The Practical Guide to Humanitarian Law

« Calling things by the wrong name adds to the affliction of the world. » Albert Camus.

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Rape

Rape is the act of obliging an individual to have sexual intercourse against his or her will, using force, violence, or any other form of coercion. It is considered a felony in the criminal law systems of most countries. Rape may occur between people of the same sex, as well as of opposite sexes.

In many legislative systems, if there is insufficient evidence to prove that there was penetration or that the individual was coerced, the crime may no longer be prosecuted as “rape,” and therefore a felony, but rather as “sexual assault” or even “sexual misconduct.” In such a case, the act may not be prosecuted as a felony but perhaps as a misdemeanor. It is sometimes also difficult to prove that such an act was not consensual. The victims must prove that they did not freely consent to the act. The submission may have been obtained by force, threat, abuse of authority or of trust, or other forms of coercion. Some countries have particularly high burdens of proof, such as the requirement of physical proof or even witnesses.

When this grave crime occurs between an adult and a minor, it is generally called statutory rape , as the law does not recognize minors’ consent. Some countries have specific national laws that broaden the possibilities for prosecuting such acts, whether they qualify as felonies or misdemeanors. These laws enable individuals who committed sexual offenses against minors to be prosecuted even if they are in a different country. Trials in such cases can also be conducted before the courts of the State of which the accused is a national, as well as before the courts of the State where the acts were committed. Such laws, prevalent mostly in Europe, were often adopted in the context of the fight against pedophilia and sex tourism.

Rape is a violation of international law in general, and in particular of humanitarian law, which applies during armed conflict. It is not always explicitly mentioned in most international humanitarian law texts, but it is included in broader prohibited behaviors such as “violence to life and person,” “outrages on personal dignity,” or “torture, or cruel, inhuman, or degrading treatment or punishment.”

Certain conventions and authorities that have explicitly recognized rape and sexual violence as a form of torture include the1994 Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women; the 1993 UN Declaration on the Elimination of Violence against Women; the Inter-American Commission on Human Rights; the Statute of the International Criminal Court (ICC); and—as explained further—the International Criminal Tribunals for the Former Yugoslavia and Rwanda (ICTY and ICTR).

In addition to the victim’s testimony, the results of a medical examination may be used to reinforce the proof that a person was raped, when the medical report certifies that there were lesions caused by the violent or forced nature of the sexual act. It is also possible to carry out psychological examinations to determine the consequences to the victim’s mental state. A doctor faced with such a situation has the duty, in all circumstances, to establish such a report for the victim, as soon as possible after the events.

Many difficulties may result from making a victim testify, particularly in court, both because of the humiliation that may be suffered in the cross-examination during the trial—especially in accusatory legal systems—and because of the personal risks that may be incurred by testifying—especially if the sexual violence took place in the context of an armed conflict.

This makes it all the more important for doctors—whether national doctors or foreign humanitarian doctors—to establish a medical report to be used by the victim when the situation allows it.

Medical dutiesMedical ethics

Rape and sexual violence were long considered inevitable “collateral damage” of war. They were not distinguished from other crimes committed against civilians. Among recent examples, it appeared in Bosnia and Rwanda as a mass occurrence and as a weapon of war linked to the policy of ethnic cleansing.

This crime is now formally recognized under international criminal law as a war crime when committed in the context of an international or non-international armed conflict, and as a crime against humanity when committed as part of a systematic attack on the population.

  • Specific provisions of the 1949 Geneva Conventions and their 1977 Additional Protocols are meant to protect women from attacks on their honor, outrages on personal dignity, humiliating and degrading treatment, and, in particular, rape, enforced prostitution, or any form of indecent assault, in both international and non-international armed conflicts (GCIV Art. 27, API Art. 76, and APII Art. 4). States Parties are also under the obligation, at any time and in any place, to ensure that women are granted the fundamental guarantees provided by the Conventions, which prohibit violence to life and person, in particular murder of all kinds, mutilation, cruel treatment, and torture (GCI–IV Common Art. 3).

Rule 93 of the customary international humanitarian law study published in 2005 by the ICRC (customary IHL study) clearly spells out that rape and other forms of sexual violence are prohibited in customary humanitarian law relevant to both international and non-international armed conflicts. ▸ DetentionFundamental guaranteesWomen

  • Since rape may be categorized as torture or cruel and inhuman treatment, it is also a grave breach of the Geneva Conventions, whether the victim is male or female (GCI Art. 50, GCII Art. 51, GCII Art. 130, and GCIV Art. 147). ▸ War crimes/Crimes against humanity
  • Rape is sometimes carried out on a systematic or massive scale, as part of a policy aimed at ethnic cleansing or as a means of terrorizing the population. According to the UN, twenty-five thousand women were raped in Rwanda during the 1994 genocide. Today, the UNHCR acknowledges that rape can constitute an element of persecution and permits the recognition of the status of refugee as per the 1951 Convention relating to the Status of Refugees on that basis. The UNHCR further recommends that, during the procedure to determine the status of a refugee, asylum seekers who may have been victims of sexual violence be treated with due regard to their suffering.
  • In 1993, the ICTY recognized the legal status of the crime of rape as a crime against humanity and a war crime. The ICTY has jurisdiction over individuals who perpetrated such crimes during the conflict. Furthermore, its Rules of Procedure and Evidence provide measures requiring a lighter burden of proof in cases of sexual assault (Art. 5.g of the ICTY Statute and Rule 96 of its Rules of Procedure and Evidence). One-quarter of the indictments issued by the ICTY include accusations of sexual violence, which is an important legal step. However, those prosecutions remain specific to this ad hoc tribunal, whose jurisdiction is restricted to crimes committed in the former Yugoslavia.
  • The ICTR also has jurisdiction over rape as a crime against humanity and a war crime. Its Statute, adopted in 1994, has extended the notion of grave breaches of the 1949 Geneva Conventions to include situations of non-international armed conflict. It bases accusations on violations of Article 3 of Additional Protocol II of 1977 (Art. 4 of ICTR Statute). For the first time in international law, the ICTR determined that rape and sexual violence can constitute acts of genocide when committed with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group.
  • The Statute of the International Criminal Court (ICC), approved in Rome on 17 July 1998, includes sexual violence in its definition of both crimes against humanity and war crimes, over which it has jurisdiction, in international and non-international armed conflicts. To amount to a crime against humanity, sexual violence must be committed as part of a widespread or systematic attack directed against any civilian population (Art. 7.1.g). To be considered a war crime, sexual violence must be perpetrated in a context of international or non-international armed conflict (Arts. 8.2.b.xxii and 8.2.e.vi of ICC Statute). The definition prohibits five different forms of sexual violence: “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and any other form of sexual violence also constituting a grave breach of the Geneva Conventions.” ▸ War crimes/Crimes against humanity

Elements of the Crime of Sexual Violence

The exact meaning of this crime is listed in a separate document adopted by the Assembly of State Parties to the ICC and called the “Elements of Crime.”

  • Rape requires that the perpetrator invaded 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 was committed 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 such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.
  • Sexual slavery requires 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. The perpetrator caused such person or persons to engage in one or more acts of a sexual nature.
  • Enforced prostitution requires that the perpetrator caused one or more persons to engage in one or more acts 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 such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent. The perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connection with the acts of a sexual nature.
  • Forced pregnancy requires that the perpetrator confined one or more women forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law.
  • Enforced sterilization requires that the perpetrator deprived one or more persons of biological reproductive capacity. The conduct was neither justified by the medical or hospital treatment of the person or persons concerned nor carried out with their genuine consent.
  • 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 such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent.
  • Cases in which the crime of rape is aggravated by voluntary (or involuntary) contamination by the AIDS virus have not yet been addressed by international law.

In order to monitor the issue of sexual violence in armed conflict and make recommendations, a Special Representative of the Secretary-General on Sexual Violence in Conflict was appointed. Since June 2012, this is Zainab Hawa Bangura from Sierra Leone, who succeeds Margot Wallström. The Human Rights Council also has a Special Rapporteur on the issue of violence against women.

In 2007, the World Health Organization published Ethical and Safety Decommendations for Researching, Documenting and Monitoring Sexual Violence in Emergencies . These recommendations are the result of a consultation process that began in 2006 and which gathered experts from medical and human rights organizations, with the purpose of identifying information-gathering tools to deal with sexual violence in armed conflict and ensure that victims are properly taken care of and protected. The recommendations, which respect international rules of medical ethics, aim at helping organizations involved in the care of victims of sexual violence in their daily work.

Ethnic cleansingGenocideInter-American Court of, and Commission on, Human RightsInternational Criminal CourtInternational Criminal TribunalsMedical dutiesPersecutionRefugeesTortureWar crimes/Crimes against humanityWomen

Jurisprudence

The International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) as well as the International Criminal Court (ICC) have adapted their definition of rape to include situations where rape is not an isolated and individual crime but is used on a large scale as a method of war. The Tribunals have also softened their requirements related to the proof of non-consent of the victims, taking into account the impact of situations of massive violence and war on legal and material requirements.

The Akayesu Case (ICTR-96-4-T, 2 September 1998), which found Jean-Paul Akayesu guilty of rape as a crime against humanity, among other crimes, was the first international judgment to define rape, thereby setting an important legal precedent. The Trial Chamber of the ICTR gave a broad definition of rape (para. 688) as “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive.” The Chamber noted in this context that coercive circumstances need not be evidenced by a show of physical force; “threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion.” The Trial Chamber added that sexual violence, including rape, was not limited to physical invasion of the human body and may include acts that do not involve penetration or even physical contact. The ICTR also noted that such acts could not be “captured in a mechanical description of objects and body parts.” The Tribunal also raised the question of “cultural sensitivities involved in public discussion of intimate matters and recall[ed] the painful reluctance and inability of witnesses to disclose graphic anatomical details of the sexual violence they endured.” Furthermore, the judges admitted for the first time that rape “may constitute genocide in the same way as any other acts, as long as they were committed with the specific intent to destroy, in whole or in part, a particular group, targeted as such” (para. 731). This phrasing is broad enough to cover various forms of sexual violence committed as part of a genocidal policy.

Subsequently, this definition was adapted to specific contexts where rapes were committed. This was confirmed in the Musema Case (ICTR-96-13-A, 27 January 2000, para. 154). Along the same reasoning, the ICTY decided in the Celebici Camp Case that rape could constitute torture when the specific conditions of torture were fulfilled (IT-96-21-T, 16 November 1998, para. 941).

In the the Furundzija Case (IT-95-17/1-T, 10 December 1998), the ICTY ruled that rape requires “coercion of force or threat of force against the victim or a third person” (para. 185).

In the Foca Case ( Kunarac et al. , IT-96-23/1-T, 22 February 2001), the ICTY considered the existence of other factors and circumstances “which could render an act of sexual penetration non-consensual or non-voluntary on the part of the victim” and that would amount to rape under international law (para. 438).

Later on, the ICTY Appeals Chamber adopted a much more detailed and precise definition of the acts amounting to rape ( Foca Case , IT-96-23/1-A, 12 June 2002). It considered the crime of rape in international law constituted in “the sexual penetration, however slight, of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator” (para. 127). The Tribunal held that “the appellants’ bald assertion that nothing short of continuous resistance provides adequate notice to the perpetrator that his attentions are unwanted is wrong on the law and absurd on the facts,” Force—or threat of force—provides clear evidence of non-consent (para. 128).

When identifying whether or not an individual has been assaulted, the fact that they resisted an act is not a precondition to qualify the act as rape; it is sufficient to show that the perpetrator intended to penetrate the victim, and that the victim did not consent (see Furundzija Case , ICTY Trial Chamber, 10 December 1998, para. 179).

In the Foca Case (IT-96-23/1-T, 22 February 2001), the ICTY Trial Chamber qualified rape as a crime against humanity and a war crime.

Judges justify the evolution in the definition and burden of proof by the context of armed conflict surrounding those rapes, in which they amount to war crimes, crimes against humanity, torture, and genocide.

The Katanga et al. Case was the first case of the International Criminal Court (Situation in the Democratic Republic of Congo, Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui , 30 September 2008). In this decision on the confirmation of charges, the ICC Pre-Trial Chamber held that rape as a crime against humanity required two elements:

the actus reus or the act, namely, the “invasion of the body resulting in the penetration of any part of the body with a sexual organ or of the anal or genital opening with any object or part of the body committed by force, threat or coercion,” provided that coercion does not necessarily require physical force (paras. 438–40); and

the mens rea , namely, the “intent to invade another’s body by force, threat or coercion” (para. 441).

For Additional Information: Askin, Kelly D. “Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status.” American Journal of International Law 93 (1999): 97–123.

Brouwer, Anne-Marie de. Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR . Antwerp: Intersentia, 2005.

Gardam, Judith. “Women, Human Rights and International Humanitarian Law.” International Review of the Red Cross 324 (September 1998): 421–32.

Josse, Evelyne. “‘They Came with Two Guns’: The Consequences of Sexual Violence for the Mental Health of Women in Armed Conflicts,” International Review of the Red Cross 877 (March 2010): 177–95.

Meron, T. “Rape as a Crime under International Humanitarian Law.” American Journal of International Law (1993): 424–28.

Olsen, Odd Einar, and Kristin S. Scharffscher. “Rape in Refugee Camps as Organisational Failures.” International Journal of Human Rights 8, no. 4 (2004): 377–97.

Tompkins, Tamara L. “Prosecuting Rape as a War Crime: Speaking the Unspeakable.” Notre Dame Law Review 70, no. 4 (1994): 845–90.

Viseur Sellers, Patricia. “The Context of Sexual Violence: Sexual Violence as Violation of International Humanitarian Law.” In Substantive and Procedural Aspects of International Criminal Law: The Experience of International and National Courts , edited by Gabrielle Kirk McDonald and Olivia Swaak-Goldman, 1:263–323. The Hague: Kluwer Law International, 2000.

———. “Rape.” In Encyclopedia of Genocide and Crimes against Humanity , edited by Dinah Shelton, 862–69. Detroit: Thomson/Gale, 2004.

———. “Sexual Violence and Peremptory Norms: The Legal Value of Rape.” Case Western Legal Journal of International Law 34, no. 3 (2002): 287–303.

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