Prosecuting sexual violence crimes: The international law context

Article 27 of the Fourth Geneva Convention of 1949, related to the protection of civilian persons in times of war, explicitly prohibits wartime rape and enforced prostitution. These prohibitions were reinforced by the 1977 Additional Protocols to the 1949 Geneva Conventions. The Rome Statute of the International Criminal Court, 1998 gives the International Criminal Court jurisdiction over genocide, crimes against humanity and war crimes. Articles 7 and 8 of the Rome Statute have included rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, and any other form of sexual violence both as a crime against humanity (explicit) and a war crime (implied). In 1998, sexual violence, in general and beyond rape, was recognised for the first time as a crime against humanity in the Prosecutor v. Jean-Paul Akayesu by the International Criminal Court for Rwanda (ICTR). Further, in 2001, in the Prosecutor v. Dragoljub Kunarak, Radomir Kovak and Zoran Vukovic the International Criminal Court for the Former Yugoslavia (ICTY) established that even a single rape may constitute a crime against humanity. Sexual violences were held to fall under the crimes against humanity through various means, for example, as enslavement, as sexual slavery, as persecution, as forced marriage, or even as torture. In 1998, sexual violence, in general and beyond rape, was also recognised for the first time as a war crime in the Prosecutor v. Furundzija by the ICTY. Similarly, as discussed above, a single rape may constitute a war crime. War rape can also be considered as an act of genocide, as the definition of “genocide” will show. As per Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide, 1948 and Article 6 of the Rome Statute, if it can be proved that wartime rape was used as a means to destroy, partially or totally, a specific group of people, it will come under the international definition of “genocide.” The ICTR in Prosecutor v. Jean-Paul Akayesu, established a precedent that rape is an element of the crime of genocide. On June 19, 2008, the 15-member UN Security Council unanimously adopted Resolution 1820 (2008) which clearly states that rape can constitute a war crime, a crime against humanity, or a constitutive act with respect to genocide.