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Smart Library on Globalization > Genocide > Topic 3: Rape and Genocide > Rape and Genocide > Overview: Rape and Genocide
Rape May Be a War Crime
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:
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:
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.
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:
Analysis of legal doctrine and jurisprudence.
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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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