I. INTRODUCTION

Rape haunts woman on a daily basis: from a stranger approaching on the street to a violent person near dear to her. More than other crimes, fear of rape leads women, consciously or unconsciously, to restrict her movements and life choices. Woman has to ask whether it is safe for her to do this or that, thereby accepting restriction on her personal liberty and security. From an early age she is conscious of the fact that she is vulnerable to attack at any time because of her gender.

Rape is a crime of extreme violence. It is an expression of dominance, power, and contempt, a rejection of the woman's right, a denial of her being. Rape is first and foremost an act of aggression with a sexual manifestation. Rape is no doubt a human rights violation of the gravest dimension.

Rape has always occurred in peace and wartime. From the beginning of human history rape has always been one of war's unfortunate byproducts. It appears that wartime rape is inevitable and is accepted by political and military leaders and it is unfortunate that until recently was largely ignored. However it has been defined as a war crime since the earliest codifications of the laws of war.

II. RAPE IN WAR

Though the brutality of mass rape and the use of rape as a military strategy has come to mirror in the war in the former Yugoslavia, a close look at the history of women in war reveals, with shocking clarity, how terrible the situation is for women caught in the crossfire.

In primitive warfare, women were targeted as a means to avoid facing the enemy again by eliminating the source of manpower for future supply. In the ancient Greeks, Romans, and Hebrews, women were often seized as prize of war, along with the lands and livestock of the occupied state. Captured women might become wives, servants, slaves, or concubines.

In the ancient period women were regarded as property and rape committed on them was rather an injury to the male assets and to the community, but not to the woman. As there was no obligation to respect your enemy's property, women were not protected during warfare. In fact, so long as the rape of women was considered a crime against the male estate, the rape of the enemy women had a military benefit. Thus the body of women was in a way a battlefield of men's fight for power and property and the act committed on her is proof of the victory or loss of one or the other.

By the Middle Ages, women had gained some legal protection, at least on paper. Ordinance of War promulgated 1419 during the Hundred Years War (1337-1453) between France and England, in-criminated rape during war by a penalty of death. The sanction was not usually respected, especially to cities taken by siege in which the permission to rape was considered a major incentive for soldiers.

In the nineteenth and twentieth centuries, principles were codified for the protection of civilians in which legal protection for women improved. Explicit protection of women against rape was provided in The Hague and Geneva Conventions. Despite this obvious protection, the twentieth century was disastrous for women.

Although all civilians suffered a lot in the twentieth century, women were the ones that experienced more of wars' unfortunate consequences, including rape. On top of that, rape, which had always been an effective weapon of war, became a successful means to demoralize and destroy the enemy.

In World War I, German soldiers used rape and other atrocities with the intent to implant terror in the local population of Belgium and France. After the war, a commission created to investigate war crimes enumerated rape and forced prostitution as war crimes.

In World War II, rape was wide-spread in Europe and Asia. Before the International Militart Tribunal in Nuremberg, the French and Soviet prosecutors, who were responsible for establishing war crimes and crimes against humanity in Western and Eastern Europe respectively, introduced evidence of rape. During the Second World War the German troops used to rape women while they stormed the cities. Those people who tried to prevent them were tortured and severely punished Near the town of Borissov in Byelorussia, 75 women and girls who attempted to flee the abuse of the Gernmen troops were raped and half of them were murdered. Around Moscow region too, women were forcefully separated from their children and raped by the Germans. Many children died as a result of the rape they were forced to undergo by a group of German soldiers.

Despite the wide scale rape by the German troops, the International Military Tribunal (IMT) at the Nuremberg did not even mention the word rape in its voluminous judgment. The reason behind this is the involvement of the Alies in the crime of rape themselves. The most prominent example of this is the numerous rape conducted by the Soviet troops at the time of the capture of the city of Berlin. It was estimated that about 800,000 - 110,000 women were raped during that time. The Moroccan soldiers working for the French army also raped an alarming number of Italian Women in 1943-44

In the International Military Tribunal for the Far East (IMTFE), rape charges were brought against the defendants. In what came to be known as "Rape of Nanking" charges of rape were brought against the Japanese soldieries for the atrocities they committed on the women of the town of Nanking - China. Although none of the victims appeared before the court evidence was presented by affidavit and through missionaries who remained in the city.

The IMTFE found that the Japanese soldiers perpetrated rape of a sadistic and abnormal behavior on girls of tender age to very old women. Other than the women that were killed or mutilated after the rape the court found that approximately 20,000 cases of rape occurred only within the first month of occupation.

During the Vietnam War too, US soldiers frequently committed the crime of rape. These soldiers were charged on the courts martial but the cases were dismissed. Many Vietnamese women were forced into prostitution and some were forced into the military compound for the satisfaction of soldiers. The situation of Vietnamese women worsened even as they fled their country; in the Gulf of Thailand and the South China Sea thousands of asylum-seeking women were raped, torture, and killed. Even though mass rape in war and the use of rape as a weapon of war are as old as time, they have occurred within the recent years in EL Salvador, Guatemala, Liberia, Kuwair, Sudan, and the former Yugoslavia.

III. RAPE UNDER INTERNATIONAL HUMANITARIAN LAW

Rape and war have almost always been interlinked for centuries and it is obvious that rape is a crime under international humanitarian law is not that certain. The confusion arises on whether rape is a crime against women or against men and the community, and whether it is violence based on gender or an inhuman act, like torture. Feminists have the view that IHL has mischaracterized the crime and has ignored its gender aspects. Rape is regarded not as a violent attack on women but as a challenge to honor (whose honor is not entirely clear), and it has yet to be recognized as an assault motivated by gnder, not simply by membership in the enemy camp.

A. Rape as a Crime against Honor and Dignity

IHL has characterized rape as crime of violence, and most predominantly as a crime against honor and dignity. In the modern history of IHL and Lieber Code-instructions for the armies of the United States in the field, pre-pared by Francis Lieber, promulgated as General Orders No. 100 by President Licoln, on d24 April 1863, provided two provisions. The first gives special protection to women, in a provision that by context links women and family relations. The second prohibits rape upon penalty of death in this context, rape appears to be recognized as a violent crime. Although the Lieber Code was not an international document, it has nevertheless influenced the Hague Conventions in many significant respects. The 1874 Declaration of Brussels mandated respect for "the honor and right of the family." Article 46 of the Hague Regulations of 1899 and 1907, which has been construed to prohibit rape, requires respect for family honor and rights, the lives of persons, and private property, as well as religious convictions and practice." The Fourth Geneva Convention of 1949 incorporates these concepts in a provision giving women special protection against rape.

Article 27 states:

Protected persons are entitled, in all circumstances, to respect for their persons their honor, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.

Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.

Certain commentators on the Geneva Convention explains that the second paragraph of Article 27 was intended to protect family honor not the physical integrity of women. This clear from article 32, which lists violations on physical integrity, but no mention of rape was made. By prohibiting rape as an injury to honor the Geneva Convention overlooked the violent nature of rape. By referring to honor, the convention tried to protect the chastity, modest, purity and good name of women rather than to their dignity and esteem. The characterization of rape not as violence on the person but as a crime against honor shifts the interest to be protected from the women to the society at large. The massive physical and psychological attack to women seems to be ignored and the mere prosecution of the defendants on injury to honor or reputation rather than injuries to the person is not fair.

Rape is also not considered as a serious crime because it is omitted from the list of grave breaches under article 147 of the Geneva Convention. This would have given rise to universal jurisdiction and indicated the recognition given to the gravity of the crime. Recently the Red Cross and the US State Department have interpreted Article 147 to include rape.

Both the first and the second protocols of the Geneva Convention of 1977 are more enlightened in dealing with the crime of rape. The first protocol under article 75 refers to rape in war as a crime against personal dignity. The second protocol expressly refers to rape under article 76 "women shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other form of indecent assault." The 1949 Geneva Convention protects women in international conflict only but the 1977 Protocol I, Article 76 covers any woman in the hands of a party to an international conflict, and Protocol II, Article 4 protects women caught in non-international-armed conflicts. Although these protocols cover all women in armed conflict the Protocols have not been widely ratified, and are not considered by all to be customary international law.

B. Rape as a Crime Against Humanity

The Charter of IMT at Nuremberg defines crimes against humanity as murder, extermination enslavement, deportation, and other inhumane acts committed against any civilian population, before or during war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Although the list is not exhaustive rape is not found in the list of both the IMT and IMTFE, which shows that it is not given to priority.

Although on the Control Council Law Ten, an enactment that served as jurisdictional bases for the proceeding of Nuremberg trail, rape is listed as a crime against humanity, it was nevertheless not prosecuted in any of the subsequent trails. The principle on crimes against humanity is that it should be committed against a civilian population and requires proof of government participation or approval of systematic violence. An isolated case of rape is not sufficient to be a crime against humanity.

C. Rape as Genocide

The rape that was committed on a wide scale in the former Yugoslavia is one of the shocking weapons of genocide. Women were concentrated in rape camps and gung raped by Serbain men and they were kept there until it is too late to obtain an abortion. The main goal of the rapes committed by the soldiers of the Arab north on the Women of Christian south in Sudan and rapes of Muslim women from Bosnia and Herzegovina by Serbian men is a deliberate intention to inflict conditions of life calculated to bring about their physical destruction. For the most part, the rapes are not random acts, but appear to be carried out as deliberate government policy. These rapes reflect the policy of ethnic cleansing; rape is used as a means to terrorize and displace the local population, to force the birth of children of mixed "ethnic" descent in the group, and to demoralize and destroy the victims.

IV. CONCLUSION

The establishment of ad hoc International Criminal Tribunals for the protection of civilians is an important development in the realization of more effective mechanisms for enforcing international humanitarian law. The fact that rape and other forms of sexual violence in armed conflict have been prosecuted as war crimes is a major step forward. However wartime rape is mostly condemned just for its propaganda value by states, but is often overlooked or folded into a larger category of crimes against civilians when the time comes for prosecutions. Thus survivors of wartime rape have mostly been forced to die with their anguish crying for criminal and civil prosecution.

The fact that women have to bear so much at the time of hostilities is not mainly because of weaknesses in the rules protecting them, but because of insufficient observance of those rules. The protection given to women under international humanitarian law must become a reality. Constant efforts must be made to enhance knowledge of and compliance with the rules of international humanitarian law among the world population by using all available means.

References

1. Henry J. Steiner and Philip Alston, International human rights in context, law and moral, 2nd edition, 2000

2. http:/muse.jhu.edu/demo/hman-rights-quarterly/17.4niarchas, Catherine Nicolas, Women, War, and Rape: Challenges Facing The International tribunal for the Former Yugoslavia (1995)

3. www. commonlaw.com/Lieber.html-sk, Lieber code www.un.org/womenwatch report of the Special Rapporteur on violence against women.