Related Rule
United States of America
Practice Relating to Rule 93. Rape and Other Forms of Sexual Violence
The US Field Manual (1956) restates Article 27 of the 1949 Geneva Convention IV. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 266.
The US Air Force Pamphlet (1976) provides with regard to national or occupied territories: “Women are to be protected against sexual attack and enforced prostitution.” 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 14-4.
The US Soldier’s Manual (1984) states: “Women in war zones must be protected against rape and forced prostitution.” 
United States, Your Conduct in Combat under the Law of War, Publication No. FM 27-2, Headquarters Department of the Army, Washington, November 1984, p. 21.
The US Instructor’s Guide (1985) provides with regard to the treatment of non-combatants: “Women must be protected from attacks on their honour, to include any form of sexual assault.” 
United States, Instructor’s Guide – The Law of War, Headquarters Department of the Army, Washington, April 1985, pp. 8 and 13.
The US Operational Law Handbook (1993) states that the “law of war specifically prohibits any attacks on [women’s] honour, including any form of sexual assault”. 
United States, Operational Law Handbook, JA 422, Center for Law and Military Operations and International Law Division, The Judge Advocate General’s School, United States Army, Charlottesville, Virginia 22903-1781, 1993, p. Q-192(2)(a).
The US Manual for Military Commissions (2007), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
RAPE.
a. Text. “Any person subject to this chapter who forcibly or with coercion or threat of force wrongfully invades the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused, or with any foreign object, shall be punished as a military commission under this chapter may direct.”
b. Elements.
(1) The accused wrongfully 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 accused, with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body;
(2) The invasion was committed by force, threat of force or coercion or against a person incapable of giving consent; and
(3) The conduct took place in the context of and was associated with armed conflict.
c. Comment.
(1) This offense recognizes that consensual conduct does not give rise to this offense.
(2) It is understood that a person may be incapable of giving consent if affected by natural, induced, or age-related incapacity.
(3) The concept of “invasion” is linked to the inherent wrongfulness requirement. In this case, for example, a legitimate body cavity search could not give rise to this offense.
(4) The concept of “invasion” is gender neutral.
d. Maximum punishment. Confinement for life.
SEXUAL ASSAULT OR ABUSE.
a. Text. “Any person subject to this chapter who forcibly or with coercion or threat of force engages in sexual contact with one or more persons, or causes one or more persons to engage in sexual contact, shall be punished as a military commission under this chapter may direct.”
b. Elements.
(1) The accused wrongfully engaged in sexual contact with one or more persons or wrongfully caused one or more persons to engage in sexual contact;
(2) The sexual contact was committed by force, threat of force or coercion or against a person incapable of giving consent; and
(3) The conduct took place in the context of and was associated with armed conflict.
c. Comment. Sexual assault or abuse is defined as intentional sexual contact, characterized by use of force, physical threat of force or abuse of authority or when the victim does not or cannot consent. Sexual assault includes rape, nonconsensual sodomy (oral or anal sex), indecent assault (unwanted, inappropriate sexual contact or fondling), or attempts to commit these acts. Sexual assault can occur without regard to gender or spousal relationship or age of victim.
d. Maximum punishment. Confinement for life. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part IV, § 6(21) and (22), pp. IV-16 and IV-17.
The US Manual for Military Commissions (2010), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
(21) RAPE.
a. Text. “Any person subject to this chapter who forcibly or with coercion or threat of force wrongfully invades the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused, or with any foreign object, shall be punished as a military commission under this chapter may direct.”
b. Elements.
(1) The accused wrongfully 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 accused, with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body;
(2) The invasion was committed by force, threat of force or coercion or against a person incapable of giving consent; and
(3) The conduct took place in the context of and was associated with hostilities.
c. Comment.
(1) This offense recognizes that consensual conduct does not give rise to this offense.
(2) It is understood that a person may be incapable of giving consent if affected by natural, induced, or age-related incapacity.
(3) The concept of “invasion” is linked to the inherent wrongfulness requirement. In this case, for example, a legitimate body cavity search could not give rise to this offense.
(4) The concept of “invasion” is gender neutral.
d. Maximum punishment. Confinement for life.
(22) SEXUAL ASSAULT OR ABUSE.
a. Text. “Any person subject to this chapter who forcibly or with coercion or threat of force engages in sexual contact with one or more persons, or causes one or more persons to engage in sexual contact, shall be punished as a military commission under this chapter may direct.”
b. Elements.
(1) The accused wrongfully engaged in sexual contact with one or more persons or wrongfully caused one or more persons to engage in sexual contact;
(2) The sexual contact was committed by force, threat of force or coercion or against a person incapable of giving consent; and
(3) The conduct took place in the context of and was associated with hostilities.
c. Comment. Sexual assault or abuse is defined as intentional sexual contact, characterized by use of force, physical threat of force or abuse of authority or when the victim does not or cannot consent. Sexual assault includes rape, nonconsensual sodomy (oral or anal sex), indecent assault (unwanted, inappropriate sexual contact or fondling), or attempts to commit these acts. Sexual assault can occur without regard to gender or spousal relationship or age of victim.
d. Maximum punishment. Confinement for life. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, §§ 5(21) and 5(22), pp. IV-17 and IV-18.
The US War Crimes Act (1996), as amended by the Military Commissions Act (2006), which was passed by Congress following the Supreme Court’s decision in Hamden v. Rumsfeld in 2006, includes in its definition of war crimes any conduct constituting a grave breach of common Article 3 of the 1949 Geneva Conventions:
§ 2441. War crimes
(c) Definition.—As used in this section the term “war crime” means any conduct—
(3) which constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of and in association with an armed conflict not of an international character; or
(d) Common Article 3 Violations.—
(1) Prohibited conduct.—In subsection (c)(3), the term “grave breach of common Article 3” means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows:
(G) Rape.—The act of a person who forcibly or with coercion or threat of force wrongfully invades, or conspires or attempts to invade, the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused, or with any foreign object.
(H) Sexual assault or abuse.—The act of a person who forcibly or with coercion or threat of force engages, or conspires or attempts to engage, in sexual contact with one or more persons, or causes, or conspires or attempts to cause, one or more persons to engage in sexual contact.
(2) Definitions.—In the case of an offense under subsection (a) by reason of subsection (c)(3)—
(C) the term “sexual contact” shall be applied for purposes of paragraph (1)(G) in accordance with the meaning given that term in section 2246 (3) of this title;
(5) Definition of grave breaches.—The definitions in this subsection are intended only to define the grave breaches of common Article 3 and not the full scope of United States obligations under that Article. 
United States, War Crimes Act, 1996, 18 United States Code Sec. 2441, as amended by Military Commissions Act (2006), 17 October 2006, § 2441 (c)(3) and (d).
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamd an v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
§ 950v. Crimes triable by military commissions
“ …
“(b) OFFENSES.—The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(21) RAPE.—Any person subject to this chapter who forcibly or with coercion or threat of force wrongfully invades the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused, or with any foreign object, shall be punished as a military commission under this chapter may direct.
“(22) SEXUAL ASSAULT OR ABUSE.—Any person subject to this chapter who forcibly or with coercion or threat of force engages in sexual contact with one or more persons, or causes one or more persons to engage in sexual contact, shall be punished as a military commission under this chapter may direct. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2629, § 950v (b) (21) and (22).
The Military Commissions Act further states:
Sec. 6. Implementation of Treaty Obligations
“ …
“(b) REVISION TO WAR CRIMES OFFENSE UNDER FEDERAL CRIMINAL CODE.—
“(1) IN GENERAL.—Section 2441 of title 18, United States Code, is amended—
“…
“(B) by adding at the end the following new subsection:
“(d) COMMON ARTICLE 3 VIOLATIONS.—
“(1) PROHIBITED CONDUCT.—In subsection (c)(3), the term “grave breach of common Article 3” means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows:
“ …
“(G) RAPE.—The act of a person who forcibly or with coercion or threat of force wrongfully invades, or conspires or attempts to invade, the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused, or with any foreign object.
“(H) SEXUAL ASSAULT OR ABUSE.—The act of a person who forcibly or with coercion or threat of force engages, or conspires or attempts to engage, in sexual contact with one or more persons, or causes, or conspires or attempts to cause, one or more persons to engage in sexual contact. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2634, Sec. 6(b) (1) (B) (d) (1) (G) and (H).
In July 2007, and in accordance with section 6(a)(3) of the Military Commissions Act (2006), the US President issued an Executive Order which stated that a “Program of Detention and Interrogation Operated by the Central Intelligence Agency” complied with US obligations under common Article 3 of the 1949 Geneva Conventions. The Executive Order stated in part:
Sec. 2. Definitions. As used in this order:
(c) “Cruel, inhuman, or degrading treatment or punishment” means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States.
Sec. 3. Compliance of a Central Intelligence Agency Detention and Interrogation Program with Common Article 3.
(a) Pursuant to the authority of the President under the Constitution and the laws of the United States, including the Military Commissions Act of 2006, this order interprets the meaning and application of the text of Common Article 3 with respect to certain detentions and interrogations, and shall be treated as authoritative for all purposes as a matter of United States law, including satisfaction of the international obligations of the United States. I hereby determine that Common Article 3 shall apply to a program of detention and interrogation operated by the Central Intelligence Agency as set forth in this section. The requirements set forth in this section shall be applied with respect to detainees in such program without adverse distinction as to their race, color, religion or faith, sex, birth, or wealth.
(b) I hereby determine that a program of detention and interrogation approved by the Director of the Central Intelligence Agency fully complies with the obligations of the United States under Common Article 3, provided that:
(i) the conditions of confinement and interrogation practices of the program do not include:
(B) any of the acts prohibited by section 2441(d) of title 18, United States Code, including murder, torture, cruel or inhuman treatment, mutilation or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, taking of hostages, or performing of biological experiments;
(E) willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency, such as sexual or sexually indecent acts undertaken for the purpose of humiliation, forcing the individual to perform sexual acts or to pose sexually, threatening the individual with sexual mutilation, or using the individual as a human shield. 
United States, Executive Order 13440, Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency, 20 July 2007.
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
§ 950t. Crimes triable by military commission
“The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(21) RAPE.—Any person subject to this chapter who forcibly or with coercion or threat of force wrongfully invades the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused, or with any foreign object, shall be punished as a military commission under this chapter may direct.
“(22) SEXUAL ASSAULT OR ABUSE.—Any person subject to this chapter who forcibly or with coercion or threat of force engages in sexual contact with one or more persons, or causes one or more persons to engage in sexual contact, shall be punished as a military commission under this chapter may direct. 
United States, Military Commissions Act, 2009, § 950t(21) and (22).
In its judgment in the John Schultz case in 1952, the US Court of Military Appeals listed rape as a “crime universally recognized as properly punishable under the law of war”. 
United States, Court of Military Appeals, John Schultz case, Judgment, 5 August 1952.
In the civil action brought against Radovan Karadžić in the United States in 1995, a US Court of Appeals held that rape committed in the course of hostilities violated the laws of war and was a war crime. 
United States, Court of Appeals for the Second Circuit, Karadžić case, Decision, 13 October 1995.
In its memorandum opinion concerning the admissibility of the claim in the Comfort Women case in 2001, the US District Court of Columbia stated: “Japan’s use of its war-time military to impose ‘a premeditated master plan’ of sexual slavery upon the women of occupied Asian countries might be characterized properly as a war crime or a crime against humanity.” 
United States, District Court of Columbia, Comfort Women case, Memorandum Opinion and Judgment, 4 October 2001.
In 1987, the Deputy legal adviser of the US Department of State affirmed: “We support the principle that … women be protected against rape and indecent assault.” 
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American Journal of International Law and Policy, Vol. 2, 1987, p. 427.
In 1992, in reports submitted pursuant to paragraph 5 of UN Security Council Resolution 771 (1992) on grave breaches of the 1949 Geneva Convention IV committed in the former Yugoslavia, the United States described acts of sexual violence and rape perpetrated by the parties to the conflict. 
United States, Former Yugoslavia: Grave Breaches of the Fourth Geneva Convention, annexed to Letter dated 22 September 1992 to the UN Secretary-General, UN Doc. S/24583, 23 September 1992, pp. 7–8; Former Yugoslavia: Grave Breaches of the Fourth Geneva Convention (Second Submission), annexed to Letter dated 22 October 1992 to the UN Secretary-General, UN Doc. S/24705, 23 October 1992, pp. 7, 10–11 and 13; Former Yugoslavia: Grave Breaches of the Fourth Geneva Convention (Third Submission), annexed to Letter dated 5 November 1992 to the UN Secretary-General, UN Doc. S/24791, 10 November 1992, Annex, pp. 9 and 16–18; Former Yugoslavia: Grave Breaches of the Fourth Geneva Convention (Fourth Submission), annexed to Letter dated 7 December 1992 to the UN Secretary-General, UN Doc. S/24918, 8 December 1992, pp. 6–8, 10 and 12.
In 1992, in its final report on the conduct of the Gulf War, the US Department of Defense listed some specific Iraqi war crimes, in particular “inhumane treatment of Kuwaiti and third country civilians, to include rape”. 
United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War, 10 April 1992, Appendix O, The Role of the Law of War, ILM, Vol. 31, 1992, p. 634.
In 1998, in response to the situation in Kosovo, but also referring to the other conflicts in the former Yugoslavia, the US Congress adopted a resolution by unanimous consent stating:
Whereas there is reason to believe that as President of the Federal Republic of Yugoslavia (Serbia and Montenegro), Slobodan Miloševic was responsible for the conception and direction of a war of aggression … and that mass rape and forced impregnation were among the tools used to wage this war … it is the sense of Congress that … the United States should publicly declare that it considers that there is reason to believe that Slobodan Miloševic, President of the Federal Republic of Yugoslavia (Serbia and Montenegro), has committed war crimes, crimes against humanity and genocide. 
United States, Congress, S. Con. Resolution 105 on the Sense of Congress Regarding the Culpability of Slobodan Miloševic, 17 July 1998, Congressional Record (Senate), pp. S8456–S8458.
In a concurrent resolution adopted in 2000, the US Congress expressed its sense concerning the war crimes committed by the Japanese military during the Second World War, in particular the rape of civilian women on the island of Guam and in Nanjing. 
United States, House of Representatives (Senate concurring), Concurrent Resolution, H.CON. RES. 357, 106th Congress, 2nd Session, 19 June 2000.
According to the Report on US Practice, “Articles 4, 5 and 6 [of the 1977 Additional Protocol II] reflect general US policy on treatment of persons in the power of an adverse party in armed conflicts governed by common Article 3” of the 1949 Geneva Conventions. The report also notes: “It is the opinio juris of the US that persons detained in connection with an internal armed conflict are entitled to humane treatment as specified in Articles 4, 5 and 6 [of the 1977 Additional Protocol II].” 
Report on US Practice, 1997, Chapter 5.3.
In June 2008, in a letter to the UN Secretary-General on the subject of “Women and Peace and Security: Sexual Violence in Situations of Armed Conflict”, the permanent representative of the United States stated:
Since the adoption of Security Council resolution 1325 (2000) on women and peace and security, progress towards achieving its major goals has been slow and uneven. …
One important aspect of resolution 1325 (2000) which demands urgent attention by the international community is the call for all parties to armed conflict to take special measures to protect women and girls from rape and other forms of sexual abuse, and its emphasis on the need to end impunity for war crimes, including those relating to sexual and other violence against women and girls.
Rape is clearly defined as a war crime in international humanitarian law. The statute of the International Tribunal for the former Yugoslavia, which the Security Council adopted by its resolution 827 (1993), gives the Tribunal the power to prosecute persons responsible for rape when committed in armed conflict, whether international or internal in character, and directed against any civilian population.
In the fifteen years since the establishment of the criminal tribunals for the former Yugoslavia and Rwanda, the problem of widespread, organized and systematic rape has continued and, if anything, has become more severe. In the eight years since the Council adopted resolution 1325 (2000) on women and peace and security, sexual violence as a weapon of war has been perpetrated with almost universal impunity. Even though rape and sexual violence in situations of armed conflict are underreported by women victims, who often are ashamed to come forward and suffer public humiliation or rejection and may well doubt they will find adequate recourse to justice, United Nations sources on the ground have reported thousands of women who have sought medical help for the grievous wounds that have been inflicted upon them in the course of being raped by gangs of soldiers and other armed men. These injuries are so severe that in some cases victims are hospitalized for over a year. Thousands of women and girls, and their children, have been abandoned by their families and ostracized by their villages after surviving rape. For example, according to Under-Secretary-General for Humanitarian Affairs John Holmes, more than 32,000 cases of rape and other forms of sexual violence have been registered in the Democratic Republic of the Congo’s province of South Kivu alone.
The recent reporting on women affected by sexual violence in situations of armed conflict reveals a grave situation that requires a practical response from the international community. During the United States Presidency of the Security Council, Secretary of State Condoleezza Rice will chair a thematic debate at the ministerial level for members of the Council on sexual violence in situations of armed conflict, as part of the Council’s follow-up to resolution 1325 (2000). 
United States, Letter by the permanent representative of the United States, addressed to the UN Secretary General, Concept Paper: Women and Security – Sexual Violence in Situations of Armed Conflict, UN Doc. S/2008/364, 4 June 2008.