INTERNATIONAL LEGAL INSTRUMENTS

International humanitarian law (IHL) instruments

  • Geneva Conventions of 1949, Common Article 3

    “ […] the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (…) c) outrages upon personal dignity, in particular humiliating and degrading treatment […]”;

  • Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977:

    • Article 75 “[…] The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents:(a) violence to the life, health, or physical or mental well-being of persons, […](b) outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault […]”;

    • Article 76 “[…] Women shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other form of indecent assault”;

    • Article 77 “Children shall be the object of special respect and shall be protected against any form of indecent assault […]”.

Rape and other forms of sexual violence are prohibited under IHL, both in international and non-international armed conflicts.

International criminal law

  • Statute of the International Criminal Tribunal for Rwanda (1994):

    • Article 3, Crimes against humanity “The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds: […] (g) Rape; […] (i) Other inhumane acts.”;

    • Article 4, Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II “The International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977. These violations shall include, but shall not be limited to: […] (e) Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault […]”;

  • Rome Statute of the International Criminal Court (1998):

    • Article 7, Crimes against humanity “For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: […] (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity”;

    • Article 8, War crimes “For the purpose of this Statute, "war crimes" means: […] (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: […] (xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; (xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilisation, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions”;

    • (e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: […] (vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilisation, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions”;

  • Elements of Crimes, ICC,

    • Article 7 (1) (g)-1, Crime against humanity of rape, Elements “(1) The perpetrator 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 perpetrator 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, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent. (3) The conduct was committed as part of a widespread or systematic attack directed against a civilian population. (4) The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population”;

    • Article 7 (1) (g)-6, Crime against humanity of sexual violence, Elements “ (1) The perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent. (2) Such conduct was of a gravity comparable to the other offences in article 7, paragraph 1 (g), of the Statute. (3) The perpetrator was aware of the factual circumstances that established the gravity of the conduct. (4) The conduct was committed as part of a widespread or systematic attack directed against a civilian population. (5) The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population”;

    • Article 8 (2) (b) (xxii)-1, War crime of rape, Elements “(1) The perpetrator 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 perpetrator 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, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent. (3) The conduct took place in the context of and was associated with an international armed conflict. (4) The perpetrator was aware of factual circumstances that established the existence of an armed conflict”;

  • Elements of Crimes, ICC, [continue]

    • Article 8 (2) (e) (vi)-1, War crime of rape, Elements “(1) The perpetrator 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 perpetrator 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, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent. (3) The conduct took place in the context of and was associated with an armed conflict not of an international character. (4) The perpetrator was aware of factual circumstances that established the existence of an armed conflict”;

    • Article 8 (2) (b) (xxii)-6, War crime of sexual violence, Elements “(1) The perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent. (2) The conduct was of a gravity comparable to that of a grave breach of the Geneva Conventions. (3) The perpetrator was aware of the factual circumstances that established the gravity of the conduct. (4) The conduct took place in the context of and was associated with an international armed conflict. (5) The perpetrator was aware of factual circumstances that established the existence of an armed conflict”;

    • Article 8 (2) (e) (vi)-6, War crime of sexual violence, Elements “(1) The perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent. (2) The conduct was of a gravity comparable to that of a serious violation of article 3 common to the four Geneva Conventions. (3) The perpetrator was aware of the factual circumstances that established the gravity of the conduct. (4) The conduct took place in the context of and was associated with an armed conflict not of an international character. (5) The perpetrator was aware of factual circumstances that established the existence of an armed conflict”;

  • Statute of the special court for Sierra Leone,

    • Article 2, Crimes against humanity “The Special Court shall have the power to prosecute persons who committed the following crimes as part of a widespread or systematic attack against any civilian population: […] g. Rape, sexual slavery, enforced prostitution, forced pregnancy and any other form of sexual violence; […] i. Other inhumane acts”;

    • Article 3, Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II, “The Special Court shall have the power to prosecute persons who committed or ordered the commission of serious violations of article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977. These violations shall include: […] e. Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault […]”

International conventions

  • Convention on preventing and combating violence against women and domestic violence (Istanbul Convention), Article 36,[1] Sexual violence, including rape,

    “Parties shall take the necessary legislative or other measures to ensure that the following intentional conducts are criminalised: a. engaging in non-consensual vaginal, anal or oral penetration of a sexual nature of the body of another person with any bodily part or object; b. engaging in other non-consensual acts of a sexual nature with a person; c. causing another person to engage in non-consensual acts of a sexual nature with a third person”.

  • UN Convention on the Rights of the Child. Concluding observations on the third and fourth periodic reports of Rwanda, adopted by the Committee at its sixty-third session (27 May–14 June 2013), CRC/C/RWA/CO/3-4,

    “the Committee urges the State Party to […] (b) Intensify measures, including awareness raising and timely implementation of relevant policies and strategic plans to combat stigma against children from ‘historically marginalised communities’, children with disabilities, especially girls, and persons who were born as a result of rape during the genocide”;

UN RESOLUTIONS

  • UN Security Council Resolution S/RES/1325 (2000),

    “calls on all parties to armed conflict to take special measures to protect women and girls from gender-based violence, particularly rape and other forms of sexual abuse, and all other forms of violence in situations of armed conflict”, and “emphasises the responsibility of all States to put an end to impunity and to prosecute those responsible for genocide, crimes against humanity, and war crimes including those relating to sexual and other violence against women and girls, and in this regard stresses the need to exclude these crimes, where feasible from amnesty provisions”;

  • UN Security Council Resolution S/RES/1820 (2008),[1] the Security Council

    “notes that rape and other forms of sexual violence can constitute a war crime, a crime against humanity, or a constitutive act with respect to genocide, stresses the need for the exclusion of sexual violence crimes from amnesty provisions in the context of conflict resolution processes, and calls upon Member States to comply with their obligations for prosecuting persons responsible for such acts, to ensure that all victims of sexual violence, particularly women and girls, have equal protection under the law and equal access to justice, and stresses the importance of ending impunity for such acts as part of a comprehensive approach to seeking sustainable peace, justice, truth, and national reconciliation”;

  • UN Security Council Resolution S/RES/1888 (2009),[1] the Security Council

    “urges States to undertake comprehensive legal and judicial reforms, as appropriate, in conformity with international law, without delay and with a view to bringing perpetrators of sexual violence in conflicts to justice and to ensuring that survivors have access to justice, are treated with dignity throughout the justice process and are protected and receive redress for their suffering”;

  • UN Security Council Resolution S/RES/1960 (2010),[1] the Security Council

    “calls upon parties to armed conflict to make and implement specific and time-bound commitments to combat sexual violence, which should include, inter alia, issuance of clear orders through chains of command prohibiting sexual violence and the prohibition of sexual violence in Codes of Conduct, military field manuals, or equivalent; and further calls upon those parties to make and implement specific commitments on timely investigation of alleged abuses in order to hold perpetrators accountable”;

  • UN Security Council Resolution S/RES/2106 (2013),[1]

    “[…] sexual violence can constitute a crime against humanity or a constitutive act with respect to genocide; (the Security Council) further recalls that rape and other forms of serious sexual violence in armed conflict are war crimes; calls upon Member States to comply with their relevant obligations to continue to fight impunity by investigating and prosecuting those subject to their jurisdiction who are responsible for such crimes; encourages Member States to include the full range of crimes of sexual violence in national penal legislation to enable prosecutions for such acts; recognises that effective investigation and documentation of sexual violence in armed conflict is instrumental both in bringing perpetrators to justice and ensuring access to justice for survivors”;

United Nations Security Council Resolutions - United Nations Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict

CASE LAW

  • ICTR, The Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Trial Chamber 1, 2 September 1998

    “[…] Like torture, rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person. Like torture, rape is a violation of personal dignity, and rape in fact constitutes torture when inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”. “The Chamber defines rape as a physical invasion of a sexual nature, committed on a person under circumstances which are coercive. Sexual violence which includes rape, is considered to be any act of a sexual nature which is committed on a person under circumstances which are coercive”. For the first time, it was established that sexual violence constituted a crime against humanity and a tool of genocide by a government official.

  • ICTY, The Kunarac et al case (The Foča Trial) for the first time, an international criminal tribunal brought charges exclusively for crimes of sexual violence. Rape was convicted as a form of torture, and sexual enslavement as a crime against humanity.

  • ICC, The Prosecutor v. Dominic Ongwen February 2021 saw the first international conviction for the charge of forced pregnancy as a war crime and crime against humanity in the case a high-ranking LRA commander (case No ICC-02/04-01/15).

  • ICC, The Prosecutor v. Bosco Ntaganda. March 2021, as part of the Reparations Order (case No ICC-01/04-02/06), children born out of rape and sexual slavery were deemed to be direct victims of these crimes and eligible for reparations.

  • ECHR case law:

    • Aydín v. Turkey (1997), a young Turkish woman of Kurdish origin was arrested without explanation and taken into custody. She was blindfolded, beaten, stripped naked, tortured, and raped by a member of the security forces. Given due consideration to both the physical and mental violence inflicted on the applicant while in custody, the Court stressed that there had been a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the Convention.

  • The Koblenz Higher Regional Court, January 13, 2022 marked the end of the world’s first trial on state torture in Syria. Anwar R. was sentenced to life imprisonment for killing, torture, rape, and sexual assault as crimes against humanity under the German Code of Crimes against International Law (CCAIL, Section 7 No 1, 5, 6, 9).

REPORTS

  • Report of the Secretary-General, S/2022/77, Women and girls who become pregnant as a result of sexual violence in conflict and children born of sexual violence in conflict;

  • Report of the Special Rapporteur on violence against women, its causes and consequences, Dubravka Šimonović, A/HRC/47/26, Rape as a grave, systematic and widespread human rights violation, a crime and a manifestation of gender-based violence against women and girls, and its prevention;

  • Report of the Special Rapporteur on violence against women, its causes and consequences, A/HRC/47/26/Add.1, A framework for legislation on rape (model rape law). The objectives of the model legislation on rape are to: (a) Protect everyone’s right to a life free from rape, particularly that of women, both in the public and private spheres; (b) Prevent and combat rape as a most common and widespread violation of human rights to bodily integrity and sexual autonomy, to privacy, to physical and mental health; and the rights to be free from violence, discrimination, torture, inhuman and degrading treatment; and other human rights; (c) Prevent and combat rape in conflict as a crime against humanity, a war crime, a form of torture, or a constitutive element of genocide; (d) Combat impunity for perpetrators and increase rates in the reporting and prosecution of rape; (e) Enable victims of rape to report it, and provide them with security, agency and recovery; (f) Support the revision and elimination of provisions that are discriminatory and contrary to international law; (g) Eliminate from law and judicial practices all forms of gender-based discrimination, including stereotypes and myths about rape; (h) Connect criminal law provisions on rape with other national laws, policies and measures for the prevention of gender-based violence against women and girls and domestic violence, as well as the protection of and assistance to victims; (i) Support the collection of comparable data on rape and the establishment of national observatories on gender-based violence against women including rape, tasked with collecting data and producing analyses to contribute to prevention;

  • Wilton Park and the United Kingdom (UK) Foreign, Commonwealth and Development Office (FCDO), Strengthening the international response to Conflict Related Sexual Violence (CRSV).The report provides recommendations on how to strengthen the response to conflict-related sexual violence (e.g., promoting gender mainstreaming, enhancing coordination between experts, building positive social norms);

  • Trial International (2019): (Un)Forgotten. Annual report on prosecution of sexual violence as an international crime.

GUIDELINES AND PROTOCOLS

  • Guidance note of the Secretary-General, Reparations for Conflict-Related Sexual Violence (2014).]The Note offers policy and operational guidance for United Nations engagement in the field of reparations for victims of conflict-related sexual violence, including activities to advocate for and/or support the design, implementation, monitoring and evaluation of reparation programmes and initiatives directed at victims of conflict-related sexual violence. The Note refers to “conflict-related sexual violence” as “incidents or patterns of sexual violence against women, men, girls or boys occurring in a conflict or post-conflict setting that have direct or indirect links with the conflict itself or that occur in other situations of concern such as in the context of political repression”. The Note consists of two main sections:

    • Guiding principles for operational engagement:

      • Adequate reparation for victims of conflict-related sexual violence entails a combination of different forms of reparations;

      • Judicial and/or administrative reparations should be available to victims of conflict-related sexual violence as part of their right to obtain prompt, adequate and effective remedies;

      • Individual and collective reparations should complement and reinforce each other;

      • Reparations should strive to be transformative, including in design, implementation and impact;

      • Development cooperation should support States’ obligation to ensure access to reparations;

      • Meaningful participation and consultation of victims in the mapping, design, implementation, monitoring and evaluation of reparations should be supported;

      • Urgent interim reparations to address immediate needs and avoid irreparable harm should be made available;

      • Adequate procedural rules for proceedings involving sexual violence and reparations should be in place;

    • Operational guidance on the consideration of different forms of reparation: this section focuses on forms of restitution, compensation, satisfaction, rehabilitation, and guarantees of non-repetition.

UN Secretary-General

Office of the United Nations High Commissioner for Human Rights

Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict

  • Strategic litigation for sexual and gender-based violence: Lessons learned (Workshop report). The workshop focused on identifying the objectives of strategic sexual and gender-based violence litigation; integrating a victim-centred approach; designing and planning strategic litigation; stakeholders’ coordination, collaboration and complementary roles; communicating and advocating; funding strategic litigation; and maximising the transformative potential of strategic litigation;

Established by Security Council Resolution (SCR) 1888 (2009), the Office advocates on conflict-related sexual violence. Ms. Pramila Patten of Mauritius is the current Special Representative. Her three strategic priorities are converting cultures of impunity into cultures of justice and accountability, fostering national ownership and leadership for a sustainable, survivor-centred response, and addressing the root causes of conflict-related sexual violence. Some of the Office’s publications:

  • In their own words, Voices of survivors of conflict-related sexual violence and service-providers (Digital book). The book collects testimonies from survivors of conflict-related sexual violence (e.g., refugees and internally displaced persons, individuals living with disabilities, people who became HIV-positive as a result of rape, indigenous survivors, political dissidents and activists);

  • Model legislative provisions and guidance on investigation and prosecution of conflict-related sexual violence. The model aims to help conflict-related sexual violence victims, survivors, and their family have access to justice, while providing guidance to practitioners on implementing a robust legal and procedural framework in compliance with international norms and obligations.

WHO

WHO Ethical and safety recommendations for researching, documenting and monitoring sexual violence in emergencies.

The document provides eight safety and ethical recommendations, to ensure that the necessary safety and ethical safeguards are in place prior to commencement of any information gathering exercise concerning sexual

OTHER GUIDELINES AND BEST PRACTICES

  • Human Rights Watch (2021): Key Humanitarian Standards for Post-Rape Care. The annex focuses on the issues of sexual violence and clinical management of rape, and mental health and psychosocial support;

  • ICC (2014): Policy Paper on Sexual and Gender-Based Crimes. The policy aims to support the implementation of the provisions of the Statutes and the Rules, with a view to ensuring the effective investigation and prosecution of sexual and gender-based crimes, from preliminary examination to appeal. It also aims to contribute to the development of international jurisprudence with regard to sexual and gender-based crimes;

  • The Hague Principles on sexual violence: Over the course of 2019, over 50 civil society organisations came together to bring the voices of survivors to the forefront of discussions about addressing sexual violence. More than 500 survivors were consulted on what they think makes violence ‘sexual’. Information from consultations was complemented by input from civil society, legal practitioners, academics, and policy makers to create The Hague Principles on Sexual Violence.The Hague Principles on Sexual Violence consist of:

    • The Civil Society Declaration on Sexual Violence – providing general guidance on what makes violence ‘sexual’, especially to survivors;- International Criminal Law (ICL) Guidelines – a tool for international criminal law practitioners that explains when acts of sexual violence in the Civil Society Declaration amount to international crimes, as well as practical elements to inform the international criminal law prosecution of these acts;

    • Key Principles for Policy Makers on Sexual Violence – 10 key principles derived from the Civil Society Declaration to incorporate in policy development and implementation, legislative strategies and legal and judicial procedures.

ACADEMIC REPORTS, ARTICLES

  • Schulz, P (2022), University of Oslo: Accountability for Conflict-Related Sexual Violence. The article focuses on criminal accountability for wartime sexual violence and on its shortcomings. It also addresses the issue of reparations;

  • Women’s initiatives for gender justice (2021): “Accountability for Sexual and Gender-Based Crimes at the ICC: An Analysis of Prosecutor Bensouda’s Legacy”. Joint Women’s Initiatives for Gender Justice and the International Federation for Human Rights (FIDH) This joint paper reviews the work of the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) regarding the investigation and prosecution of sexual and gender-based crimes (SGBC) from 2012 to 2021 and identifies key recommendations addressed to the incoming Prosecutor, Karim Khan, who took office on 16 June 2021.

  • Davis, L. (2021): Dusting Off the Law Books: Recognizing Gender Persecution in Conflicts and Atrocities. Justice Rapid Response continued to advance the issue of gender persecution in the sphere of international justice. It commissioned a research paper on gender persecution as an international crime.

LINKS

UN
Home - United Nations Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict
Secretary-General Annual Reports - United Nations Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict
Other Resources - United Nations Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict
EUROJUST
Genocide Network | Eurojust | European Union Agency for Criminal Justice Cooperation (europa.eu)
Conclusions of the 16th meeting of the Genocide Network, 21-22 May 2014 | Eurojust | European Union Agency for Criminal Justice Cooperation (europa.eu)
OTHER ORGANISATIONS
Resources - Women’s Initiatives for Gender Justice (4genderjustice.org)
News — ReLeG
Legal Advocacy | MADRE
CONTACTS

+370 662 42920
info@rapeisawarcrime.org

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