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Rape in conflict: what does the law say?

Sculpture_at_Mujibnagar_Birangana

A sculpture in Mujibnagar, Bangladesh

Sexual violence and rape in conflict have devastating impacts on victims, their families, and their communities. In situations such as the conflict in the former Yugoslavia and the Rwandan genocide, rape was used to terrorise entire communities. Decades later, the victims are still facing the physical and psychological ramifications of such violence.

In recent months, advocates such as William Hague have spoken of the need to explicitly recognise rape as a weapon of war. But what is the current legal status of the commission of rape in conflict?

Rape in conflict has been recognised as potentially constituting a crime against humanity, a war crime, and a constituent part of the crime of genocide.

This has been recognised by the UN Security Council, as well as in the statutes and judgements of international tribunals such as the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and the International Criminal Court.

Rape and sexual violence was recognised as against the laws of war in 1949, in the fourth Geneva Convention, but it was not until after the conflicts in the Former Yugoslavia and Rwanda that the international law became more developed, more fully criminalising these acts.

The following legal provisions, judgements and UN documents detail the principal legal provisions governing rape in situations of armed violence. This is by no means a comprehensive list, but it is a useful background to the current discussions on rape as a weapon of war.

Legal provisions

Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War 1949

Article 27

… Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault…

Statute of the International Criminal Tribunal for the Former Yugoslavia 1993

Article 5: Crimes against humanity

The international Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:

(g) rape

UN Security Council resolution 827 (1993)which established the International Criminal Tribunal for the Former Yugoslavia

Expressing once again its grave alarm at continuing reports of widespread and flagrant violations of international humanitarian law…including reports of…organized and systematic detention and rape of women…

Statute of the International Criminal Tribunal for Rwanda 1994

Article 3: Crimes against Humanity

The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds:

(g) rape

Article 4: Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II

The International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed seriously violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977. These violations include, but shall not be limited to:

(e) Outrages upon personal dignity, in particular…rape…

Rome Statute of the International Criminal Court 1998

Article 7: Crimes against humanity

  1. For the purposes of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

 (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

Article 8: War crimes

  1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.
  2. For the purpose of this Statute, ‘war crimes’ means:

(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:

(xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy…, enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;

(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:

(vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy…, enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;

Judgments

The Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T

The ICTR found Akayesu guilty of rape as a crime against humanity.

They also defined rape as a crime of genocide under international law, where it was committed with the intent to destroy, in whole or in part, a targeted group. The Trial Chamber found that sexual assault and rape in the Rwandan genocide formed an integral part of the process of destroying the Tutsi ethnic group. It was systematic and had been perpetrated against Tutsi women only, manifesting the specific intent required for those acts to constitute genocide.

This case was the first time that the Genocide Convention had been interpreted and applied by an international court.

The Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Koran Vukovic, IT-96-23-T

The ICTY ruled that the acts of rape were recognised as crimes against humanity because:

  • They were part of a systematic and widespread campaign;
  • The acts included elements of enslavement.

United Nations documents

UN Security Council Resolution 2106 (2013)

Further recalling that international humanitarian law prohibits rape and other forms of sexual violence,

Notes that sexual violence can constitute a crime against humanity or a constitutive act with respect to genocide; further recalls that rape and other forms of serious sexual violence in armed conflict are war crimes;

UN Security Council Resolution 2122 (2013)

Reiterating its strong condemnation of all violations of international law committed against and/or directly affecting civilians, including women and girls in armed conflict and post-conflict situations, including those involving rape and other forms of sexual and gender-based violence…

UN Security Council Resolution 1820 (2008)

4. Notes that rape and other forms of sexual violence can constitute a war crime, a crime against humanity, or a constitutive act with respect to genocide…,