The Systematic Use of Rape as a Tool of War in Darfur: A Blueprint for International War Crimes Prosecutions

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"They grabbed my donkey and my straw and said, 'Black girl, you are too dark. You are like a dog. We want to make a light baby.... They said, 'You get out of this area and leave the child when it's made.'"

--Sawela Suliman, a 22-year-old rape victim from West Darfur (1)

The conflict in the Darfur region of Sudan has displaced nearly 2 million civilians and left another 150,000 to 300,000 dead. However, such numbers hardly do justice to the horrors that the civilian population in the area has been forced to endure at the hands of the Sudanese military and government-sponsored militias. Indeed, the atrocities committed in Darfur represent the most systematic attack on a civilian population since the genocides in Rwanda and the former Yugoslavia. After an exhaustive investigation into the conflict, a United Nation's (UN) Commission concluded that Sudanese government forces and militias "conducted indiscriminate attacks, including killing of civilians, torture, enforced disappearances, destruction of villages, rape and other forms of sexual violence, pillaging and forced displacement." (2)

The women of Darfur have borne a large share of the pain and trauma unleashed by the fighting. With so many men killed, imprisoned or off to war, women in the Darfur region constitute large majorities of the population in refugee camps and in those villages that remain. To the shock of the international community, Sudanese government forces and government-sponsored militias have systematically used rape as an instrument of war against defenseless civilian populations in Darfur. Independent investigations of these crimes routinely turn up evidence of mass rapes, which often have the intent to impregnate. (3)

The evidence is unmistakable and overwhelming: Sudanese military forces have brutally utilized rape and other forms of violence against women as an instrument of war in their battle against rebel factions in the region. In March 2005, the UN Security Council granted the International Criminal Court (ICC) jurisdiction over war crimes committed in Darfur. The use of rape and violence against women as instruments of war must be at the forefront of a vigorous international war crimes prosecution of the crimes perpetrated in Darfur. In addition to providing justice to those countless victims of violence, a robust international war crimes prosecution of violence against women would serve as a powerful precedent for future conflicts, offer a high-profile forum to expose the often overlooked horrors of war perpetrated against women, and potentially shape public opinion about the unacceptability of rape and violence against women in an area of the world where tradition too often overlooks such crimes. This Note aims to forcefully make the case for the inclusion of gender-related crimes in war crimes prosecutions for Darfur, as well as to present a framework for such international prosecutions.

This Note is structured as follows: Part I examines the background, scope and intensity of the violence in the Darfur region. Part II then explores the particular impact the conflict has had on the women of Darfur, with a special emphasis on the widespread reports of rape and violence against civilian women. Part III examines the historical literature on rape as an instrument of war and seeks to place the conflict in Darfur in that context. Part IV offers a discussion of potential international instruments and precedents for prosecution of rape as a war crime. Part V provides various moral, legal and practical justifications for such a focus on rape prosecutions in Darfur. Finally, Part VI concludes with the arguments that not only does the evidence support an international war crimes prosecution of Sudanese government and militia leaders for their widespread crimes against civilian women in Darfur, but also that prudential concerns provide even greater justification for placing such crimes against women at the very top of any potential international war crimes prosecution. …