Rape committed by soldiers, other combatants, or civilians during armed conflict or war can constitute war crimes, crimes against humanity or a constituting act with respect to genocide.
Rape during wartime may occur for different reasons:
- as an expected reward to the victors,
- due to lack of military discipline, or
- as a military technique to demoralize the opposition.
The United Nation Security Council considers rape as a tactic of war and a threat to international security. The Security Council noted that women and girls are particularly targeted by the use of sexual violence, including as a tactic of war to humiliate, dominate, instill fear in, disperse and/or forcibly relocate civilian members of a community or ethnic group.
Rape and other forms of sexual violence as a war crime can also be committed against men. For purposes of the Alien Tort Statute[i], crimes against humanity include rape or other inhumane acts committed as part of a widespread or systematic attack directed against a civilian population[ii].
Crimes like rape which by itself requires state action for Alien Tort Claims Act (“ATCA”) liability to attach, do not require state action when committed in furtherance of other crimes like slave trading, genocide or war crimes, which by themselves do not require state action for ATCA liability to attach[iii].
Rape has been considered a war crime for centuries and punishable as such. During the American Civil War, the Union Army operated under a general order prepared by Francis Lieber and signed by President Lincoln in 1863 that made rape a capital offense. In the twentieth century, rape was included in various treaties regulating the conduct of war, starting with Article 46 of the 1907 Hague Convention.
Current international laws that deal with rape are mainly contained in four documents:
- The 1949 Geneva Conventions.
- The 1977 Supplementary Protocols of the Geneva Conventions.
- The body of law from the Nuremberg Tribunal held at the close of World War II.
- The Military Tribunal of the Far East.
Article 27 of the Fourth Geneva Convention of 1949 clearly states that women should be protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault. Further, rape was referred to as a crime against honor or dignity, not a crime of violence.
Rape can be prosecuted as a war crime as a grave breach under Article 147 of the Fourth Geneva Convention and as a violation of the laws or customs of war.
The statute establishing a permanent International Criminal Court, adopted by the United Nations diplomatic conference in Rome on July 17, 1998, grants jurisdiction to prosecute rape, enforced prostitution, sexual slavery, forced pregnancy, enforced sterilization, and other forms of sexual violence of comparable gravity. The crimes can be prosecuted whether during war or peace, if of a widespread or systematic nature.
[i] 28 U.S.C.S. § 1350.
[ii] Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244 (2d Cir. N.Y. 2009).
[iii] John Doe I v. Unocal Corp., 395 F.3d 932 (9th Cir. Cal. 2002).