Doc. 8668

15 March 2000

Rape in armed conflicts

Report

Committee on Equal Opportunities for Women and Men

Rapporteur: Mrs Rodica-Mihaela Stanoiu, Romania, Socialist Group

Summary

      Although rape has been recognized as a war crime, it continues to be systematically used as a weapon of war, as in the recent conflicts in Kosovo and Chechnya.

      In the committee’s view it is more than ever necessary to provide women with better legal protection and governments are urged to ensure that laws and standards concerning wartime rape are properly implemented.

      It is suggested that the Assembly recommend that states speedily ratify the Treaty on the Statute of the International Criminal Court of 17 July 1998 and introduce appropriate domestic legislation to give effect to its provisions.

      Lastly the committee hopes that governments of member states will set up – making available the necessary administrative and financial resources – programmes of training and psychological and occupational rehabilitation for female rape victims.

I. Draft resolution

1.       The Parliamentary Assembly refers to Committee of Ministers Recommendations R(91)11 concerning sexual exploitation, pornography and prostitution of, and trafficking in, children and young adults, R(85)11 on the position of the victim in criminal law and procedure, R(85)2 on legal protection against sex discrimination and R(84)15 relating to public liability.

2.       The Assembly draws attention to its Recommendation 1408 (1999) on the International Criminal Court and Recommendation 1427(1999) on respect for international humanitarian law in Europe.

3.       It further draws attention to its Recommendation 1403 on the crisis in Kosovo and the situation in the Federal Republic of Yugoslavia, in which it strongly condemns the policy of ethnic cleansing and particularly the rape of women as systematic war crimes and reaffirms that “rape and torture in armed conflicts constitute war crimes and should be treated as crimes against humanity”.

4.       It also refers to the recommendations made by the United Nations special rapporteur on violence against women.

5.       It regrets that despite the fact that rape has been recognised as a war crime, it continues to be systematically used - and has been so in recent conflicts (Kosovo and Chechnya) - as a war weapon inflicting not only psychological trauma but also forced pregnancy.

6.       It therefore reiterates its desire to see rape treated as a crime against humanity.

7.       It accordingly believes, in view of the number of rapes in armed conflicts, that better legal protection of women is more necessary than ever, that such protection must apply in all circumstances and that if member governments ever fail in their duty to provide it, then a monitoring procedure should be instituted.

8.       It reiterates its satisfaction at the adoption of the Treaty on the Statute of the International Criminal Court by the plenipotentiary diplomatic conference in Rome on 17 July 1998 and at the signature of the treaty but points out that there are three member states (Moldova, Russia and Turkey) which have not yet signed it and that only six member states have ratified it (Austria, Finland, France, Italy, Norway and Sweden).

9.       The Assembly calls on the parliaments of member states to speedily ratify, if they have not yet done so, the Treaty on the Statute of the International Criminal Court adopted in Rome on 17 July 1998 and introduce appropriate legislation to give proper effect to its provisions, as already requested in Assembly Recommendation 1408 (1999) on the International Criminal Court.

10.       The Assembly also invites the governments of member states to

i.       take appropriate measures to ensure that rape in armed conflicts is irrevocably treated as a war crime, as in Article 8.xxii of the Statute of the International Criminal Court;

ii.       make sure that laws and standards relating to rape in wartime are properly applied at national level;

iii.       recognise the inalienable right of women who have been raped to undergo voluntary termination of pregnancy if they wish, this right arising automatically from the rape;

iv.       recognise the right to report a rape to the authorities       as applying without limit of time and empower the prosecution service to institute ex officio proceedings;

v.       ensure that domestic courts apply the common Article 3 of the Geneva Conventions of 12 August 1949;

vi.       introduce strict witness-protection measures in rape cases, including post-trial protection;

vii.       set up special programmes for female rape victims, in particular multidisciplinary programmes which take the feminine dimension into account, and encourage women to look after female victims of rape and other sexual abuse;

viii.       make social-assistance arrangements and ensure fair treatment for female rape victims who do not terminate a resultant pregnancy and who, for various reasons, have to or decide to keep the child in order to avoid marginalisation;

ix.       set up training programmes for persons required to deal with and help rape victims;

x.       establish programmes of education in tolerance, respect for human dignity and general human rights;

xi.       provide the necessary administrative and financial resources for such programmes;

xii.       ensure that court benches trying crimes of sexual violence against women are composed of equal numbers of men and women, with specially trained staff;

xiii.       apply international humanitarian norms generously to help rape victims obtain asylum.

II.       Explanatory memorandum by Mrs Stanoiu

Introduction

1. Today conflicts and war are on the increase. Unfortunately we live in growing insecurity and personal vulnerability. Violations of humanitarian law are increasingly frequent and serious. In various parts of the world people despair of order and continuity. Consistency is a safeguard against chaos and many people face catastrophic disorganisation in their private lives and environment on account of constant exposure to violence and death and a multiplicity of human suffering. Virtually all members of the community are affected by the contextual violence, regardless of its forms.

2. In armed conflicts today, the principal victims are the civilian population, with women accounting for the great majority among them. Acts of aggression are directed against civilians in general, either directly or in the form of reprisals, but women are the preferred targets because they represent the ultimate guarantee of family unity. To target them is to humiliate or destroy the whole community. And so, rape has increasingly become a weapon of war.

3. Women have become the foremost victis of violations of international humanitarian law such as gang rape, forced prostitution, sexual slavery, forced insemination, torture and sexual abuse. But, alas, such violations are all too often ignored.

4. In 1993, the Croatian association called “Zagreb Help” set about informing the public about war crimes committed against women and the use of rape for political purposes and found a huge conspiracy of silence surrounding the problem of rape.

5. From the outset all the victims refused to admit to having been raped, and this made it impossible to gather accurate information.

6. However, the international community made rape a public issue with the result that rape in armed conflict has never been so fully aired or given such public attention.

A.       A necessary distinction: rape in peacetime and in wartime

7. Peacetime rape is itself a traumatic experience resulting in great psychological damage to the victim; the trauma can only be worse in wartime. Furthermore, wartime rape is never an isolated incident, but generally repeated, unchecked and frequently unpunished.

8. Wartime rape is worse than “ordinary” rape and is accompanied by other war-related trauma: loss or death of husbands, children, parents or friends, loss of property, etc.

9. Loss of home is crucial for the individual because it entails the loss of important social symbols and generates a feeling of powerlessness, despair and loss of belonging. All these occurrences have a cumulative traumatic effect. The brutality that accompanies them, especially rape, makes these victims’ situation special.

10. Women raped in wartime do not form a homogeneous category of victims. Some victims such as pregnant women, mothers of young children and widows with dependent children are especially vulnerable. In addition, war changes women’s lives because they often have to take the place of their absent husbands and shoulder responsibility for the family. For that reason, women deserve special attention.

11. As already explained, wartime rape differs from sexual assault in peacetime in that it is committed in a political context which often engenders organised violence. While specialists are fairly familiar with certain kinds of loss (inevitable losses such as the death of parents, declining health in the elderly, etc), much less is known about violations of the person and how to cope with them, especially when committed in wartime.

12. Specialists take the view that while some losses leave relatively few lasting effects, this is not true of rape. Rape is a loss which diminishes self-esteem, prompts self-doubt and and a feeling of reduced social worth.

13. According to the research, victims of rape in peacetime frequently suffer from post traumatic stress disorder (PTSD), which may last from a few weeks to several years. Long-term studies show that 17% of victims display chronic PTSD up to 15 years after the event. However, no data are at present available for the long-term incidence of PTSD in women raped in wartime.

14. According to the International Classification of Diseases, disorders are the result of severe acute stress and persistent trauma, without which they do not occur. Although particular symptoms placed in this category may be associated with other disorders, the clinical picture enables them to be assigned to one of the following morbid conditions: acute stress reaction, post traumatic stress disorder (PTSD) or maladjustment. PTSD presents relatively characteristic clinical features inducing impairment of individual defense mechanisms and social behaviour. Such disorders are rarely chronic and occur when the patient is subjected to intense stress. These characteristic symptoms occur mainly “following exposure to an extreme stressor involving direct experience of an event that involves actual and threatened death or serious injury … or learning about unexpected or violent death … or threat of death or injury experienced by a family member or other close associate.”

15. The reality of the phenomena and the growing number of victims of violence, including sexual violence, show how necessary such studies are. Apart from their theoretical interest, they would help answer important urgent practical questions concerning port-traumatic recovery and readjustment.

B.       Rape in wartime: psycho-social perspective

16. Sexual violence must be regarded as a particular kind of torture: at once sexual, physical and psychological. According to the WHO (World Health Organisation) definition, sexual torture means any sexual act of physical or mental violence resulting in sexual humiliation committed with the aim of manifesting aggression and causing physical and mental harm.

17. This sheds a new light on rape in wartime, casting it as a particular kind of war trauma and raped women as victims in a situation of extreme distress. It cannot be emphasised enough that women raped during armed conflicts are victims several times over.

18. From the psycho-social standpoint, this justifies regarding rape in wartime as a particularly serious war crime. It follows that these vulnerable victims must be taken care of and that compensation schemes warrant special consideration.

19. The police and everyone responsible for investigating or prosecuting rape must demonstrate to the victims their confidence in the maintenance, or restoration as the case may be, of the rule of law and the administration of justice. This position is moreover firmly endorsed by the feminist attitude, which is the whole issue must be seen primarily through women’s eyes.

C.       Appeal for change

20. International humanitarian law protects all victims of armed conflict. It prohibits all attacks on civilians, regardless of sex. According to the International Committee of the Red Cross (ICRC), some fifty provisions of international humanitarian law concern non-discrimination or provide for special protection for women. According to the principle of impartiality, all victims are entitled to protection and assistance, although priority must be given to the most urgent cases.

21. The principles of non-discrimination and special protection for women must be applied in all conflicts, whether international or not.

22. Humanitarian law recognises the need to accord women special provisions to preserve their integrity and dignity (prohibition of rape and affronts to their honour) and protect motherhood (protection of pregnant women and mothers of young children).

23. According to the Geneva Conventions (Art 3, para 1; Protocol II, para 1), the following principles must be respected:

24. Mention must also be made of the very precarious situation of women prisoners who are more likely than men to be raped or forced into prostitution.

25. Unfortunately, sexual violence against women during armed conflicts mostly goes unpunished. Every effort must be made to correct this situation by securing application of the existing rules and finding new means to encourage their application. According to a recent study, when women are subjected to inhuman treatment in the form of sexual abuse, such crimes are always treated as less serious than other, non-sexual abuse, even though they perfectly fit the legal definition of war crimes.These considerations may be taken into account and translated into specific measures.

26. The internationalisation of protection of the individual must adapt to the actual situation. This already seems to have happened in terms of positive law regarding the improvement of enforcement machinery, but much remains to be done – often for lack of political resolve.

27. Even though this lack of political will may be explained by the sometimes considerable discrepancy between the proclamation of such rights and their actual enjoyment, it must nonetheless be deplored and it is therefore difficult not to include these rights violated by rape during armed conflicts among the so-called “inviolable” rights.

28. More energetic standard-setting efforts are therefore required of the international community, particularly in relation to armed conflicts, so as to place more direct legal responsibility on the state authorities.

29. The new forms of violence that have developed in armed conflicts, systematically or for political purposes, must be met with a comprehensive, unitary response, based on the certainty of appropriate and proportionate punishment. Lawyers agree that, in order to measure up to the reality, this requires even more precise rules to provide a greater deterrent against rape committed during armed conflicts for ethnic, racial or other political reasons. Definition of the offence could be backed up by procedural measures designed to prevent impunity, serving as both a deterrent and a remedy.

30. International justice must be made more effective. But before it comes into play, a system of national and international control needs to be put in place to monitor application of the appropriate rules, in order to prevent serious violations of fundamental rights.

D. Internationa humanitarian law: legislation and practical difficulties

31. International humanitarian law, which is largely based on the application of substantive rules and procedural machinery by the states parties to the relevant legal instruments, is still a traditional form of law compared to international law on human rights, where the role of the individual has developed to the point of acquiring the status of subject of international law. In the case of international humanitarian law, human beings are simply the objects of the relevant rules and principles and the state occupies a much more privileged position.

32. Politically, this approach is rooted in international diplomatic relations and is legally enshrined in Article 45 of the 1961 Vienna Convention on Diplomatic Relations with its principles of reciprocal commitments and state sovereignty, thus making the will of individual states the most important factor.

33. If international human rights law (IHRL) and international humanitarian law (IHL) were brought more closely into line, the position of the victims of violations of humanitarian rules could be further strengthened, if not through a form of collective action procedure open to groups or categories of persons to which the victims belong, then at least by granting the victims the right to lodge individual applications to the international courts, coupled with effective protection.

34. In fact, there are certain fundamental rights that are common to international humanitarian law, as set out in Article 3 of the four Geneva Conventions of 1949 and Articles 75 and 4-6 of their additional protocols of 10 June 1977, and international law on human rights, defined as those from which there can be no derogation, as provided for in Article 15.2 of the European Convention on Human Rights and Article 4 of the International Covenant on Civil and Political Rights.

35. One thing should be made clear from the outset: if with Article 3 common to the four Geneva Conventions , IHL took a first step outside the traditional framework of the law governing relations between sovereign states, it took another with the adoption of the 1977 protocols. These stated that “in the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions …” (which concern the protection of all persons taking no active part in the hostilities, such as the sick and wounded).

36. A step was also taken when entities other than states were given a legal status, albeit under limited circumstances. Thus, the scope of Protocol I and the Geneva Conventions to which it is related was extended to “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations” (Protocol I/1977 Article 1, sub-paragraph 4). The scope of Protocol II was later extended to “all armed conflicts which are not covered by Article 1 of the Protocol Additional relating to the Protection of Victims of International Armed Conflicts (Protocol I) (…) and which take place in the territory of a High Contracting Party” (Protocol II/1977 Article 1, sub-paragraph 1).

37. Changes in the rules of IHL concerning the extension of the categories of protected persons could also be underlined. At first, before the Second World War, these rules had been concerned only with protecting members of armed forces. Later, guarantees were adopted, through the fourth Geneva Convention of 1949, on protection in a general way of civilians in time of war, with special protection being afforded to women and children (Convention IV/1949 Article 16, sub-paragraph 1 and Articles 24, 50 and 68, sub-paragraph 4; above all, Protocol I Articles 75-78). This change reflected a greater awareness of the most innocent victims of armed conflicts.

38. Thus, Article 75 of Protocol I, providing for fundamental guarantees concerning the human treatment in all circumstances of persons in the power of a party to a conflict, institutes protection “without any adverse distinction based upon race, colour, sex, language, religion” and so on.

39. A minimum list of acts, which include “torture of all forms, whether physical or mental” and “outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault” are “prohibited at any time and in any place whatsoever”, thus guaranteeing the associated fundamental rights, which can henceforth be considered in IHL to be absolute. Lastly, Part IV, Section III, Chapter II of Protocol I describes the protection granted to women and children; Article 76 expressly provides for women to be protected “in particular against rape, forced prostitution and any other form of indecent assault” and states that they “shall be the object of special respect”.

40. While this wording imposes a general positive obligation on parties to the Protocol to offer women special respect, the following paragraphs of the same article provide for pregnant women and mothers with infants who are arrested, detained or interned to be given priority in having their cases considered.

41. The final paragraph requires parties, unfortunately in imprecise terms, to avoid as far as possible pronouncing the death penalty on these categories of women and to avoid carrying out such sentences.

42. Finally, Protocol II to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of Non-International Armed Conflicts, also adopted in 1977, develops and supplements the Conventions’ common Article 3 by extending the scope of international humanitarian law to all armed conflicts “which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations”.

43. Article 4 reiterates the protection of women in armed conflicts against rape “at any time and in any place whatsoever”, as part of an express prohibition of “outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault”.

44. According to the International Committee of the Red Cross (ICRC), some 50 provisions of IHL enshrine the principles of non-discrimination, impartiality and special protection for women in armed conflicts. As a particularly vulnerable category of victims, women should therefore enjoy special protection to preserve their physical and psychological integrity.

45. This brief overview of the provisions of IHL, focusing particularly on the protection of women, leads to a third comment on the current scope of the relevant legislation.

46. These rules, which may be defined as positive, are concerned with two distinct situations: the fighting itself and events external to the fighting. This is a very important distinction, since the development of IHL reflects the situations in which it applies, which constitutes both its strength and its weakness. It is also in this context that it seems relevant for the rape of women in armed conflicts to be included in the core group of forms of conduct “prohibited at any time and in any place whatsoever”.

47. It is in any case regrettable that there is no international court with general authority to apply the rules of IHL.

48. Thus, although states are required to enact any legislation necessary to provide effective penal sanctions against persons committing breaches of the Geneva Conventions or having failed to fulfil their obligations under IHL (Convention IV Article 49 and Protocol I Article 80), it is nonetheless imperative that such legislation be enforced.

49. It is therefore to be hoped that the new International Criminal Court, acting as a fully-fledged tribunal, will give priority to the general and ongoing application of the most fundamental humanitarian standards and human rights, that it will prove a more effective means of fulfilling the preventive role of humanitarian rules and standards by scrutinising their application and that it could eventually contribute to the development of specific domestic courts.

50. Moreover, since the so-called “protecting powers” system, which goes back to the origins of the Geneva Conventions, has not been applied for the forty years of its existence (examples: Suez 1956, Goa 1961 and Bangladesh 1971), the application of humanitarian law must be based explicitly on the principle of the dual responsibility of the public authorities (criminal and civil) towards persons in their power, whether legally or de facto, and towards the international community.

51. The considerable progress made since the adoption of Secretariat Council Resolution 827 setting up the International Criminal Tribunal for the former Yugoslavia with effect from 1 January 1991 cannot be ignored, even though there is a growing body of criticism of its limited terms of reference and resources, as well as of the lack of international support for this court.

52. The Council of Europe has also made a key contribution to the development of this judicial machinery, and its determined support for setting up the International Criminal Court, as in Parliamentary Recommendations 1189 (1992), 1218 (1993) and 1408 (1999), has helped to advance the international protection of humanitarian law.

53. Rape as a war crime is included in the list of serious criminal offences of the ad hoc international tribunals for the former Yugoslavia and Rwanda. Sexual assault and rape were also strongly condemned at the 26th International Conference of the Red Cross and Red Crescent. Moreover, under Article 7, paragraph 1(g) of the Statute of the International Criminal Court, “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity constitute crimes against humanity”. Article 8 provides that these forms of sexual assault are war crimes, whether or not the armed conflicts concerned are international.

54. A further important advance in the Court’s Statute can be considered to lie in the definition of “forced pregnancy” as “the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population” (Article 7, paragraphs 1 and 2 (f)).

55. Other areas of progress concern the responsibility of individuals guilty of these crimes and, above all, the measures provided for in the Statute to protect the victims and witnesses of these serious offences (Article 15, paragraph 3 of the Statute of the Court).

56. While we should welcome the adoption, in Rome on 17 July 1998, of the Final Act of the diplomatic conference of plenipotentiaries on the establishment of an international criminal court, we must not lose sight of the act's inherent weaknesses and of what still needs to be achieved before it is implemented. If the court is to become operational, the act will have to be ratified by at least sixty states.

57. Given that six states have ratified the treaty and about the same number are preparing to do so (France, Germany and Austria, among others), our optimism must remain muted.

58. In view of the urgency, we must redouble our efforts to ensure that the court becomes operational and, to this end, the Council of Europe must play its part in ensuring that the treaty comes into force and headway is made on the issue of trying serious violations of humanitarian law.

59. Apart from the objective of bringing the treaty into force, it is equally important to ensure that the work of the preparatory commission for the international criminal court, which is responsible for drawing up rules of evidence, together with procedural rules concerning the exercise of the rights of the victims of violations (including rape and other forms of physical violence against women), is concluded by 30 June 2000.

60. The Council of Europe must therefore offer assistance with this work and share its expertise so that member states can ratify the treaty as soon as possible and accept the full jurisdiction of the international criminal court without taking unreasonable advantage of Article 124 of the statute, which provides for a delay of seven years before states need accept its jurisdiction in respect of Article 8, which concerns war crimes.

61. To summarise, there has been a transition in international humanitarian law towards a model governing the conduct of the authorities (in law and in practice) and safeguarding the fundamental rights of victims, in particular women and children.

62. This is the background to the process of codifying and amalgamating rules, which focuses on more clearly defined targets, as in the case of the crimes of rape in international and non-international armed conflict and other forms of sexual violence of comparable seriousness. Articles 26 and 53 of the 1969 Vienna Convention, concerning respectively the obligation to apply ratified treaties and the binding nature of a large part of humanitarian law, are now more relevant than ever. Encouraging governments to observe these rules and accept greater responsibility for preventing rape in armed conflict is a priority that requires close attention.

63. Nevertheless, other, more routine, measures concerned with implementing humanitarian law, for example in the legislative (establishing domestic criminal penalties for non-compliance with the Geneva conventions), organisational and educational fields, are also important. Incorporating international humanitarian law and international law on human rights into contracting parties' domestic law and their direct application by the national authorities would make an important contribution to implementing these rules.

64. These measure must offer an effective response to the principal causes of violations of international humanitarian law, to encourage the development of national case law, on the subject. In this context, it goes without saying that countries that have not ratified the 1974 Convention on the non-applicability of statutory limitation to crimes against humanity and war crimes should do so as soon as possible.

65. As has already been stressed, rape is a war crime and appears as such in the list of crimes against humanity included in the statutes of the international criminal tribunals for the former Yugoslavia and Rwanda.

66. There is no longer any doubt that rape, sexual slavery, enforced prostitution, forced pregnancy, forced sterilisation and all other forms of sexual violence constitute war crimes. The fact that these crimes, whether committed in international or non-international armed conflicts, also fall within the jurisdiction of the international criminal court is a major achievement in the struggle against impunity.

67. In the ICRC's experience, the tragic situation of the women affected by armed conflict does not stem primarily from a lack of humanitarian rules to protect them but rather from a failure to interpret and implement existing rules coherently. All concerned with the rape of women in conditions of armed conflict have to act according to their expertise and attributions, but emphasis on certain aspects based on a gender-specific approach would seem to be of great potential benefit.

E.       Coercive and remedial measures to be taken to help women who are the victims of rape or other forms of sexual violence during an armed conflict

68. Women subjected to sexual violence of any form during armed conflict have to be given special treatment as victims. Account must be taken of their situation before and after they experience trauma and of the consequences of rape, and special therapeutic assistance strategies must be devised for them.

69. Three categories of women have to be distinguished:

a.       women who were raped but did not become pregnant;

b.       women who became pregnant as a result of rape but had an abortion or miscarriage;

c.       women who become pregnant as a result of rape and gave birth to a child.

70. When a women gives birth to a child after a rape-induced pregnancy, the child is usually abandoned or put up for adoption, for psychological reasons. The pregnancy and the act of birth are experienced only on the physical and physiological level and not the psychological level; eventually, this may lead to rejection and infanticide.

71. The situation of children born as a result of an unwanted pregnancy must be given serious consideration from the legal and non-legal points of view.

72. Provision must also be made for free access to abortion for women become pregnant as a result of rape.

73. Schemes must be devised and measures taken to ensure early diagnosis and provide support, treatment and psycho-social rehabilitation for women suffering from a post-traumatic stress disorder - regardless of the form it takes and the name it is given - with special attention being paid to the three categories of victims mentioned above. Special measures must be taken in three areas:

a.       medical assistance (all types of health care);

b.       psychological support (to set restorative processes in motion);

c.       social assistance (humanitarian aid; social and economic rehabilitation).

74. The assistance, in all its forms, must be provided by qualified staff trained to deal with problems specific to women and fully familiar with the problems associated with rape. Co-operation among professionals and between specialists and non-specialists (including victims) considerably increases the effectiveness of the measures taken. Psychological support should be designed mainly to restore the victim's confidence so that she can lead a normal life again.

75. Psychological support should be provided not only to the women concerned but to their families and others close to them.

Conclusion

76. International humanitarian law must be strictly enforced, as must the 1949 Geneva Convention and the protocols to it. Governments are therefore urged to ratify or accede to the international instruments containing provisions on the protection of women during armed conflict.

77. Governments engaged in armed conflict should also:

a.       strictly observe the rules of international humanitarian law;

b.       denounce and condemn the systematic use of rape;

c.       reaffirm that rape committed during an armed conflict is a war crime and, in certain circumstances, a crime against humanity;

d.       take all the necessary steps to protect women against rape;

e.       ensure that women who are victims of rape are provided with assistance and that qualified staff are available to provide assistance in all its complex forms, in the context of specific programmes.

78. Obligations and rules should be introduced to ensure that courts responsible for trying offences of this kind are composed of equal numbers of men and women and have staff specially trained in matters of sexual violence. Courts should be recommended to seek expert advice on all aspects of sexual violence perpetrated in wartime.

79. Steps should be taken to foster a culture based on tolerance and the protection of women, in order to facilitate a return to normal and rehabilitation of the populations concerned once the conflict is over. This would pave the way for a more responsible attitude and more widespread action to combat rape perpetrated during armed conflict.

80. Rape is treated as a particularly serious criminal offence in the national legislation of all countries and carries the appropriate penalties, even though the relevant statutory provisions differ somewhat.

81. While countries' domestic legislation generally devotes the necessary attention and resources to this crime in peace time, this is not necessarily the case during armed conflicts. Countries that have not yet made rape in armed conflicts, states of emergency or other comparable circumstances a domestic criminal offence, to be treated as a more serious version of the offence of rape in peace time, should - indeed must - take steps to define such an offence and introduce appropriate penalties. Most European countries' legislation provides for exceptional circumstances such as states of emergency or of necessity, often in the same constitutional provisions as those safeguarding individual public rights and freedoms, accompanied by the suspension of the exercise of certain of those rights and freedoms.

82. As a result, despite the safeguards and international notification system applicable to such exceptional cases, and in view of the fact that rape during armed conflict is aggravated by other traumas linked to war, such as the death of loved ones or the loss of the necessities of life, international protection "at all times and places ", as part of the core of absolute fundamental rights, is still the most important way of combating wartime rape.

83. Despite their potential for improvement, international humanitarian law and international law on human rights could even now be applied concurrently by existing international human rights courts, since the rights in question form part of jus cogens and constitute principles of international law.

84. Rape during armed conflict needs to be identified as an outrage against personal dignity prohibited "at all times and places.

85. A further factor is the complementary nature of international humanitarian law and international law on human rights, since these two branches of international law have the same objective and the simultaneous application of the two categories of rules could make them more compatible and effective.

86. A universally applicable convention which, at the very least, explicitly enshrined and proclaimed the principles of proportionality, non-discrimination and inviolability of the four common rights provided for in the three principal human rights treaties would be a simple and effective way of registering all the customary law and rights coming within the ambit of jus cogens, from which there can be no derogation.

87. These core rights would also include protection against rape during armed conflict, based on both the obligatory clauses of the main international human rights instruments (such as the United Nations Covenants and the European Convention on Human Rights) and an absolute ban on torture and inhuman or degrading treatment or punishment.

88. Apart from the immediate measures mentioned, which are needed to provide effective deterrents and punishment for rape during armed conflict, much still remains to be done to identify the various exacerbating factors, in both domestic and international law: a distinction needs to be made between individual and collective rape, and between unpremeditated rape and rape organised for political ends, as part of ethnic cleansing or for other reasons.

89. Lastly, it is important to improve the standing of rape victims in armed conflicts by placing the burden of proof (in law or in practice) on the authorities accused of tolerating or even encouraging or organising such crimes.

Reporting committee: Committee on Equal Opportunities for Women and Men

Reference to committee: Doc 6770 and 7880, References Nos. 2294 and 2295 of 26 May 1998

Budgetary implications for the Assembly: none.

Draft resolution unanimously adopted by the committee on 29 February 2000.

Members of the committee: Mrs Roudy (Chairperson), Mrs Busic, Mrs Poptodorova, Mrs Keltosova (Vice-Chairpersons), Mrs Aguiar, Mr Anusz, Mr Browne (alternate: Mr Connor), Ms Calner, Ms Cryer, Mrs Dade, Mrs Dromberg, Mrs Err, Mr Felici, Mrs Frimannsdóttir, Mrs Gatterer, Ms Gülek, Mr Hadjidemetriou, Ms Herczog, Mr Jakic, Ms Jones, Mrs Katseli, Mr Kofod-Svendsen, Ms Kulbaka, Mr Kurykin, Mrs Laternser, Ms Lörcher, Mrs Nagy, Ms Ninoshvili, Mrs Paegle, Mrs Paleckova, Mr Popovski, Mrs Pozza Tasca, Mrs Pulgar (alternate: Mrs Calleja), Mr Pullicino Orlando, Mrs Ringstad, Mrs Serafini (alternate: Mr Risari), Mr Sobyanin, Mrs Stanoiu, Mrs Süssmuth, Mr Truu, Mrs Zapfl-Helbling (alternate: Mrs Vermot-Mangold), Mrs Zwerver.

N.B. The names of the members who took part in the meeting are printed in italics.

Secretary of the committee: Mrs Nollinger