International law recognizes rape and other acts of sexual violence as human rights violations in both times of peace and during the course of armed conflict. Acts of sexual violence that occur during armed conflict may also be considered violations of the laws of war (also referred to as international humanitarian law), crimes against humanity, and acts of genocide.
The international legal principles which apply to sexual violence and rape in particular are outlined in international conventions, declarations, conference documents, founding statutes for the International Criminal Court (ICC) and other international criminal tribunals, and cases decided by these international tribunals. These international agreements and the jurisprudence of international tribunals also provide definitions of the terms rape, sexual assault and/or sexual violence for the purpose of prosecuting perpetrators of these crimes and establishing principles to hold supervisors/commanders accountable for the atrocities committed by their subordinates.
International institutions, such as the U.N. High Commissioner for Refugees and the World Health Organization, have developed standards for the treatment of victims of sexual violence and the prevention of sexual violence, especially as it affects refugee women. The U.N. Human Rights Commission has appointed Special Rapporteurs on Violence Against Women and on Torture whose mandates include documenting sexual violence as a human rights violation and reporting regional and national laws and policies relating to sexual violence, especially when it occurs to women who are detained by governmental authorities.
Definitions of Rape and Sexual Violence
The International Criminal Tribunal for Rwanda (ICTR) has defined rape and sexual violence in very broad terms. The ICTR Trial Chamber in Prosecutor v. Jean-Paul Akeyesu (Case No. ICTR-96-4) defines rape as a "physical invasion of a sexual nature, committed on a person under circumstances which are coercive. The Tribunal considers sexual violence, which includes rape, as any act of a sexual nature which is committed on a person under circumstances which are coercive."
Other courts have defined rape more narrowly by requiring some kind of penetration. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) concluded in Prosecutor v. Furundzija (Case No. IT-95-17/1) that the elements of rape common to most legal systems are "(1) sexual penetration, however slight; (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; (2) by coercion or force or threat of force against the victim or a third person."
Please visit the Explore the Issue section for a more general discussion on what is sexual assault.
Individual Criminal Responsibility
International law establishes individual criminal responsibility for all persons who “planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime,” under Article 7 of the Statute for the International Criminal Tribunal for the Former Yugoslavia.
Sexual Violence is a Violation of International Human Rights Law
Sexual violence is a form of discrimination against women which violates the anti-discrimination provisions of a number of human rights instruments, for example the International Covenant for Civil and Political Rights and the Convention for the Elimination of Discrimination Against Women. Documents from U.N. conferences and reports of the U.N. Special Rapporteur on Violence Against Women have also reported on sexual violence as a prohibited form of discrimination against women.
Many scholars also consider sexual violence under certain circumstances to be a form of torture prohibited under the Torture Convention. International tribunals have also convicted individuals for sexual assault as a form of prohibited torture. For example, the Trial Chamber of the International Criminal Tribunal for Rwanda recognized in Prosecutor v. Jean-Paul Akeyesu (Case No. ICTR-96-4), that:
like torture, rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of the person. Like torture, rape is a violation of personal dignity, and... in fact constitutes torture when it is 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 Special Rapporteur on Torture also considers rape to be a form of torture: "[R]ape is a traumatic form of torture for the victim."
War Crimes and Violations of International Humanitarian Law
International humanitarian law prohibits sexual violence in the context of both international and internal conflicts.
The four Geneva Conventions of 1948 and the two 1977 Protocols Additional to the Geneva Conventions are the most important instruments of international humanitarian law. Article 27 of the Fourth Geneva Convention of 1949 states: "[W]omen shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault." Article 147 of the Fourth Geneva Convention of 1949 defines "willfully causing great suffering or serious injury to body or health," "torture," and "inhuman treatment" as war crimes and grave breaches of the conventions.
Human Rights Watch explains that “the International Committee of the Red Cross (ICRC) has recognized rape constitutes ‘willfully causing great suffering or serious injury to body or health’ and thus should be treated as a grave breach of the convention. The ICRC has also stated that ‘inhuman treatment’ should be interpreted in light of Article 27 and its specific prohibition against rape. The Geneva Conventions specify that governments are obliged to find and punish those responsible for grave breaches and to make those accused available for trial.”
Human Rights Watch further states that, “[a]s with international conflicts, humanitarian law clearly prohibits rape in internal conflicts. Rape committed or tolerated by any party to a non-international conflict is prohibited by Common Article 3 of the Geneva Conventions insofar as it constitutes ‘violence to life and person,’ ‘cruel treatment,’ ‘torture,’ or ‘outrages upon personal dignity.’ Moreover, Protocol II to the Geneva Conventions, which applies to conflicts between a government's and its opposition's armed forces that control territory within the country, prohibits ‘outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault’ committed by any party. The ICRC explains that this provision ‘reaffirms and supplements Common Article 3 . . . [because] it became clear that it was necessary to strengthen . . . the protection of women . . . who may also be the victims of rape, enforced prostitution or indecent assault.’”
From Human Rights Watch, International Protections: Rape, available at http://www.hrw.org/about/projects/womrep/General-24.htm.
Crimes Against Humanity
Article 6 of the 1945 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal (the Nuremberg Charter) defines crimes against humanity as:
murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal whether or not in violation of the domestic law of the country where perpetrated.
Rape has since been incorporated in the definition of crimes against humanity in the statutes of international criminal tribunals, including the Rome Statute establishing the International Criminal Court.
Crimes against humanity are discriminatory in nature and must be committed against a civilian population and not against individuals. The successful prosecution of crimes against humanity requires a showing of systematic government planning of the crimes.
Rape as Genocide
Genocide is the most egregious crime against humanity. This crime has been codified in the Convention on the Prevention and Punishment of the Crime of Genocide. As the Trial Chamber of the International Criminal Tribunal for Rwanda recognized in Prosecutor v. Jean-Paul Akeyesu (Case No. ICTR-96-4), a perpetrator of rape or other acts of sexual violence and his supervisor or commanding officer can be prosecuted for genocide if the prosecutor can demonstrate that the act was intended to physically or psychologically destroy a group.
Rape as Sexual Enslavement
Enslavement is also recognized as a crime against humanity. The ICTY in Prosecutor v. Kunarac (Foca)(Case No. IT-23-03) prosecuted crimes of sexual violence as a form of enslavement.
Adapted from Christine Chinkin, Rape and Sexual Abuse of Women in International Law, European Journal of International Law, Volume 5, No. 3, I-391 (1994); Application of Relevant International Law, Physicians for Human Rights; International Protections: Rape; Rosalind Dixon, Rape as a Crime in International Humanitarian Law: Where To From Here?, European Journal of International Law, Volume 13, No. 3, 697-719 (April 2002); Rape as a Tool of War, Amnesty International; David Scheffer, Rape as a War Crime (1999); and Sierra Leone: We'll Kill You if You Cry (2003), Human Rights Watch.
Resource List:
Good practices in legislation on violence against women, Expert group meeting organized by the United Nations Division for the Advancement of Women and the United Nations Office on Drugs and Crime, 2008. (PDF, 76 pages)
The purpose of the expert group meeting was to analyze different legislative approaches for addressing violence against women; assess lessons learned and identify good practices in regard to legal reforms on violence against women; and develop a model framework for legislation on violence against women. The outcome of the meeting is intended to assist States and other stakeholders in enhancing existing, and developing new, legislation on violence against women.
Violence Against Women in Armed Conflict: A Fact Sheet, Amnesty International available at http://www.amnestyusa.org/stopviolence/factsheets/armedconflict.html.
Rape as a Tool of War: A Fact Sheet, Amnesty International, available at http://www.amnestyusa.org/stopviolence/factsheets/rapeinwartime.html.
Sierra Leone: We'll Kill You if You Cry (2003), Human Rights Watch, available at http://www.hrw.org/reports/2003/sierraleone/.
War-Related Sexual Violence in Sierra Leone: A Population-Based Assessment (2002) Physicians for Human Rights, available at http://www.phrusa.org/research/sierra_leone/report.html.
Rosalind Dixon, Rape as a Crime in International Humanitarian Law: Where To From Here?, European Journal of International Law, Volume 13, No. 3, 697-719 (April 2002), available at http://www.ejil.org/journal/Vol13/No3/ab5.html.
Eduardo Greppi, The Evolution of Individual Criminal Responsibility under International Law, International Review of the Red Cross, No. 835, 531-553 (March 1999) available at http://www.icrc.org/Web/Eng/siteeng0.nsf/html/57JQ2X
International Protections: Rape, Human Rights Watch, available at http://www.hrw.org/about/projects/womrep/General-24.htm.
David Scheffer, Rape as a War Crime (1999), available at http://www.converge.org.nz/pma/arape.htm.
Reports of the UN Special Rapporteur for Violence Against Women, available at http://www.unhchr.ch/women/focus-violence.html.
Relevant Conventions:
Torture Convention, available at http://www1.umn.edu/humanrts/instree/h2catoc.htm.
International Covenant for Civil and Political Rights, available at http://www1.umn.edu/humanrts/instree/b3ccpr.htm.
Convention for the Elimination of Discrimination Against Women, available at http://www1.umn.edu/humanrts/instree/e1cedaw.htm.
Convention on the Prevention and Punishment of the Crime of Genocide, available at http://www.unhchr.ch/html/menu3/b/p_genoci.htm.
Relevant Caselaw:
Prosecutor v. Jean-Paul Akeyesu (Case No. ICTR-96-4), International Criminal Tribunal for Rwanda, available at http://www.ictr.org/ENGLISH/cases/Akayesu/judgement/akay001.htm.
Prosecutor v. Furundzija (Case No. IT-95-17/1), International Criminal Tribunal for the Former Yugoslavia, available at http://www.un.org/icty/furundzija/trialc2/judgement/fur-tj981210e.pdf.
Prosecutor v. Kunarac (Foca)(Case No. IT-23-03), International Criminal Tribunal for the Former Yugoslavia, available at http://www.un.org/icty/kunarac/trialc2/judgement/kun-tj010222e.pdf.
Relevant International Criminal Tribunal Statutes:
1945 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal (the Nuremberg Charter), available at http://www.icrc.org/ihl.nsf/52d68d14de6160e0c12563da005fdb1b/59e5a3f396d98cc3 c125641e00405ea7?OpenDocument.
Statute for the International Criminal Tribunal for the Former Yugoslavia, available at http://www.un.org/icty/basic/statut/statute.htm.
Statute for the International Criminal Tribunal for Rwanda, available at http://www.ictr.org/ENGLISH/basicdocs/statute.html.
Rome Statute of the International Criminal Court, available at http://www.un.org/law/icc/statute/romefra.htm.