Rape has occurred throughout human history. It is not currently deemed a violation of international human rights. Recently, the international community, with the help of the media, has focused attention on rapes committed by state actors during wartime. However, it appears that rapes committed by private actors during times of peace have not achieved the status of state action rapes during wartime.
Under international law,(1) private actor rapes in peacetime are relegated to the status of emotional and physical trauma that individual victims must deal with behind closed doors. Rape victims are often females burdened by societal and cultural norms, which causes their communities to relegate them to a lower class.(2) As a result, victims seldom seek justice.(3) In addition to these internal injustices, the international community, by not officially recognizing rape, effectively deprives these victims of their only opportunity for justice.
Private actor peacetime rape deserves sanctions equal to the punishment allocated for war crimes. The recent atrocities committed against ethnic Chinese women in Indonesia exemplify the need for classification of such rapes as violations of international human rights.(4)
This paper advocates that a peacetime rape committed by a private actor should be viewed as a violation of international human rights. Furthermore, the victims should be able to bring actions in the U.S. federal courts under the Alien Tort Claims Act (ATCA).(5) Part II examines the history of rape in armed conflict and wartime, focusing on the recognition of rape as a war crime. Part III discusses current international human rights violations and argues that rape should be included in this list. Part IV provides an account of the rapes that occurred during the Indonesian riots of 1997. Part V of the paper discusses the justiciability of the Indonesian rapes in the U.S. courts under the ATCA.(6) Finally, in Part VI, the paper concludes that the United States should recognize peacetime rape by private actors and allow the victims recourse under the ATCA.
II. RAPE AS A WAR CRIME AND ITS RELATED PROSECUTION IN INTERNATIONAL TRIBUNALS
A. History of War-Related Rape
War and armed conflict have occurred throughout history. Rape has been a spoil of war for centuries.(7) The view of rape as an unavoidable consequence of war is slowly being reconsidered by the international community.
1. World War I Rape Cases
World War I, from 1914 to 1918, pitted Germany, Austria-Hungary, and Turkey against France, Great Britain, Russia, the United States, China, and other smaller nations.(8) Wounds and disease claimed the lives of over 8,500,000 soldiers.(9) The German military force often raped foreign women in its campaign to conquer new territories.(10) When Germany invaded Belgium in 1914, rape was included in its battle plans.(11) The German strategy of rape continued as the military forces moved into France.(12) Belgium publicized the rapes in an attempt to induce England and the United States to enter the war.(13)
2. World War II Rape Cases
World War II positioned Japan, Germany, and Italy against the Soviet Union, the United States, Great Britain, France, China, and other smaller nations.(14) World War II claimed an estimated 35,000,000 to 60,000,000 lives, many more than were killed during World War I.(15)
During World War II, as Japan invaded neighboring countries, its military forces raped Chinese, Korean, and Philippine women.(16) When the Japanese military invaded Nanking, China, they inflicted mass destruction, and waged a campaign to rape Chinese women.(17) In 1937, General Chiang Kai-shek of the Chinese Nationalist Army withdrew from Nanking, leaving the city defenseless against the impending Japanese invasion.(18) A horrendous number of rapes committed by the Japanese army followed.(19)
In addition, the Japanese military forced 80,000 to 200,000 women to become sex slaves, subjecting them to repeated daily rapes. …