Consensus Increases on Rape in International Law

Monday, January 1, 2007
Center on Law and Globalization

Rape has always been a part of war and violent conflict. However, it is only recently that rape has become codified in international law as a war crime, a crime against humanity and genocide.

How recent are we talking about? The trial in the International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Tadic, began May 7, 1996. It was the first international war crimes trial since Nuremberg and Tokyo, and was also the first where a defendant was specifically charged with rape and sexual violence as a crime against humanity and war crime. While Dusko Tadic himself was not convicted of rape, he was convicted of aiding and abetting crimes of sexual violence.
How has the crime of rape developed in international law over the last century? What are the elements of rape in international law?

Historical Development

The history of rape as an international crime is not a long one. Until recently, rape was considered more or less “spoils of war.” However, the idea of rape as an international crime began to gel during the 20th century and made dramatic advances in the past decade.

1863: Lieber Instructions codified customary international law of land warfare. Rape was classified as a crime of “troop discipline.” Rape was a capital crime subject to the death penalty.

1907: The Hague Convention required the protection of women's “honor.”

1945: The Nuremberg Charter defined crimes against humanity, but did not specifically mention rape in the list of crimes directed against a civilian population before or during a war.

1945: Control Council Law No. 10, adopted by the four Allied powers occupying Germany, specifically included rape as a crime against humanity.

1946: The International Military Tribunal for the Far East prosecuted rape crimes, even though its statute did not explicitly criminalize rape. General Iwane Matsui was held criminally responsible for a series of crimes including rape. However, the tribunal ignored the enforced prostitution carried out by the Japanese.

1949: Geneva Convention Relative to the Treatment of Prisoners of War established protections against rape for women.

1990s-2000s: Decisions of the ICTY and the ICTR enabled rape to be prosecuted as a war crime, a crime against humanity and genocide.

1998: The Statute of the International Criminal Court codified rape as an international crime and included other crimes against women such as sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and sexual violence.
So, while rape has always been a part of war and violent conflict, it is only within the last century, and especially within the last decade or so, that it has become codified as an international crime.

Elements of Rape as an International Crime

What counts as rape in international law? Recent decisions by the ICTY and the ICTR have moved toward a consensus. However, to make sense of the elements that constitute rape we need to understand how assumptions about rape have shifted.One way of understanding rape is to assume that the woman consented to the sexual act unless it could be demonstrated that she was forced to have sex. A whole series of questions would then need to be answered to determine whether the woman did not want to have sex in a particular instance: Was she violently attacked or physically threatened? Did she resist? Can anyone corroborate her story? What was her prior sexual history?However, rape in international law takes an entirely different tack. It flips the assumption of consent in the other direction. In international law:The focus shifts to the circumstances. Under coercive circumstances, like violent conflict, mass murder or genocide, the assumption is that the woman did not want to have sex—whether or not it can be shown that she was raped at gunpoint, whether or not she physically fought her attacker, whether or not her family was threatened, etc. The point is that the setting itself is coercive and even if the coercion is directed at third parties and not specifically at a particular woman, the social conditions negate consent.

Rape is a non-consensual or non-voluntary sexual act, though not necessarily an act of coercion or force. Prosecutors do not need to prove that the perpetrator used or threatened force or that the woman was coerced. In certain circumstances, there is no implied consent. In a context of war or genocide the assumption goes the other way. The victim is assumed to not want the sex, so consent is not a defense in coercive circumstances.

In situations of violent conflict, mass murder and genocide there may be no living witness to the crime. So, the ICTY rules stated that the court does not require corroboration of the victim's testimony. Also, the rules state that the prior sexual conduct of the victim is irrelevant.

Some ambiguity still exists, however. Exactly what is done that counts as rape? The ICTR Akayesu judgment said that the central elements of rape are not captured in a “mechanical description of body parts.” Rape is a physical invasion of a sexual nature, but is not limited to a physical invasion of the body and may involve acts where there is no penetration or even physical contact. In contrast, the ICTY Furundzija judgment considered the body parts involved in the act to be important for determining whether the act of rape actually occurred. It defined the act of rape as the “sexual penetration, however slight,” of the vagina or anus by the perpetrator's penis or other object, or penetration of the mouth by the perpetrator's penis.

Bottom Line

Rape has become an international crime only within the last century, especially within the last ten years or so. Recent decisions by international criminal tribunals have clarified the crime of rape, emphasizing the nature of the circumstances in which unwanted sexual acts occur as key to understanding rape.

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