LONDON — Crimes of sexual violence consistently result from large-scale conflict and war around the world. Rape and enforced prostitution, among other gender-based crimes, are used as a tool to enhance violence and domination and to spread fear among civilians. Whether systematic or isolated in nature, such acts leave devastating physical and psychosocial wounds among women, men and even children in conflict zones.
Despite the longstanding history and grave impact of these crimes, national and international communities have still failed to achieve strong, consistent standards for prosecution of crimes of sexual and gender-based violence. Judicial shortcomings contribute to the current widespread impunity enjoyed by perpetrators.
Given this present-day reality, the War Crimes Project at the Center for International Studies and Diplomacy, a program of the University of London School of Oriental and African Studies, is investigating the historical prosecution of crimes of sexual violence that occurred during World War II. This research is adding perspective to the urgent request by a growing group of advocates now to strengthen standards of prosecution for sexual and gender-based violence of the world’s courts and tribunals.
The research has revealed numerous cases of military personnel and even a brothel owner found guilty of war crimes revolving around sexual violence.
The timing is also coincident with increasing global awareness of the prevalence of sexual violence in conflicts, most recently in South Sudan and the Central African Republic. The British government is holding the first global conference to focus on ending sexual violence in conflict from June 10-13 in London, convened by William Hague, Britain’s foreign minister, and Angelina Jolie, the actress and a special envoy for the United Nations High Commissioner for Refugees.
The research by the War Crimes Project has found that trials supported by the largely unknown United Nations War Crimes Commission (UNWCC) of 1943 to 1948 successfully prosecuted for rape and enforced prostitution. The commission was initiated by 17 Allied nations during World War II to address the unprecedented legal violations that had occurred in the war and to prepare certain countries to investigate and bring to trial suspected war criminals in the European and East Asian theaters for war crimes, including crimes of sexual and gender-based violence.
Continuing research into the UNWCC further concludes that precedents established by the War Crimes Commission can offer valuable guidance for contemporary efforts of tribunals and advocates faced with resolving similar issues. These findings are outlined in detail in an article, “The Relevance of the United Nations War Crimes Commission to the Prosecution of Sexual and Gender-Based Crimes Today,” by Dan Plesch, Susana SáCouto and Chante Lasco in the latest issue of the Criminal Law Forum.
Legal grounds for prosecution of sexual violence originate in the mid-19th century. It was first addressed in Article 44 of the Lieber Code of 1863, a set of instructions signed by President Abraham Lincoln to Union soldiers during America’s civil war, dictating how soldiers should conduct themselves in wartime and named after Franz Lieber, a German-American legal scholar based at Columbia University. The code declared explicitly that “all rape” of “persons of the invaded country” was to be “prohibited under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offense.”
Later, Article 46 of the Hague Convention of 1899 stated that “family honours and rights, individual lives and private property, as well as religious convictions and liberty, must be respected. Private property cannot be confiscated.” The Hague Convention of 1907 reaffirmed this legal concept.
The Paris Peace Conference’s so-called Versailles List of war crimes of 1919 places “rape” as No. 5 and “Abduction of girls and women for the purposes of enforced prostitution” as No. 6 out of a total of 32, indicating its priority for crimes of sexual violence.
Article 3, common to the four Geneva Conventions, does not explicitly cite rape but addresses “outrages upon personal dignity.” Additional Protocols I and II go on to specifically mention enforced prostitution and rape, respectively.
World War II is historically recognized in international criminal law as providing the catalyst for significant development of legal standards of war. The legacies, however, of the two best-known initiatives of international criminal law stemming from World War II, the International Military Tribunals at Nuremberg and Tokyo, are tarnished by the notable absence of crimes of sexual violence in their governing documents and judgments.
Recently, however, released documents of the UNWCC, held at the UN Archives and Records Management Section in New York, detail some of the 2,000-plus national trials supported by the War Crimes Commission that resulted in successful prosecution of rape and enforced prostitution. These files reveal cases involving investigations of sexual and gender-based crimes by Australia, Belgium, China, Denmark, France, Greece, Italy, Netherlands, Poland, Yugoslavia and the United States. Most of these countries supported either national and/or military trials that successfully prosecuted acts of sexual violence as a war crime. Perpetrators were most commonly prosecuted for these charges among other crimes, but acts of sexual violence represented the sole charges in some of the cases.
One successful prosecution was the trial of Washio Awochi before the Batavia War Crimes Tribunal in 1946, convened by the Netherlands. Awochi, a Japanese hotelkeeper who ran the Sakura Club restaurant-bar in Batavia in Indonesia (then called the Dutch East Indies), exclusively for Japanese civilians from 1943 to 1945, was tried for having forced Dutch women and girls to prostitute themselves at the club. No girl or woman was allowed to receive fewer than two visitors every night; some females were as young as 12 and 14 years old.
The judgment delivered on Oct. 25 found Awochi guilty of the “war crime of enforced prostitution” and sentenced him to 10 years’ imprisonment. This marked one of the first times that enforced prostitution qualified as a war crime.
Rape was also charged in numerous circumstances. One case involved a Japanese sergeant, Yoshio Yaki, who was tried by an Australian military court in Rabual, Papua New Guinea, for tying a Chinese civilian to a tree, putting ants on her body and raping her. He was found guilty and sentenced to death by hanging on Dec. 13, 1945.
Another interesting case was the trial of a Japanese general, Tomoyuki Yamashita, in fall 1945 by a US military commission in Manila. The prosecution accused the defendant of being aware of and permitting unlawful acts of violence, including rape and attempted rape of local civilians and prisoners of war by men under his command in the Philippines. General Yamashita pleaded not guilty but was found guilty and sentenced to death.
While the legal committee of the War Crimes Commission discussed and debated the legality of many different complex criminal and humanitarian issues, committee documents accessed so far by the War Crimes Project do not reveal specific insights into a legal definition of crimes of sexual violence, nor do they help to clarify details of the legal thinking around these issues at that time. These prosecutions, however, show that the crimes were tried successfully as war crimes after World War II in both Europe and East Asia.
Large-scale conflict will no doubt continue, and serious crimes of sexual violence will still accompany some of these conflicts. The international community must ensure that strong legal standards are enforced to protect present and future victims of sexual and gender-based violence war times. Looking to the work of the War Crimes Commission and the national trials that it supported provides valuable precedent in considering current international justice initiatives aiming to bring perpetrators of such crimes to justice.
[This essay was updated on May 29, 2014.]