Practice Relating to Rule 93. Rape and Other Forms of Sexual Violence
Canada’s LOAC Manual (1999) provides that women must be specially protected against any attack on their honour, in particular against rape, enforced prostitution or any other form of indecent assault. It states that this provision also applies in occupied territories. According to the manual, rape is a crime against humanity.
Canada’s Code of Conduct (2001) provides: “Women and children in particular must not be subjected to rape, enforced prostitution, and any form of indecent assault.”
Canada’s LOAC Manual (2001) states in its chapter on the treatment of prisoners of war (PWs): “Female PWs must be treated with due regard to their gender and must in no case be treated less favourably than male PWs … They must also be specially protected against rape and other sexual assaults.”
In its chapter on the treatment of civilians in the hands of a party to the conflict or an occupying power, and, more specifically, in a section entitled “Provisions common to the territories of the parties to the conflict and to occupied territories”, the manual provides:
1119. Equal treatment without adverse distinction
1. Women must be specially protected against any attack on their honour, in particular against rape, enforced prostitution or any other form of indecent assault.
In the same chapter, in a section entitled “Additional Protocol I”, the manual states:
1. [The 1977 Additional Protocol I] provides that all persons in the power of a party to the conflict are entitled to at least a minimum of humane treatment without adverse discrimination on grounds of race, gender, language, religion, political discrimination or similar criteria. It states in part:
2. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents:
b. outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault;
e. threats to commit any of the foregoing acts.
In its chapter on rights and duties of occupying powers, the manual further states: “Women must be especially protected against any attack on their honour; in particular against rape, enforced prostitution or any other form of indecent assault.”
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual states that rape is a crime against humanity.
In its chapter on non-international armed conflicts, the manual restates the provisions of common Article 3 of the 1949 Geneva Conventions:
By Common Article 3, the parties to a non-international armed conflict occurring in the territory of a party to the Conventions are obliged to apply, as a minimum, the following provisions:
a. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, gender, birth or wealth, or any other similar criteria.
To this end, the following are at any time and in any place prohibited with regard to such persons:
iii outrages upon personal dignity, in particular, humiliating and degrading treatment.
In the same chapter, the manual also states:
Although [the 1977 Additional Protocol II] contains no provisions relating to enforcement or punishment of breaches, it does contain a statement of fundamental guarantees prohibiting at any time and anywhere:
e. outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault;
g. threats to commit any of the foregoing.
Canada’s Code of Conduct (2005) instructs Canadian Forces (CF) personnel:
In your daily interaction with the civilian population, they must at all times be humanely treated and shall not be subjected to acts of violence, threats, or insults. Women and children in particular must not be subjected to rape, enforced prostitution, and any form of indecent assault.
Canada’s Crimes against Humanity and War Crimes Act (2000) provides that genocide, crimes against humanity and war crimes defined in Articles 6, 7 and 8(2) of the 1998 ICC Statute are “crimes according to customary international law” and, as such, indictable offences under the Act.
In 2009, in the Munyaneza case, Canada’s Superior Court of Québec found a Rwandan national who had been residing in Canada guilty of genocide, crimes against humanity and war crimes committed in Rwanda in 1994. The Court held:
 The first two counts allege that the accused committed an act of genocide in two ways:
- by the intentional killing of;
- by causing serious bodily or mental harm to;
members of an identifiable group of people, the Tutsi.
 The Convention on the Prevention and Punishment of the Crime of Genocide of 1948 (the “1948 Convention”) is the foundation of conventional international law as it pertains to genocide.
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(b) Causing serious bodily or mental harm to members of the group;
 This convention was ratified by Canada on September 3, 1952 and by Rwanda on April 26, 1975. It applied to Rwanda in 1994.
 Even without that conventional definition, the crime of genocide in 1994 was in contravention of all the peremptory rules of customary international law.
(C) Serious bodily or mental harm
 The ICTR and the ICTY agree to include the following acts, in particular, as causing a person serious bodily or mental harm:
- sexual violence;
 Rape, sexual violence, mutilation and interrogation accompanied by blows or threats are recognized as acts causing serious physical harm.
(E) Act of sexual violence
 Rape and sexual violence constitute serious bodily or mental harm to a person and, therefore, be acts constituting genocide if they are committed with the intent to destroy the group to which the victim belongs:
In light of all the evidence before it, the Chamber is satisfied that the acts of rape and sexual violence described above, were committed solely against Tutsi women, many of whom were subjected to the worst public humiliation, mutilated, and raped several times, often in public, in the Bureau Communal premises or in other public places, and often by more than one assailant. These rapes resulted in physical and psychological destruction of Tutsi women, their families and their communities. Sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and to the destruction of the Tutsi group as a whole.
… Sexual violence was a step in the process of destruction of the Tutsi group – destruction of the spirit, of the will to live, and of life itself.
 International jurisprudence, which does not differ from Canadian jurisprudence in this regard, defines sexual violence as “any act of a sexual nature which is committed on a person under circumstances which are coercive”.
 The following acts, among others, are considered sexual violence:
(a) forcing a person to undress in public;
(b) sexual penetration;
(d) sexual molestation.
3.3 Crime against humanity
 Counts 3 and 4 allege that the accused committed crimes against humanity:
- by intentional killing;
- by the act of sexual violence.
 [Canada’s 2000 Crimes Against Humanity and War Crimes] Act confirms a consensus of the League of Nations, prior to 1945, that crimes against humanity were part of customary international law. Killing, sexual violence and the other crimes listed in subsection 6(3) of the Act constituted crimes before 1945 and, therefore, in Rwanda in 1994.
(D) Act of sexual violence
 As we have seen, subsection 6(3) of the Act includes sexual violence and inhumane acts as prohibited acts that can constitute a crime against humanity.
 They are found in Article 5 of the  ICTY Statute and Article 3 of the  ICTR Statute.
 The elements essential to proving an act of sexual violence are the same as those described in the chapter on genocide.
3.4 War crime
 Counts 5, 6 and 7 allege that the accused committed a war crime by means of:
(a) intentional killing;
(b) an act of sexual violence;
(B) War crime
 As for customary international law, Article 4 of the ICTR Statute, regarding non-international armed conflicts, provides that it applied on Rwandan territory in 1994 and that the list of war crimes included killing, outrages upon personal dignity, rape and pillage.
(D) Act of sexual violence
 It is accepted that an act of sexual violence is part of “inhumane acts”, “outrages upon personal dignity” and “serious bodily or mental harm” as regards the victim.
 The elements essential to this offence are the same as those described under genocide and crimes against humanity.
 While an armed national conflict raged in Rwanda between the RAF [Rwandan Armed Forces] and the RPF [Rwandan Patriotic Front], Désiré Munyaneza intentionally killed dozens of people in Butare and the surrounding communes who were not participating directly in the conflict, sexually assaulted dozens of people and looted the homes and businesses of individuals who had nothing to do with the armed conflict.
 In doing so, he committed a war crime according to the Act.
 Désiré Munyaneza is guilty of the seven counts filed against him by the Crown.
[footnotes in original omitted]
In 2013, in the Peters case, Canada’s Immigration and Refugee Protection Board rejected an immigration request on grounds of complicity in crimes against humanity in Libya. The Board stated:
…[W]hen the conflict began in February 2011 in Libya you were called upon [by Al-Saadi Gaddafi] to provide security services for him in Libya. …
Now, with respect to specific examples of crimes against humanity perpetrated by the Gaddafi regime, there is quite extensive documentary evidence that has been put forward by the Minister, so I’m going to mainly focus on the atrocities committed between February and August 2011, …
We also have reports of the regime … raping women … Reports are … [of] widespread use of rape by Gaddafi forces as part of this attack on civilians particularly in Misrata.
In 2013, in the MJS case, Canada’s Federal Court dismissed an appeal against the applicant’s exclusion from refugee protection on grounds of complicity in war crimes and crimes against humanity. The Court stated:
 The Refugee Protection Division [the Panel] found that Mr. MJS was excluded from refugee protection under section 98 of the Immigration and Refugee Protection Act … and Article 1F(a) of the United Nations Convention Relating to the Status of Refugees …
(a) Did the Panel apply the wrong test to determine the complicity of Mr. MJS?
 The Panel also reiterated that Mr. MJS acknowledged in his testimony that he knew of the human rights violations committed by [the Group]. Earlier in its decision, the Panel found that “the documentary evidence clearly demonstrates that [the Group] committed crimes against humanity as well as war crimes in the period 1998 to 2005”, by, for example, … committing widespread rape …
 Simply because the Panel stated that some of these crimes had also been committed by [another group] does not detract from the Panel’s conclusion regarding [the Group’s] involvement in these crimes.
In 2013, in the Sapkota case
, Canada’s Federal Court dismissed a request for review of a decision denying refugee protection to the applicant on grounds of complicity in crimes against humanity in Nepal between 1991 and 2009. While reviewing the submissions of the respondent, Canada’s Minister of Citizenship and Immigration, the Court stated: “The Respondent notes that the Rome Statute of the International Criminal Court
… is endorsed in Canada as a source of customary law.”
In 2005, in a statement before the UN Commission on Human Rights on the human rights situation in Sudan, made on behalf of Canada, Australia and New Zealand, the representative of Canada stated: “To our dismay, serious abuses of human rights and international humanitarian law have become commonplace in Darfur, including sexual violence against women and girls.”
In 2011, in an address to the House of Commons on the situation in Libya, Canada’s Minister of Foreign Affairs stated:
Canada has been vocal in condemning the targeting of civilians by the Qadhafi regime, and the impact of that regime’s actions on the hundreds of thousands of people who have been trapped in Libya or forced to flee its borders … In the face of this blatant disregard for both human rights and international law, Canada has demanded that the regime halt its attacks against its own people and that perpetrators of crimes are brought to justice. We have been particularly disgusted by abhorrent reports [of] torture and sexual violence as weapons against the Libyan population. Such actions are international crimes and may be war crimes or crimes against humanity. Canada calls for a full and impartial investigation of these allegations so that the perpetrators can be brought to justice.
In 2011, in a statement before the UN Security Council during a meeting on the protection of civilians in armed conflict, the deputy permanent representative of Canada stated:
Violations of human rights and international humanitarian law, including rape as a weapon of war and other acts of sexual violence, continue to occur at an alarming rate …
[W]e must be persistent in denouncing violence directed against women and girls such as sexual violence, including rape as a weapon of war, sexual slavery, enforced prostitution, forced pregnancy and enforced sterilization.
In 2012, in a statement before the UN Security Council during an open debate on women, peace and security, the deputy permanent representative of Canada stated: “Canada strongly supports the [UN] Security Council’s recognition of the need to take effective measures to prevent and respond to conflict-related sexual violence, including rape as a weapon of war.”
In 2012, in a statement before the UN Security Council during an open debate in connection with the agenda item “Children and Armed Conflict”, the permanent representative of Canada stated: “This year’s Secretary General’s report continues to document grave violations and abuses being committed against girls and boys – including … rape as a weapon of war … These despicable actions must be stopped”.
In 2012, in a statement on the strengthening of the coordination of humanitarian and disaster relief assistance of the United Nations, the permanent representative of Canada stated: “[Our continued engagement is required by] the protection needs of women and girls, who continue to be victims of sexual violence such as rape as a weapon of war.”
In 2013, in a statement before the UN Security Council during an open debate on the protection of civilians in armed conflict, the deputy permanent representative of Canada stated:
The conflict in Syria continues to take a terrible toll on the civilian population … [T]here are disturbing reports of cases of rape and other forms of sexual violence … The appalling effect of violence and conflict on women and children, including the prevalence of rape as a weapon of war … requires our urgent attention.
In 2013, in a statement before the UN Security Council during an open debate on women, peace and security, the permanent representative of Canada stated:
Conflict-related sexual violence is of great concern to Canada … Because of its devastating and enduring effects on the women and girls who are subjected to these crimes, as well as to their families and communities, rape and other forms of sexual violence remain a huge barrier to peace, security and development.
In 2013, in a statement before the UN Security Council during an open debate on women, peace and security, the permanent representative of Canada stated:
Canada wishes to thank the UK for holding this Open Debate on the prevention of conflict-related sexual violence, an issue of great importance to Canada as it includes the despicable acts of rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and any other form of sexual violence of comparable gravity. The acts are deplorable, prohibited by international law, and constitute an impediment to conflict resolution, development, and transition to peace and democracy.
The recent report by the [UN] Secretary General details the global scope of conflict-related sexual violence including many instances of early and forced marriage of women and girls. Canada is gravely concerned with reports of forced marriage, rape and sexual slavery. Canada condemns the early and forced marriage of women and girls in all situations, including the practice of forcing rape victims to marry their perpetrators or other family members. We welcome the efforts of the Secretary General to bring much-needed attention to the practice of early and forced marriage in the context of armed conflict.
Primary responsibility for the prevention of sexual violence in conflict lies with national governments as well as with the leadership of non-state armed groups. Where these leaders fail to respond to sexual violence, or are party to the crimes, they must be held to account. Often, however, governments lack the capacity to respond adequately. Conflict significantly weakens national justice systems, resulting in a limited number of perpetrators facing justice. In such cases, member states could request the assistance of trained experts for investigations and prosecutions and to strengthen the capacity of local law enforcement.
Further action at the international level is imperative to end sexual violence in conflict, to tackle the lack of accountability that exists for these crimes and to provide comprehensive support services to survivors.
For its part, Canada is active in the prevention and response to sexual violence in conflict. For example, Canada is contributing 18.5 million dollars to the UNDP to support the fight against sexual violence in the DRC conflict. In addition, at the London launch of the G8 Declaration on Preventing Sexual Violence in Conflict, Canada announced an additional 5 million dollar contribution to international efforts to be programmed this year. Canada urges all member states to join international efforts and we look forward to working together to stop sexual violence.
In 2013, in a statement before the UN Security Council during an open debate on the protection of civilians in armed conflict, the permanent representative of Canada stated:
Women and girls around the world continue to be victims of sexual violence in armed conflict situations. We must therefore persist in working to prevent sexual violence, such as rape as a weapon of war, sexual slavery, enforced prostitution, forced pregnancy, forced abortion, and enforced sterilization.
In 2013, in a statement during the 68th Session of the UN General Assembly, Canada’s Minister of Foreign Affairs stated: “In the context of war, rape and serious sexual violence are war crimes.”
In 2013, in a statement before the UN Security Council during an open debate on women, peace and security, the deputy permanent representative of Canada stated:
Particularly egregious is the practice of child, early and forced marriage, which puts the very lives of young girls at risk … Conflict situations exacerbate this practice among displaced and refugee populations …
Under Canada’s leadership, the Human Rights Council adopted a robust resolution this past June on the Elimination of Violence against Women. The resolution lays out actions to be undertaken by member states and the UN to prevent sexual violence, including in conflict-related situations …
Canada joined 112 other Member States in September to launch the Declaration of Commitment to End Sexual Violence in Conflict – endorsements to this Declaration ha[ve] now grown to an impressive 134 states.
Canada and others are working with partners in the field to assist in the empowerment of women in conflict-related situations, prevent and respond to sexual violence, and hold perpetrators to account. For example, in the Democratic Republic of Congo, Canada assists survivors of sexual violence and brings those responsible to justice.
In 2013, Canada’s Department of Foreign Affairs, Trade and Development issued a press release entitled “Statement from Minister Paradis: International Day for the Elimination of Violence Against Women”, which stated:
Violence against women also includes rape as a tactic of war during or after armed conflicts. Between 250,000 and 500,000 women were raped during the 1994 genocide in Rwanda; between 20,000 and 50,000 women were raped during the conflict in Bosnia in the early 1990s. Most recently, we have seen examples of this in Syria.