Wartime sexual violence and the law

While rape and sexual violence have been used as a weapon of war for a long time, the crimes have been prosecuted only in recent years. Today, acts of sexual violence are crimes both in times of war and peace.

The Rome Statute of 1998 contains a comprehensive list of acts of genocide, crimes against humanity and war crimes. The treaty, which has been signed by more than 120 states, includes various forms of sexual violence, such as rape, sexual slavery, enforced prostitution, forced pregnancy, forced sterilization or “any other form of sexual violence of comparable gravity”.

For rape to be a crime against humanity, the act must have been committed as part of a widespread or systematic attack directed against a civilian population. To constitute a war crime, an act must have taken place during an armed conflict. Rape amounts to genocide when it is committed with the intent to destroy, in whole or in part, a population.

International law recognizes that the definition of sexual violence is gender neutral, and does not exclude the existence of female perpetrators or male victims.

History of the law surrounding sexual violence

The use of rape as a weapon of war is a violation of international humanitarian and human rights law but, until recently, was not considered a crime worthy of prosecution on its own.

The International Military Tribunal (IMT) in Nuremberg, established in 1945 as the first international criminal court, heard evidence of sexual violence in court but since the crime of rape was not included in the tribunal’s charter, the IMT could not explicitly prosecute it. Rape was only mentioned in the context of torture.

One year later, the International Military Tribunal for the Far East (IMTFE) convicted two high-ranking Japanese officials for a series of rapes committed by persons under their command. Still, rape was not formally included as a crime against humanity but characterized as inhumane treatment.

It became clear, however, that the acts could no longer be neglected.

When the Geneva Conventions were amended in 1949, the protection of civilians in times of war was included, and women were mentioned in particular. Article 27 of the Fourth Geneva Convention holds that “women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.”

Domestic laws surrounding sexual violence

While the vast majority of countries in the world criminalises rape, the definition and understanding of the act varies significantly. In addition, most states did not have specific legislation with regard to conflict-related sexual violence until recently.

With the adoption of the Rome Statute, the founding treaty of the International Criminal Court (ICC), also domestic laws were broadened. All States Parties to the ICC have to put laws in place that criminalise the acts mentioned in the Rome Statute, and have an obligation to prosecute them domestically. After the implementation of the Statute, states are able to prosecute rape and other forms of sexual violence not only as ‘ordinary’ crimes, but also as international crimes – thus, as war crimes, crimes against humanity or genocide.

Some countries, among them the Netherlands, France, Germany and Uganda, created investigation units for the prosecution of international crimes. Others, like Liberia after the civil war, have established specialized police units mandated to protect women and children specifically.