Prosecuting Sexual Violence in Libya

Following the tumultous period of regime change and after, Libya is working to create a path to prosecute sexual violence in the period when the conflict unfolded in the country. Wartime sexual violence is largely a reflection of the conditions prevalent in peacetime, although it is manifested in greater magnitude during conflict. Sexual violence is used in a conflict setting not as a by-product or as a crime of opportunity, rather as a weapon of choice as a strategically planned crime.

Over the past three months, I’ve been working with a friend to develop prosecution strategies for sexual violence in wartime, by drawing upon jurisprudence from the ICTY, the ICTR and the ICC. We’ve been surveying extracts from case laws, scholarly articles and books. There is copious material through written judgments and statutory provision that speaks tremendously of how sexual violence falls on the wrong side of law as being a constituent crime of ‘war crimes’, ‘genocide’, ‘crimes against humanity’ and ‘torture’. But what caught my eye was an interesting theory I chanced upon: on how the prohibition on sexual violence could be bracketed under the ambit of jus cogens.

Jus cogens norms are those from which no derogation shall be permitted, much less tolerated. There is no clear agreement as regards precisely which norms are jus cogens, nor how a norm reaches that status, but it is a generally accepted notion that jus cogens includes the prohibition of genocide, maritime piracy, slavery, torture, the prohibition of the use of force and the threat to use force, and wars of aggression and territorial aggrandizement.[1] The most famous jus cogens norm is the prohibition of the use of force, and the threat to use force in international relations, a rule that is both crystallized in treaty law[2] and in Judicial opinion.[3] For a jus cogens norm to be created, the principle must first be established as a rule of international law and then recognized by the international community as a peremptory rule of law from which no derogation is permitted. The number of peremptory norms though generally considered limited have at no point been exclusively catalogued. They are not listed or defined by any authoritative body, but arise out of case law and changing social and political attitudes. Generally included are prohibitions on waging aggressive war, crimes against humanity, war crimes, maritime piracy, genocide, apartheid, slavery, and torture.[4]

This is especially true in Libya's case. Whether it was in the cries of the young lady at the lobby of a hotel to a bewildered audience of journalists, or in Gaddhafi's policy of distributing Viagra to his troops with orders to rape women. Prosecuting sexual violence in the Libyan context will clearly need the involvement of some of the major strategies - such as joint criminal enterprise and command responsibility and the interpretation of wartime rape and sexual violence to come under specifically established crimes in International Criminal Law. The decisions in Akayesu, Furundzija and Celebici are specifically enunciative of the crimes one can be indicted with in a conflict setting.

Special care needs to be taken, though, to ensure that procedure does not obfuscate the substantive as it did in Guatemala.

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[1] M. Cherif Bassiouni. (Autumn 1996) "International Crimes: ‘Jus Cogens’ and ‘Obligatio Erga Omnes'." Law and Contemporary Problems. Vol. 59, No. 4, Pg. 68.

[2] UN Charter, A.2(4)

[3] Nicaragua v. US ICJ Reports, 1986, pp.14, 102; 76 ILR pp.349, 436; Legality of the Threat or Use of Nuclear Weapons Advisory Opinion, ICJ Reports, 1996, para 70; 35 ILM 1996 pp.809 and 826

[4] Ibid