Justice is possible for victims of rape in Ukraine. But it won’t be easy

Terrible stories are emerging from Ukraine of the mass rape of civilian women by Russian soldiers. Among the most notorious reports is one involving a group of teenage girls who are being held captive in a basement in Bucha. Nine of them are now pregnant after multiple gang rapes. According to the Ukrainian human rights ombudsman, Lyudmyla Denisova, “Russian soldiers said [the victims] they would rape them to the point that they would no longer want sexual contact with a man, to prevent them from having Ukrainian children.

Currently, these are official reports from a nation at war, and therefore must be verified by independent observers before being treated as fact. But Human Rights Watch has also documented rape among the many crimes committed in Bucha and elsewhere in Ukraine. If this new allegation of gang rape and forced pregnancy is confirmed by independent human rights fact-checkers, it could be grounds for indicting the soldiers for crimes against humanity or even genocide. Rape is prohibited by the laws of war, and when committed en masse against civilians, it is a crime against humanity. And taking steps to prevent births within a national group is one of the many acts that can constitute genocide.

Many have therefore rightly asked if victims of wartime rape can ever hope for justice. It’s a fair question, because the international community has a hard time prosecuting war crimes in general. The Geneva Conventions place the responsibility for prosecution first and foremost on the states whose soldiers allegedly committed the crimes. The International Criminal Court, or ICC, can only intervene where national governments do not, and only under very specific conditions. Ad hoc war crimes tribunals, such as the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, are rare. They also need the support of the United Nations Security Council, divided in the case of the war in Ukraine.

Even where war crimes tribunals do exist, their record on rape – a crime difficult to prosecute even in peacetime – has always been patchy. Rape as a tool of war has always been decried by members of the international community, but as political scientist Tuba Inal explains, it was not really prohibited until the creation of the ICC in 1998. Even so, in its first-ever case, the ICC opted to indict Congolese warlord Thomas Lubanga for child recruitment rather than sexual abuse, despite allegations that his forces used sexual abuse to control child soldiers during the conflict.

But there are three important reasons to believe that systemic allegations of mass rapes in Ukraine are very likely to be assessed by United Nations war crimes investigators and prosecuted in war crimes tribunals.

First, while Russia is unlikely to try its own soldiers or the Security Council will be able to set up an ad hoc tribunal, given Russia’s right of veto, the ICC has already asserted its jurisdiction. on today’s conflict, since Ukraine had previously accepted ICC jurisdiction over the earlier conflict in the Donbass.

Despite its past failures, the ICC has a very progressive mandate, at least on paper, to conduct gender-responsive and inclusive investigations. The court is now more mature than it was at the time of the Lubanga case, when, as political scientist Louise Chappell documents, it felt compelled to issue a swift and unchallenged sentence. And the political environment is also different, after decades of continuous activism for women’s rights and following historic judgments in Yugoslavia and Rwanda, which have shown that sexual violence can be prosecuted with the same level of seriousness. than other international crimes.

Justice may be in sight for the victims of the most systematic crimes. But when it comes to gender-based violence in wartime, much more needs to be done.

Moreover, while the ICC should not be investigating allegations of mass rape, the international community is experiencing a minor renaissance of universal jurisdiction, the idea that certain crimes are serious enough that any state, anywhere, may judge an alleged perpetrator found on its soil. Germany, for example, recently concluded cases against Syrians who perpetrated acts of torture during the civil war in that country. It is unclear whether rape itself is considered a crime under universal jurisdiction, but war crimes and crimes against humanity are, and where rape is committed as part of a systematic attack against a civilian population, it reaches the level of both.

Rape has also been interpreted by previous courts as a form of torture and, in certain circumstances, as a form of genocide, two crimes under universal jurisdiction. The fact is, even without an ad hoc tribunal for Russia or an ICC indictment, any country in the world is able to conduct war crimes tribunals against any Russian soldier or civilian leader. in the chain of command who could reasonably be charged for these atrocities.

There is a second reason why the likelihood of obtaining justice is higher in this case than it was for victims of previous wars. Unlike the conflicts in Bosnia, Rwanda and Congo, which were civil wars where the state had already collapsed, this conflict includes a Ukrainian state operating forcefully, with agencies such as the office of the human rights ombudsman humans who are focused on providing safe means to survivors. to report crimes. This means that victims have the opportunity to document what happened to them. One of the reasons rape is often harder to prove in court is that victims are so often silenced or intimidated and don’t come forward until long after the crime has taken place. At this point, their memories and those of witnesses may have changed or evidence may have been lost. But in this case, Ukrainian civilian women have the possibility of accessing remedies and providing documents in complete safety.

This brings us to a third, more problematic reason why war crimes trials for this particular crime are particularly likely: mass wartime sexual violence fits the popular imagination of war as an existential struggle. to defend one nation against the aggression of another. Importantly, wartime rape serves as a metaphor for war itself. This makes it politically more acceptable for victims to report violations and also generates political will for trials. One of the reasons the Ukrainian government is making it easier for these women to speak out is precisely because these allegations have propaganda value.

By contrast, the experiences of civilian women from the Donbass region who have alleged abuse by Ukrainian soldiers are less likely to be heard in the West, although they are equally important to independent war crimes tribunals. In general, it is more difficult to seek accountability and justice for other forms of sexual violence, especially when there is not such an easy match between the realities of civilians’ experiences and the powerful narratives of war. . Although victims of mass rapes committed by Russian soldiers in Bucha and elsewhere in Ukraine may obtain justice in national or international courts, their experiences are only the tip of the iceberg when it comes to human rights violations founded about sex in this country and in other wars.

There is also a risk that the focus of future prosecutions on Russian mass rape allegations will render other, perhaps even more prevalent, forms of wartime sexual violence in Ukraine invisible. Civilian women, for example, also experience “opportunistic” abuse by soldiers in wartime, and these abuses are no less terrible from the perspective of survivors. As political scientist Dara Cohen has shown, gang rapes are often used by small unit commanders to improve social cohesion in small conscript units, even in the absence of top-down orders to commit these crimes. And because Russia is a conscript army with a permissive approach to war crimes, “opportunistic” abuses are particularly likely. The temptation may be to try to prioritize more politically expedient and egregious crimes like systemic mass rape and ethnic cleansing, but these charges can be much harder to prove and could render the more complicated realities of wartime violence.

Moreover, while the focus is now on women, men are also raped, sexually mutilated and strength to commit rape on all sides and in all wars. The UN has indeed received unverified reports from Ukraine on the latter, which is considered a crime against both sides. But rapes against men are even more rarely prosecuted than rapes against women. And while there are far better resources for female victims today than in the past, international law still does very little to recognize and mitigate the harm suffered by children born to victims of wartime rape. They too experience a wide range of negative outcomes, including at the hands of rape-victim communities. Narratives that they were engineered as tools of ethnic cleansing may put these children at even greater risk.

Beyond that, many cases of conflict-related sexual violence and exploitation are not the doing of the enemy at all, but of perpetrators who target women as they flee war zones alone, separated forcibly from their husbands and other male relatives. Some of these crimes are even perpetrated by traumatized men on the same side of the war as the victim. Sexual violence also occurs in military units as a form of coercion and control. The Geneva Conventions barely address these types of harms, and they are unlikely to be prosecuted in war crimes tribunals or by national governments in times of war. Moreover, these crimes do not fit popular narratives of what happens to women and men in times of war, so these victims are often among the most hidden and least supported.

Women victims of systematic rape by Russian forces deserve every ounce of justice they can get, and fortunately, they are perhaps more likely than any other war-affected population in history to get it. But other, more hidden victims of sexual violence in this and other wars also deserve justice. Rules and institutions have come a long way in recent decades, and justice is perhaps in sight for the victims of the most systematic crimes. But when it comes to gender-based violence in wartime, much more needs to be done.

Charli Carpenter is a professor of political science and legal studies at the University of Massachusetts-Amherst, specializing in human security and international law. She tweets at @charlicarpenter. His weekly WPR column appears every other Friday.

Elna M. Lemons