The prohibition of rape is one of the oldest and most basic rules of war. Rape was explicitly prohibited and punished by death in the first modern code on the law of war, the Lieber Code of 1863.
The 1949 Geneva Conventions and their Additional Protocols also prohibit rape, both explicitly and implicitly through the prohibition of cruel treatment and torture, outrages upon personal dignity, indecent assault and enforced prostitution, in both international and non-international armed conflicts.
Sexual violence can be broadly defined as acts of a sexual nature imposed by force, threat of force or coercion, or by taking advantage of a coercive environment or a person’s incapacity to give genuine consent. It encompasses acts such as rape, sexual slavery, enforced prostitution, forced pregnancy and enforced sterilization. Sexual violence occurring in an armed conflict can be committed for strategic purposes, opportunistically, or because it is tacitly tolerated.
The creation of the two ad hoc International Criminal Tribunals for the former Yugoslavia and for Rwanda (ICTY and ICTR) allowed the international community to acknowledge that such crimes should be punished, and that individuals can bear criminal responsibility for their commission. As a result, it is clear today that sexual violence, when linked to armed conflict, constitutes a war crime. In the Kunarac case, the ICTY found that rape can also constitute a crime against humanity in certain circumstances. In the Akayesu case, the ICTR found that rape and sexual violence can “constitute genocide in the same way as any other act as long as they [are] committed with the specific intent to destroy, in whole or in part, a particular group, targeted as such”. In the Čelebiči case, the ICTY ruled for the first time that rape can constitute torture. Building on these important cases, the Rome Statute of the ICC includes “[r]ape, sexual slavery, enforced prostitution, forced pregnancy … enforced sterilization, or any other form of sexual violence” as war crimes in both international and non-international armed conflicts. While some of the currently pending cases before the ICC include charges related to sexual violence, the Court has yet to secure a conviction for crimes of sexual violence.
The impact of the case law of international courts and tribunals on this issue has been significant, not only for its role in clarifying and developing the law, but also through its deterrent effect. Even if only a few perpetrators have been brought to justice, one must not forget the role justice plays in the symbolic statement of what is right and wrong, in gaining recognition for victims and in demonstrating that there are grave consequences for grave offences.
Ultimately, however, accountability for rape and other forms of sexual violence should be ensured domestically, by investigating these acts, prosecuting and punishing the perpetrators. In her article for the Review, Kim Seelinger, Director of the Sexual Violence Program Kim Thuy Seelinger, JD, is the Director of the Sexual Violence Program at the Human Rights Center, University of California, Berkeley, School of Law. presents and analyzes national systems for the investigation and prosecution of sexual violence crimes in her article, based on four case studies in Kenya, Sierra Leone, Liberia and Uganda.
Impunity for sexual violence remains at the heart of the problem in many contexts. While emotional and material barriers may prevent victims from reporting the crime, in some cases the real issue lies in the inability of national justice systems to ensure accountability. What is needed is not development of new law, but better implementation of the existing law. Authorities must ensure that adequate mechanisms are in place allowing victims to report the violence in a safe and confidential manner. Certain measures can ease, to the extent possible, the difficult process of judicial procedures for victims, such as appropriate sensitization of legal personnel, specific technical arrangements regarding time and place of the hearings, and adequate legal assistance to all alleged perpetrators. The increased attention of the media and public opinion on sexual violence cases should not jeopardize fair trial guarantees by putting pressure on the justice system to secure quick convictions.