Acts such as rape, sexual assault, sexual slavery, forced prostitution, forced sterilization, forced abortion, and forced pregnancy may all qualify as crimes under national and international laws.
It is possible for an individual perpetrator to be charged under national law with a common crime, such as rape, and also charged under international law for an international crime such as genocide or crimes against humanity, without double jeopardy. Even if the two charges are grounded on the same assault, each requires proof of different elements at trial, particularly on the issue of intent.
Sexual violence as war crime:
In the context of an international armed conflict, fundamental assaults on human health, physical integrity and dignity are grave breaches of the Geneva Conventions. The Conventions explicitly require nations to prosecute persons of any nationality who commit acts such as "torture or inhuman treatment" and "wilfully causing great suffering or serious injury to body or health" against any person. There is absolutely no question that most forms of sexual violence purposefully inflicted by military forces upon any person are covered by one or both of these categories; indeed, the Fourth Geneva Convention explicitly requires the protection of women against "rape, enforced prostitution, or any form of indecent assault."
International humanitarian law does forbid acts of sexual violence in internal armed conflicts. Common Article 3 of the 1949 Geneva Conventions prohibits "violence to life and person," "cruel treatment," "torture" or "other outrages upon personal dignity." Protocol II Additional to the 1949 Geneva Conventions, governing the protection of civilians in internal armed conflicts, explicitly outlaws "outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault" at Article 4(2)(e). These violations have been made criminal offenses under the statute of the International Criminal Tribunal for Rwanda (ICTR). Similarly, the statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY) lists "torture or inhuman treatment" and "wilfully causing great suffering or serious injury to body or health."
A single rape can be a war crime:
It is not necessary to find that rape and sexual violence take place systematically or on a wide scale in order to prosecute the perpetrators. Just as a single case of murder of a civilian can be prosecuted, so too can a single rape. Where acts of sexual violence are widespread, they may also constitute a crime against humanity.
Sexual violence as crimes against humanity:
The widespread or systematic commission of acts of sexual violence may also be prosecuted as crimes against humanity, regardless of whether they take place in the context of war or peace. Crimes against humanity include acts such as murder, torture, enslavement, imprisonment, rape or other inhumane acts when committed systematically or on a mass scale against civilians.
Sexual violence as torture:
Even where the statutory definitions of war crimes or crimes against humanity do not explicitly specify rape or other sexual assaults, they are typically understood to be acts of torture and inhuman treatment. As such, they can be charged as grave breaches of the laws of war, war crimes or crimes against humanity.
Torture may also be prosecuted under national law even when an alleged perpetrator evades the reach of an international tribunal. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment requires ratifying states to ensure torture is a criminal offense under domestic law and to prosecute or extradite alleged perpetrators whenever they are found within its territory. Rape and other forms of sexual violence constitute torture when they are intentionally inflicted on a victim by an official or with official instigation, consent or tolerance for purposes such as intimidation, coercion, punishment, or eliciting information or confessions or for any reason based on discrimination of any kind. This includes, of course, torture on the basis of gender discrimination.
Sexual violence as genocide:
Under certain conditions, acts of sexual violence can also be one of the means of committing the international crime of genocide. As defined in the Convention on the Prevention and Punishment of the Crime of Genocide, this crime constitutes certain acts "committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such." The acts that are proscribed include killings, causing serious bodily or mental harm, imposing measures intended to prevent births within the group, forcibly transferring its children to another group, or deliberately inflicting on the group conditions of life calculated to bring about its destruction in whole or in part. Rape, sexual enslavement, forced prostitution, forced sterilization, forced abortion and forced pregnancy--that is, impregnation with the intent of forcing a woman to give birth to the rapist's child--can all be means of seriously harming women, even to the point of death. These crimes can also be used as instruments to impose conditions calculated to destroy the victims, to sunder their families or to destroy their group's capacity to reproduce.
Universal jurisdiction for international crimes of sexual violence:
Grave breaches of the Geneva Conventions, crimes against humanity and genocide are crimes of universal jurisdiction. They are so universally recognized as abhorrent and in the interests of the entire international community to suppress that any nation may prosecute the perpetrators, regardless of their nationality, the nationality of victims or of where the crime took place. Although few nations in practice provide for such a broad exercise of jurisdiction in their domestic laws, both the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) are specifically empowered to prosecute rape and sexual assault as crimes against humanity. To date, the tribunals have successfully prosecuted rape and sexual assault as genocide (Akayesu decision), crimes against humanity (Akayesu decision), torture (Celebici decision) and as war crimes (Furundzija decision).
The international criminal tribunals and crimes of sexual violence:
Acts of sexual violence are within the jurisdiction of the ICTY and the ICTR. By March 1999, the ICTY had indicted twenty-seven individuals in relation to 130 individual crimes that involved either rape or sexual assault. The ICTY's jurisdiction extends to acts of sexual violence perpetrated against civilians in Kosovo today.
The statutes of the two international criminal tribunals include jurisdiction over grave breaches of the Geneva Conventions, other war crimes, crimes against humanity and genocide. Both specify rape in the definition of acts which may constitute crimes against humanity. In addition, the reports leading up to the adoption of their respective statutes make clear that sexual assaults more broadly were contemplated as part of the "inhuman treatment" that is an element of each crime. The Rwanda tribunal statute enumerates "outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault" as war crimes, following the formulation of Common Article 3 of the Geneva Conventions and Article 4(2)(e) of Protocol II.
Some highlights of the jurisprudence of the international criminal tribunals include:
rape prosecuted as a war crime in internal armed conflict: The Akayesu case charged the defendant with rape as a war crime during Rwanda's civil war. Akayesu was acquitted of this charge as the prosecution failed to establish that he was a member of the armed forces or charged with military duties. Most recently the prosecutors of the ICTR have moved to add rape as a war crime to the charges facing Alfred Musema.
recognition of forced pregnancy as a potential crime: In dicta in the Akayesu decision, the ICTR described a situation in which a rapist might deliberately impregnate his victim with the intent to force her to give birth to a child who would, because of patrilineal social conventions, not belong to its mother's group. The tribunal noted that such an act might be a constitutive element of genocide.
rape recognized as torture: In the Celebici case, the ICTY characterized the rape of Bosnian Serb women prisoners at the Celebici prison camp as acts of torture. The tribunal found Hazim Delic, a Bosnian Muslim deputy camp commander, guilty of a grave breach of the Geneva Conventions (torture) and war crimes (torture) for the rapes he committed. Zdravko Mucic, the Bosnian Croat camp commander, was found to have command responsibility for crimes committed at Celebici, including crimes of sexual assault. The landmark decision underscored that rape inflicts the severe physical and psychological pain and suffering that characterizes torture. Sexual violence, wrote the judges, "strikes at the very core of human dignity and physical integrity." The trial chamber emphasized that when such violence is committed against a woman because of her gender the perpetrator's intent triggers the prohibited purpose of discrimination as an element of the crime of torture, just as discrimination based on ethnicity does.
- rape recognized as a crime against humanity: In the Akayesu decision (See Human Rights Watch Press Release, September 2, 1998), the ICTR found the defendant guilty of crimes against humanity based on evidence that he had witnessed and encouraged rapes of Tutsi women while he was a communal leader with words such as, "don't ever ask again what a Tutsi woman tastes like." The tribunal found that the rapes were both systematic and carried out on a massive scale. In the Tadic case, the ICTY also considered the charge of rape as a crime against humanity. Although listed in the amended indictment, rape charges against Tadic were later withdrawn by the prosecution.
- rape prosecuted as genocide: In the Akayesu case, the ICTR found Jean-Paul Akayesu guilty of genocide. The tribunal's decision was based in part on evidence that he had witnessed and encouraged rapes and sexual abuse of women in the course of a genocidal campaign against the Tutsi population while he was a communal leader.
- rape recognized as a violation of the laws or customs of war: In the Furundzija decision, the ICTY found Anto Furundzija, a local Bosnian Croat military commander, guilty of aiding and abetting a war crime, the rape of a Bosnian Muslim woman. Furundzija was found to have provided "assistance, encouragement, or moral support which ha[d] a substantial effect on the perpetration of the crime" when his subordinate orally, anally and vaginally raped a Bosnian Muslim woman Furundzija was interrogating.
- command responsibility for rape: In the Celebici decision, the ICTY found Zdravko Mucic guilty on the basis of command responsibility for the violations of international humanitarian law committed by guards at the camp. The tribunal stated, "The crimes committed in the Celebici prison-camp were so frequent and notorious that there is no way that Mr. Mucic could not have known or heard about them." Those crimes included rapes and sexual assaults committed by Mucic's subordinates. Indictments against Bosnian Serb leaders Radovan Karadzic and Ratko Mladic charge them with command responsibility for rape and sexual assaults rising to the level of crimes against humanity. Karadzic and Mladic are not in custody.
The International Criminal Court
The newly-drafted statute of the International Criminal Court also recognizes sexual violence and rape as international crimes. In addition to charging "torture or inhuman treatment" as grave breaches of the Geneva Conventions, the statute lists other crimes including "committing rape, sexual slavery, enforced prostitution, forced pregnancy...enforced sterilization, or any other form of sexual violence." Such crimes may be prosecuted as grave breaches of the Geneva Conventions (in the context of international armed conflict) or as violations of Common Article 3 of the Geneva Conventions (in the context of internal armed conflict). The statute's definition of crimes against humanity similarly includes torture as well as "rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity."
For more information contact:
Martina Vandenberg (New York): 212-216-1279
Julia Hall (Paris): 336-140-864-75
Jean-Paul Marthoz (Brussels): 322-736-7838