Analyzing Rape as Weapon of War in South Sudan’s Conflict Jun. 09 National, Uncategorized no comments
By: Mabor Maker Dhelbeny, South Sudan, JUN/09/2017, SSN; As the conflict of South Sudan erupted in 2013, some men in uniforms used rape as weapon of war. In law, such people are called sexual offenders or perpetrators. These perpetrators used rape as weapon of war in the sense that both women and men are being raped during the conflict. Rapists are fond to rape women and girls without remorse in fomenting the war. Thousands of South Sudanese Refugees fleeing conflict to neighbouring countries of Ethiopia, Kenya and Uganda, have also experienced the risk of being raped on their way. With glimpse of hope thereafter three (3) years of the fighting, the Agreement on the Resolution of Conflict in South Sudan (ARCISS) was signed in August, 2015. Unfortunately, exactly after three (3) months with the presence of SPLM/A-IO forces in Juba, fighting recurred at the Presidential Palace popularly known as J1, on the 8th of July, 2016. This was the fighting that spread to Equatoria region in which rape was used by all sides to the conflict to destabilize communities in the country. Some residents in one of the Juba’s hotels terribly suffered the ordeal of rape as reported by some media outlets during the fighting. For instance, “five women working with humanitarian organizations were then raped”, Michael Woodward, the Manager of Terrain Hotel told The Dawn Newspaper during opening of the SPLA General Court Martial. The above-mentioned statement have been confirmed by the Military Prosecutor Col. Abubaker Mohamed Ramadan when he said: “There were a lot of investigations … and crimes found are crimes of murder, raping, looting and damaging properties inside [Terrain] hotel (See The Dawn Newspaper, page 1 to 3, published on Wednesday 31st May, 2017). Of course rape is a form of sexual violence, used as weapon of war by some armed men in uniforms with the aim to destabilize communities, to spread terror, and to tarnish image of the government in the eye of international community. Sexual violence however, can profoundly affect the social well-being of victims and individuals may be stigmatized and ostracized by their families or communities as a consequence. This demonstrates that the victims of rape, particularly women and girls may suffer depression, anxiety, loss of social competence, body image concerns, and isolation within the family or community. Other impacts include unwanted pregnancies and risk of infection with sexually transmitted diseases such as gonorrhea, syphilis and HIV/AIDs. Through sexual violence deaths may ensue as a result of suicide, HIV/AIDs infection or murder which occurred during sexual assault. This is because the acts of rape are often associated with beating, stabbing or cutting on the victims with sticks and knives respectively. In some countries with armed conflicts – for example in Rwanda and DRC, rape has been used as a deliberate strategy to subvert community bond and to impose ethnic cleansing. Hence, this might be the hidden agenda behind with the some soldiers, turned rapists and who would want to use rape as tool of ethnic cleansing. In absence of accurate figures collected on the number of victims raped in the areas affected by the conflict, this writer suggests that the human rights organisations should assess the number through reports in hospitals or health care centres. I guess the number of raped victims could not go beyond one hundred if compare to DRC’s records. On the 12th June 2006, the Military Court convicted and sentenced seven (7) combatants to life imprisonment for the mass rape of more than one hundred women and girls in Northern part of DRC since December, 2003. Internationally, the treaty of the Fourth Geneva Convention, 1949 and its Additional Protocol, 1977 prohibit the use of rape and other forms of sexual violence against women in wartime. It was not late until the war in the former Yugoslavia and the Rwandan genocide occurred in early 1990s, the issue of rape and other forms of sexual violence were placed on the table as the international humanitarian agenda. This prompted the United Nations Security Council (UNSC) to promulgate the formation of the two tribunals – i.e. International Criminal Tribunal for the Former Yugoslavia (ICTFY) and International Criminal Tribunal for Rwanda (ICTR). In the midst of 1990s, the UNSC resolved that rape and other forms of sexual violence must be included in the mandate of ICTFY and ICTR so that to prosecute the perpetrators accused and charged with war crimes and crimes against humanity. Legally speaking, rape and other forms of sexual violence such as sexual assault, forced marriage and prostitution have already been identified as crimes against humanity in human rights and international laws. In accordance with our domestic laws, rape is one of the sexual offences with maximum penalty of fourteen years. For instance, section 247 (1) of The Penal Code Act, 2008, provides that: “Whoever has sexual intercourse or carnal intercourse with another person, against his or her will or without his or her consent, commits the offence of rape, and upon conviction, shall be sentenced to imprisonment for a term not exceeding fourteen years and may also be liable to a fine”. Exceptional under the provisions of South Sudanese penal law is that “sexual intercourse by a married couple is not rape within the meaning of section 247, subsection 3 of The Penal Code Act, 2008”. In other words, a husband does not rape his wife. But this subsection of the above does not provide any condition to the married couple, just like any other laws from different countries in the world. For instance, in India the penal law provides that “sexual intercourse by a man with his wife, the wife not being under 15 years of age, is not rape”. It seems the legislature might have enacted the South Sudan penal law without providing the number of years, simply because of our customs and traditional norms, considered to be the basis of our marriages. This, however, is considered to be an exceptional reason and the sole purpose of the law. Unlike the South Sudan Penal Code Act, 2008, the United Kingdom Sexual Offences Act, 2003, provides that any sexual intercourse between a husband and his wife without her consent is a rape. See R vs. R (1993) 1 AC, 599, in which a husband was convicted for raping his wife. In the Sudan, if a husband has sexual intercourse with his own wife who has not attained puberty, it is considered as rape as mentioned in the case below. This has been established in the case of Sudan Government vs. Sayeed Mohamed Mazin and Another (1963), SLJR, where the Major Court for Confirmation held that: “Sexual intercourse by a husband with his own wife is rape if she has not attained puberty under section 316 of The Penal Code.” Therefore any ravishment of a woman without her consent or against her will, either by force or fraud is defined as rape. In Dinka (Jieng) language, the word “rape” is called “Yuet” or “Makpiny”. These two terms have different connotations. The former which means “knock down” involve force with which a young man used to have sexual intercourse with a woman or a girl against her will and without her consent while the latter happens when a man has sexual intercourse with a sleeping woman or girl at night without her consent. Such act is often common in rural areas with pastoralist young men. Traditionally, and as a culture, young men usually go in search for the place to sleep during the night hours. They would be allowed by parents to share the same mats with menstruated girls during sleeping hours at night in the same room. But as Arabs say, “night covers mountains”, so a young man may satisfy his lust with a girl at night in the same room or house. This demonstrates that rape is not a criminal sexual offence under the Dinka Customary Law in South Sudan. Customarily, this can be construed that local courts administered by the chiefs are more compensatory than punitive, compared to statutory courts. Under the statutory courts, crimes like rape or ‘yuet or mekpiny’ and etc.. are usually handled by the State. A man is said to have raped by having sexual intercourse with a woman under certain circumstances which fall under any of the four steps mentioned below: First, against her will. Second, without her consent. Third, with her consent obtained by putting her in fear of death. Fourth, with or without her consent when she is under age. This writer therefore recommends the following: (1) Victims of rape should be given access to psycho-social support so as to overcome the traumas suffered. (2) Victims should be provided with adequate medical and clinical services comprising with treatment and management care of pregnancy, sexually transmitted diseases such as HIV/AIDs. (3) Victims should also be guaranteed refuge and shelter such as POCs (Protection of Civilians) site in order to protect them from reprisals. (4) Legal aid should be provided freely to make victims able to prosecute the accused persons who have raped them. (5) Finally, the Transitional Government of National Unity (TGNU) should allow the establishment of South Sudan Hybrid Court (SSHC) with mandate to prosecute the perpetrators accused of war crimes and crimes against humanity such as rape, and other forms of sexual violence against women. In conclusion, rape of women and of men in my view would therefore amount as the used of weapon of war that forms part of attack on the enemy, typifying the conquest and degradation of captivities. Analytically, rape is often used as weapon of war to punish women for transgressing social or moral codes in the community, especially those living in the conflict affected areas. Briefly, it’s used as weapon of war to subvert community bond and as a tool for the imposition of ethnic cleansing. The Writer is Advocate & Legal Consultant, practicing law at Juba Law Chambers in Juba. 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