CHAPTER 2

INTERNATIONAL AND REGIONAL PROTECTION AGAINST RAPE AND

SEXUAL VIOLENCE

2.1 Meaning and Concept of Rape under International Law

International law provides definitions of rape and sexual violence. Under the international
law purview, sexual violence includes rape which is one of the most discriminatory violence
against women. The term “sexual violence” in international law is defined as any form of
sexual act by violence or coercion despite the relationship to the victim. Sexual violence can
be seen during peace times and armed conflict situations. One of the general definitions of
sexual violence is given by the World Health Organization (WHO) in its World Report on
Violence and Health 2002 which is- “Sexual violence is any sexual act, attempt to obtain a
sexual act, unwanted sexual comments or advances, or acts to traffic, or otherwise directed,
against a person’s sexuality using coercion, by any person regardless of their relationship to
the victim, in any setting, including but not limited to home and work”. As per definition of
WHO includes but it is not limited to rape. Furthermore, rape is also defined as- “physically
forced or otherwise coerced penetration of the vulva or anus, using a penis, other body parts
or an object.” Rape is one of the forms of sexual violence and every form of sexual violence
is condemned in every corner of the world as they are grave violation of human rights.

Accordingly, different other definitions of sexual violence within international law. The
Rome Statute of International Criminal Court (ICC) has explained sexual violence in its
Elements of Crimes as- “an act of sexual nature against one or more persons or caused such
person or persons to engage in an act of sexual nature by force, or by threat of force or
coercion, such as that caused by fear of violence, duress, detention, psychological oppression
or abuse of power, against such person or persons or another person, or by taking advantage
of a coercive environment or such person’s or person’s incapacity to give genuine consent.”

Furthermore, The Special Rapporteur on Systemic Rape, Sexual Slavery and Slavery-Like
Practices During Armed Conflict, in a report in 1998, stipulated that sexual violence is “any
violence, physical or psychological, carried out through sexual means by targeting sexuality.”
This definition covers both physical as well as psychological aspect.
2.2 International Human Rights Instruments Criminalizing Rape and Sexual Violence

Violence against women constitutes a violation of rights and fundamental freedoms of

women. It is an obstacle to the achievement of equality, development and peace. The
Declaration on the elimination of violence against women (DEVAW) proclaimed by the
United Nations General Assembly recognizes violence against women as a manifestation of
historically unequal power relations between men and women, which have led to domination
over and discrimination against women by men and to the prevention of the full achievement
of women.

Although, there is no specific convention related to rape, there are various human rights
instruments that contain provisions for rape and sexual violence. International human rights
law provides for sexual violence including criminalization of rape. The international human
rights standards for sexual violence including rape have worked as a tool for reforming rape
laws around the world in order to provide effective remedy against rape and sexual violence.
International human rights instruments which include Universal Declaration of Human Rights
(1948), International Covenant on Civil and Political Rights (1966), International Covenant
on Economic, Social and Cultural Rights (1966), Convention on The Elimination of All
Forms of Discrimination against Women (1979).

2.2.1 Universal Declaration of Human Rights (UDHR)

The UDHR was adopted in the year 1948 by the United Nations General Assembly. It was the
foundational text in the history of human rights. Though UDHR is not legally binding, the
contents of the UDHR have been elaborated and incorporated into subsequent international
treaties, regional human rights instruments and national constitutions and legal codes. 193
member states of the United Nations have ratified this international document. The UDHR
does not contain specific provisions for rape and sexual violence. There is no doubt that the
UDHR is intended for everyone, men and women alike. Therefore Article 3 and 5 of the
UDHR includes the safety and security of women as well. Accordingly, Article 3 of the
UDHR states that “Everyone has the right to life, liberty and security of person” and Article 5
states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment.” These rights are reaffirmed by the ICCPR which protects the right to life
(Article 6) and the right to liberty and security pf person (Article 9).
2.2.2 International Covenant on Civil and Political Rights (ICCPR)

The ICCPR was adopted on 16 December 1966 and entered into force on 23 March 1976 by
the United Nations General Assembly, is a multilateral treaty that commits nations to respect
the civil and political rights of individuals such as the right to life, freedom of religion,
freedom of speech, freedom of assembly, etc. The ICCPR is considered as a seminal
document which forms a part of the international bill of rights, along with the International
Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal Declaration
of Human Rights (UDHR). The ICCPR contains provisions related to sexual violence which
are as follows-

Article 7 – “No one shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment.”

Article 9- “Everyone has the right to liberty and security of person”.

Article 10- “All persons deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person.”

2.2.3 International Covenant on Economic, Social and Cultural Rights (ICESCR)

The ICESCR was adopted by the United Nations General Assembly on 16 December 1966
and entered into force from 3 January 1976. It is a multilateral treaty that commits nations to
respect the economic, social and cultural rights. The ICESCR contains a provision which is
related to sexual violence-

Article 12- “The State Parties to the present Covenant recognize the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health.”

2.2.4 Convention on Elimination of Discrimination against Women (CEDAW)

The CEDAW is the only universal treaty on women’s rights. Out of 207 countries, 189 have
ratified the CEDAW. However, CEDAW fails to address the issue of violence against women.
That is why, the CEDAW Committee stated that gender-based violence is also a form of
discrimination against women which is prohibited by the Convention. Accordingly, the
general assembly adopted the Declaration on the Elimination of Violence Against Women
(DEVAW) in December 1993.
The DEVAW has defined the term ‘violence against women’ as “any act of gender-based
violence that results in, or is likely to result in, physical, sexual or psychological harm or
suffering to women, including threats of such acts, coercion or arbitrary deprivation of
liberty, whether occurring in public or in private life.”

The definition of violence against women given under the DEVAW contains all forms of
sexual violence, including rape, marital rape, sexual abuse and sexual harassment. The
nations should adopt legal and other feasible measures to prevent, criminalize, investigate,
prosecute and punish all acts of violence against women under the CEDAW and DEVAW.
The survivors of sexual violence and other forms of violence against women have the right to
an effective judicial remedy i.e., right to non-discriminatory access to criminal justice.

Article 3 of the DEVAW reiterates provisions of the UDHR, ICCPR and ICESCR such as
Right to life, right to equality, right to liberty and security of person, the right to the highest
standards attainable of physical and mental health and right not to be subjected to torture, or
other cruel, inhuman or degrading treatment or punishment.

2.3 Rome Statute of the International Criminal Court (ICC) and Sexual Violence

The international criminal court is a permanent international court established to investigate

and try individuals accused of committing serious crimes of concern to the international
community which includes the crime of genocide, crimes against humanity, war crimes and
the crime of aggression. The ICC was established during the 20 th century when serious crimes
were being committed all over the world. However, many of these crimes remain unpunished.
In the wake of the Second World War II, the Nuremberg and Tokyo tribunals were established
to investigate and prosecute cases. When the Convention on the prevention and punishment
of the crime of genocide was adopted in 1948, the need for a permanent international criminal
court was recognized to deal with the kinds of atrocities which was being perpetrated.

During the negotiations for establishing a permanent international criminal court after the end
of world war, there was commission of heinous crimes happening in the territory of the
former Yugoslavia and Rwanda. Therefore, in response to these atrocities, the United Nations
Security Council established an ad hoc tribunal for each of these situations. These situations
had a significant impact on the conference which led to the establishment of Rome statute of
international criminal court in Rome in the summer of 1998.
On 17th July 1998, a conference of 160 states established the first treaty based permanent
international criminal court. This treaty is known as Rome Statute of International Criminal
Court. The statute sets out the crimes falling within the jurisdiction of the ICC, the rules of
procedure and the mechanisms for states to cooperate with the ICC. The countries which have
accepted these rules are called the state parties.

The ICC prosecutes individuals only, unlike the international court of justice. Any individual
who is alleged to have committed serious crimes which fall within the jurisdiction of the ICC
may be brought before the ICC.

The crimes that fall under the jurisdiction of the ICC are the crime of genocide, crimes
against humanity, war crimes and the crime of aggression. The ICC deals with cases of rape
which comes under the crimes against humanity. The ICC deals with a wide range of sexual
crimes and demonstrates an unprecedented degree of gender sensitivity in international
criminal law.

Before the establishment of the ad hoc tribunals, the international criminal law had remained
almost completely silent on sexual and gender-based violence. Rape was not mentioned in the
judgment of the Nuremberg International Military Tribunal. The Nuremberg charter which is
known as the “birth certificate” of the international criminal law also did not explicitly refer
to sexual crimes and they were included under the general provisions such as the crime
against humanity of other inhumane acts and the war crime of ill-treatment.

The establishment of the ICC certainly represents major progress with respect to the
prosecution of wide range of sexual and gender-based offenses. For the first time in
international criminal law, the statute lists rape and forced prostitution and also various sexual
crimes. With the emergence of the ICC statute, gender sensitivity could be seen in the form of
elements of crimes and rules of procedure and evidence which contain several important
provisions aimed at ensuring several important provisions on sexual crimes and achieving an
effective and gender sensitive manner. The elements of crimes define rape and it does not
explicitly apply to women and girls. With regard to genocide, it clarifies that the genocidal
act of “causing serious bodily or mental harm” under article 6(b) of the ICC Statute may
include rape and sexual violence.

There can be seen no prioritization of sexual violence investigations. Sexual violence charges
in cases before the ICC have failed for various reasons at all stages of proceedings. The case
against German Katanga was the first ICC trial to explicitly deal with sexual crimes. The
charges included rape and sexual slavery committed in connection with an attack on the
village of Bogoro. Katanga was convicted on a majority of charges but he was acquitted of all
charges for sexual crimes. In this case, the judges had drawn the distinction between sexual
crimes and other types of crime such as pillaging which indicates that sexual crimes may
have been held to a higher standard than other crimes. Later in 2016 the ICC secured its first
conviction for sexual crimes against Jean-Pierre Bemba Gombo. Among other charges, he
was found guilty of rape as a crime against humanity and a war crime. However, the Appeals
Chamber overturned this decision and acquitted bemba of all charges.

In the recent times, the ICC has become inclusive towards the interpretation of sexual crimes.
In the history of international law, gender-based violence has often been seen conflated
against women. The ICC appears to have overcome this problematic notion in two cases.
Both the convictions of Bemba and Ntaganda included the rape of male victims, with both
Trial Chambers explicitly clarifying that the crime of rape under the ICC Statute is gender-
neutral. There are also cases of problematic categorization of genital mutilations of men in
the Kenyatta case as well as the exclusion of evidence on sexual violence against men in the
Ongwen trial, the Bemba and Ntaganda cases are likely to serve as important precedents.

2.4 Rape in International Humanitarian Law

International humanitarian law sets out protections for civilians, prisoners of war and other
non-combatants during international and non-international armed conflicts. In case of
women, there was need for special protection. From the birth of international humanitarian
law, they had been given the same general legal protection as that of men. If women were
wounded, they were protected by the provisions of the 1864 Geneva Convention for the
Amelioration of the Condition of the Wounded in Armies in the Field. Moreover, if they
became prisoners of war, they benefited from the regulations of the Hague Conventions of
1899 and 1907 on the Laws and Customs of War on Land. Under the international
humanitarian law, the perpetrators are held accountable for rape and other forms of sexual
violence as war crimes, crimes against humanity and acts of genocide. Since 1929, women
have enjoyed special protection under IHL. The international legal instrument contained two
provisions of particular interest, Article 3 and 4 which state that: “Women shall be treated
with all consideration due to their sex” and “Differences of treatment between prisoners are
permissible only if such differences are based on the military rank, the state of physical or
mental health, the professional abilities, or the sex of those who benefit from them.”
Rape as a crime under the international humanitarian law had been first recognized in the
Lieber Code. Rape by soldiers has been prohibited by the law of war for centuries, and they
are tried and subjected to capital punishment under national military codes. However, in some
cases, rape has been recognized as a license to encouragement for soldiers, such as Nazi and
Japanese practices of forced prostitution and rape on a large scale during the holocaust.

Till the World War II, there were a few enforcement mechanisms. For example, the Lieber
Code prohibited and punished rape along with other atrocities by the military commanders
who were given the power to execute a soldier immediately if that person committed one of
the prohibited acts. Similarly, the Hague Convention is considered to include provision on
rape under article 46 which states that “Family honors and rights, individual lives and private
property, as well as religious convictions and liberty, must be respected. Private property
cannot be confiscated.”

After World War II, there were two international crime tribunals set up, namely the
Nuremberg tribunal and the other in Tokyo. Rape was neither mentioned in the Nuremberg
charter nor prosecuted in Nuremberg as a war crime under international customary law.
However, rape was included among the atrocities that occurred, but the tribunals dealt with
crimes they considered greater crimes such as murder, mass deportation, and mass
enslavement. In the Tokyo tribunal, rape was prosecuted but only as part of the greater
atrocities committed by the top military commanders.

However, another development was sown in Control Council Law No. 10 which was adopted
by the four occupying powers in Germany as a charter for war crimes trials by their own
courts in Germany. It expanded a list of crimes against humanity found in the Nuremberg
Charter to include rape.

Accordingly, although Common Article 3 of the Geneva Convention which applies to all
parties in an internal armed conflict, including armed opposition groups, does not explicitly
or specifically provide for rape or other forms of sexual violence, it prohibits “violence to life
and person” including cruel treatment and torture and “outrages upon personal dignity.” The
Third Geneva Convention mentions that prisoners of war are in all circumstances entitled to
“respect for their persons and their honour”. Similarly, Article 27 of the Fourth Geneva
Convention states that “women shall be especially protected against any attack on their
honour, in particular against rape, enforced prostitution, or any form of indecent assault.” The
Additional Protocols I and II recognizes the prohibition of “outrages upon personal dignity”
and Article 75 of Additional Protocol I specifies that this prohibition covers in particular
“humiliating and degrading treatment, enforced prostitution and any form of indecent
assault”, while additional protocol II explicitly adds “rape” to this list. The Fourth Geneva
Convention and Additional Protocol I require protection for women and children against rape,
enforced prostitution or any other form of indecent assault. Moreover, article 4 of additional
protocol II expressly forbids “violence to life, health and physical or mental well-being of
persons, in particular murder as well as cruel treatment, such as torture, mutilation or any
form of corporal punishment” and ‘outrages upon personal dignity, in particular humiliating
and degrading treatment, rape and enforced prostitution and any form of indecent assault” as
well as “slavery and the slave trade in all their forms.”

2.4 Regional Human Rights Instruments against Rape and Sexual Violence

Human rights at the regional level have also been pertinent in cases of rape and sexual
violence. The legal reasoning adopted by the regional human rights courts in adjudicating
cases of rape has a history of its own. The inter-American Commission on Human rights
exercises its jurisdiction over the rights protected by the American convention on human
rights.

Beginning with the adoption of the European convention on human rights in 1950, the trend
to elaborate regional standards continued with the adoption of the American convention on
human rights in 1967 which was subsequently followed by the African charter on human and
peoples’ rights adopted in 1981. The regional human rights instruments have provisions for
the protection of women from all kinds of violence, including rape.

In the case of Raquel Marti de Mejia v. Peru, it was interpreted that American Convention’s
guarantee of the right to be free from rape, did not define the elements of rape. It was held
that the act of rape could violate the safeguards of torture which are prohibited by article 5 of
the American convention. Thus, rape fulfilled one of the elements of torture namely, an
intentional act through which physical and mental pain and suffering is inflicted on a person.

The European court of human rights (ECHR) exercises jurisdiction over all matters of
interpretation of the European convention for the protection of human rights and fundamental
freedoms. The ECHR held that the state parties are responsible for rape crimes either when
state agents perpetrated rape or when the state failed to provide an adequate remedy at the
national level. The European convention also does not explicitly provide for the right to be
free from sexual violence. The ECHR initially characterized rape as a violation of the right to
privacy. Later it recognized rape as torture and as a severe form of inhumane treatment.

In the case of X & Y v. Netherlands, the ECHR held that rape abridges the right to privacy
under article 8 which protects the “physical and moral integrity of the person, including his or
her sexual life.” The court did not define the elements of rape.

In another case of Aydin v. Turkey, the ECHR stated that rape can also constitute a violation
of article 3 of the European convention, which prohibits torture.

Regional human rights jurisprudence has examined a range of human rights violations, such
as torture, degrading treatment of violations of privacy, factually established by the inflictions
of rape.

The relevant provisions for the protection of women from rape and sexual violence in various
regional human rights instruments are as follows.

2.4.1 American Convention on Human Rights (ACHR)

Article 1 of ACHR states that “The States Parties to this Convention undertake to respect the
rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction
the free and full exercise of those rights and freedoms, without any discrimination for reasons
of race, color, sex, language, religion, political or other opinion, national or social origin,
economic status, birth, or any other social condition.”

Article 8 states that “Every person has the right to a hearing, with due guarantees and within a
reasonable time, by a competent, independent, and impartial tribunal, previously established
by law, in the substantiation of any accusation of a criminal nature made against him or for
the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.”

2.4.2 Inter-American Convention on The Prevention, Punishment and Eradication Of

Violence Against Women

Article 3 states that “Every woman has the right to be free from violence in both the public
and private spheres.”

Article 5 states that “Every woman is entitled to free and full exercise of her civil, political,
economic, social and cultural rights, and my rely on the full protection of those rights as
embodied in regional and international instruments on human rights. The States Parties
recognize that violence against women prevents and nullifies the exercise of these rights.”
Article 6 states that “The right of every woman to be free from violence includes, among
others: a. The right women to be free from all forms of discrimination; and b. The right of
women to be valued and educated free of stereotyped patterns of behavior and social and
cultural practices based on concepts of inferiority or subordination.”

2.4.3 European Convention for The Protection of Human Rights and Fundamental Freedoms
(European Convention On Human Rights Or ECHR)

Article 1 of the ECHR states that “The High Contracting Parties shall secure to everyone
within their jurisdiction the rights and freedoms defined in Section I of this Convention.”

Article 3 states that “No one shall be subjected to torture or to inhuman or degrading
treatment or punishment.”

Article 6 states that “In the determination of his civil rights and obligations…everyone is
entitled to a fair and public hearing within a reasonable time by an independent and impartial
tribunal established by law.”