syracuse J. Int’l L. & Com. 1, 25.
138. Statute of the International Criminal Tribunal for the former Yugoslavia, S.C. Res. 827, U.N. SCOR, U.N. Doc. S/RES/827 (1993).
139. Id.
140. Statute of the International Criminal Tribunal for Rwanda, S.C. Res. 955, Annex, U.N. Doc. S/RES/955/Annex (1994).
141. In Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), rape victims in the Bosnian Genocide, using the Alien Tort Claims Act of 1789, successfully brought action against Radovan Karadzic in Manhattan, New York.
142. My grandfather’s mother, Mary Semerdjyan, was living in Turkey and attending school there. She and all other Armenians were forbidden to speak Armenian. Threatened by the gendarmes that they would have their tongues cut off if they spoke Armenian, Mary eventually forgot her native language. She would often share stories of the Armenian Genocide, but if someone spoke Armenian in her presence, she would get visibly upset. In some ways, the Young Turks successfully destroyed a part of her identity. Aghavni Jembelyan, my grandmother’s mother, was a little girl when she witnessed a gendarme behead her father. Interview with Manvel Semerdjyan, son of Armenian Genocide survivor (Glendale, California, 26 October 2013).
143. As a junior at the University of California, Berkeley I combined my love for theater and human rights, producing, directing, and playing one of the characters in Lorne Shirinian’s “Exile in the Cradle.” Theater has the powerful magic to transport an audience and compel them to feel what the victims suffered. I donated the ticket proceeds to Darfur, in hopes of that it would help stop the conflict in Africa.
144. Louis P. Lochner, What About Germany? (Dodd, Mead, & Company, New York 1942) 2
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Acknowledgement
I dedicate this article in commemoration of the Armenian Genocide Centennial. I send my thanks to Professors D'Italia and Sloan for continuously challenging me, Judge Scott Gordon for his expertise, Professor Gowri Ramachandran for her guidance, and to my family and friends for their support.
JD, Southwestern Law School; American Board of Trial Advocates Fellow; BA, Political Science and Media Studies, University of California, Berkeley.
(2015). Severing the Next Generation: Sexual Violence in Genocide. Legal issues Journal, 3 (2), https://www.legalissuesjournal.com/article/03-02-12072015/
