Da’esh has developed a widespread and systemic practice of rape, sexual slavery and forced marriage. They have published an entire doctrine codifying their practices. In so doing, they are committing crimes against humanity.
The Rome Statute of the International Criminal Court recognises rape, sexual slavery, forced pregnancy, forced sterilisation and other forms of sexual violence as crimes against humanity if the action is part of as part of a widespread or systematic attack directed against any civilian population.
‘Widespread or systemic’
Case law from the International Criminal Tribunal for Rwanda defines “widespread” as massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims.
“Systematic” is defined as thoroughly organised and following a regular pattern on the basis of a common policy involving substantial public or private resources. There is no requirement that this policy must be adopted formally as the policy of a state. There must however be some kind of preconceived plan or policy.
In Iraq and Syria
Human Rights Watch have documented Da’esh’s system of organized rape and sexual assault, sexual slavery, and forced marriage. There is dedicated infrastructure for the enslavement, trafficking and rape of women and girls in Iraq and Syria. Investigations have uncovered a network of warehouses where the victims are held, viewing rooms where they are inspected and marketed, and a dedicated fleet of buses used to transport them. According to the New York Times, a total of 5,270 Yazidis were abducted in 2014 alone. To handle them, Da’esh has developed a detailed bureaucracy of sex slavery, including sales contracts notarized by their own court system. In order to comply with their doctrine on sexual slavery, women are forced to take oral contraceptives to ensure they do not get pregnant while being raped.
The crime against humanity of sexual violence requires that the perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act 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 another person, or by taking advantage of a coercive environment. The sexual violence must be of sufficient gravity as other crimes against humanity.
The crime against humanity of rape is defined in the Rome Statute as the invasion of the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body. The invasion must be committed by force, or by threat of force or coercion, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent. Precedent for this crime was set by the International Criminal Court when they found Jean-Pierre Bemba Gombo guilty of the crime against humanity of rape as a commander in the Central African Republic. The Court found that where “force”, “threat of force or coercion”, or “taking advantage of coercive environment” is proven, the Prosecution does not need to prove the victim’s lack of consent.
The crime against humanity of sexual slavery includes that the perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty. Additionally, the perpetrator caused such person or persons to engage in one or more acts of a sexual nature.
The Special Court for Sierra Leone has also found that forced marriage is a crime against humanity, as an “other inhumane act”. The elements of crimes of an “other inhumane act” include that the perpetrator inflicted great suffering, or serious injury to body or to mental or physical health, by means of an inhumane act. Such an act must be of similar gravity to other crimes against humanity. In 2008, in the case of Prosecutor v. Brima, Kamara, and Kanu, the Special Court for Sierra Leone found that forced marriage is a crime when a perpetrator forces a victim into a forced conjugal association resulting in great suffering or serious physical or mental injury on the part of the victim.
Applicability in Australia
The principle of complementarity of the International Criminal Court obliges States Parties to investigate and prosecute the crimes outlined in the Rome Statute. Each of these crimes is integrated into Australian legislation in the International Criminal Court Act 2002 and the International Criminal Court (Consequential Ammendments) Act 2002 and thereby incorporated into Division 268 of the Criminal Code Act 1995.
Implementation of these laws would also support the implementation of Australia’s National Action Plan on Women, Peace and Security 2012-2018. The National Action Plan is based on the suite of United Nations Security Council Resolutions on Women, Peace and Security. The first of those resolutions, UNSCR 1325 emphasised “the responsibility of all States to put an end to impunity and to prosecute those responsible for genocide, crimes against humanity, and war crimes including those relating to sexual and other violence against women and girls”. Most recently, UNSCR 2242 reiterated the need for the “implementation of relevant obligations under international humanitarian law and international human rights law.”