Sexual violence

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Sexual violence is any sexual act or attempt to obtain a sexual act by violence or coercion, unwanted sexual comments or advances, acts to traffic a person or acts directed against a person's sexuality, regardless of the relationship to the victim.[1][2][3] It occurs in times of peace and armed conflict situations, is widespread and is considered to be one of the most traumatic, pervasive, and most common human rights violations.[4][5]

Sexual violence is a serious public health problem and has a profound short or long-term impact on physical and mental health, such as an increased risk of sexual and reproductive health problems[6] or an increased risk of suicide or HIV infection. Murder occurring either during a sexual assault or as a result of an honor killing in response to a sexual assault is also a factor of sexual violence. Though women and girls suffer disproportionately from these aspects, sexual violence can occur to anybody at any age; it is an act of violence that can be perpetrated by parents, caregivers, acquaintances and strangers, as well as intimate partners. It is rarely a crime of passion, and is rather 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 a widely underreported phenomenon, 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 imperative in order to promote a coordinated movement against it. Domestic sexual violence is distinguished from conflict-related sexual violence.[7] 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.[8][9] Rape of women and of men is often used as a method of warfare (war rape), as a form of attack on the enemy, typifying the conquest and degradation of its women or men or captured male or female fighters.[10] Even if strongly prohibited by IHRL, Customary law and IHL, enforcement mechanisms are still fragile or even non-existent in many corners of the world.[4][5][11][12]

From a historical perspective sexual violence was considered as only happening to women and as being commonplace and "normal" during both war and peace times from the Ancient Greeks to the 20th century. This led to the negligence of any indications of what the methods, aims and magnitude of such violence was. It took until the end of the 20th century for sexual violence to no longer be considered a minor issue and to gradually become criminalized, with a wider focus on the victims.

Definitions[edit]

General[edit]

There is no generally accepted definition of sexual violence; however, a commonly used definition is the definition provided by the World Health Organization (WHO) in its World Report on Violence and Health 2002. In this report, sexual violence is defined as: "any sexual act, attempt to obtain a sexual act, unwanted sexual comments or advances, or acts to traffic, or otherwise directed, against a person's sexuality using coercion, by any person regardless of their relationship to the victim, in any setting, including but not limited to home and work."[1] WHO's definition of sexual violence includes but is not limited to rape, which is defined as physically forced or otherwise coerced penetration of the vulva or anus, using a penis, other body parts or an object. Other acts incorporated in sexual violence are various forms of assaults, such as forced contact between mouth and penis, vulva or anus.[13]

The attempt to rape is known as attempted rape. Rape of a person by two or more perpetrators is known as gang rape. Sexual violence can include other forms of assault involving a sexual organ, including coerced contact between the mouth and penis, vulva or anus.

Coercion, with regard to sexual violence, can cover a whole spectrum of degrees of force. Apart from physical force, it may involve psychological intimidation, blackmail or other threats – for instance, the threat of physical harm, of being dismissed from a job or of not obtaining a job that is sought. It may also occur when the person aggressed is unable to give consent – for instance, while drunk, drugged, asleep or mentally incapable of understanding the situation.

Such broader definitions of sexual violence indicating that sexual violence is not limited to rape are also found within international law. The Rome Statute of the International Criminal Court (ICC) has established in article 7(1)(g) that "rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity."[14] constitutes a crime against humanity. Sexual violence is further explained in the ICC's Elements of Crimes, which the Court uses in its interpretation and application of article 7. The Elements of Crime establishes that sexual violence is:

  • "an act of sexual nature against one or more persons or caused such person or persons to engage in an act of sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent."[2]

The Special Rapporteur on systemic rape sexual slavery and slavery-like practices during armed conflict, in a report in 1998, stipulated that sexual violence is "any violence, physical or psychological, carried out through sexual means by targeting sexuality." This definition encompasses physical as well as psychological attacks aimed at "a person's sexual characteristics, such as forcing a person to strip naked in public, mutilating a person’s genitals, or slicing off a woman’s breasts."[3] The Special Rapporteur’s definition also refers to situations "in which two victims are forced to perform sexual acts on one another or to harm one another in a sexual manner."[15]

Sexual violence consists in a purposeful action of which the intention is often to inflict severe humiliation on the victim(s) and diminish human dignity. In the case where others are forced to watch acts of sexual violence, such acts aim at intimidating the larger community.[15]

Conflict-related and domestic sexual violence[edit]

A distinction is made between conflict-related sexual violence and domestic sexual violence:[7]

  • Conflict-related sexual violence is sexual violence perpetrated by combatants, including rebels, militias, and government forces. The various forms of sexual violence can be used systematically in conflicts "to torture, injure, extract information, degrade, threaten, intimidate or punish."[16] Sexual violence can in such cases amount to being a weapon of war. See War rape.
  • Domestic sexual violence is sexual violence perpetrated by intimate partners and by other family/household members, and is often termed intimate partner violence. This kind of sexual violence is widespread both during conflict and in peacetime. It is commonly believed that incidences of domestic sexual violence increase in wartime and in post-conflict environments.

Victims[edit]

Spectrum[edit]

A spectrum of people can fall victim to sexual violence. This includes women, men and children, but also people who define themselves in other terms, e. g. transgender individuals.

Most research, reports and studies focus on sexual violence against women, and sexual violence in armed conflicts. Mainstream narratives on sexual violence also often depict men as perpetrators and women as victims. Indeed, women suffer disproportionately from sexual violence; however, sexual violence is committed by both men and women, and in peacetime as well as during conflict.[17]

It is possible for individuals to be targeted based on sexual orientation or gender-exhibiting behavior. Such attacks, which are often called "corrective rapes" have been performed to conform an individual to a heterosexual orientation or to more accepted notions of behavior for the perceived gender of the victim.

Domestic sexual violence[edit]

Domestic sexual violence includes all forms of unwanted sexual activity. It is considered abuse even if the victim may have previously engaged in consensual sexual activities with the perpetrator. Men and women can both fall victim to this type of abuse.[18]

A 2006 WHO study on physical and sexual domestic violence against women conducted across ten countries, finds that prevalence of sexual domestic violence ranges on average between 10 to 50%. Domestic sexual violence is also considerably less common than other forms of domestic violence. The variations in the findings across and within countries suggest that this type of abuse is not inevitable and can be prevented.[19]

Women[edit]

Sexual violence against women and girls can take many forms and is carried out in different situations and contexts. The WHO’s World Report on Violence and Health[13] lists the following ways in which sexual violence against females can be committed:

  • Systematic rape during armed conflict
  • Rape within marriage or dating relationships
  • Rape by strangers
  • Unwanted sexual advances or sexual harassment, including demanding sex in return for favors
  • Sexual abuse of mentally or physically disabled people
  • Sexual abuse of children
  • Forced marriage or cohabitation, including the marriage of children
  • Denial of the right to use contraception or to adopt other measures to protect against sexually transmitted diseases
  • Forced abortion
  • Violent acts against the sexual integrity of women, including female genital mutilation and obligatory inspection for virginity
  • Forced prostitution and trafficking of people for the purpose of sexual exploitation

Sexual violence is one of the most common and widespread violations to which women are subject in wartime. It also figures among the most traumatic experiences, both emotionally and psychologically, women suffer during conflict. Sexual violence, in particular rape, is often considered as a method of warfare: it is used not only to "torture, injure, extract information, degrade, displace, intimidate, punish or simply destroy," but also as a strategy to destabilize communities and demoralize men.[20][21] The use of sexual violence as a weapon of war was widespread conflicts such as Rwanda, Sudan, Sierra Leone, and Kosovo.[21] The perpetrators of female-directed violence in times of conflict are often armed groups and local people.[22]

Men[edit]

As with sexual violence against women, sexual violence against men can take different forms, and occur in any kind of context, including at home or in the workplace, in prisons and police custody, and during war and in the military.[13] The practice of sexually assaulting males is not confined to any geographical area of the world or its place of commission, and occurs irrespective of the victim’s age.[17][23] The various forms of sexual violence directed against males include rape, enforced sterilization, enforced nudity, enforced masturbation, genital violence, and enforced rape. Sexual violence against males also encompasses emasculation, which can take place through "feminization" or "homosexualization" of the victim, and the prevention of procreation.[17]

Male-directed sexual violence is more significant than is often thought. The scope of such crimes continues, however, to be unknown largely because of poor or a lack of documentation. The under- or non-reporting of sexual violence against males may often be due to fear, confusion, guilt, shame and stigma, or a combination thereof.[24][25] Moreover, men may be reluctant to talk about being victim of crimes of sexual violence. In this regard, the way in which societies construct the notion of masculinity plays a role. Masculinity and victimization may be considered incompatible, in particular in societies where masculinity is equated with the ability to exert power, leading to non-reporting.[26] The incompatibility between the conventional understanding of masculinity and victimization can arise both with regard to the attack itself and when coping with the consequences of such crimes.[27] Because of under- and non-reporting on sexual violence against men, the little evidence that exists tends to be anecdotal.[23]

In the case that sexual violence against males is recognized and reported, it is often categorized as "abuse" or "torture." This is considered a tendency to hide sexual assaults directed at men as something else, and it is believed to contribute to the poor- or lack of reporting of such crimes, and can arise from the belief that sexual violence is a women's issue and that men cannot be victims of sexual assaults.[17]

Children[edit]

Main article: Child sexual abuse

Sexual violence against children is a form of child abuse. It includes harassment and rape, as well as the use of children in prostitution or pornography.[28][29]

Sexual violence is a serious infringement upon a child's rights, and one which can result in significant physical and psychological trauma to the victim.[28][30] A 2002 WHO study approximated that 223 million children have been victims to sexual violence involving physical contact.[31] Yet, due to the sensitivity of the issue and the tendency of the crime to stay hidden, the true figure is likely to be much higher.[28][30]

Boys and girls are not targeted or experience sexual violence on equal terms. The WHO study found that 150 million girls were abused compared to 73 million boys. Other sources also conclude that girls face a greater risk of sexual violence, including prostitution.[32]

Causes and factors[edit]

Explanations[edit]

Explaining sexual violence is complicated by the multiple forms it takes and contexts in which it occurs. There is considerable overlap between forms of sexual violence and intimate partner violence. There are factors increasing the risk of someone being coerced into sex, factors increasing the risk of an individual person forcing sex on another person, and factors within the social environment including peers and family influencing the likelihood of rape and the reaction to it.

Research suggests that the various factors have an additive effect, so that the more factors present, the greater the likelihood of sexual violence. In addition, a particular factor may vary in importance according to the life stage.

Perpetrators[edit]

There is no stereotypical profile of sexually violent persons. Perpetrators may be coming from various backgrounds, and they may be someone known by the victim like a friend, a family member, an intimate partner, an acquaintance, or they may be a complete stranger.[33] The primary motivators behind sexually violent acts are believed to be power and control, and not, as it is widely perceived, a sexual desire. Sexual violence is rather a violent, aggressive and hostile act aiming to degrade, dominate, humiliate, terrorize and control the victim.[34] Some of the reasons for committing sexual violence are that it reassures the offender about his sexual adequacy, it discharges frustration, compensates for feelings of helplessness, and achieves sexual gratification.[35]

Data on sexually violent men are somewhat limited and heavily biased towards apprehended rapists, except in the United States, where research has also been conducted on male college students. Despite the limited amount of information on sexually violent men, it appears that sexual violence is found in almost all countries (though with differences in prevalence), in all socioeconomic classes and in all age groups from childhood onwards. Data on sexually violent men also show that most direct their acts at women whom they already know.[36][37] Among the factors increasing the risk of a man committing rape are those related to attitudes and beliefs, as well as behavior arising from situations and social conditions that provide opportunities and support for abuse.

Consequences[edit]

Sexual violence is a serious public health problem and it has both short- and/or long- term negative physical and psychological effects on health and well-being.[38] There is evidence that male and female victims of sexual violence may experience similar mental health, behavioral and social consequences.[39][40][41] Watts, Hossain, and Zimmerman (2013) reported that 72.4% of the victims had at least one gynecological complaint. 52.2% suffered from chronic lower abdominal pain, 27.4% from abnormal vaginal bleeding, 26.6% from infertility, 25.3% from genital sores, and 22.5% from swellings in the abdomen. 18.7% of the participants also suffered from severe psychological and surgical morbidity including alcoholism. 69.4% showed significant psychological distress, 15.8% attempted suicide, 75.6% had at least one surgical complaint. 4.8% of the participants had a positive HIV status.[42] In child sexual abuse (CSA) cases, the child may suffer mental health disorders that can extend into adult life especially if sexual abuse involved actual intercourse.[43][44][45] Studies on abused boys have shown that around one in five continue in later life to molest children themselves.[46] CSA may lead to negative behavioral patterns in later life, learning difficulties as well as regression of/or slower development.[47]

The table below gives some examples of possible physical and psychological consequences of sexual violence:[48]

EXAMPLES OF FATAL OUTCOMES RELATED TO SEXUAL VIOLENCE

  • Suicide
  • Homicide
  • AIDS-related

EXAMPLES OF NON-FATAL OUTCOMES RELATED TO SEXUAL VIOLENCE

Physical consequences

Psychological consequences

  • Unwanted pregnancy
  • Infertility
  • Sexual dysfunction
  • Chronic pelvic pain
  • Sexually transmitted infections (stis), including hiv/aids
  • Obesity or anorexia
  • Urinary tract infections
  • Gastrointestinal disorders
  • Gynecological and pregnancy complications
  • Migraines and other frequent headaches
  • Fatigue
  • Nausea
  • Rape trauma syndrome
  • Post-traumatic stress disorder
  • Social phobias
  • Shock
  • Increased substance use or abuse;
  • Denial
  • Fear
  • Confusion
  • Anxiety
  • Guilt
  • Depression
  • Alienation

In addition to the above mentioned outcomes, in some cases victims of sexual violence may also be stigmatized and ostracized by their families and others.[49] Societal perceptions that the victim provoked sexual violence lead to a lack of disclosure of sexual assault which is associated with even more severe psychological consequences, particularly in children.[50] Thus, more interventions are needed in order to order to change societal attitudes towards sexual violence as well as efforts designed to educate those to whom the survivors may disclose the assault.[51][52]

Prevention[edit]

The number of initiatives addressing sexual violence is limited and few have been evaluated. The approaches vary with most interventions being developed and implemented in industrialized countries. How relevant they may be in other settings is not well known. Early interventions and the provision of psychological support may prevent or minimize many of the harmful and lasting psychological impacts of sexual assault.[53][54][55]
The interventions that have been developed can be categorized as follows.

Initiatives to prevent sexual violence
Individual approaches Health care responses Community based efforts Legal and policy responses
Psychological care and support Medico-legal services Prevention campaigns Legal reform
Programmes for perpetrators Training for health care professionals Community activism by men International treaties
Developmental approaches Prophylaxis for HIV infection School-based programmes
Centres providing comprehensive care to victims of sexual assault

Statistics[edit]

Sexual violence is a widely underreported phenomenon, therefore available statistics are unlikely to inform about the true scale of the problem. The available data are scanty and fragmented. Police data, for instance, are often incomplete and limited. Data from medico-legal clinics, on the other hand, may be biased towards the more violent incidents of sexual abuse. In addition, the proportion of people who seek medical services for immediate problems related to sexual violence is also relatively small.

Reasons for non-reporting include shame and embarrassment, fear of not being believed, fear of the perpetrator of the crime, fear of the legal process, or disbelief that the police would be able to do anything to help them.[56] Men are even more reluctant to report sexual violence due to extreme embarrassment and concerns about opinions of other people, their masculinity and the fact that they were unable to prevent the assault.[57] Thus information about the extent of sexual violence against males is especially limited. Child sexual abuse is also largely underreported. Most of the data comes from asking adults about their past experiences.[58]

How rape statistics are formulated and how they correspond to the extent of the problem:

One of the reasons for non-reporting is that children lack independent access to resources. They normally require the cooperation of one of their parents who may refuse to believe their child, or may, in fact, be the perpetrator.[59]

Data on sexual violence typically come from police, clinical settings, nongovernmental organizations and survey research. The relationship between these sources and the global magnitude of the problem of sexual violence may be viewed as corresponding to an iceberg floating in water (see diagram).[60] The small visible tip represents cases reported to police. A larger section may be elucidated through survey research and the work of nongovernmental organizations. But beneath the surface remains a substantial although unquantified component of the problem.

Feminism and sexual violence[edit]

Feminist scholars and activists have made unique contributions to the discourse on sexual violence against women. They have proposed that the root causes of sexual violence lie in the social structure characterized by severe inequality, in which the male is dominant and the female exploited. Feminists also hold that the weak institutional arrangements in place to address consequences of sexual violence, as well as unfair treatment of the victims (or survivors, an alternatively proposed terminology) are direct reflections of the ways in which society regards men, women and the sexual relations between them. Furthermore, feminist critique has led to a closer convergence between feminism and psychology in the study of sexual violence.[61]

Conveying a connection between gender-based sexual violence and concepts of power-seeking and subordination was pioneered in 1970s and has proven to be very influential. Within this context, rape has been assessed as a foremost tool of intimidation used by men against women.[62] Similarly, domestic violence can be viewed as a particularly severe form of patriarchal domination and oppression.[63]

Feminist interpretation of pornography also suggests a link between rape and pornography, by which pornography that degrades, humiliates and exercises violence upon the female body feeds a culture which a culture which validates this kinds of behavior;[64] however, there is little evidence to prove this.

An intersection of Marxist and feminist theories has been utilized to offer additional insight to the topic of sexual violence. According to this argument, labor and sex are analogous in the roles they play in their respective overarching exploitative systems: both are produced by the exploited person and both are forcefully taken away from them.[65]

Some feminist scholars have illuminated the idea that all women cannot have uniformly similar experiences of sexual violence or its aftermath. For instance race and ethnicity are significant determinants of these experiences, which serves to show that approaches which are exclusively feminist or exclusively anti-racist in nature are misguided. Instead, a proposition has been made for use of inter-sectionality when studying these cases.[66]

Feminist ideas have served as catalysts for transnational movements to combat violence against women, including sexual violence. This agenda has also been adopted by feminist organizations, as illustrated by the current initiative titled the Rape Task Force of the National Organization for Women (NOW).

International legal framework[edit]

Even if strongly prohibited by international human rights law (IHRL) and international customary law at all times and by international humanitarian law (IHL) in both international and non-international armed conflicts, enforcement mechanisms are still fragile or even non-existent in many forgotten and not-so forgotten corners of the world.[4][5][11][12] There are at least four charges under which acts of sexual violence can be charged: crime against humanity, genocide, war crime, or as a grave breach of the Geneva Conventions.[67]

Elements of International Humanitarian law[edit]

In no other area is our collective failure to ensure effective protection for civilians more apparent – and by its very nature more shameful – than in terms of the masses of women and girls, but also boys and men, whose lives are destroyed each year by sexual violence perpetrated in conflict.

Ban Ki-moon[68]

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.[4] 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.[69]

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) (…) 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

Elements of international criminal law[edit]

Rape and other forms of sexual violence that amount to serious violations of international humanitarian law entail individual criminal responsibility and must be prosecuted. All States are obliged to criminalize these violations under domestic law, and to effectively investigate and prosecute any instance of sexual violence.

International Committee of the Red Cross (ICRC)[5]

Although evidence of sexual atrocities such as mass rapes is acknowledged in the Nuremberg Crimes Tribunal and the Tokyo Tribunal, references to sexual violence in their respective Charter are absent.[70] 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 just a private crime.[71][72] 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.[73][74]

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.[75][76] On September 2, 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.[75] 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".[75]

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).[77][78] 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 also recognizes sexual violence as a grave breach of international humanitarian law and of the Geneva Conventions.[79][80]

Instrument Relevant provisions Relevant citations or additional information
Statute of the International Criminal Tribunal for the former Yugoslavia (1993) Article 5 (g)(i) Article 5. Crimes against humanity The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population (...) (g) rape (...) (i) other inhumane acts.
Statute of the International Criminal Tribunal for Rwanda (1994) Article 3(g)(i) Article 3. Crimes Against Humanity The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds (...) (g) Rape (...) (i) Other inhumane acts (...)
Statute of the International Criminal Tribunal for Rwanda (1994) Article 4(e) Article 4. Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II The International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977. These violations shall include, but shall not be limited to (...) (e) Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault (...)
Rome Statute of the International Criminal Court (1998) Article 7(2) (f) Article 7. Crimes against humanity (…) Rape, sexual slavery, enforced prostitution, forced pregnancy (…) enforced sterilization, or any other form of sexual violence of comparable gravity” as crimes against humanity. The Statute defines “forced pregnancy” as the "unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law”.
Rome Statute of the International Criminal Court (1998) Article 8(2) (b) (xxi) (xxii) Article 8. War crimes (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: (...) (xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment (xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual viol (...)
Rome Statute of the International Criminal Court (1998) Article 8(2) (e) (vi) Article 8. War crimes (e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: (...) (vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions (...)
Statute of the Special Court for Sierra Leone (2000) Article 2(f)(g)(i) Article 2. Crimes Against Humanity The Special Court shall have the power to prosecute persons who committed the following crimes as part of a widespread or systematic attack against any civilian population: (...) g. Rape, sexual slavery, enforced prostitution, forced pregnancy and any other form of sexual violence (...) i. Other inhumane acts.

Human rights law, the United Nations and further developments[edit]

The continued engagement of the Security Council must serve as an unequivocal statement of intent: sexual violence in conflict will not be tolerated, and the full force of international order will be brought to bear to ensure accountability for such crimes.The perpetrators must understand that there can be no hiding place; no amnesty; no safe harbour. They must know that they will be pursued by any and all means at our collective disposal. In the process, we will begin to transfer the stigma of this crime from the survivors, to the perpetrators.

Zainab Hawa Bangura[81]

An extensive amount of both hard and soft law instruments set rules, standards and norms for the protection of victims of sexual offences. Among the wide range of international human rights law instruments we can find: the Convention on the Elimination of All Forms of Discrimination against Women (1979),[82] the Declaration on the Elimination of Violence Against Women and the Global Platform for Action (1993), the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (1994), the Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa (2003), and the Vienna Declaration and Programme of Action (1993). The UN Security Council, ECOSOC and the UN Commission on Human Rights do not take into account the nature of the conflict with respect to the protection of women in war time.[69]

There are 5 UN Security Council Resolutions dealing specifically with sexual violence:

  1. UNSC Resolution 1325 (2000)
  2. UNSC Resolution 1820 (2008)
  3. UNSC Resolution 1888 (2009)
  4. UNSC Resolution 1960 (2010)
  5. UNSC Resolution 2106 (2013)

There are also 3 Reports of the Secretary-General related to sexual violence in conflict:

  1. Report of the SG on the implementation of SC resolutions 1820 and 1888 (2010)
  2. Report of the SG on Conflict-related sexual violence (2012)
  3. Report of the SG on Sexual violence in conflict (2013)

The first time the Security Council addressed the impacts of armed conflict on women was in Resolution 1325 (2000). The document focusses on the need for specific protections for women and girls in conflict, and expresses the need to consider gender perspectives in mission, UN peace support operations and post-conflict processes.[83]

Resolution 1820 (2008) of the UN Security Council declares that rape and other forms of sexual violence "can constitute war crimes, crimes against humanity or a constitutive act with respect to genocide".

Resolution 1888 (2009) of the UN Security Council is perceived as an advancement in international law as it created the Office of the Special Representative of the Secretary General for Sexual Violence in Conflict (SRSG-SVC). The first Special Representative, Margot Wallstrom, was appointed in April 2010. The current Special Representative Zainab Hawa Bangura took office in September 2012. The Office identified eight priority countries: Bosnia and Herzegovina; Central African Republic (CAR); Colombia; Cote d’Ivoire; Democratic Republic of Congo (DRC); Liberia; South Sudan and Sudan.[84] SRSG-SVC is also engaged in the Middle East (Syria) and in Asia and the Pacific (Cambodia).[84]

The six priorities of the Office are:

  1. to end impunity for sexual violence in conflict by assisting national authorities to strengthen criminal accountability, responsiveness to survivors and judicial capacity;
  2. the protection and empowerment of civilians who face sexual violence in conflict, in particular, women and girls who are targeted disproportionately by this crime;
  3. to mobilize political ownership by fostering government engagement in developing and implementing strategies to combat sexual violence;
  4. to increase recognition of rape as a tactic and consequence of war through awareness-raising activities at the international and country levels;
  5. to harmonise the UN’s response by leading UN Action Against Sexual Violence in Conflict, a network of focal points from 13 UN agencies that amplify programming and advocacy on this issue in the wider UN agenda;
  6. to emphasize greater national ownership.[84]

Resolution 1960 (2010) reaffirms that sexual violence is systematic, rampant and widespread.[85] The resolution creates new institutional tools for the prevention and protection from sexual violence. The aim of the resolution is to provide further steps for combatting impunity and recognizing sexual violence as a serious breach of human rights law and international humanitarian law.[86]

Resolution 2106 (2013) reasserts fundamental requirements for the prevention of sexual violence in conflict and post-conflict setting: gender equality, women empowerment, and the importance of implementing the full range of commitments found in resolution 1325.[87][88]

History[edit]

General[edit]

Sexual violence can be traced back to the Greeks and Romans where women were seen as property without any rights over their bodies or sexual integrity. Rape of women during peace times was therefore considered as property crime only affecting their owners: the husbands, sons or brothers.[89] During armed conflict sexual violence, particularly rape, was perceived as a normal byproduct of war, as "a socially acceptable behavior well within the rules of warfare".[90] In Ancient Greece, women were sometimes the reason for the attack of a city, conquering women as new wives or concubines, legitimate booty, as slaves or as trophies. The fact that sexual violence to women was commonplace during both war and peace times led to the negligence of any indications of what the methods, aims and magnitude of such violence was; it was face- and nameless.[91]

Middle Ages[edit]

The Middle Ages strongly reflected the patriarchal sexual violence view. During times of peace, female spouses had no right to refuse sex with their husbands.[92] Even though laws punishing rapes existed, sexual violence was usually considered as justified or inconsequential. Usually, depending on the elite's views, which perceived sexual violence as a minor issue, sexual violence was not prosecuted.[93] This view was also transferred to the colonies. In Alta California, for example, the Catholic clergy relied heavily on corporal punishment such as flogging, placing in the stocks or shackling of Amerinindian women within their programs of Christianization.[94] Within this context of trying to restore a certain social order, women were often the victims of sexual violence if politically active and posing a threat to the existing order.[95] With regard to times of war, jurists, writers and scholars argued that as soon as war is just, no boundaries would be set towards methods used in order to achieve victory. However, with Alberico Gentili (1552-1608) discussions started that suffering of women should be reduced and rape prohibited during peace and war times. However, this view was not accepted for a long time, as women and children not participating in the fighting were still considered as being the enemy and the patriarchal view on women prevailed during peace and war times.

Codification of laws of war on gender-related crimes[edit]

Gradually, over the centuries laws and customs of war changed in direction of a wider understanding of sexual violence and the need to protect the victims. During the American civil war, the US started to codify the customary rules regulating land-based wars. With the Lieber Code of 1863, President Lincoln tried to regulate the conduct of Union soldiers and prohibited explicitly rape.[96] The Geneva Conventions one year after and the Fourth Hague Conventions 1907 followed this line by advocating the protection of family rights and honor, implying specifically also the prohibition of rape. But the only enforcement mechanisms were the military commanders themselves, having the right to execute the soldiers immediately.[96]

After World War I, a War Crimes Commission was established in order to bring war criminals before justice. Forced prostitution and rape was seen as grave violation of the customs and laws of war. Under the International Military Tribunal at Nuremberg (IMT) and the International Military Tribunal for the Far East at Tokyo (IMTFE), the spectrum of sexual violence as war crime was widened even though rape was not explicitly mentioned. The transcripts of the trials contain evidence of rape, sexual slavery, sexual torture, forced prostitution, forced sterilization, forced abortion, pornography, sexual mutilation, forced nudity and sexual sadism. But only after the Tokyo Tribunal, when Japanese commanders were prosecuted the first time based on the chain of command for not having prevented rape and sexual slavery of comfort women during the Second World War, was sexual violence gradually considered as a grave war crime in itself.[97][98] This view was the first time expressed after Nuremberg and Tokyo in the second series of trials for the prosecution of "lesser" war criminals where the Control Council Law No. 10 explicitly listed rape constituting a crime against humanity.[99][100]

See also[edit]

References[edit]

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Further reading[edit]

  • Wishart, G.D. (2003). "The Sexual Abuse of People with Learning Difficulties: Do We Need A Social Model Approach To Vulnerability?", Journal of Adult Protection, Volume 5 (Issue 3).
  • Cohn, Carol (2010). Women and wars (1. publ. ed.). Cambridge, UK: Polity Press. ISBN 978-0-7456-4245-1. 
  • de Brouwer, Anne-Marie L. M. (2005). Supranational criminal prosecution of sexual violence : the ICC and the practice of the ICTY and the ICTR. Antwerpen [u.a.]: Intersentia. ISBN 90-5095-533-9. 
  • Eriksson, Maria (2011). Defining rape : emerging obligations for states under international law?. Leiden: Martinus Nijhoff Publishers. ISBN 978-9004-20263-4. 
  • Kunz, Megan Bastick, Karin Grimm, Rahel (2007). Sexual violence in armed conflict : global overview and implications for the security sector. Geneva: Geneva Centre for the Democratic Control of Armed Forces. ISBN 978-92-9222-059-4. 
  • United Nations High Commissioner for Refugees (2003). Sexual and Gender-Based Violence against Refugees, Returnees and Internally Displaced Persons: Guidelines for Prevention and Response. UNHCR. 
  • Heineman, Elizabeth D. (2011): Sexual Violence in Conflict Zones. From the Ancient World to the Era of Human Rights. Philadelphia: University of Pennsylvania Press.
  • De Brouwer, Anne-Marie, Charlotte Ku, Renée Römkens and Larissa van den Herik (2013): Sexual Violence as an International Crime: Interdisciplinary Approaches. Cambridge: Intersentia.

External links[edit]