Örebro Studies in Law 2
MARIA ERIKSSON
Defining Rape
Emerging Obligations for States under
International Law?
Örebro Studies in Law 2
MARIA ERIKSSON
Defining Rape
Emerging Obligations for States under
International Law?
© Maria Eriksson, 2010
Title: Defining Rape: Emerging Obligations for States under International Law? Publisher: Örebro University 2010
www.publications.oru.se trycksaker@oru.se
Print: Intellecta Infolog, Kållered 04/2010
ISBN 978-91-7668-730-7
Abstract
Maria Eriksson (2010): Defining Rape: Emerging Obligations for States under International Law?, Örebro Studies in Law 2, 695 pp.
The prevalence of rape and its widespread impunity, whether committed dur-ing armed conflict or peacetime, has been firmly condemned by the UN and its prohibition has been consistently recognised in international law. This development, however, is a rather novel endeavour. The belated response is in part a consequence of rape being characterised by such myths as sexual vio-lence representing an inevitable by-product of war or as being committed by sexual deviants. Its systematic nature has thus been ignored as has the gravity of the offence, often leading to a culture of impunity. This was evident, for example, through the failure to prosecute crimes of rape during the Nurem-berg trials, in qualifying it as a harm against a woman’s honour in the 1949 Geneva Convention (IV), or in considering it a violation located in the “pri-vate sphere”, thereby beyond regulation by international law.
However, substantial efforts have been made in international law to rec-ognise obligations for states to prevent rape. A prohibition of the offence has developed both through treaty law and customary international law, requir-ing the prevention of rape whether committed by state agents or by a private actor. One measure to prevent such violence has been identified as the duty to enact domestic criminal laws on the matter. The flexibility for states in de-termining the substance of such criminal laws is increasingly circumscribed, leading to the question of whether a particular definition of rape or certain elements of the crime must be adopted in this process.
Elaborations on the elements of the crime of rape have been a late con-cern of international law, the first efforts made by the ad hoc tribunals (the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia), followed by the regional human rights systems as well as the International Criminal Court. The principal purpose of the thesis is consequently the systematisation and analysis of provisions and emerging norms obliging states to adopt a particular definition of rape in domestic penal codes. The prohibition of rape and, subsequently, the process of defining the crime has been made in three areas of international law – in-ternational human rights law, inin-ternational humanitarian law and interna-tional criminal law. Emerging norms in all three regimes are consequently examined in this thesis, bringing to the fore overarching questions on the possible harmonisation of defining rape in these distinct branches of interna-tional law. The study will thus provide a contextual approach, aiming to evince whether the definition can be harmonised or if prevailing circum-stances, such as armed conflict or peace, should necessarily inform its
Keywords: Prohibition of rape, definition of rape, women's rights, armed conflict, state obligations, fragmentation, humanisation
© Maria Eriksson, 2010
Title: Defining Rape: Emerging Obligations for States under International Law? Publisher: Örebro University 2010
www.publications.oru.se trycksaker@oru.se
Print: Intellecta Infolog, Kållered 04/2010
ISBN 978-91-7668-730-7
Abstract
Maria Eriksson (2010): Defining Rape: Emerging Obligations for States under International Law?, Örebro Studies in Law 2, 695 pp.
The prevalence of rape and its widespread impunity, whether committed dur-ing armed conflict or peacetime, has been firmly condemned by the UN and its prohibition has been consistently recognised in international law. This development, however, is a rather novel endeavour. The belated response is in part a consequence of rape being characterised by such myths as sexual vio-lence representing an inevitable by-product of war or as being committed by sexual deviants. Its systematic nature has thus been ignored as has the gravity of the offence, often leading to a culture of impunity. This was evident, for example, through the failure to prosecute crimes of rape during the Nurem-berg trials, in qualifying it as a harm against a woman’s honour in the 1949 Geneva Convention (IV), or in considering it a violation located in the “pri-vate sphere”, thereby beyond regulation by international law.
However, substantial efforts have been made in international law to rec-ognise obligations for states to prevent rape. A prohibition of the offence has developed both through treaty law and customary international law, requir-ing the prevention of rape whether committed by state agents or by a private actor. One measure to prevent such violence has been identified as the duty to enact domestic criminal laws on the matter. The flexibility for states in de-termining the substance of such criminal laws is increasingly circumscribed, leading to the question of whether a particular definition of rape or certain elements of the crime must be adopted in this process.
Elaborations on the elements of the crime of rape have been a late con-cern of international law, the first efforts made by the ad hoc tribunals (the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia), followed by the regional human rights systems as well as the International Criminal Court. The principal purpose of the thesis is consequently the systematisation and analysis of provisions and emerging norms obliging states to adopt a particular definition of rape in domestic penal codes. The prohibition of rape and, subsequently, the process of defining the crime has been made in three areas of international law – in-ternational human rights law, inin-ternational humanitarian law and interna-tional criminal law. Emerging norms in all three regimes are consequently examined in this thesis, bringing to the fore overarching questions on the possible harmonisation of defining rape in these distinct branches of interna-tional law. The study will thus provide a contextual approach, aiming to evince whether the definition can be harmonised or if prevailing circum-stances, such as armed conflict or peace, should necessarily inform its
Keywords: Prohibition of rape, definition of rape, women's rights, armed conflict, state obligations, fragmentation, humanisation
Acknowledgments
The work on the thesis has simultaneously been arduous and an adventure and I offer my deepest gratitude to numerous individuals who have con-tributed through various means in making the journey an easier one. My sincere appreciation is offered to my supervisors, Professor Joakim Ner-gelius and Dr. Ola Engdahl, who have tirelessly reviewed my manuscript. Their advice and guidance has been invaluable, while providing me with great freedom in direction and support in various endeavours.
I extend warm gratitude to Dr. Jo Stigen of University of Oslo, Faculty of Law, for reviewing the thesis at a final stage and his valuable suggestions and remarks. His astute and highly relevant comments brought essential points to the fore that I believe enhanced the final text.
Particular appreciation is offered to Professor Susan Karamanian of George Washington University Law School, Washington D.C. and Dr. Nandini Ramanujam of the Centre for Human Rights and Legal Pluralism of McGill University Faculty of Law, Montreal, not only for welcoming me as a visiting researcher, but also for generously assisting with resources and advice valuable for this thesis.
I also extend my thanks to Mary Rumsey and Suzanne Thorpe at the li-brary of University of Minnesota Law School for their enthusiasm and expertise, sharing the wealth of their human rights library.
I had the privilege to work as a clerk in the Office of the Prosecutor of the International Criminal Court, The Hague, during the initial stages of my thesis and I am sincerely grateful for the help and guidance of, among oth-ers, legal advisors Jennifer Schense and Darryl Robinson. The experience was both inspiring and indispensable for my understanding of international criminal law. During this visit, the library of the ICTY also proved a highly valuable source for my research and I thank the staff for their assistance. I am much indebted to both The Swedish Foundation for International Cooperation in Research and Higher Education (STINT) and The Sweden-America Foundation for their financial support enabling my stay as a visit-ing researcher at McGill University Faculty of Law and George Washvisit-ing- Washing-ton University School of Law. I also extend my gratitude to
Acknowledgments
The work on the thesis has simultaneously been arduous and an adventure and I offer my deepest gratitude to numerous individuals who have con-tributed through various means in making the journey an easier one. My sincere appreciation is offered to my supervisors, Professor Joakim Ner-gelius and Dr. Ola Engdahl, who have tirelessly reviewed my manuscript. Their advice and guidance has been invaluable, while providing me with great freedom in direction and support in various endeavours.
I extend warm gratitude to Dr. Jo Stigen of University of Oslo, Faculty of Law, for reviewing the thesis at a final stage and his valuable suggestions and remarks. His astute and highly relevant comments brought essential points to the fore that I believe enhanced the final text.
Particular appreciation is offered to Professor Susan Karamanian of George Washington University Law School, Washington D.C. and Dr. Nandini Ramanujam of the Centre for Human Rights and Legal Pluralism of McGill University Faculty of Law, Montreal, not only for welcoming me as a visiting researcher, but also for generously assisting with resources and advice valuable for this thesis.
I also extend my thanks to Mary Rumsey and Suzanne Thorpe at the li-brary of University of Minnesota Law School for their enthusiasm and expertise, sharing the wealth of their human rights library.
I had the privilege to work as a clerk in the Office of the Prosecutor of the International Criminal Court, The Hague, during the initial stages of my thesis and I am sincerely grateful for the help and guidance of, among oth-ers, legal advisors Jennifer Schense and Darryl Robinson. The experience was both inspiring and indispensable for my understanding of international criminal law. During this visit, the library of the ICTY also proved a highly valuable source for my research and I thank the staff for their assistance. I am much indebted to both The Swedish Foundation for International Cooperation in Research and Higher Education (STINT) and The Sweden-America Foundation for their financial support enabling my stay as a visit-ing researcher at McGill University Faculty of Law and George Washvisit-ing- Washing-ton University School of Law. I also extend my gratitude to
Forskraft-stiftelsen Theodor Adelswärds Minne for funding my research visit at Uni-versity of Minnesota Law School.
Much is owed to my colleagues at the Faculty of Law of Örebro University for their encouragement and enthusiasm, as well as their tentative manner in enquiring as to the progress of the thesis. A special thanks must never-theless be offered to Dr. Richard Zajac Sannerholm for his sense of hu-mour and support. I have received countless pep-talks from doctoral can-didate Mona Samadi during coffee breaks, lunches and anytime in be-tween. Dr. Märta Johansson has not only reviewed parts of the thesis and offered astute suggestions but has further contributed with intellectual inspiration and enthusiasm for international human rights law.
I am also thankful for the work of editor Brian Moore in enhancing the language level of the thesis.
The support of my parents has been immeasurable and primarily one of patience. Their generosity, inspiration and encouragement has been un-wavering. I impart my special thanks to my friends who have also demon-strated great patience and support. As for my fiancée Mikael, my apprecia-tion is inestimable. The final year of the thesis has been a challenge, I am sure. Despite this, your understanding and encouragement has been untir-ing. I am also grateful to Mikael’s parents for their kindness and assistance. This thesis takes account of events and materials occurring until April 2010. Örebro, April, 2010 Maria Eriksson
Table of Contents
List of Abbreviations...9 PART I: INTRODUCTION ... 111. The Definition of Rape in an International Perspective...11
1.1 Background ...11
1.2 Purpose and Research Questions ...17
1.3 Delimitations...18
1.4 Terminology...19
1.5 Sources of International Law ...26
1.6 Method ...40
1.7 Structure of the Thesis ...44
PART II: ELEMENTS OF THE CRIME OF RAPE: A CONTEXTUAL APPROACH ... 47
2. The Prohibition of Rape in Domestic Criminal Law: A Historic Overview....47
2.1 Introduction...47
2.2 Early Codes: Rape as a Violation of Property Rights ...48
2.3 The Middle Ages...51
2.4 Corroboration of Complaints ...52
2.5 The Women’s Movement and Law Reforms ...58
3. The Harm of Sexual Violence ...64
3.1 Introduction...64
3.2 How to Define Harm...66
3.3 Can Sexuality be Harmed?...69
3.4 Human Dignity and Sexual Autonomy ...76
3.5 Cultural and Collective Harm ...81
4. Elements of the Crime of Rape...88
4.1 The Principle of Legality ...88
4.1.1 The Principle in International Law...90
4.1.2 The Extent of Interpretation ...95
4.2 Substantive Elements of the Definition of Rape ...103
4.2.1 Introduction...103
4.2.2 The Elements of the Crime ...105
4.2.3 Non-Consent...108
4.2.3.1 Performative and Subjective Consent...110
4.2.3.2 Appropriate Antecedents and Consent...116
4.2.4 Coercion...121
4.2.5 Force or Threat of Force ...124
stiftelsen Theodor Adelswärds Minne for funding my research visit at Uni-versity of Minnesota Law School.
Much is owed to my colleagues at the Faculty of Law of Örebro University for their encouragement and enthusiasm, as well as their tentative manner in enquiring as to the progress of the thesis. A special thanks must never-theless be offered to Dr. Richard Zajac Sannerholm for his sense of hu-mour and support. I have received countless pep-talks from doctoral can-didate Mona Samadi during coffee breaks, lunches and anytime in be-tween. Dr. Märta Johansson has not only reviewed parts of the thesis and offered astute suggestions but has further contributed with intellectual inspiration and enthusiasm for international human rights law.
I am also thankful for the work of editor Brian Moore in enhancing the language level of the thesis.
The support of my parents has been immeasurable and primarily one of patience. Their generosity, inspiration and encouragement has been un-wavering. I impart my special thanks to my friends who have also demon-strated great patience and support. As for my fiancée Mikael, my apprecia-tion is inestimable. The final year of the thesis has been a challenge, I am sure. Despite this, your understanding and encouragement has been untir-ing. I am also grateful to Mikael’s parents for their kindness and assistance. This thesis takes account of events and materials occurring until April 2010. Örebro, April, 2010 Maria Eriksson
Table of Contents
List of Abbreviations...9 PART I: INTRODUCTION ... 111. The Definition of Rape in an International Perspective...11
1.1 Background ...11
1.2 Purpose and Research Questions ...17
1.3 Delimitations...18
1.4 Terminology...19
1.5 Sources of International Law ...26
1.6 Method ...40
1.7 Structure of the Thesis ...44
PART II: ELEMENTS OF THE CRIME OF RAPE: A CONTEXTUAL APPROACH ... 47
2. The Prohibition of Rape in Domestic Criminal Law: A Historic Overview....47
2.1 Introduction...47
2.2 Early Codes: Rape as a Violation of Property Rights ...48
2.3 The Middle Ages...51
2.4 Corroboration of Complaints ...52
2.5 The Women’s Movement and Law Reforms ...58
3. The Harm of Sexual Violence ...64
3.1 Introduction...64
3.2 How to Define Harm...66
3.3 Can Sexuality be Harmed?...69
3.4 Human Dignity and Sexual Autonomy ...76
3.5 Cultural and Collective Harm ...81
4. Elements of the Crime of Rape...88
4.1 The Principle of Legality ...88
4.1.1 The Principle in International Law...90
4.1.2 The Extent of Interpretation ...95
4.2 Substantive Elements of the Definition of Rape ...103
4.2.1 Introduction...103
4.2.2 The Elements of the Crime ...105
4.2.3 Non-Consent...108
4.2.3.1 Performative and Subjective Consent...110
4.2.3.2 Appropriate Antecedents and Consent...116
4.2.4 Coercion...121
4.2.5 Force or Threat of Force ...124
4.2.7 Actus Reus ... 128
4.2.8 Mens Rea and Criminal Responsibility ... 134
5. Sexual Violence in Context... 141
5.1 Introduction: Armed Conflict and Gender Hierarchies as Contextual Elements ... 141
5.2 Victims of Armed Conflicts ... 143
5.3. The Presence of Sexual Violence in Conflicts... 148
5.4 Theories on the Existence of Sexual Violence in Armed Conflicts... 156
5.5 Rape as a Strategic Tactic of War... 160
5.5.1 Rape as a Crime against the Community... 160
5.5.2 Distinguishing Rape from “Regular” Sexual Relations in Armed Conflicts... 167
5.5.3 The Contextual Approach to a Definition of Rape... 169
5.5.4 Armed Conflict as a Factor in Defining Rape ... 178
5.6 Common Forms of Rape in Peacetime ... 181
5.7 The Prohibition of Rape from Feminist Viewpoints... 184
5.7.1 The Impact of Gender in Defining Rape... 184
5.7.2 Feminist Critique of International Law... 192
5.8 Male Rape - The Excluded Victim? ... 197
PART III: AN INTERNATIONAL HUMAN RIGHTS LAW PERSPECTIVE...206
6. State Obligations to Prevent and Punish Rape ... 206
6.1. Introduction ... 206
6.2 The Role of the State in International Human Rights Law... 207
6.3 The Limits of State Obligations: Conduct Attributable to the State ... 209
6.3.1 Primary and Secondary Rules ... 209
6.3.2 Definition of an Internationally Wrongful Act... 213
6.3.3 Domestic Laws as Breaches of International Law ... 214
6.3.4 Forms of Attribution ... 217
6.3.5 Widening the Scope of Responsibility under International Law... 220
6.3.6 Consequences of the Public/Private Divide for Women’s Human Rights.... 225
6.4 The Due Diligence Standard - An Obligation to Prevent and Punish Human Rights Violations ... 229
6.4.1 The Scope of Due Diligence and the Nature of State Obligations... 235
6.4.2 Obligations in International Human Rights Treaties ... 238
6.4.3 Which Rights Engender Due Diligence Obligations? ... 245
6.4.4 The Due Diligence Standard as a Tool in Preventing Violence against Women ... 250
6.4.5 Prevention through Domestic Criminalisation... 255
6.4.6 Jurisprudence Delineating the Obligation to Enact Criminal Laws ... 261
6.4.6.1 Case Law on Domestic Violence of the European and Inter-American Human Rights Systems...261
6.4.6.2 Case Law on Sexual Violence ...265
6.4.6.3 Conclusions on Obligations in Case Law to Prevent Sexual Violence...277
6.4.6.4 Relevant Views and Statements from UN Treaty Bodies...280
6.4.7 Failure of State Obligations to Prevent Single Cases of Rape...283
6.5 Margin of Appreciation - Flexibility in National Implementation? ...292
6.6 Conclusions on State Obligations ...295
7. The Recognition of Rape as a Violation of International Human Rights Law...297
7.1 Is There a Human Right to Sexual Autonomy? ...297
7.2 The Prohibition of Torture and Inhuman or Degrading Treatment ...301
7.2.1 The Elements of Torture...301
7.2.2 State Nexus...307
7.2.3 Views and Cases on Rape as a Form of Torture ...310
7.2.3.1 The UN System ...310
7.2.3.2 Regional Human Rights Courts ...316
7.2.4 International Criminal Law - A New Direction in Interpreting the Torture Definition? ...322
7.2.4.1 State Nexus...322
7.2.4.2 Severity...327
7.2.4.3 Purpose ...328
7.3 Rape as a Violation of the Right to Privacy ...334
7.4 Rape as a Violation of the Non-Discrimination Principle...340
7.4.1 The Principle of Equality and Non-Discrimination ...340
7.4.2 Purpose or Effect of Discrimination ...342
7.4.3 State Obligations...347
7.4.4 Sexual Violence as a Form of Gender Discrimination...349
7.4.5 The Definition of Rape as an Expression of Gender Discrimination ...357
7.4.5.1 Gender Inequality and Access to Justice ...357
7.4.5.2 Gender-Bias in the Law...358
7.4.5.3 Gender-Bias in Language ...361
7.4.5.4 Statistics as Evidence...364
7.5 Universal Impact of the Regional Approach...366
7.6 The Ius Cogens Character of the Prohibition of Rape...372
7.6.1 Which Rights are Peremptory Norms?...380
7.6.2 A Gender-Sensitive Interpretation of Ius Cogens...382
7.7 Summary of State Obligations on the Prohibition and Definition of Rape...385
PART IV - AN INTERNATIONAL HUMANITARIAN LAW AND INTERNATIONAL CRIMINAL LAW PERSPECTIVE... 387
4.2.7 Actus Reus ... 128
4.2.8 Mens Rea and Criminal Responsibility ... 134
5. Sexual Violence in Context... 141
5.1 Introduction: Armed Conflict and Gender Hierarchies as Contextual Elements ... 141
5.2 Victims of Armed Conflicts ... 143
5.3. The Presence of Sexual Violence in Conflicts... 148
5.4 Theories on the Existence of Sexual Violence in Armed Conflicts... 156
5.5 Rape as a Strategic Tactic of War... 160
5.5.1 Rape as a Crime against the Community... 160
5.5.2 Distinguishing Rape from “Regular” Sexual Relations in Armed Conflicts... 167
5.5.3 The Contextual Approach to a Definition of Rape... 169
5.5.4 Armed Conflict as a Factor in Defining Rape ... 178
5.6 Common Forms of Rape in Peacetime ... 181
5.7 The Prohibition of Rape from Feminist Viewpoints... 184
5.7.1 The Impact of Gender in Defining Rape... 184
5.7.2 Feminist Critique of International Law... 192
5.8 Male Rape - The Excluded Victim? ... 197
PART III: AN INTERNATIONAL HUMAN RIGHTS LAW PERSPECTIVE...206
6. State Obligations to Prevent and Punish Rape ... 206
6.1. Introduction ... 206
6.2 The Role of the State in International Human Rights Law... 207
6.3 The Limits of State Obligations: Conduct Attributable to the State ... 209
6.3.1 Primary and Secondary Rules ... 209
6.3.2 Definition of an Internationally Wrongful Act... 213
6.3.3 Domestic Laws as Breaches of International Law ... 214
6.3.4 Forms of Attribution ... 217
6.3.5 Widening the Scope of Responsibility under International Law... 220
6.3.6 Consequences of the Public/Private Divide for Women’s Human Rights.... 225
6.4 The Due Diligence Standard - An Obligation to Prevent and Punish Human Rights Violations ... 229
6.4.1 The Scope of Due Diligence and the Nature of State Obligations... 235
6.4.2 Obligations in International Human Rights Treaties ... 238
6.4.3 Which Rights Engender Due Diligence Obligations? ... 245
6.4.4 The Due Diligence Standard as a Tool in Preventing Violence against Women ... 250
6.4.5 Prevention through Domestic Criminalisation... 255
6.4.6 Jurisprudence Delineating the Obligation to Enact Criminal Laws ... 261
6.4.6.1 Case Law on Domestic Violence of the European and Inter-American Human Rights Systems...261
6.4.6.2 Case Law on Sexual Violence ...265
6.4.6.3 Conclusions on Obligations in Case Law to Prevent Sexual Violence...277
6.4.6.4 Relevant Views and Statements from UN Treaty Bodies...280
6.4.7 Failure of State Obligations to Prevent Single Cases of Rape...283
6.5 Margin of Appreciation - Flexibility in National Implementation? ...292
6.6 Conclusions on State Obligations ...295
7. The Recognition of Rape as a Violation of International Human Rights Law...297
7.1 Is There a Human Right to Sexual Autonomy? ...297
7.2 The Prohibition of Torture and Inhuman or Degrading Treatment ...301
7.2.1 The Elements of Torture...301
7.2.2 State Nexus...307
7.2.3 Views and Cases on Rape as a Form of Torture ...310
7.2.3.1 The UN System ...310
7.2.3.2 Regional Human Rights Courts ...316
7.2.4 International Criminal Law - A New Direction in Interpreting the Torture Definition? ...322
7.2.4.1 State Nexus...322
7.2.4.2 Severity...327
7.2.4.3 Purpose ...328
7.3 Rape as a Violation of the Right to Privacy ...334
7.4 Rape as a Violation of the Non-Discrimination Principle...340
7.4.1 The Principle of Equality and Non-Discrimination ...340
7.4.2 Purpose or Effect of Discrimination ...342
7.4.3 State Obligations...347
7.4.4 Sexual Violence as a Form of Gender Discrimination...349
7.4.5 The Definition of Rape as an Expression of Gender Discrimination ...357
7.4.5.1 Gender Inequality and Access to Justice ...357
7.4.5.2 Gender-Bias in the Law...358
7.4.5.3 Gender-Bias in Language ...361
7.4.5.4 Statistics as Evidence...364
7.5 Universal Impact of the Regional Approach...366
7.6 The Ius Cogens Character of the Prohibition of Rape...372
7.6.1 Which Rights are Peremptory Norms?...380
7.6.2 A Gender-Sensitive Interpretation of Ius Cogens...382
7.7 Summary of State Obligations on the Prohibition and Definition of Rape...385
PART IV - AN INTERNATIONAL HUMANITARIAN LAW AND INTERNATIONAL CRIMINAL LAW PERSPECTIVE... 387
8. International Humanitarian Law ... 387
8.1 Introduction: International Humanitarian Law and Enforcement through International Criminal Law ... 387
8.2 Characteristics of International Humanitarian Law... 388
8.3 Early Codification of the Prohibition of Rape in International Humanitarian Law... 390
8.4 The International Military Tribunals at Nuremberg and of the Far East: The Birth of International Criminal Law... 391
8.5 The 1949 Geneva Conventions and the 1977 Additional Protocols ... 394
8.6 The ICRC Study on Customary International Humanitarian Law... 402
8.7 Intergovernmental Organisations and the Prohibition of Sexual Violence in Armed Conflicts ... 404
9. International Criminal Law... 409
9.1 Introduction ... 409
9.2 Prosecution of Rape – The Ad Hoc Tribunals... 410
9.2.1 ICTR: The First Definition of Rape in International Law ... 413
9.2.1.1 The Akayesu Case - A Conceptual Approach to Rape ... 415
9.2.1.2 Beyond the Akayesu Judgment... 419
9.2.1.3 Conclusions... 425
9.2.2 ICTY: New Approaches in Defining Rape ... 426
9.2.2.1 The Furundzija Judgment - A Focus on Force or the Threat of Force ... 428
9.2.2.2 The Kunarac Judgment - Rape as a Violation of Sexual Autonomy... 434
9.2.3 Conclusions Based on the Case Law of the ICTR and ICTY ... 441
9.2.4 The Special Court for Sierra Leone... 452
9.3 The International Criminal Court ... 458
9.3.1 The Birth of the ICC ... 458
9.3.2 The Rome Statute and the Prohibition of Rape... 462
9.3.3 A Complementary Relationship ... 464
9.3.4 The Rome Statute and the Scope of State Cooperation... 466
9.3.4.1 A Duty to Implement the Crimes? ... 466
9.3.4.2 Modes of Implementation ... 469
9.3.4.3 Complementarity - Creating Demands on the Content of Domestic Laws? ... 471
9.3.4.4 Unwillingness... 473
9.3.4.5 Inability... 475
9.3.4.6 Ordinary Crimes... 477
9.3.5 The Elements of the Definition of Rape ... 483
9.3.6 The Elements of Crimes and its Status for Member States ... 491
9.3.7 Situations Investigated by the Court... 496
9.3.8 Impact of the ICC ... 498
9.4 Universal Jurisdiction for the Crime of Rape?...502
9.4.1 Which Crimes Incur Universal Jurisdiction?...507
9.4.2 Domestic Application - Various Solutions ...514
9.4.4 Conclusion on Universal Jurisdiction and the Prohibition of Rape...522
PART V: THE PROHIBITION OF RAPE - CLOSING THE GAP BETWEEN INTERNATIONAL HUMAN RIGHTS LAW AND INTERNATIONAL HUMANITARIAN LAW?... 524
10. The Interplay between International Human Rights Law and International Humanitarian Law ...524
10.1 The Concepts of Harmonisation and Humanisation in International Law ....524
10.2 The Nature of International Human Rights and International Humanitarian Law...526
10.3 Fragmentation and Specialisation of Public International Law...530
10.3.1 General Remarks...530
10.3.2 Lex Specialis v. Lex Generalis ...532
10.3.3 Case Law of the ICJ ...535
10.3.4 A Complementary Approach ...539
10.3.5 Fundamental Standards of Humanity - A Step towards Harmonisation ....544
10.4 The Concept of “Humanisation” of Humanitarian Law and its Emergence..550
10.5 The Application of International Humanitarian Law by Human Rights Courts and Treaty Bodies...557
10.6 Is Harmonisation Desirable? ...561
10.7 Harmonising the Definitions of Rape and Torture...565
10.7.1 The Definition of Torture ...569
10.7.2 The Definition of Rape ...570
PART VI: A CULTURAL PERSPECTIVE ... 575
11. Cultural Relativism and Obstacles to a Uniform International Definition of Rape...575
11.1 Cultural Relativism and Women’s Human Rights ...575
11.1.1 Relativity of Women’s Rights ...581
11.1.2 Conflicts of Rights...585
11.2 Cultural Relativism and International Criminal Law ...587
11.3 Culture and Mens Rea – A Criminal Defence...591
11.4 Relativism Inherent in the International Law System ...596
PART VII: CONCLUSIONS - EMERGING OBLIGATIONS IN DEFINING THE CRIME OF RAPE?... 599
12. Concluding Summary and Remarks ...599
12.1 Introduction...599
8. International Humanitarian Law ... 387
8.1 Introduction: International Humanitarian Law and Enforcement through International Criminal Law ... 387
8.2 Characteristics of International Humanitarian Law... 388
8.3 Early Codification of the Prohibition of Rape in International Humanitarian Law... 390
8.4 The International Military Tribunals at Nuremberg and of the Far East: The Birth of International Criminal Law... 391
8.5 The 1949 Geneva Conventions and the 1977 Additional Protocols ... 394
8.6 The ICRC Study on Customary International Humanitarian Law... 402
8.7 Intergovernmental Organisations and the Prohibition of Sexual Violence in Armed Conflicts ... 404
9. International Criminal Law... 409
9.1 Introduction ... 409
9.2 Prosecution of Rape – The Ad Hoc Tribunals... 410
9.2.1 ICTR: The First Definition of Rape in International Law ... 413
9.2.1.1 The Akayesu Case - A Conceptual Approach to Rape ... 415
9.2.1.2 Beyond the Akayesu Judgment... 419
9.2.1.3 Conclusions... 425
9.2.2 ICTY: New Approaches in Defining Rape ... 426
9.2.2.1 The Furundzija Judgment - A Focus on Force or the Threat of Force ... 428
9.2.2.2 The Kunarac Judgment - Rape as a Violation of Sexual Autonomy... 434
9.2.3 Conclusions Based on the Case Law of the ICTR and ICTY ... 441
9.2.4 The Special Court for Sierra Leone... 452
9.3 The International Criminal Court ... 458
9.3.1 The Birth of the ICC ... 458
9.3.2 The Rome Statute and the Prohibition of Rape... 462
9.3.3 A Complementary Relationship ... 464
9.3.4 The Rome Statute and the Scope of State Cooperation... 466
9.3.4.1 A Duty to Implement the Crimes? ... 466
9.3.4.2 Modes of Implementation ... 469
9.3.4.3 Complementarity - Creating Demands on the Content of Domestic Laws? ... 471
9.3.4.4 Unwillingness... 473
9.3.4.5 Inability... 475
9.3.4.6 Ordinary Crimes... 477
9.3.5 The Elements of the Definition of Rape ... 483
9.3.6 The Elements of Crimes and its Status for Member States ... 491
9.3.7 Situations Investigated by the Court... 496
9.3.8 Impact of the ICC ... 498
9.4 Universal Jurisdiction for the Crime of Rape?...502
9.4.1 Which Crimes Incur Universal Jurisdiction?...507
9.4.2 Domestic Application - Various Solutions ...514
9.4.4 Conclusion on Universal Jurisdiction and the Prohibition of Rape...522
PART V: THE PROHIBITION OF RAPE - CLOSING THE GAP BETWEEN INTERNATIONAL HUMAN RIGHTS LAW AND INTERNATIONAL HUMANITARIAN LAW?... 524
10. The Interplay between International Human Rights Law and International Humanitarian Law ...524
10.1 The Concepts of Harmonisation and Humanisation in International Law ....524
10.2 The Nature of International Human Rights and International Humanitarian Law...526
10.3 Fragmentation and Specialisation of Public International Law...530
10.3.1 General Remarks...530
10.3.2 Lex Specialis v. Lex Generalis ...532
10.3.3 Case Law of the ICJ ...535
10.3.4 A Complementary Approach ...539
10.3.5 Fundamental Standards of Humanity - A Step towards Harmonisation ....544
10.4 The Concept of “Humanisation” of Humanitarian Law and its Emergence..550
10.5 The Application of International Humanitarian Law by Human Rights Courts and Treaty Bodies...557
10.6 Is Harmonisation Desirable? ...561
10.7 Harmonising the Definitions of Rape and Torture...565
10.7.1 The Definition of Torture ...569
10.7.2 The Definition of Rape ...570
PART VI: A CULTURAL PERSPECTIVE ... 575
11. Cultural Relativism and Obstacles to a Uniform International Definition of Rape...575
11.1 Cultural Relativism and Women’s Human Rights ...575
11.1.1 Relativity of Women’s Rights ...581
11.1.2 Conflicts of Rights...585
11.2 Cultural Relativism and International Criminal Law ...587
11.3 Culture and Mens Rea – A Criminal Defence...591
11.4 Relativism Inherent in the International Law System ...596
PART VII: CONCLUSIONS - EMERGING OBLIGATIONS IN DEFINING THE CRIME OF RAPE?... 599
12. Concluding Summary and Remarks ...599
12.1 Introduction...599
12.3 The Harmonisation of Regimes and the Importance of Context... 604
12.4 General Remarks ... 608
12.5 Critique of International Law Affecting the Prohibition of Rape... 613
12.6 The Legal Basis for Defining Rape ... 616
12.7 Suggestions for the Future... 618
References... 620
List of Abbreviations
CAR Central African Republic
CEDAW Convention on the Elimination of All Forms of Discrimination against Women
CERD International Convention on the Elimination of All Forms of Racial Discrimination
CRC Convention on the Rights of the Child DRC Democratic Republic of the Congo ECHR European Convention on Human Rights ECtHR European Court of Human Rights FGM Female Genital Mutilation HIV Human Immunodeficiency Virus
IACHR Inter-American Commission for Human Rights IACtHR Inter-American Court of Human Rights ICC International Criminal Court
ICJ International Court of Justice
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights ICRC International Committee of the Red Cross
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the Former Yugoslavia ILC International Law Commission
IMT International Military Tribunal at Nuremberg IMTFE International Military Tribunal of the Far East IHL International Humanitarian Law
LGBT Lesbian, Gay, Bisexual and Transgender Persons NGO Non-Governmental Organisation
UDHR Universal Declaration on Human Rights
UK The United Kingdom
UN The United Nations
UNCAT United Nations Committee against Torture
UNESCO United Nations Educational, Scientific and Cultural Organization
UNHRC Human Rights Committee
UN OHCHR United Nations Office of the High Commissioner for Human Rights
UNICEF United Nations Children’s Fund UNFPA United Nations Population Fund
12.3 The Harmonisation of Regimes and the Importance of Context... 604
12.4 General Remarks ... 608
12.5 Critique of International Law Affecting the Prohibition of Rape... 613
12.6 The Legal Basis for Defining Rape ... 616
12.7 Suggestions for the Future... 618
References... 620
List of Abbreviations
CAR Central African Republic
CEDAW Convention on the Elimination of All Forms of Discrimination against Women
CERD International Convention on the Elimination of All Forms of Racial Discrimination
CRC Convention on the Rights of the Child DRC Democratic Republic of the Congo ECHR European Convention on Human Rights ECtHR European Court of Human Rights FGM Female Genital Mutilation HIV Human Immunodeficiency Virus
IACHR Inter-American Commission for Human Rights IACtHR Inter-American Court of Human Rights ICC International Criminal Court
ICJ International Court of Justice
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights ICRC International Committee of the Red Cross
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the Former Yugoslavia ILC International Law Commission
IMT International Military Tribunal at Nuremberg IMTFE International Military Tribunal of the Far East IHL International Humanitarian Law
LGBT Lesbian, Gay, Bisexual and Transgender Persons NGO Non-Governmental Organisation
UDHR Universal Declaration on Human Rights
UK The United Kingdom
UN The United Nations
UNCAT United Nations Committee against Torture
UNESCO United Nations Educational, Scientific and Cultural Organization
UNHRC Human Rights Committee
UN OHCHR United Nations Office of the High Commissioner for Human Rights
UNICEF United Nations Children’s Fund UNFPA United Nations Population Fund
US The United States
VCLT Vienna Convention on the Law of Treaties WHO World Health Organization
Part I: Introduction
“Legal language does more than express thoughts. It reinforces certain world views and understandings of events.”1
1. The Definition of Rape in an International
Perspective
1.1 Background
The UN Secretary-General has emphasised that the elimination of violence against women remains one of the most serious challenges of our times.2 Rape,
as a crime that principally affects women and its prevalence in all states, cultures and contexts, whether in an armed conflict or peacetime, represents a prime example of this challenge. Sexual violence committed in armed conflicts has been termed “history’s greatest silence” by the UN and its eradication is considered to be a central issue and a “top priority” in the work of the organisation.3 Part of the task has lain in ending the “greatest silence” – that is, to
systematically address and condemn sexual violence. The work involves exposing such myths as rape being an inevitable byproduct of war or an expression of local cultural traditions, rather than e.g. as a war crime or as discrimination on the basis of sex.4 Rape in war is frequently understood to be an
“intractable cultural trait”5 and outside of that context as a “private matter”
perpetrated by lone, sexual deviants. Such fictions serve to minimise the gravity of the crime and fail to acknowledge its pervasive nature. Another part of the challenge is to, beyond solely addressing the widespread occurrence of rape, take measures to eradicate the practice. Rape in all contexts has largely been characterised by a culture of impunity and it is maintained that changing a culture of impunity requires the reformation of national laws to recognise such
1 Finley, Lucinda, Breaking Women’s Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning, 64 Notre Dame L. Rev. 886, (1989), p. 888.
2 In-Depth Study on all Forms of Violence against Women, Report of the Secretary-General, UN Doc. A/61/122/Add.1, 6 July 2006, para. 2.
3 “Ending History’s Greatest Silence”, Speech by Inés Alberdi, Executive Director, UNIFEM, 8 July 2009 & UN Action Against Sexual Violence in Conflict Programme, Security Council, 6196th meeting, UN Doc. S/PV.6196, 5 October 2009, p. 3.
4 SC Res. 1820 on Women, Peace and Security, UN Doc. S/RES/1820, 19 June 2008 & “Rape must never be minimized as part of cultural traditions, UN envoy [Margot Wallström] says”, UN News, 25 March 2010.
5 “Rape must never be minimized as part of cultural traditions, UN envoy [Margot Wallström] says”, UN News, 25 March 2010.
US The United States
VCLT Vienna Convention on the Law of Treaties WHO World Health Organization
Part I: Introduction
“Legal language does more than express thoughts. It reinforces certain world views and understandings of events.”1
1. The Definition of Rape in an International
Perspective
1.1 Background
The UN Secretary-General has emphasised that the elimination of violence against women remains one of the most serious challenges of our times.2 Rape,
as a crime that principally affects women and its prevalence in all states, cultures and contexts, whether in an armed conflict or peacetime, represents a prime example of this challenge. Sexual violence committed in armed conflicts has been termed “history’s greatest silence” by the UN and its eradication is considered to be a central issue and a “top priority” in the work of the organisation.3 Part of the task has lain in ending the “greatest silence” – that is, to
systematically address and condemn sexual violence. The work involves exposing such myths as rape being an inevitable byproduct of war or an expression of local cultural traditions, rather than e.g. as a war crime or as discrimination on the basis of sex.4 Rape in war is frequently understood to be an
“intractable cultural trait”5 and outside of that context as a “private matter”
perpetrated by lone, sexual deviants. Such fictions serve to minimise the gravity of the crime and fail to acknowledge its pervasive nature. Another part of the challenge is to, beyond solely addressing the widespread occurrence of rape, take measures to eradicate the practice. Rape in all contexts has largely been characterised by a culture of impunity and it is maintained that changing a culture of impunity requires the reformation of national laws to recognise such
1 Finley, Lucinda, Breaking Women’s Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning, 64 Notre Dame L. Rev. 886, (1989), p. 888.
2 In-Depth Study on all Forms of Violence against Women, Report of the Secretary-General, UN Doc. A/61/122/Add.1, 6 July 2006, para. 2.
3 “Ending History’s Greatest Silence”, Speech by Inés Alberdi, Executive Director, UNIFEM, 8 July 2009 & UN Action Against Sexual Violence in Conflict Programme, Security Council, 6196th meeting, UN Doc. S/PV.6196, 5 October 2009, p. 3.
4 SC Res. 1820 on Women, Peace and Security, UN Doc. S/RES/1820, 19 June 2008 & “Rape must never be minimized as part of cultural traditions, UN envoy [Margot Wallström] says”, UN News, 25 March 2010.
5 “Rape must never be minimized as part of cultural traditions, UN envoy [Margot Wallström] says”, UN News, 25 March 2010.
acts as crimes.6 Improving the legislative framework on these matters has e.g.
been stressed as essential by the UN Secretary-General.7 This thesis aims to
examine emerging obligations for states in international law to enact criminal laws entailing a prohibition on rape and consider the question of whether or not such duties should extend to include the adoption of a particular definition of the crime.
Within the field of public international law, the prohibition of sexual violence was until recently approached in a tentative manner, whether in international human rights law, international humanitarian law (IHL) or in international criminal law. The 1949 Geneva Conventions depicts rape as harming a woman’s honour, rather than as an act against the physical integrity or autonomy of the person.8 Transcripts from the Nuremberg war trials held in 1945-1946
demonstrate an extensive practice of rape committed by the armed forces of several nations in various areas of occupation during the Second World War.9
Witness testimony on indiscriminate mass rape and sexual mutilation of women of all ages before relatives and neighbours is interspersed in the transcripts. However, the focus of the trials remained on other violations deemed to be of a graver nature and no individual was prosecuted for rape as an international crime. The area of international criminal law, which in effect developed from the establishment of the Nuremberg tribunal, from its inception thus disregarded sexual violence treating it as an unfortunate side-effect of war and not of international concern. That patterns of violence become normalised when followed by impunity is evident. Rape as a tactic of war is becoming increasingly employed as the nature of armed conflict changes, frequently
6 “Rape must never be minimized as part of cultural traditions, UN envoy [Margot Wallström] says”, UN News, 25 March 2010. See also The State of Human Rights in Europe: The Need to Eradicate Impunity, Council of Europe, Committee on Equal Opportunities for Women and Men, Doc. 11964, 23 June 2009.
7 Report of the Secretary-General, Women and Peace and Security, UN Doc. S/2009/465, 16 September 2009, para. 42 & SC Res. 1888 on Women, Peace and Security, UN Doc. S/RES/1888, 30 September 2009, para. 6.
8 See Article 27, Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 U.N.T.S 287 (Geneva Convention IV).
9 Trial of the German Major War Criminals: Proceedings of the International Military Tribunal Sitting at Nuremburg, 14 Nov. 1945 – 1 Oct. 1946 (42 Vols.), Published at Nuremberg 1947, (IMT Docs.).
occurring in populated areas and with the deliberate targeting of civilians.10 The
brutal and systematic use of sexual violence as a tactic of war in the armed conflicts in Rwanda and former Yugoslavia, with approximately 500,000 and 60,000 rapes committed respectively is a testament to this, as are the mass rapes in more recent conflicts in e.g. Sierra Leone, the DRC and Darfur.11
Rape outside the context of armed conflict occurs in all societies by strangers, acquaintances and intimate partners. Domestic laws prohibiting rape vary greatly, frequently affirming gender stereotypes, e.g. in viewing the offence as a crime against the honour of the woman, and excluding certain categories of victims, such as spouses or prostitutes, or requiring proof of resistance. The corresponding recognition of women’s rights as universal human rights was, similarly to international criminal law, a late concern of the international community since the types of violations that women often suffer have been considered to be of a “private” nature, within the confines of the internal affairs of states and not to be regulated by public international law. As acts of private
10 Cost of Violence against Women ‘Beyond Calculation’, warns UN Chief, UN News, New York, 8 March, 2009, Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict, UN Doc. S/2005/740, para. 3, Askin, Kelly, Prosecuting Wartime Rape and Other Gender-Related Crimes Under International Law: Extraordinary Advances, Enduring Obstacles, 21 Berkeley Journal of Intl. L 288, (2003), p. 9 & Final Report by Ms. Gay J McDougall, Special Rapporteur, Contemporary Forms of Slavery: Systematic Rape, Sexual Slavery and Slavery-Like Practices During Armed Conflict, UN Doc. E/CN.4/Sub.2/1998/13, 22 June 1998, para. 7, Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Minimum Humanitarian Standards, Analytical Report of the Secretary-General Submitted Pursuant to Commission on Human Rights Resolution 1997/21, UN Doc. E/CN.4/1998/87, 5 January, 1998, para. 33, Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict, UN Doc. S/2005/740, 28 November, 2005, para. 3, SC Res. 1820 on Women, Peace and Security, UN Doc. S/RES/1820, 19 June, 2008, Coomaraswamy, Radhika, Sexual Violence during Wartime, in Listening to the Silences: Women and War, ed. Helen Durham and Tracey Gurd, Martinus Nijhoff Publishers, (2005), p. 55, Bensouda, Fatou, Gender and Sexual Violence Under the Rome Statute, in From Human Rights to International Criminal Law, Studies in Honour of an African Jurist, the Late Judge Laity Kama, Brill, (2007), p. 402.
11 See e.g. on Rwanda: UN Doc. E/CN.4/1996/68, 29 January 1996, para. 16, Former Yugoslavia: Annex: Final Report of the Commission of Experts Pursuant to Security Council Resolution 780, (1992), UN SCOR, 49th Session, UN Doc. S/1994/674, paras. 250-251 and Ellis, Mark, Breaking the Silence: Rape as an International Crime, 38 Case W. Res. J. Int’l L. 225, (2006), p. 226, Sierra Leone: Women, War and Peace, UNIFEM, 2002, Vol. 1, p. 9, Darfur: Report of the International Commission of Inquiry on Darfur to the Secretary-General, Pursuant to Security Council resolution 1564 (2004) of 18 September 2004, UN Doc. S/2005/60, 1 February 2005, the DRC: Report of the Secretary-General pursuant to Security Council resolution 1820, UN Doc. S/2009/362, 15 July 2009, para. 12.
acts as crimes.6 Improving the legislative framework on these matters has e.g.
been stressed as essential by the UN Secretary-General.7 This thesis aims to
examine emerging obligations for states in international law to enact criminal laws entailing a prohibition on rape and consider the question of whether or not such duties should extend to include the adoption of a particular definition of the crime.
Within the field of public international law, the prohibition of sexual violence was until recently approached in a tentative manner, whether in international human rights law, international humanitarian law (IHL) or in international criminal law. The 1949 Geneva Conventions depicts rape as harming a woman’s honour, rather than as an act against the physical integrity or autonomy of the person.8 Transcripts from the Nuremberg war trials held in 1945-1946
demonstrate an extensive practice of rape committed by the armed forces of several nations in various areas of occupation during the Second World War.9
Witness testimony on indiscriminate mass rape and sexual mutilation of women of all ages before relatives and neighbours is interspersed in the transcripts. However, the focus of the trials remained on other violations deemed to be of a graver nature and no individual was prosecuted for rape as an international crime. The area of international criminal law, which in effect developed from the establishment of the Nuremberg tribunal, from its inception thus disregarded sexual violence treating it as an unfortunate side-effect of war and not of international concern. That patterns of violence become normalised when followed by impunity is evident. Rape as a tactic of war is becoming increasingly employed as the nature of armed conflict changes, frequently
6 “Rape must never be minimized as part of cultural traditions, UN envoy [Margot Wallström] says”, UN News, 25 March 2010. See also The State of Human Rights in Europe: The Need to Eradicate Impunity, Council of Europe, Committee on Equal Opportunities for Women and Men, Doc. 11964, 23 June 2009.
7 Report of the Secretary-General, Women and Peace and Security, UN Doc. S/2009/465, 16 September 2009, para. 42 & SC Res. 1888 on Women, Peace and Security, UN Doc. S/RES/1888, 30 September 2009, para. 6.
8 See Article 27, Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 U.N.T.S 287 (Geneva Convention IV).
9 Trial of the German Major War Criminals: Proceedings of the International Military Tribunal Sitting at Nuremburg, 14 Nov. 1945 – 1 Oct. 1946 (42 Vols.), Published at Nuremberg 1947, (IMT Docs.).
occurring in populated areas and with the deliberate targeting of civilians.10 The
brutal and systematic use of sexual violence as a tactic of war in the armed conflicts in Rwanda and former Yugoslavia, with approximately 500,000 and 60,000 rapes committed respectively is a testament to this, as are the mass rapes in more recent conflicts in e.g. Sierra Leone, the DRC and Darfur.11
Rape outside the context of armed conflict occurs in all societies by strangers, acquaintances and intimate partners. Domestic laws prohibiting rape vary greatly, frequently affirming gender stereotypes, e.g. in viewing the offence as a crime against the honour of the woman, and excluding certain categories of victims, such as spouses or prostitutes, or requiring proof of resistance. The corresponding recognition of women’s rights as universal human rights was, similarly to international criminal law, a late concern of the international community since the types of violations that women often suffer have been considered to be of a “private” nature, within the confines of the internal affairs of states and not to be regulated by public international law. As acts of private
10 Cost of Violence against Women ‘Beyond Calculation’, warns UN Chief, UN News, New York, 8 March, 2009, Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict, UN Doc. S/2005/740, para. 3, Askin, Kelly, Prosecuting Wartime Rape and Other Gender-Related Crimes Under International Law: Extraordinary Advances, Enduring Obstacles, 21 Berkeley Journal of Intl. L 288, (2003), p. 9 & Final Report by Ms. Gay J McDougall, Special Rapporteur, Contemporary Forms of Slavery: Systematic Rape, Sexual Slavery and Slavery-Like Practices During Armed Conflict, UN Doc. E/CN.4/Sub.2/1998/13, 22 June 1998, para. 7, Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Minimum Humanitarian Standards, Analytical Report of the Secretary-General Submitted Pursuant to Commission on Human Rights Resolution 1997/21, UN Doc. E/CN.4/1998/87, 5 January, 1998, para. 33, Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict, UN Doc. S/2005/740, 28 November, 2005, para. 3, SC Res. 1820 on Women, Peace and Security, UN Doc. S/RES/1820, 19 June, 2008, Coomaraswamy, Radhika, Sexual Violence during Wartime, in Listening to the Silences: Women and War, ed. Helen Durham and Tracey Gurd, Martinus Nijhoff Publishers, (2005), p. 55, Bensouda, Fatou, Gender and Sexual Violence Under the Rome Statute, in From Human Rights to International Criminal Law, Studies in Honour of an African Jurist, the Late Judge Laity Kama, Brill, (2007), p. 402.
11 See e.g. on Rwanda: UN Doc. E/CN.4/1996/68, 29 January 1996, para. 16, Former Yugoslavia: Annex: Final Report of the Commission of Experts Pursuant to Security Council Resolution 780, (1992), UN SCOR, 49th Session, UN Doc. S/1994/674, paras. 250-251 and Ellis, Mark, Breaking the Silence: Rape as an International Crime, 38 Case W. Res. J. Int’l L. 225, (2006), p. 226, Sierra Leone: Women, War and Peace, UNIFEM, 2002, Vol. 1, p. 9, Darfur: Report of the International Commission of Inquiry on Darfur to the Secretary-General, Pursuant to Security Council resolution 1564 (2004) of 18 September 2004, UN Doc. S/2005/60, 1 February 2005, the DRC: Report of the Secretary-General pursuant to Security Council resolution 1820, UN Doc. S/2009/362, 15 July 2009, para. 12.
violence, the criminalisation of sexual violence has thus been strictly deferred to domestic legal systems. Though international human rights law is founded on the quality of human dignity, this has not until recently been interpreted in a gender-conscious manner to include sexual autonomy.
This silence in public international law in the fields of international human rights law, IHL and international criminal law on matters relating to women’s rights has been a reflection of the lack of acknowledgment of particular concerns of women. As Dinah Shelton argues: “laws reflect the current needs and recognise the present values of society”.12 Law thus functions as an instrument of
deterrence and punishment, but it also has a value-generating force and acts as a catalyst for social change, e.g. concerning gender roles. This is also true for public international law, which should reflect such values as gender equality in its aim of providing for the protection of the person.
However, efforts to remedy the lacunas in international law have been made by the international community, acknowledging sexual violence as one of the gravest forms of violations of public international law. As this thesis will demonstrate, international law on the protection against rape is dynamic, continually developing and expanding in scope with regard to state obligations. The UN Secretary-General has emphasised that human rights violations of women, such as rape, are more than harms done to the individual and affect societies at large and “undermine the development, peace and security of entire societies”.13 It is understood that women’s rights do not solely affect this
particular group, but has a resonance in the social, political and economic life of society in general.14 The UN Secretary-General in Resolution 1325 called
attention to the disproportionate impact on women in armed conflict, e.g. through sexual violence, and in Resolutions 1820 and 1888 noted the practice of rape as a tactic of war in modern armed conflicts.15 These resolutions call on
states to eradicate such conduct and to end impunity. The ad hoc tribunals, established subsequent to the armed conflicts in Rwanda and Yugoslavia, have interpreted rape as a form of international crime. The Rome Statute of the International Criminal Court (ICC) has also been instrumental in recognising
12 Shelton, Dinah, Introduction: Law, Non-Law and the Problem of ‘Soft Law’, in Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System, ed. Dinah Shelton, Oxford University Press, (2000), p. 7.
13 United Nations Secretary General’s Message on The International Day for the Elimination of Violence Against Women, 25 November 2008.
14 Steiner, Henry, Alston, Philip & Goodman, Ryan, International Human Rights in Context, Law, Politics, Morals, Oxford University Press, 3rd ed., (2008), p. 175.
15 SC Res. 1325 on Women, Peace and Security, UN Doc. S/RES/1325, 31 Oct. 2000, Resolution 1820, UN Doc. S/RES/1820, 19 June 2008, 1888.
sexual violence as a matter of the utmost concern for the international community.16 The explicit mention of the prohibition of rape as a violation of
international human rights law in regional treaties generating state obligations is limited but has increasingly been interpreted under the chapeau of other human rights.17 A Convention has also been drafted by the Council of Europe in 2009
containing an explicit obligation for member states to enact criminal laws on rape, including its definition.18
The prohibition of rape is thus uniform in international law. A definition of rape has, however, been a late concern of international law, with the first efforts made by the ad hoc tribunals, followed by regional human rights courts and UN treaty bodies.19 States are consequently increasingly circumscribed in their
flexibility to enact domestic criminal laws on rape, with obligations as to the adoption of specific elements of the crime. Much of this development has been parallel to the understanding of the harm of rape, which is central to the construction of its definition. Whether harm is considered to be similar to a violation of property rights, the dishonour of the victim, a crime against the community or the autonomy of the person, has been instrumental in the development of the classification and definition of rape, both at the domestic and international law level.
The purpose of this thesis is to attempt to systematise regulations concerning the prohibition on rape and, ultimately, its definition in public international law, comparing the areas of international human rights law, international criminal law and, to a certain extent, IHL. Though these fields of law share a common core of protecting human dignity, they present certain distinctive characteristics relevant to the approach of criminalising rape. International human rights law governs the conduct of states and provides standards by which individuals can raise claims against the state through various international and regional mechanisms. Notwithstanding its applicability in war, this regime has traditionally and primarily concerned itself with the administration of rules in peacetime. IHL is applicable to the “parties of the armed conflict” and regulates state and
16 Rome Statute of the International Criminal Court, 17 July 1998, UN. Doc. A/CONF.183/9.
17 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, Adopted by the 2nd Ordinary Session of the Assembly of the Union, 11 July 2003, CAB/LEG/66.6.
18 Draft Convention on Preventing and Combating Violence against Women and Domestic Violence, CAHVIO (2009) 32 Prov., Council of Europe, Strasbourg, 15 October 2009.
19 The term ’ad hoc tribunals’ signifies the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia.
violence, the criminalisation of sexual violence has thus been strictly deferred to domestic legal systems. Though international human rights law is founded on the quality of human dignity, this has not until recently been interpreted in a gender-conscious manner to include sexual autonomy.
This silence in public international law in the fields of international human rights law, IHL and international criminal law on matters relating to women’s rights has been a reflection of the lack of acknowledgment of particular concerns of women. As Dinah Shelton argues: “laws reflect the current needs and recognise the present values of society”.12 Law thus functions as an instrument of
deterrence and punishment, but it also has a value-generating force and acts as a catalyst for social change, e.g. concerning gender roles. This is also true for public international law, which should reflect such values as gender equality in its aim of providing for the protection of the person.
However, efforts to remedy the lacunas in international law have been made by the international community, acknowledging sexual violence as one of the gravest forms of violations of public international law. As this thesis will demonstrate, international law on the protection against rape is dynamic, continually developing and expanding in scope with regard to state obligations. The UN Secretary-General has emphasised that human rights violations of women, such as rape, are more than harms done to the individual and affect societies at large and “undermine the development, peace and security of entire societies”.13 It is understood that women’s rights do not solely affect this
particular group, but has a resonance in the social, political and economic life of society in general.14 The UN Secretary-General in Resolution 1325 called
attention to the disproportionate impact on women in armed conflict, e.g. through sexual violence, and in Resolutions 1820 and 1888 noted the practice of rape as a tactic of war in modern armed conflicts.15 These resolutions call on
states to eradicate such conduct and to end impunity. The ad hoc tribunals, established subsequent to the armed conflicts in Rwanda and Yugoslavia, have interpreted rape as a form of international crime. The Rome Statute of the International Criminal Court (ICC) has also been instrumental in recognising
12 Shelton, Dinah, Introduction: Law, Non-Law and the Problem of ‘Soft Law’, in Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System, ed. Dinah Shelton, Oxford University Press, (2000), p. 7.
13 United Nations Secretary General’s Message on The International Day for the Elimination of Violence Against Women, 25 November 2008.
14 Steiner, Henry, Alston, Philip & Goodman, Ryan, International Human Rights in Context, Law, Politics, Morals, Oxford University Press, 3rd ed., (2008), p. 175.
15 SC Res. 1325 on Women, Peace and Security, UN Doc. S/RES/1325, 31 Oct. 2000, Resolution 1820, UN Doc. S/RES/1820, 19 June 2008, 1888.
sexual violence as a matter of the utmost concern for the international community.16 The explicit mention of the prohibition of rape as a violation of
international human rights law in regional treaties generating state obligations is limited but has increasingly been interpreted under the chapeau of other human rights.17 A Convention has also been drafted by the Council of Europe in 2009
containing an explicit obligation for member states to enact criminal laws on rape, including its definition.18
The prohibition of rape is thus uniform in international law. A definition of rape has, however, been a late concern of international law, with the first efforts made by the ad hoc tribunals, followed by regional human rights courts and UN treaty bodies.19 States are consequently increasingly circumscribed in their
flexibility to enact domestic criminal laws on rape, with obligations as to the adoption of specific elements of the crime. Much of this development has been parallel to the understanding of the harm of rape, which is central to the construction of its definition. Whether harm is considered to be similar to a violation of property rights, the dishonour of the victim, a crime against the community or the autonomy of the person, has been instrumental in the development of the classification and definition of rape, both at the domestic and international law level.
The purpose of this thesis is to attempt to systematise regulations concerning the prohibition on rape and, ultimately, its definition in public international law, comparing the areas of international human rights law, international criminal law and, to a certain extent, IHL. Though these fields of law share a common core of protecting human dignity, they present certain distinctive characteristics relevant to the approach of criminalising rape. International human rights law governs the conduct of states and provides standards by which individuals can raise claims against the state through various international and regional mechanisms. Notwithstanding its applicability in war, this regime has traditionally and primarily concerned itself with the administration of rules in peacetime. IHL is applicable to the “parties of the armed conflict” and regulates state and
16 Rome Statute of the International Criminal Court, 17 July 1998, UN. Doc. A/CONF.183/9.
17 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, Adopted by the 2nd Ordinary Session of the Assembly of the Union, 11 July 2003, CAB/LEG/66.6.
18 Draft Convention on Preventing and Combating Violence against Women and Domestic Violence, CAHVIO (2009) 32 Prov., Council of Europe, Strasbourg, 15 October 2009.
19 The term ’ad hoc tribunals’ signifies the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia.
