The term international framework of sexual violence refers to the collection of international legal instruments – such as treaties, conventions, protocols, case law, declarations, resolutions and recommendations – developed in the 20th and 21st century to address the problem of sexual violence. The framework seeks to establish and recognise the right of all human beings (especially but not only women) to not experience sexual violence, to prevent sexual violence from being committed wherever possible, to punish perpetrators of sexual violence, and to provide care for victims of sexual violence. The standards set by this framework are intended to be adopted and implemented by governments around the world in order to protect their citizens against sexual violence.
Even though international humanitarian law (IHL) strongly prohibits sexual violence in all armed conflicts and international human rights law (IHRL) and international customary law strongly prohibit it at all times, enforcement mechanisms are fragile or do not exist in many parts of the world. Acts of sexual violence can be charged as a crime against humanity, genocide, war crime, or grave breach of the Geneva Conventions.
Background
Sexual violence includes, but is not limited to, rape. Although there is no agreed upon definition of sexual violence, commonly applied ones encompass any act of a sexual nature or attempt to obtain a sexual act carried out through coercion. Sexual violence also includes physical and psychological violence directed at a person's sexuality, including unwanted comments or advances, or acts of traffic such as forced prostitution or sexual slavery.[WHO (2002), 'Sexual violence', in World Report in violence and health, Chapter 6, pp. 149][Elements of Crimes, Article 7(1)(g)-6 Crimes against humanity of sexual violence, elements 1. Accessed through ][McDougall, Ms. Gay J. (1998), Special Rapporteur, Contemporary forms of slavery: systematic rape, sexual slavery and slavery-like practices during armed conflict, Final report submitted by Ms. Jay J. McDougall, Special Rapporteur, E/CN.4/Sub.2/1998/13, para. 21]
Sexual violence, in times of peace and armed conflict situations, is widespread and considered to be one of the most traumatic, pervasive, and most common violations human beings suffer. It is a serious public health and human rights problem and has profound short- and long- term impacts on physical and mental health. Though women and girls suffer disproportionately from this kind of violence, it can occur to anybody at any age. It is also an act of violence that can be perpetrated by parents, caregivers, acquaintances, and strangers, as well as intimate partners. Sexual violence is rarely a crime of passion; it is an aggressive act that frequently aims to express power and dominance over the victim.
Sexual violence remains highly stigmatized in all settings; thus, levels of disclosure of the assault vary between regions. In general, it is widely under-reported; thus, available data tend to underestimate the true scale of the problem. In addition, sexual violence is also a neglected area of research; thus, deeper understanding of the issue is needed to promote a coordinated movement against it. It is important to distinguish between domestic sexual violence and conflict-related sexual violence.[Human Security Report (2012), Sexual Violence, Education and War: Beyond the mainstream narrative, Human Security Research Group, Simon Fraser University, Canada, Human Security Press] Often, people who coerce their spouses into sexual acts believe their actions are legitimate because they are married. In times of conflict, sexual violence tends to be an inevitable repercussion of warfare trapped in an ongoing cycle of impunity. Rape is often used as a weapon of war, as a form of attack on the enemy, typifying the conquest and degradation of its women or men or captured fighters of any gender.Swiss S et al. Violence against women during the Liberian civil conflict. Journal of the American Medical Association, 1998, 279:625–629.
International humanitarian law
References to sexual offences and violence provided in IHL instruments are only partially expressed in the 1949 Geneva Conventions, and even more vaguely considered in the 1977 Additional Protocols.1977 Additional Protocols. Retrieved 9 April 2015. By prohibiting sexual violence in a non-discriminatory manner, international humanitarian law ensures that women are protected through a two-tiered approach, being covered by general (equal protection as men) and specific protections. IHL mandates special protections to women, according to their additional needs in situations in which they find themselves more vulnerable, for example women who are widows, sick and wounded, migrants, internally displaced, or held in detention.
Instrument Relevant provisions Relevant citations or additional information Customary law Rule 93 State practice establishes prohibition of rape and other forms of sexual violence as a norm of customary international law. Customary law Rule 94 Under the Statute of the International Criminal Court, sexual slavery is a war crime in both international and non-international armed conflicts. Customary law Rule 134 The practice collected with regard to the specific needs of women is reinforced by and should be viewed in the light of the specific practice relating to the prohibition of sexual violence and the obligation to separate women deprived of their liberty from men, as well as the prominent place of women's rights in human rights law. Customary law Rule 156 Serious violations of international humanitarian law constitute war crimes. Sexual violence as a war crime. 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; (...) Geneva Convention relative to the Protection of Civilian Persons in Time of War Article 27(2) (...) inter alia (...) Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault. (...) Without prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion (...). Additional Protocol I Article 75(2) (b) (...) outrages against personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any other form of sexual assault (...) Additional Protocol I Article 76(1) 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. (...) Additional Protocol I Article 77(1) Children shall be the object of special respect and shall be protected against any form of indecent assault Additional Protocol II Article 4(2) (e) Prohibition of outrages against personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any other form of indecent assault
International criminal law
Although evidence of sexual atrocities such as mass rapes is acknowledged in the Nuremberg War Crimes Tribunal and Tokyo Tribunal, references to sexual violence in their respective charter are absent. Nonetheless, the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for former Yugoslavia (ICTY), the hybrid Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia consider sexual violence as a public tool of war rather than a private crime. Groundbreaking case law both by the ad hoc Tribunals of ICTR and ICTY established unprecedented developments by classifying acts of rape and sexual violence as crimes of genocide and crimes against humanity.
International Committee of the Red Cross provided clarification with Aide-memoire, the prohibition of rape under the Geneva Conventions of 1949. The issued statements cover the breach of willfully causing great suffering or serious injury to body or health, not only rape but also any other attack on a woman’s dignity. The Aide-memoire covers the legal breadth of prohibitions enumerated under Article 147.
The Akayesu case goes beyond domestic law definitions of sexual violence and is the first case in which sexual violence is perceived as an integral part of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. On 2 September 1998, the International Criminal Tribunal for Rwanda (ICTR) found Jean-Paul Akayesu guilty of genocide and crimes against humanity, and "sexual violence" is cited more than 100 times in the judgment. The trial chamber also held that "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".
The first trial solely focused on the perpetration of systematic sexual violence (rape camps) and on crimes against humanity committed against women and girls was in the Foca case, a ruling before the International Criminal Tribunal for former Yugoslavia (ICTY). The Statute of the International Criminal Court (ICC) also explicitly incorporates rape and other forms of sexual violence in the list of war crimes and therefore recognizes sexual violence as a grave breach of international humanitarian law and of the Geneva Conventions.