A Preliminary History of the Crime of Rape in International Law

The crime of rape is as old as conflict itself (1). A curse that has managed to persist through generations and stained nations, societies, families, and individuals with its miasma. For centuries rape has existed in societies across the world. Wherever war or conflict persists, so does rape. It can be traced back to the Sack of Troy where Trojan women were raped by the victors or in the fall of Constantinople in 1453 where the women and girls of the city were ravaged by the Ottoman troops or to recent times in the 1937 rape of Nanking where its women and girls fell to the Japanese army (2). 

Rape law can date back as far as 1900BC in Babylon in the Hammurabi code that dictated that if a man forces sex upon another man’s wife or if a man forces sex upon the virgin woman that is “living in her father’s house,” then “that man should be put to death” (3). 

Such legal precedence sets rape as a form of vandalism and hence considers women as property belonging to their husbands and or males of their family. Rather than viewing rape as harm to women, it viewed rape as an obstruction to a man's property. Since then, rape law has come a long way. 

It wasn't until the post-World War II trials that sexual violence was brought into the limelight. The prosecutors in the Nuremberg Trials (4) used “crimes against humanity”  for the conviction of several perpetrators of both the holocaust as well as of the former Japanese military officials in Tokyo. Even though rape and or sexual violence was never termed as a crime in these proceedings, a foundation for its future prosecution was laid down.

Henry Dunant, a Swiss businessman upon witnessing the battle between the French and the Austrian Armies in Solferino, Italy proposed a formal agreement between nations “for the relief of the wounded” which within several months became known to be the Geneva Conventions (5) and the first time in International law history, rape was mentioned and considered as a crime in the Geneva Conventions Relative to the Protection of Civilian Persons in Time of War of 1949 which entered into force on October 21, 1950.

In its relevant parts, it asserted that “Women shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault. (6)''

This agreement became the foundation for international humanitarian law, which later went on to become the basis for multiple international criminal courts. 

The Geneva Conventions of 1949 are the foundational building block of International Humanitarian Law. In particular, the Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, Article 27 (2) provides, “Women shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault'' (7). This article condemns the atrocities of the worst kind: rape committed in occupied territories, brutal treatment of every sort, and mutilations that women of all ages, as well as children, were subjugated to during the last world wars in areas where troops were stationed, or through which they passed (8). These provisions were submitted by the International Women's Congress and International Federation of Abolitionists to the International Committee of the Red Cross (9). The borderline barbaric conditions that women were treated with during conflict underlined the necessity of this special provision and the special treatment of women.

Photo by Raquel García on Unsplash

International human rights law addresses rape as a grave, systematic, and widespread human rights violation (10). Article 5 of The Universal Declaration of Human Rights affirms that “no one shall be subjected to torture or cruel, inhuman, or degrading treatment.(11)” Even though rape is not explicitly mentioned in the clause, rape is widely recognized as a form of torture, inhumane and degrading treatment. This has been reaffirmed through the Report of the Special Rapporteur on Violence against Women submitted under the Human Rights Council resolution 41/17 (12). Furthermore, Article 2(b) of the 1993 Declaration on the Elimination of Violence against Women proclaimed by the General Assembly resolution 48/104 encompasses rape to be a grave violence against women (13). International human rights law has significantly influenced other branches of law by affirming rape as a grave human rights violation.

Rape and other forms of sexual violence were successfully prosecuted in court as war crimes and crimes against humanity only in the last 40 years.

The statutes of the International Criminal Tribunal of Rwanda (ICTR) and International Criminal Tribunal of Yugoslavia (ICTY) were the first ever international legal document to explicitly include rape as a war crime and as a crime against humanity, respectively.

The progression of international response during armed conflict investigates the legal framework of conventions and courts. The ICTY (International Criminal Tribunal for the former Yugoslavia) was the first ever United Nations court of law since the Nuremberg and Tokyo tribunals that prosecuted war crimes during the Balkan wars and the mass atrocities taking place in Croatia and Bosnia and Herzegovina in the 1990s (14). It was established in 1993 and has since become an unprecedented instrument in international humanitarian law to help victims get justice for the horrors they have experienced.

The ICTY has passed judgments on genocide, war crimes, and crimes against humanity, and most notably has ruled rape as an “instrument of terror”. The tribunal has made ground-breaking stridesin the prosecution of wartime sexual violence that has laid the foundation for the prosecutions of such crimes worldwide. It was the first-ever court to bring explicit charges against sexual violence and rape. Additionally, it entered convictions for rape as a form of torture as well as rape as a crime against humanity (15). The ICTY also acknowledges that the force of the Geneva Conventions is well established within international law and that all violations of the Geneva Conventions are explicitly considered offenses and can be prosecuted in court (16).

The UN Security Council Resolution 955 (17) that established the ICTR was the sister tribunal for the ICTY and the first-ever tribunal to deliver judgments against persons responsible for committing genocide as well as recognizing rape as a means of perpetrating genocide. Since its establishment in 1995, the tribunal has indicted 93 individuals responsible for violations of international humanitarian law, those of whom include high-ranking military and government officials, politicians, and many more. The ICTR like the ICTY has paved the way for a credible justice system that recognizes and prosecutes crimes of sexual violence and ensures the safety and protection of the witnesses and victims. They have the binding authority to prosecute individuals accused of committing grave breaches of the Geneva Conventions and violations of the laws or customs of war, genocide, and crimes against humanity hence authorizing the prosecution of rape under the tribunals.

The ICC, which was established in 2002, has provided detailed provisions on the criminalization of rape under international law as it lists rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity as a crime against humanity and as a war crime in both international and non-international armed conflict.

The ICC statute or the Rome Statute defines rape as a war crime, crime against humanity, the act such distinctions are made and confirmed through the Rome Statute as well as through the laws of ICTR and ICTY.

The statute emphasizes the severity of the crime and tries to provide a specific definition of its criminal conduct throughout its crimes. It tries to separate rape from other acts of sexual violence through the presence and or lack of the act of penetration. This distinction is one of the defining factors used by the statute to prosecute the crime. The efforts of international courts and tribunals are to be acknowledged for adding weight to the gravity of the issue, but legal recognition has remained translucent.

This article is based on a portion of the author’s thesis submitted to Ritsumeikan Asia Pacific University.

Bibliography

1. International Criminal Court, Policy on the Crime of Gender Persecution (2023)< https://www.icccpi.int/sites/default/files/2023-12/2023-policy-gender-en-web.pdf.

2. Cyril J Smith, ‘History of Rape and Rape Laws’ (1974) 60 Women Lawyers Journal 188.

3. Brooke Flagler ‘A Brief History of Rape Law’ The Feminist Poetry Movement, 13 December, (2019) https://sites.williams.edu/engl113-f18/flagler/a-brief-history-of-rape-law/

4. Crimes against humanity were given its meaning by the charter which established the international military tribunal to try Nazi officials following the conclusion of WWII.

5. American Red Cross, ‘Summary of the Geneva Conventions of 1949 and Their Additional Protocols’ Red Cross (April 2011) https://www.redcross.org/content/dam/redcross/atg/PDF_s/International_Services/International_Humanitarian_Law/IHL_SummaryGenevaConv.pdf

6. International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 75 UNTS 287, 12 August 1949, art 27.

7. International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 75 UNTS 287, 12 August 1949, art 27 (2). 

8. International Committee of the Red Cross, Commentary on the Geneva Convention IV (eds), 1958, p205, (‘ICRC Commentary’) https://ihl-databases.icrc.org/en/ihl-treaties/gciv-1949/article- 27/commentary/1958?activeTab= >.

9. Ibid

10. Dubravka Šimonović, Report of the Special Rapporteur on violence against women, its causes and consequences, (21 June–9 July 2021), A/HRC/47/26, UN Human Rights Council, (19 April 2021).

11. UN General Assembly, Universal Declaration of Human Rights, 217 A (III), article 5, (10 December 1948).

12. UN General Assembly, Resolution adopted by the Human Rights Council, (24 June-12J July 2019), A/HRC/RES/41/17, UN Human Rights Council, (19 July 2019).

13. UN General Assembly, Declaration on the Elimination of Violence against Women, A/RES/48/104, Article 2(b), (20 December 1993).

14. ICTY, ‘About the ICTY’ (Legacy website of the ICTY/TPIY/MKSJ) https://www.icty.org/en/about.

15. ICTY, ‘Crimes of Sexual Violence’ (Legacy website of the ICTY/TPIY/MKSJ)

https://www.icty.org/en/features/crimes-sexual-violence.

16. Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, U.N. Doc. S/25704 at 36, annex (1993) and S/25704/Add.1 (1993), adopted by the Security Council on 25 May 1993, U.N. Doc. S/RES/827 (1993).

17. UN Security Council Resolution 955 [International Criminal Tribunal for Rwanda (ICTR)], S/RES/955 (8 November 1994).

Disclaimer

The opinions expressed herein belong solely to the columnist and do not represent the official position of our think-tank. Humanotions cannot be held liable for any consequences arising from this content. Content published on Humanotions may contain links to third-party sources. Humanotions is not responsible for the content of these external links. Please refer to our Legal Notices & Policies page for legal details and our Guidelines For Republishing page for republication terms.