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Jurisprudence on Sexual and Gender violence
Fact sheet compiled by the
Women's Caucus for Gender Justice
The following is a summary
of the treatment of sexual violence in the jurisdictional documents
of the international military tribunals which is followed by excerpts
from noteworthy cases relating to sexual and gender violence.
- The First International Tribunals
Nuremberg Tribunal - 1945
Rape or sexual violence were
not explicitly criminalized in the statute of the Nuremberg tribunal
nor in the judgment as either war crimes or crimes against humanity.
Rape was recognized as a crime against humanity in Local Council
Law No. 10 which governed the subsequent trials of lower-level
Nazis held by the Allied military powers.
International Military Tribunals for the
Far East - 1946
Rape was not explicitly enumerated
as a war crime or a crime against humanity in the Tokyo Charter.
The Charter only lists "murder, extermination, enslavement,
deportation and other inhumane acts…" as crimes against
humanity. However, rape was in effect prosecuted as a war crime
as several high-ranking officials were convicted for violations
of the laws and customs of war, some of which included widespread
rapes and sexual assaults.
The indictment for the International
Military Tribunal for the Far East (the Tokyo Tribunal) describes
as "violation[s] of recognized customs and conventions of war"
the following offenses:
"mass, murder, rape,
pillage, brigandage, torture and other barbaric cruelties upon
the helpless civilian population over-run countries". This
indictment had a separate provision for subjecting civilians
to "indignities", the major category in which rape
and other sexual assaults against women have been traditionally
included.
Though the International Criminal Tribunal
for the Far East addressed some acts of sexual violence, the tribunal
failed to prosecute Japanese officials for its extensive system
of sexual slavery, referred to as the ‘comfort women’
system, into which more than 200,000 women from throughout Asia
were forced. This is despite the fact that prosecutors had ample
evidence of this crime.
- The Statutes of the ad-hoc
Tribunals
International Criminal
Tribunal for the former Yugoslavia - 1993
The statute creating the ICTY
included rape as a crime against humanity but not among the grave
breaches or violations of the laws and customs of war. (Article
5) This was the first time that rape had been explicitly codified
as a crime within the jurisdiction of an international court.
International Criminal
Tribunal for Rwanda - 1994
Article 3 of the Statute of the Rwandan Tribunal
includes rape as a crime against humanity. In addition, rape is
specifically included in article 4 among the violations of "common
article 3" of the Geneva Conventions and Additional Protocol
II. The language tracks the provision of the Fourth Geneva Convention
and Protocol II: "outrages upon personal dignity, in particular
humiliating and degrading treatment, rape, enforced prostitution
and any form of indecent assault."
The following are excerpts
from cases before regional human rights bodies and international
criminal tribunals in the Former Yugoslavia (ICTY) and Rwanda (ICTR):
Fernando and Raquel
Mejia v. Peru, from the Inter-American Commission on Human
Rights in its Annual Report — March 1, 1996, Report No. 5/96,
Case No. 10,970, p. 186, in finding the acts amounted to torture
stated:
[r]ape causes physical
and mental suffering in the victim. In addition to the violence
suffered at the time it is committed, the victims are commonly
hurt or, in some cases, are even made pregnant. The fact of
being made the subject of abuse of this nature also causes a
psychological trauma that results, on the one hand, from having
been humiliated and victimized, and on the other, from suffering
the condemnation of the members of their community if they report
what has been done to them.
Aydin v. Turkey
case from the European Court for Human Rights — September 25,
1997
[w]hile being held in
detention the applicant was raped by a person whose identity
has still to be determined. Rape of a detainee by an
official of the State must be considered to be an especially
grave and abhorrent form of ill-treatment given the ease with
which the offender can exploit the vulnerability and weakened
resistance of his victim. Furthermore, rape leaves deep psychological
scars on the victim which do not respond to the passage of time
as quickly as other forms of physical and mental violence. The
applicant also experienced the acute physical pain of forced
penetration, which must have left her feeling debased and violated
both physically and emotionally. (para. 83)
[…]
Against this background
the Court is satisfied that the accumulation of acts of physical
and mental violence inflicted on the applicant and the especially
cruel act of rape to which she was subjected amounted to
torture in breach of article 3 of the Convention. Indeed
the court would have reached this conclusion on either of these
grounds taken separately. (para. 86)
Tadic, (Dusko) -
ICTY judgment (7 May 1997)
The Tadic decision stated
clearly that rape and sexual violence can be considered as
constituent elements of a widespread and systematic campaign
of terror against a civilian population. The Tribunal found the
accused guilty of crimes against humanity for criminal acts of persecution
that included crimes of sexual violence.
Both male and female prisoners
were subjected to severe mistreatment, which included beatings,
sexual assaults, torture and executions. On the incident of beatings
and sexual mutilation to a male victim who died as a result
of the assaults, the acts of sexual violence (sexual mutilation)
were charged as willful killing and torture However, the Trial Chamber
found that the causal relationship between the sexual violence and
the victim’s death were not adequately established.
Akayesu — judgement
of the ICTR (2 September 1998)
This judgement recognized
for the first time that acts of sexual violence can be prosecuted
as constituent elements of a genocidal campaign. The judgement also
provided a definition of rape and sexual violence.
Who: Jean-Paul Akayesu,
mayor of Taba commune
Definition of rape
687. The Tribunal considers
that rape is a form of aggression and that the central elements
of the crime of rape cannot be captured in a mechanical description
of objects and body parts. The Tribunal also notes the cultural
sensitivities involved in public discussion of intimate matters
and recalls the painful reluctance and inability of witnesses
to disclose graphic anatomical details of sexual violence they
endured. The United Nations Convention Against Torture and Other
Cruel, Inhuman and Degrading Treatment or Punishment does not
catalogue specific acts in its definition of torture, focusing
rather on the conceptual framework of state-sanctioned violence.
The Tribunal finds this approach more useful in the context
of international law. 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 others person
acting in an official capacity.
688. The Tribunal 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… [emphasis added]
Definition of sexual violence
[S]exual violence is not
limited to physical invasion of the human body and may include
acts which do not involve penetration or even physical
contact. The incident described by Witness KK in which the Accused
ordered the Interahamwe to undress a student and force her to
do gymnastics naked in the public courtyard of the bureau communal,
in front of a crowd, constitutes sexual violence. … Sexual
violence falls within the scope of "other inhumane acts"
set forth in Article 3(i) of the Tribunal’s Statute, "outrages
upon personal dignity," set forth in Article 4(e) of the
Statute, and "serious bodily or mental harm," set
forth in Article 2(2)(b) of the Statute. (para. 688)
Definition of coercion
(force) element
[C]oercive circumstances
need not be evidenced by a show of physical force.
Threats, intimidation, extortion and other forms of duress which
prey on fear or desperation may constitute coercion, and coercion
may be inherent in certain circumstances, such as armed conflict
or the military presence of Interahamwe among refugee Tutsi
women at the bureau communal…. (para 688)
Rape and Sexual and Gender
Violence as Genocide
507. For purposes of interpreting
Article 2(2)(d) of the Statute, the Chamber holds that the measures
intended to prevent births within the group, should be construed
as sexual mutilation, the practice of sterilization, forced
birth control, separation of the sexes and prohibition of marriages.
In patriarchal societies, where membership of a group is determined
by the identity of the father, an example of a measure intended
to prevent births within a group is the case where, during rape,
a woman of the said group is deliberately impregnated by a man
of another group, with the intent to have her give birth to
a child who will consequently not belong to its mother's group.
508. Furthermore, the Chamber notes that
measures intended to prevent births within the group may be
physical, but can also be mental. For instance, rape can be
a measure intended to prevent births when the person raped refuses
subsequently to procreate, in the same way that members of a
group can be led, through threats or trauma, not to procreate.
731. With regard, particularly,
to… rape and sexual violence, the Chamber wishes to underscore
the fact that in its opinion, they 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. … Sexual violence was an integral
part of the process of destruction, specifically targeting Tutsi
women and specifically contributing to their destruction and
to the destruction of the Tutsi group as a whole.
Delalic (Celebici),
ICTY judgment (16 November 1998)
This decision is the first
one convicting a Bosnian war criminal specifically for crimes of
sexual violence, in addition to other war crimes.
Who: Zejnil Delalic
Zdravko Mucic ("Pavo")
Hazim Delic
Esad Landzo ("Zenga")
On the events alleged to have
occurred at a detention facility center in the village of Celebici
(Celebici prison-camp), located in the Konjic municipality, in central
Bosnia-Herzergovina. The Indictment of 19 March 1996 alleged that
each of the accused is responsible for various forms of mistreatment
of the detainees in the Celebici prison-camp.
Rape and sexual violence
as torture
495. The Trial Chamber
considers the rape of any person to be a despicable act which
strikes at the very core of human dignity and physical integrity.
The condemnation and punishment of rape becomes all the more
urgent where it is committed by, or at the instigation of, a
public official, or with the consent or acquiescence of such
an official. Rape causes severe pain and suffering, both physical
and psychological. The psychological suffering of persons upon
whom rape is inflicted may be exacerbated by social and cultural
conditions and can be particularly acute and long lasting. Furthermore,
it is difficult to envisage circumstances in which rape, by,
or at the instigation of a public official, or with the consent
or acquiescence of an official, could be considered as occurring
for a purpose that does not, in some way, involve punishment,
coercion, discrimination or intimidation. In the view of this
Trial Chamber this is inherent in situations of armed conflict.
496. Accordingly, whenever
rape and other forms of sexual violence meet the aforementioned
criteria, then they shall constitute torture, in the same manner
as any other acts that meet this criteria.
479. Although the prohibition
on rape under international humanitarian law is readily apparent,
there is no convention or other international instrument containing
a definition of the term itself. The Trial Chamber draws guidance
on this question from the discussion in the recent judgement
of the ICTR, in the case of the Prosecutor v. Jean-Paul Akayesu
(hereafter "Akayesu Judgement") which has considered
the definition of rape in the context of crimes against humanity.
The Trial Chamber deciding this case found that there was no
commonly accepted definition of the term in international law
and acknowledged that, while ‘rape has been defined in
certain national jurisdictions as non-consensual intercourse",
there are different definitions of the variations of such an
act.
[…]
This Trial chamber…
sees no reason to depart from the conclusion of the ICTR in
the Akayesu judgement on this issue. Thus, the Trial Chamber
considers rape to constitute a physical invasion of a sexual
nature, committed on a person under circumstances that are coercive…
Furundzija, ICTY
judgement (12 December 1998)
Who: Anto Furundzija,
a local commander in Vitez in a special HVO military police unit.
This is the first case to
prosecute exclusively on crimes of sexual violence, in where the
rape referred to occurred in the context of an interrogation. The
Court confirmed the status of rape as a war crime, particularly
under common article 3 to the Geneva Conventions relative to internal
armed conflicts.
Rape as torture
163. As evidenced by international
case law, the reports of the United Nations Human Rights Committee
and the United Nations Committee Against Torture, those of the
Special Rapporteur, and the public statements of the European
Committee for the Prevention of Torture, this vicious and ignominious
practice can take on various forms. International case law,
and the reports of the united Nations Sepcial Rapporteur evince
a momentum towards addressing, through legal process, the use
of rape in the course of detention and interrogation as a means
of torture and, therefore, as a violation of international law.
Rape is resorted to either by the interrogator himself or by
other persons associated w
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