Rule 93. Rape and other forms of sexual violence are prohibited.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
The prohibition of rape under international humanitarian law was already recognized in the Lieber Code.
While common Article 3 of the Geneva Conventions does not explicitly mention rape or other forms of sexual violence, it prohibits “violence to life and person” including cruel treatment and torture and “outrages upon personal dignity”.
The Third Geneva Convention provides that prisoners of war are in all circumstances entitled to “respect for their persons and their honour”.
The prohibition of “outrages upon personal dignity” is recognized in Additional Protocols I and II as a fundamental guarantee for civilians and persons hors de combat
Article 75 of Additional Protocol I specifies that this prohibition covers in particular “humiliating and degrading treatment, enforced prostitution and any form of indecent assault”, while Article 4 of Additional Protocol II specifically adds “rape” to this list.
The Fourth Geneva Convention and Additional Protocol I require protection for women and children against rape, enforced prostitution or any other form of indecent assault.
Rape, enforced prostitution and any form of indecent assault are war crimes under the Statutes of the International Criminal Tribunal for Rwanda and of the Special Court for Sierra Leone.
The expressions “outrages upon personal dignity” and “any form of indecent assault” refer to any form of sexual violence. Under the Statute of the International Criminal Court, “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 or also constituting a serious violation of common Article 3 of the Geneva Conventions constitutes a war crime in international and non-international armed conflicts respectively.
Furthermore, “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity” constitutes a crime against humanity under the Statute of the International Criminal Court and “rape” constitutes a crime against humanity under the Statutes of the International Criminal Tribunals for the former Yugoslavia and Rwanda.
Numerous military manuals state that rape, enforced prostitution and indecent assault are prohibited and many of them specify that these acts are war crimes.
The legislation of many States provides that rape and other forms of sexual violence are war crimes.
National case-law has confirmed that rape constitutes a war crime, as early as 1946 in the Takashi Sakai case
before the War Crimes Military Tribunal of the Chinese Ministry of National Defence.
In the John Schultz case
in 1952, the US Court of Military Appeals held that rape was a “crime universally recognized as properly punishable under the law of war”.
Violations of the prohibition of rape and other forms of sexual violence have been widely condemned by States and international organizations.
For example, the UN Security Council, UN General Assembly and UN Commission on Human Rights condemned the sexual violence that occurred during the conflicts in Rwanda, Sierra Leone, Uganda and the former Yugoslavia.
The European Parliament, Council of Europe and Gulf Cooperation Council have condemned rape in the former Yugoslavia as a war crime.
It is significant that in 1993 Yugoslavia acknowledged in its report to the Committee on the Elimination of Discrimination Against Women that abuses of women in war zones were crimes contrary to international humanitarian law and apologized for an earlier statement giving the false impression that rape was considered normal behaviour in times of war.
Sexual violence is prohibited under human rights law primarily through the prohibition of torture and cruel, inhuman or degrading treatment or punishment. Thus, both the European Court of Human Rights and the Inter-American Commission on Human Rights have, in their case-law, found instances of rape of detainees to amount to torture.
The European Court of Human Rights has also found the strip-searching of a male prisoner in the presence of a female prison officer to be degrading treatment.
The Committee on the Elimination of Discrimination Against Women stated in a General Recommendation that discrimination includes gender-based violence.
There is also an increasing number of treaties and other international instruments which state that trafficking in women and children for the purpose of prostitution is a criminal offence,
as well as an increased recognition of the need to punish all persons responsible for sexual violence.
The prohibition of using sexual violence as an official punishment is clear; not only is such a punishment not officially provided for by States, but also any confirmed reports of such an incident have either been denied or the relevant persons prosecuted.
With respect to the definition of rape, the International Criminal Tribunal for the former Yugoslavia considered in its judgment in the Furundžija case
in 1998 that rape required “coercion or force or threat of force against the victim or a third person”.
In its later case-law in the Kunarac case
in 2001, however, the Tribunal considered that there might be other factors “which would render an act of sexual penetration non-consensual or non-voluntary on the part of the victim” and that this consideration defined the accurate scope of the definition of rape under international law.
The International Criminal Tribunal for Rwanda in the Akayesu case
in 1998 held that “rape is a form of aggression” and that “the central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts”. It defined rape as “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive”.
Rape and sexual violence can also be constituent elements of other crimes under international law. The International Criminal Tribunal for the former Yugoslavia in the Delalić case
held that rape could constitute torture when the specific conditions of torture were fulfilled.
The International Criminal Tribunal for Rwanda in the Akayesu case
and Musema case
held that rape and sexual violence could constitute genocide when the specific conditions of genocide were fulfilled.
It has been specified in practice that the prohibition of sexual violence is non-discriminatory, i.e., that men and women, as well as adults and children, are equally protected by this prohibition. Except for forced pregnancy, the crimes of sexual violence in the Statute of the International Criminal Court are prohibited when committed against “any person”, not only women. In addition, in the Elements of Crimes for the International Criminal Court, the concept of “invasion” used to define rape is “intended to be broad enough to be gender-neutral”.