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June 2009 

Among weapons used in armed conflict, rape and other forms of sexual violence are especially pernicious.  They can inflict severe physical pain and suffering, as well as deleterious long-term emotional and psychosocial consequences for the individual survivor-victim and for his or her community.  While military codes since at least the fourteenth century have outlawed rape, until relatively recently rape committed during conflict was conceived of as an inevitable, if unlawful, consequence of war.  Today, due to significant developments, including the landmark 1998 Akayesu judgment of the International Criminal Tribunal for Rwanda, international law prohibits manifold forms of sexual violence in armed conflict.  

Sexual violence has occurred in armed conflicts stretching back to Ancient Persia and continuing through to, among others, Afghanistan, Sudan, and the Democratic Republic of Congo today.  The breadth and scale of sexual abuses suffered by men, women, and children in armed conflict are startling. For instance, it has been estimated that in the conflict in the former Yugoslavia, 20,000 women were raped between 1991 and 1995, while in Rwanda, 250,000 to 500,000 women were raped in a four-month genocide in 1994.  While harder to come by, the number of male victims of sexual violence in armed conflict is also significant; for instance, eighty percent of the 5,000 male inmates at a concentration camp in Sarajevo Canton reported being raped.

Generally speaking, in international humanitarian law (IHL) rape was once conceived and defined in women-specific terms as a crime against property, as a crime of troop discipline, and as a crime against family honor.  Today, IHL treats rape as a crime against the individual that comprises a dual violation: of an individual’s physical and moral integrity, and of an individual’s sexual autonomy.  One scholar has recently concluded that “[u]ndeniably, the prohibition of rape as a crime in international humanitarian law possesses the character of jus cogens” (that is, the prohibition has purportedly obtained the status of a peremptory norm of international law).  

The number and range of sexual acts that are prohibited as international crimes have increased to include not only forced penetration but also non-penetrative sexual acts, such as forced nudity and forced marriage. In addition to women and children, adult men – long unrecognized as victims of sexual violence in armed conflict – are now also, if slowly, being recognized as a class of survivor-victims.   

The roots of the current status of sexual violence as a violation of IHL may be traced to the 1863 Lieber Code, which prohibited rape in two provisions.  Article 37 lent general protection to women in conflict, while article 44 expressly proscribed rape.  Article 46 of the 1907 Hague Regulations can be read to have prohibited rape generally as a violation of “family honor and rights.”  Setting a precedent for the international prosecution of rape as a war crime, the Tokyo Tribunal indictment listed rape as “inhuman treatment,” “ill treatment,” and “failure to respect family honour and rights.”  The 1945 Control Council Law No. 10, promulgated to try war crimes in cases not adjudicated by the Nuremberg Tribunal but with a specific locale, lists rape as a crime against humanity.  Article 27 of the 1949 Geneva Convention IV prohibited rape, enforced prostitution, and indecent assault against women.  Nonetheless, rape and sexual assault were omitted from Article 147 of Geneva Convention IV, which lists grave breaches.  Later, rape was expressly prohibited in Article 76 of Protocol I (applicable to international armed conflicts) and Article 4 of Protocol II (applicable to non-international armed conflicts), while enforced prostitution and any form of indecent assault were prohibited in Article 75 of Protocol I as "outrages upon personal dignity." 

Sexual violence perpetrated during armed conflicts may be prosecuted by competent domestic and international tribunals.  For instance, rape and other forms of sexual violence have been charged and prosecuted in the ­ad hoc Tribunals as constituent elements of genocide, crimes against humanity, and war crimes.  (Strictly speaking, neither crimes against humanity nor genocide require a link to an armed conflict; rather, crimes against humanity must be linked to a widespread or systematic attack against a civilian population, while to constitute genocide proscribed acts or omissions must be committed with an intent to exterminate a protected group as such.) The 1998 Rome Statute of the International Criminal Court (ICC) provides the most detailed and comprehensive international law regime proscribing sexual violence in conflict situations.  The Statute classifies “rape, sexual slavery, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity” as, depending on the situational predicate, crimes against humanity or war crimes.  As of June 2009, eight of the 13 arrest warrants issued by the ICC involved charges of, among other things, crimes of sexual violence.

One scholar has posited that, in armed conflicts, the perpetration of sexual violence may derive from three potential motivations: personal gratification, supposedly necessary military training, or as a “reward” to soldiers for participating in conflict in the first place.  Sexual violence perpetrated against men in particular may be motivated by a desire to emasculate and stigmatize the survivor-victim and his community, an effect produced in part by stereotypes relating to masculinity and femininity as well as to social norms denigrating expressions of same-sex desire.