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Rape during war time was once considered “spoils of war.” However, with the Geneva Conventions, rape found a place in international law governing armed conflict. Recent cases in the ICTY have refined the jurisprudence protecting against sexual assault and humiliation.
 

Although rape was first recorded as a war crime in 1474, it has only developed as a core part of humanitarian law during the 20th century. Before that, rape was largely viewed as a “trophy of war.”

How did rape come to be part of the international definition of war crimes?

The Geneva Conventions

The 1949 Geneva Conventions represented a major step in the protection against rape and sexual assault under the international laws governing war. Article 3 in all four Conventions prohibits “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment.” When rape during war and armed conflict occurs, it violates the above prohibitions.

The Conventions also provide for protection for women beyond rape and sexual violence. For instance:

  • Convention 4, dealing with the protections of civilians during times of war, states that “women shall be especially protected against any attack on their honor, in particular against rape, enforced prostitutions, or any form of indecent assault” (Article 27),
  • Protocol I, directed toward victims of international armed conflicts, provides that “women shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any form of indecent assault” (Article 76),
  • Protocol II, focusing on victims of non-international armed conflicts, protects against “outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault.”

So, not only rape and sexual assault, but enforced prostitution and humiliating and degrading treatment were also included in the prohibitions listed in the international law of war and armed conflict.

Rape and the International Criminal Tribunal for the Former Yugoslavia

Two cases at the ICTY developed the international law against rape and sexual assault as part of armed conflict.

The Furundzija Case

The first case, Prosecutor v. Furundzija, addressed the war crime of “outrages against personal dignity.” In this case, soldiers had made a women stand before them naked on a table while they stood around and laughed. While the woman was on the table, the accused pressed a knife against her thigh and threatened her with mutilation if she did not cooperate. Later she was raped by multiple assailants in multiple ways (vaginally, anally, orally). The tribunal found that the woman suffered severe physical and mental pain along with public humiliation. All this amounted to a violation of her personal dignity and sexual integrity.

The Kunarac Case

In Prosecutor v. Kunarac, Kovac, and Vokovic, one defendant was found guilty of outrages against personal dignity for offenses involving sexual humiliation. Although rape was not punished as an outrage against personal dignity in this instance (it was punished as a separate war crime and a crime against humanity), the case was important for advancing jurisprudence relating to crimes against women. Specifically, the case provided a new definition of “outrages upon personal dignity.”

A crime against personal dignity requires:

  • That the accused intentionally committed or participated in an act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity, and

  • That he knew that the act or omission could have that effect.

Additionally, Kunarac openly departed from the definition in a previous case where there had to be “real or lasting suffering” for the crime to be an outrage upon personal dignity. The court ruled that just because a victim had recovered or was in the process of recovering from the assault did not mean that the crime had not occurred. An outrage against personal dignity did not require that there be a minimum time period for the duration of the effects.

Bottom Line

Throughout history, rape was often described as “spoils of war.” However, with the Geneva Conventions, rape found a place in international law governing armed conflict. Recent cases in the ICTY have refined the jurisprudence protecting against sexual assault and humiliation.

 
Data and Methods:

Data Sources:

Analysis of legal doctrine and jurisprudence.

Funding Sources:

Not reported.

 
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Full text not currently available for free online.
 
Reference

Ellis, Mark. 2007. "Breaking the Silence: Rape as an International Crime." Case W. Res. J. Int'l L. 38:225-247.

 
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