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Despite international attention to sexual violence in armed conflict being at an all-time high, sexual violence continues to be a prominent and persistent feature of all of today's armed conflicts. Deeply entrenched discrimination, combined with a lack of security, effective law enforcement, and political will has allowed often systematic and large scale sexual violence during armed conflict to perpetuate.
Sexual violence is a weapon, 'as deadly as any bullet and as destructive as any gun', 2 and it can be a highly effective: it devastates and terrorizes the victim, witnesses, and their community. In today's conflicts sexual violence is used to advance military objectives, to terrorize and gain control over the victim and their communities, to illicit information, to ensure compliance, to punish, and to assert control over territory and/ or resources. Sexual violence in armed conflict also includes acts that are conducted within a family or community where perpetrators take advantage of the lack of security and breakdown of the rule of law.
Rape, forced prostitution, sexual slavery, forced impregnation, forced marriage, genital mutilation, and deliberate infection with HIV/AIDS and other sexually transmitted infections are just some of the forms of sexual violence occurring in today's armed conflicts. It is a common misconception to think of sexual violence as not purely a sexual act. It is in fact an act of aggression and one that is not always committed for sexual gratification, for example electrocution of male genitalia as an interrogation technique.
At least 250,000 women were raped during the genocidal campaign in Rwanda yet the International Criminal Tribunal for Rwanda has prosecuted less than a dozen people for these crimes. In Columbia, where sexual violence is a persistent and widespread feature of the ongoing armed conflict, the impunity rate runs at 98%. The high level of impunity will come as no surprise to readers who are aware of the pitiful statistics on rape prosecutions in national courts. Within Europe, for example, only 6% of rape cases brought to court lead to a successful prosecution. However, in the conflict setting the continued culture of impunity aggravates ethnic, sectarian, or other divisions within the community and undermines peace-building efforts thereby preventing long-term peace and reconciliation. It also sends the message that sexual violence is somehow socially acceptable thereby perpetuating a culture of tolerance. Considering which, it is unsurprising that in the aftermath of many conflicts levels of sexual violence have risen. We know sexual violence continues to be perpetrated on a large scale in today's armed conflicts, we also know the devastating consequences of this for the survivor, their community, and for long-term peace and security. We have the legal framework and there seems to be a political will to address the issue in some States at a national level, 11 as well as at the international level, so why does implementation of law and policy remain an elusive goal and impunity remain the norm? And are there other options for securing prosecutions? This chapter will firstly outline the sex and gender aspects of sexual violence, as well as the international legal framework prohibiting sexual violence before turning to these questions and looking at possible alternative criminal justice mechanisms that might be worth consideration.
The prevailing inequality between women and men in nearly all societies, whereby women are viewed and treated as subordinate and inferior to men results in women in all contexts being the target for sexual violence. However, during periods of insecurity 7 'Rwanda's Women Make Strides towards Equality 20 Years after the Genocide', The Guardian, 7 April 2014. Global Justice Centre Blog, 'Ending Impunity for Widespread and Systematic Use of Sexual Violence in Columbia's Ongoing Armed Conflict', 9 December 2013. Madeleine Rees, speaking at the Chathem House event 'Sexual Violence in armed conflict-what use is the law?' 23 January 2015. A video of Madeleine Rees's presentation can be found at <http://www. chathamhouse.org/event/sexual-violence-conflict-what-use-law>. Cohen, D. K. and Nordas, R., 2014, 'Sexual Violence in Armed Conflict: Introducing the SVAC Dataset, 1989-2009', Journal of Peace Research, vol. 51, 418, at p. 425. The Democratic Republic of Congo, for example, has taken unprecedented (though long overdue) steps to prosecute the perpetrators of sexual violence during conflict and pay reparations to survivors. the plight of women is exacerbated, since '[c] onflict creates a free-fire zone, a sort of "free-for-all" in which pre-existing ideas about women as inferior, and other discriminatory and misogynist ideas, may be given free expression by frequently all-male groups of solders and other combatants' . Women and girls are often perceived as merely an extension of the opposition's male fighters, a vessel for procreation (including as a form of ethnic cleansing), an object for fighters' pleasure, a 'warriors reward' , or a commodity. The thousands of Yazidi girls and women who have been abducted by IS in the past six months and used as sex slaves, sold, or given away as 'prizes' or 'gifts' to the 'best' IS fighters and supporters provides repulsive evidence of this. 13 Women are particularly vulnerable when they do not have the capacity to flee the conflict due to lack of economic means, being encumbered by cultural or religious constraints that limit their ability to move freely without the presence or even permission of a male, pregnancy, or being responsible for the care of children and elderly relatives. Women that do manage to flee the immediate violence all too often find themselves still vulnerable to sexual violence during flight and once displaced. Survival sex, where desperate individuals and families agree to 'marriages' , often of young girls, in exchange for food, shelter, or 'protection' is a common occurrence in many refugee and displacement camps. 14 For a woman or girl who has been raped the ability to freely access medical services, including emergency contraception and termination is vital. Yet in States where conflictrelated sexual violence is most prevalent women and girls are still being denied access to safe and legal termination services. The risks associated with pregnancy are real for all women: maternal mortality is so grave a problem that everyday 800 women die as a result of complications in pregnancy and childbirth. The risks will be even greater in States where health care services are not available and for young girls whose underdeveloped bodies struggle to cope with pregnancy-aside from the internal injuries sustained during rape. and termination services, thereby failing to take into account the often inevitable consequences of the rape of females, is prohibited under international law as equates to both discrimination on the grounds of gender, 17 and amounts to cruel, inhuman, or degrading treatment where this forces a female to either undergo a dangerous illegal termination or carry an unwanted pregnancy. As asserted by Louise Doswald-Beck, women raped in armed conflict are also entitled to treatment under international humanitarian law as 'wounded and sick' 19 and '[e] xclusion of one medical service, abortion, from the comprehensive medical services provided to the "wounded and sick" in armed conflict, where such service is needed by only one gender, is not only a violation of their [females] right to medical care, but also a violation of the prohibition on "adverse distinction" found in common Article 3, the Additional Protocols to the Geneva Conventions, and customary international law' . The gender stereotypes and discrimination that gives rise to female directed sexual violence also leads to acts of sexual violence being committed against men and boys. Male victims of sexual violence often report feeling that their masculine identity has been destroyed and that they have somehow been 'feminized' by the attack; a statement that illustrates the prevailing noting of women being of lesser status in some societies. Sexual violence is an act of dominance and power over the victim; therefore when perpetrated against males in societies where masculinity is closely associated with dominance, strength, and power, the victim is disempowered and demoralized, particularly when the violence is perpetrated in public. Conversely, the perpetrator may be seen as more masculine through their dominance of the victim. Sexual violence against men and boys is still a taboo subject and is rarely reported and significantly under researched. Men and boys are particularly unlikely to report being a victim of sexual violence. Inability or unwillingness to report the violence might be for a multitude of reasons including; shame, fear of social stigma, fear of criminal prosecution under-anti sodomy laws, 25 discriminatory and inadequate domestic law, 26 lack of or inaccessible services (the majority of which are only tailored to the needs of women and girls), and lack of access to justice. Fear of being labelled weak, a homosexual, or even a paedophile (where the victim was forced to perform a sexual act on a child) also has a silencing effect. This fear will be particularly acute in homophobic societies. 27 Furthermore, research indicates that males struggle to come to terms with being a 'victim' as they feel it is incompatible with being a 'man', either in terms of the attack itself (as a man should be able to protect himself) or in the aftermath (a man should be able to cope 'like a man'). A vicious cycle exists where males are unwilling or unable to report the violence that they have suffered, resulting in a lack of data and therefore ignorance of the scale and characteristics of the violence persists, resulting in resources not being allocated to prevention and services for survivors, meaning males have nowhere to report the abuse they have suffered and seek rehabilitation. Impunity continues to prevail and no action is taken to address the root causes of the violence or the discriminatory norms that silence survivors.
Discriminatory and incorrect understandings about gender norms in situations of armed conflict, where men are seen as naturally aggressive, dominant, sexual demanding, and invulnerable and women as passive, weak, subordinate, and victims has led to the widely held view that men are always the perpetrators of sexual violence and never the victims. 29 This over-simplistic and incorrect gender analysis disempowers women, reinforces chauvinistic stereotypes, and fails to recognize female fighters as well as male victims of sexual violence during conflict. This can be seen at the international law and policy level where the prevailing approach is to focus on females as victims of sexual violence thereby ignoring the plight of male victims and the differing roles females play in armed conflict, including as fighters. 31 Until these gender stereotypes are challenged from the societal to the international level we have no hope of preventing and tackling sexual violence or providing adequate services for survivors.
All forms of sexual violence in armed conflict are prohibited through a strong and complementary legal framework made up of international humanitarian law, international human rights law, and international criminal law.
Turning first to international humanitarian law (IHL), IHL has long prohibited sexual violence during armed conflict, albeit implicitly and conservatively. 32 Of the four Geneva Conventions of 1949, only Geneva Convention IV expressly refers to sexual violence. This reference only concerns women and is framed in archaic and discriminatory language feeding the stereotype of women as weaker than their male counterparts. A recent study of the language used by the Independent Commission of Inquiry for Syria and the UN Human Rights Council in their reports found that women are nearly exclusively referred to as powerless victims of sexual violence. Conversely, men have multiple and important identities ascribed to them, variously mentioned as; civilians (as if women are not civilians), combatants, medical personnel, or journalists. This language feeds gender stereotypes and acts as a disincentive to ensure that women are involved in peace processes in roles that go beyond being 'victims'. As Madeline Reese points out [i] f women are seen as powerless agents then their participation in peace processes is not going to be viewed as necessary or valuable'. Women's International League for Peace and Freedom and the Graduate Institute of International and Development Studies, 'A gendered analysis: examining how women and gender in the Article 27 states: 'Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault', thereby placing such violence in a protection framework rather than expressly prohibiting this conduct. Furthermore, the violence is identified as attacks on women's 'honour' rather than as violent crimes.
Despite male directed sexual violence not being expressly mentioned in any of the four Geneva Conventions, males are implicitly protected from sexual violence under Common Article 3, which prohibits 'at any time and in any place whatsoever . . . outrages upon personal dignity, in particular humiliating and degrading treatment'.
The 1977 Additional Protocol I (AP I), which governs IAC, abandons the language of honour but still treats women as persons in need of 'special respect' and protection. AP I only envisages female victims, and makes no express reference to males. Article 27 of 1977 Additional Protocol I states: '[w] omen shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other form of indecent assault.' Although Article 27 does not apply to men, Article 75 lists fundamental guarantees that must be enjoyed 'without any adverse distinction' based upon, inter alia, 'sex', including the prohibition of outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault', under which sexual violence clearly falls.
The 1977 Additional Protocol II, which governs non-international armed conflicts (NIAC), takes a gender-neutral approach. Article 4(2) contains fundamental guarantees that prohibit 'violence to the life, health and physical or mental well-being of persons . . .
[;] cruel treatment such as torture, mutilation': and 'outrages upon personal, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault'. 33 All of which clearly encompass sexual violence.
Sexual violence in armed conflict is also prohibited under customary international law in both IAC and NIAC, as reflected in Rule 93 of the International Committee of the Red Cross (ICRC) 2005 study. The prohibition codified in Rule 93 is gender-neutral, applying equally to male-directed sexual violence as it does to female-directed sexual violence.
Controversially, sexual violence is not explicitly included as a grave breach in the 1949 Geneva Conventions or the 1977 Additional Protocols. Instead, sexual violence falls under the umbrella of wilfully causing great suffering or serious bodily injury to body or health. to clarify that the grave breach regime 'obviously not only covers rape, but also any other attack on women's dignity'. Furthermore, in the explanation on Rule 156 of the ICRC study, on the definition of war crimes, the ICRC reiterated that although rape was not 'explicitly listed as a grave breach . . .
[it] would be considered a grave breach on the basis that it amounts to a inhumane treatment or wilfully causing great suffering or serious injury to body or health'. It is important to ascertain whether or not an offence is recognized as a grave breach since States are obligated to exercise universal jurisdiction over such breaches. Under the principle of universal jurisdiction, any State can investigate and prosecute any individual in respect of international crimes committed abroad, regardless of the nationality of the perpetrator or victim and even if the accused is not present in the State seeking to prosecute. 39 Universal jurisdiction is based on the principle that certain crimes are so heinous that every State should have the possibility and responsibility to hold account perpetrators. Unfortunately as the grave breaches regime only applies to IACs not NIACs the regime offers little help for survivors of sexual violence in today's armed conflicts which are nearly exclusively NIACs. That said there is nothing to stop States that are serious about tackling impunity for sexual violence in armed conflict from extending their understanding of the grave breaches regime to apply to NIACs.
Turning to international human rights law (IHRL), sexual violence is prohibited under IHRL primarily through the prohibition of torture and other forms of cruel, inhuman, or degrading treatment or punishment, as well as the prohibition of slavery. The prohibitions of torture and slavery have been enshrined as absolute and non-derogable and are accepted to be norms of jus cogens status meaning that the prohibitions apply at all times, 41 including in armed conflict. Thus any form of sexual violence committed during armed conflict that constitutes torture or slavery would be a violation of IHRL. Many acts of sexual violence that are being carried out in today's armed conflicts, such as electrocution of genitalia and rape have been repeatedly affirmed to constitute torture, and sexual slavery and forced marriage would undoubtedly constitute slavery. Although it is clear that sexual violence is prohibited under IHRL further questions arise regarding States' obligations under these prohibitions and when a State can be held accountable for such acts. On the question of what obligations these prohibitions entail, States are bound by the usual positive and negative obligations that exist under IHRL. States are clearly obligated not to participate in acts of slavery, torture or cruel, inhuman, or degrading treatment (negative obligations), but they also have a positive obligation to protect those within their jurisdiction from such acts, including by criminalizing these acts in national legislation and enforcing that legislation. States also have a positive obligation to promptly and effectively investigate allegations of torture, or of cruel, inhuman, or degrading treatment promptly and effectively. 45 Importantly, in the context of conflict-related sexual violence, the Human Rights Committee has concluded that the duty to investigate extends to acts of a prior regime. This means that not 43 Adapted from the 1929 Slavery Convention, today slavery can be understood to mean 'the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including sexual access through rape and other forms of sexual violence'. Special Rapporteur on the situation of systematic rape, sexual slavery, and slavery-like practices during wartime, Final Report', UN doc. E/cn.4/sub.2/1998/13, 1998 §27. Implicit within this definition is the limitation on the ability of the victim to exercise autonomy and freedom of movement. The ability of the victim to extract her or himself from the condition of slavery should not be interpreted as nullifying a claim of slavery, rather: '[I] n all cases, a subjective, gender-conscious analysis must also be applied in interpreting an enslaved person's reasonable fear of harm or perception of coercion. This is particularly true when the victim is in a combat zone during armed conflict, whether internal or international in character, and has been identified as a member of the opposing group or faction'. Special Rapporteur on the situation of systematic rape, sexual slavery, and slavery-like practices during wartime, only do the governments of a State in which sexual violence is being perpetrated today have a duty to investigate but so to do future governments. 46 Furthermore, States are obligated to ensure redress, including compensation, to survivors of slavery, torture, or cruel, inhuman, or degrading treatment. Finally, under international criminal law (ICL), rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, 'or any other form of sexual violence of comparable gravity' are all included in the 1998 Rome Statue of the International Criminal Court (ICC Statute) as crimes against humanity as well as war crimes. The contextual elements will determine whether the offence is a crime against humanity or a war crime. To constitute a crime against humanity the acts must be 'committed as part of a widespread or systematic attack directed against a civilian population' with the perpetrator's knowledge that the conduct was part of such an attack. To constitute a war crime, the offence must have taken place in the context of, and be associated with, either an IAC or an armed conflict 'not of an international character' with the perpetrator's awareness of the 'factual circumstances that established the existence of an armed conflict'. As well as crimes within their own right, rape and other forms of sexual violence can constitute genocide when committed with intent to destroy in whole or in part a national, ethical, racial, or religious group. 51 Sexual violence as a tool for genocide may be perpetrated through preventing births of a particular group by rape (where a woman is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother's group), 48 ICC Statute, Art. 7(1)(g) (crimes against humanity); Art. 8(2)(b)(xxii) (war crimes in an IAC); Art. 8(2)(e)(vi) (war crimes in a NIAC). To bring a case to the ICC the accused must be a national of a state that has ratified the ICC Statute, or the crime must have occurred in a state that has accepted the court's jurisdiction or in a specific situation that has been referred to the ICC Prosecutor by the UN Security Council. Furthermore national courts must be unwilling or unable to prosecute and the crime must be of 'sufficient gravity'. Rome Statute, Art. 17(1)(a)-(d). Elements of Crimes, common elements in sub-paras. 3 and 4, to Art. 7(1)(g): rape; sexual slavery; enforced prostitution; enforced sterilization; and sexual violence: and sub-paras. 2 and 3 to Art. 7(1)(g), forced pregnancy. Elements of Crimes, common elements in sub-paras. 3 and 4, to Art. 8(2)(b)(xxii): rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and sexual violence (for IACs); and common elements in sub-paras. 3 and 4 to Art. 8(2)(e)(vi): sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and sexual violence (for NIACs). sterilization, sexual mutilation, or separation of the sexes. 53 Furthermore sexual violence has been prosecuted as an act of terrorism by both the ICTY and the Special Court for Sierra Leone (SCSL). In considering the widespread and systematic use of sexual violence by the Revolutionary United Front during the conflict in Sierra Leone the SCSL found that 'the nature and manner in which the female population was a target of sexual violence portrays a calculated and concerted pattern on the part of the perpetrators to use sexual violence as a weapon of terror'. The SCSL determined that the acts of sexual violence 'were not intended merely for personal satisfaction or a means of sexual gratification for the fighter' rather 'these acts were committed with the specific intent of spreading terror among the civilian population as a whole, in order to break the will of the population and ensure their submission to the AFRC/RUF control'. 56 It concluded that 'rape, sexual slavery, "forced marriages" and outrages on personal dignity, when committed against a civilian population with the specific intent to terrorise, amount to an act of terror'. Before we look at each of the specific offences of sexual violence it is important to note that under ICL, not only can identified soldiers be prosecuted for their crimes but also their commanders, under the ICL doctrine of command responsibility. 58 At its essence command responsibility imposes criminal responsibility on a commander for their 'failure to act when under a duty to do so'. 59 Thus, a commander will be criminally responsible 'if he or she knows or has reasons to know that his or her subordinates are about to commit or have committed crimes, unless the superior prevents the subordinates' crimes or punishes the perpetrators after the crimes are committed'. 60 Therefore, it is not necessary that commanders order or encourage crimes; if they have reason to know that soldiers under their command are about to commit, or have committed, an act of sexual violence and turn a blind eye they can be prosecuted for the offence.
A clear definition of rape did not exist in international law until 1998 when the International Criminal Tribunal for Rwanda (ICTR) defined rape as 'a physical invasion of a sexual nature, committed under circumstances which are coercive'. Building upon this definition, and the jurisprudence of the other ad hoc tribunals, rape is defined in the ICC Elements of Crimes as having two components. First, the perpetrator must have 'invaded the body of a person resulting in penetration however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or the anal or genital opening of the victim with any object or any part of the body'. A footnote to this element makes clear that such 'invasion' is to be regarded as gender-neutral, thereby incorporating both female and male victims. Second, the invasion must have been 'committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such a person on another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent'. A footnote to this element states: 'it is understood that a person may be incapable of giving genuine consent if affected by natural, induced or age-related incapacity'. The ICTY came to consider whether consent could ever be given in coercive circumstances in the Kunarac case. The case concerned women and girls who were held in de facto military headquarters, detention centres, and apartments maintained as soldiers' residences where they were considered the legitimate sexual prey of their captors and were repeatedly raped, often by several men and on a daily basis. Those who sought aid or resisted 'were treated to an extra level of brutality'. The Appeals Chamber of the ICTY held that 'such detentions amount to circumstances that were so coercive as to negate any possibility of consent'. Today it can be said that under ICL the use of force, threat of force, or coercion defeat the possibility of 'genuine consent' such that any person who engages in prohibited sexual violence in these circumstances is committing an act of rape, or another form of sexual violence. Whether or not the victim of the violence put up a fight or resisted is irrelevant. Coercive circumstances would include, for example, a soldier entering a home at night with arms. It is accepted under ICL that rape can constitute torture given that severe pain or suffering, an element of the definition of torture, can 'be said to be established once rape has been proved, since the act of rape necessarily implies such pain or suffering' . Furthermore, unlike under the 1984 CAT ICL does not require the perpetrator of an act of torture to be a public official or a person acting with the acquiescence of a public official. 71
Sexual slavery is defined under the ICC Elements of Crimes to exist where the 'perpetrator exercised any or all of the powers attaching to the right of ownership over one or more person, such as by purchasing, selling, lending or bartering such a person or persons, or imposing on them a similar deprivation of liberty' and causing that person 'to engage in one or more acts of a sexual nature'. The ICC Elements of Crimes define enforced prostitution to be where the 'perpetrator caused one or more persons to engage in one or more acts of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person's or persons' incapacity to give genuine consent' and the perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connection with the acts of a sexual nature. It is the latter requirement that distinguishes the crime of enforced prostitution from that of slavery.
In practice, the distinction between enforced prostitution and sexual slavery is blurred. Indeed, a number of survivors as well as commentators advocate that enforced prostitution is better characterized as sexual slavery and should be prosecuted as such. This is the position of the former Special Rapporteur on the issue of systematic rape, sexual slavery, and slavery-like practices in armed conflict, Gay McDougall, who argues that in armed conflict 'most factual scenarios that could be described as forced prostitution would also amount to sexual slavery and could more appropriately and more easily be characterized and prosecuted as slavery' . Survivors have expressed concern 'that the term "forced prostitution" obscures the terrible gravity of the crime, suggests a level of voluntarism, and stigmatizes its victims as immoral or "used goods" ' . However, by retaining enforced prostitution within the ICC Statute, sexual violence that does not meet the conditions required to meet the definition of sexual slavery will still fall within the jurisdiction of the ICC, thereby providing a further avenue for prosecution.
Forced marriage has been confirmed to be a crime against humanity by the SCSL. The Appeals Chamber held that a separate crime of forced marriage existed in the context of Sierra Leone because a unique element was found in the 'bush marriages' that occurred in the region. The Court held that forced marriage involved a perpetrator compelling a person by force or threat of force, through words, or conduct of the perpetrator, or anyone associated with him, into a forced conjugal association. It concluded that this results in great suffering or serious physical or mental injury on the part of the victim. The Court noted that the crime of forced marriage was not exclusively, or predominantly, sexual, and as such was not fully encompassed by the crime of sexual slavery. The women who testified in the case described the marriages as having encompassed a series of abuses, including abduction, forced labour, deprivations of liberty, corporal punishment, assaults, and sexual violence. The Court concluded that forced marriage might also include one or more international crimes such as enslavement, imprisonment, rape, sexual slavery, or abduction.
Forced pregnancy consists of two elements: forced impregnation and forced denial of access to a termination. The ICC definition is, however, limited to circumstances where there is 'intent of affecting the ethnic composition of any population' . 80 This is the only crime against humanity that requires an additional element of intent. Religious objections are obviously the motivation for including this further element of intent. Indeed, the provision includes the rider that the definition 'shall not in any way be interpreted as affecting national laws regarding pregnancy' . 81 As Chinkin posits, forced pregnancy 'constitutes a very particular denial of a woman's autonomy and bodily integrity by forcing her to bear a child. Yet in this one instance the continuing insistence for control over women's reproductive capacity has subjugated gender identity, (that the crime was committed against her because she is a woman) to ethnic identity' . 82
The ICC Elements of Crimes describes enforced sterilization to take place where the perpetrator 'deprived one or more persons of biological reproductive capacity' and the conduct was 'neither justified by the medical or hospital treatment of the person' nor 'carried out with their genuine consent'. 83 It is noted in the Elements of Crimes that deception is incompatible with genuine consent.
Sexual violence is defined in the ICC Elements of Crimes to be where 'the perpetrator committed an act of sexual nature against one or more persons or caused such person 79 ICC Elements of Crimes: Art. 7(1)(g); Art. 8 (2)(b)(xxii); and Art. 8(2)(e)(vi). 80 ICC Statute, Art. 7(2)(f). 81 ICC Statute, Art. 7(2)(f). 82 Chinkin, C., 2014, 'Gender and Armed Conflict'. In Oxford Handbook of International Law in Armed Conflict, edited by Clapham, A. and Gaeta, P., Oxford University Press, p. 675. 83 ICC Elements of Crimes: Art. 7(1)(g); Art. 8(2)(vi); and Art. 8(2)(b)(xxii). or persons to engage in an act of sexual nature by force, threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment such person's or persons' incapacity to give genuine consent' . The ICTR has broadly defined sexual violence to be 'any act of a sexual nature committed under circumstances that are coercive', explaining that 'sexual violence is not limited to a physical invasion of the human body and may include acts that do not involve penetration or physical contact. Sexual violence covers both physical and psychological attacks directed at a person's sexual characteristics'. Similarly, the ICTY has held that sexual violence 'embraces all serious abuses of a sexual nature inflicted upon the integrity of a person by means of coercion, threat of force or intimidation in a way that is humiliating and degrading to the victim's dignity'. In light of the sexual violence commonly being witnessed in today's conflicts, such as forced nudity and electrocution of genitalia, 87 one would hope that the any court presiding over these acts would adopt a broad interpretation of sexual violence.
It should be borne in mind that the primary responsibility to investigate and prosecute sexual violence is with the State. Where the State is unable or unwilling to investigate-or national criminal law is inadequate and domestic remedies have been exhausted-international criminal justice, in theory, should step in. However, despite all forms of sexual violence, from rape to forced nudity, being clearly prohibited under IHL, IHRL, and ICL, the International Criminal Court and the ad hoc tribunals have secured only a miniscule number of prosecutions compared to the scale of sexual violence that has been committed during armed conflict in recent history.
The ICC has failed to prosecute a single case of sexual violence. In the first successful prosecution by the ICC, the Lubanga case, charges were limited to recruitment of children despite ample evidence of sexual slavery and rape. In her dissenting opinion Judge Obio Benito expressed her frustration at this and highlighted that the exclusion of charges related to sexual violence restricts a judge's ability to render justice to victims. In the courts only other successful prosecution, Germain Katanga was convicted on four counts of war crimes and one count of a crime against humanity for his part in killing more than 200 people in a massacre in 2003 in north-eastern DRC. 89 However, Katanga was cleared of all charges of sexual violence despite the initial ICC investigation finding that women who survived the 2003 massacre had been raped and/or kept as sex slaves. 90 Prosecutors tried to show that rape and sexual violence took place as a result of a common plan directed by Katanga, however they failed to do so largely because the evidence linking Katanga to crimes of a sexual nature was deemed insufficient. Prosecutors appear to have missed a trick here. Instead of charging sexual violence as part of a planned attack, the command responsibility mode of liability could have been invoked, according to which prosecutors would just have to show that Katanga knew about the crimes but did not take steps to prevent or punish his subordinates for committing them, rather than having to prove that the sexual violence was part of a pre-planned tactic. The Office of the Prosecutor, following much criticism of its handling of the case, has said that in future cases it plans to prosecute sexual violence under broader modes of liability, including command responsibility. A major barrier to international prosecutions is that international courts and tribunals will only have jurisdiction where authorized by the State concerned or the UN Security Council. Taking Syria as an example, accessing criminal justice is not a realistic prospect for today's survivors of sexual violence as Syria is not a State party to the ICC Statute meaning that the court has no territorial jurisdiction over the crimes being committed there. Nevertheless the ICC may still be able to prosecute the perpetrators of crimes in Syria who are nationals of a State party to the ICC Statute, through personal jurisdiction, meaning a British foreign fighter, for example, who commits a war crime in Syria may, in theory, be prosecuted by the ICC. However, at this point in time the ICC Office of the Prosecute has said it will be not be pursuing prosecutions through personal jurisdiction as the ability to conduct investigations in Syria 'appear limited'. The only further avenue for the ICC to exercise jurisdiction is for the situation to be referred to it by the the Security Council has already failed to make a referral and considering the continued Chinese and Russia opposition to an ICC referral it is extremely unlikely to change its position. 93 Failing a regime change, it seems that the only hope for survivors in Syria is the formation of a special tribunal dedicated to prosecuting mass crimes committed in Syria. This is something that the UN Independent Commission of Inquiry on Syria is pushing for but in reality is lacking political support and is unlikely to be achieved any time soon. Evidentiary issues are another reason why there have been so few prosecutions for sexual violence at the international court and the ad hoc tribunals. It is seen, by some, as harder to gather evidence in cases concerning sexual violence and argued that by the time the security situation has stabilized enough to allow investigations to begin; evidence is often diminished or destroyed. It is true that unlike a massacre where there are likely to be mass graves, the physical evidence of mass rape, for example, will be harder to come across. However, there will still be mass survivors and witnesses who are able to give first hand testimony of their experiences and may be able to provide medical evidence. To access this evidence the reasons why survivors and witnesses may not come forward need to be addressed; including addressing survivors immediate needs, social stigma, and fear of reprisals. Considering the difficulties associated with securing witness testimony, and the problem of witness intimation, 95 it is encouraging that the ICC's Office of the Prosecutor has said that as part of its renewed focus on sexual violence and gender-based crimes greater efforts will be made to gather documentary evidence, such as hospital records, and forensic investigation strategies. Social media may also provide a new and vital source of evidence for future prosecutions, as many armed groups have taken to filming their crimes and widely disseminating the footage on social media.
The international nature of investigations and prosecutions has also been blamed for the low number of prosecutions. Securing and exercising an arrest warrant, collecting evidence and securing witness testimony in court is not an easy task when the perpetrator, physical evidence, witnesses, and the court are across several States or regions. However, although difficult this is not an impossible task, and prosecutions for other crimes with the same geographical hurdles have been secured. In the case of Somali maritime piracy, by way of example, despite the perpetrator being Somali, the crime being committed in international waters where evidence is easily dumped into the ocean and the victims and witnesses being spread across the globe, a number of successful prosecutions have been made. A further hurdle to securing prosecutions for sexual violence is that all forms of sexual violence-against both males and females-is too often recorded and therefore prosecuted, as solely an act of torture or abuse rather than an act of sexual violence. In the Tadić case, for example, Duško Tadić was prosecuted, in part, for the role he played in the abuse of detainees, including forcing a male detainee to perform fellatio on another detainee and then bite off his testacies. 97 However, charges were limited to cruel treatment and inhumane acts (crimes against humanity), rather than rape or other forms of sexual violence of comparable gravity. This is a concern because although rape and other forms of sexual violence are also forms of torture or cruel, inhuman, or degrading treatment it is essential for our understanding of the scale, manifestations, and characteristics of sexual violence that it be correctly documented. Accurate recording is also essential for prosecution, truth and reconciliation, and historical purposes, as well as to dispel discriminatory stereotypes and assumptions.
Considering the void that exists between the international legal framework that prohibits sexual violence and its implementation-which allows almost total impunity to prevail-is now the time to harness the political will that seems to be at an all-time high, 98 and consider new criminal justice mechanisms in the hope that they will do better job of securing prosecutions?
One option would be to establish an international tribunal dedicated to only prosecuting sexual violence in armed conflict-any conflict. Such a thematic tribunal would have the benefit of specialized expertise, something that appears to be missing in existing mechanisms. A thematic tribunal may also allow the politics of country-specific tribunals to be by-passed. It is much harder for a State to object to the investigation of sexual violence in armed conflict wherever it may occur than it is to object to an investigation into one specific State, which may be an ally. international community is serious about accountability. It would also have a greater chance, if well resourced, of securing larger number of prosecutions of perpetrators of varying ranks than the ICC, which is notoriously slow and appears to only be concerned with high-ranking officials. This option obviously comes with all the issues that setting up an ad hoc tribunal brings including: resources, time to set it up, regional presence, balanced geographical representation as well as jurisdiction and procedural methods.
To avoid setting up an entirely new tribunal a specialized chamber that is tacked onto the ICC could be established. Thereby ensuring the expertise of a specialized tribunal but also having the benefit of an already established court and its evidentiary, procedural, and jurisdictional issues settled. Based on the limited data that is available it does appear that sexual violence is being committed on such a huge scale as to warrant special treatment by the ICC. That said singling out sexual violence offences, rather than genocide, for example, will be unpopular with purists and the same politics and jurisdiction issues that appear to hinder the ICC now would equally apply to a specialized chamber attached to it.
If establishing a new tribunal or chamber is considered too radical or complex, national courts could be tuned to. Indeed, as has been noted by promote international judges the development of the international criminal courts and ad hoc tribunals does not replace the important role of national courts in prosecuting the perpetrators of serious international crimes. 99 There is nothing to stop a coalition of like-minded States from collectively developing a prosecution strategy and agreeing to share resources and expertise to prosecute sexual violence in their national courts. Such a coalition would have the benefit of sharing expertise on investigation and prosecution and be the most resource-efficient option. Such a coalition could exercise various modes of jurisdiction to secure convictions including universal jurisdiction over sexual violence in any conflict (IAC or NIAC), 100 active personality jurisdiction (based on the nationality of the perpetrator, under which a State may prosecute one of its nationals for offences committed abroad); and passive nationality jurisdiction (based on the nationality of the victim, under which a State party may prosecute a non-national for acts committed against a national abroad). Of course this option, like the others, will still have to over-come the hurdles of implementing arrest warrants and securing evidence in an international context. However, it certainly seems a better option than allowing the status-quo to continue and would give real teeth to a number of States' commitment to tackling impunity.
Whilst increased political will has led to new initiatives to tackle sexual violence in armed conflict the fact remains that sexual violence continues to be prominent feature of armed conflict in 2015 and survivors and their communities remain traumatized, stigmatized, and without redress whilst perpetrators continue to enjoy impunity.
Tackling impunity for sexual violence in armed conflict requires sustained political will, targeted prosecution strategies, and timely collection of evidence. Gender-sensitive training of investigators, prosecutors, and the judiciary is essential. Medics working in conflict-affected States also need training on the medico-legal aspects of sexual violence, including on how to correctly document forensic evidence and refer patients to law enforcement agencies. 101 One-stop shops that provide medical and legal services for survivors have the potential to be very effective in increasing prosecutions, so long as they are accessible to all survivors and not just females and children. Securing prosecutions is an impossible task without taking into account the immediate needs arising from the conflict for the survivor, such as securing shelter or locating a missing loved-one. It is only once these immediate concerns are address that survivors will be inclined to report the violence. Survivors also need education on the criminal justice options available to them and free legal assistance to pursue a complaint should they choose to do so. As well as a safe and supportive environment in which survivors and witnesses feel empowered and secure enough to come forward and report the crime.
Traditional criminal justice mechanisms are of course not enough to challenge impunity and prevent future acts of sexual violence. Transitional justice mechanisms such as truth commissions, which can play a particularly important role in breaking social stigma, and gender-sensitive reparations-including compensation, satisfaction, rehabilitation, and guarantees of non-reoccurrence, 103 are equally important and should go hand in hand with seeking criminal accountability. 104 Women must be fully integrated and involved in any peace agreement, and in roles that reflect their different identities rather than as solely victims. Addressing sexual violence should be a key feature in The International Protocol on the Documentation and Investigation of Sexual Violence in Conflict does provide some guidance to medical practitioners on how to collect and store forensic evidence. all peace agreements and sexual violence should always be totally excluded from any amnesty.
Finally, we do not want a would-be perpetrator not to commit acts of sexual violence because they feel they should respect the law or they fear prosecution, rather we want them not to commit acts of sexual violence because they don't want to commit a morally wrong and socially unacceptable act. To achieve this more needs to be done to tackle the deeply entrenched misogynistic and discriminatory attitudes that feed sexual violence committed against men, women, boys, and girls-in both peace time and armed conflict, in this respect it must be remembered that taking sexual violence in armed conflict is part of the bigger picture to secure equality.
