Sexual violence as a war crime

Sexual violence as a war crime: Grave breaches of the 1949 Geneva Convention, and violations of the laws and customs of war

War crimes cover grave breaches of the Geneva Conventions of 1949 and other serious violations of the laws of war, committed on a large scale in international as well as internal armed conflicts. Not all of the Geneva Conventions apply to internal armed conflicts. In the case of rape, however, international humanitarian law does forbid acts of sexual violence in internal armed conflicts. Common Article 3 of the Geneva Conventions prohibits 'violence to life and person,' 'cruel treatment,' 'torture' or 'other outrages upon personal dignity.' Article 4(2)(e) of Protocol II to the Geneva Conventions, governing the protection of civilians in internal armed conflicts, explicitly outlaws 'outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault.'²⁵ 

The ICTY in the Furundzija judgment and the Kunarac, Kovac and Vukovic case confirmed the status of rape as a war crime. In the Furundzija judgment, the ICTY confirmed, among other things, the status of rape as a war crime, particularly under common article 3 of the Geneva Conventions dealing with internal armed conflicts. The court found Furundzija guilty of aiding and abetting a war crime, the rape of a Bosnian Muslim woman. Furundzija was found to have provided 'assistance, encouragement, or moral support which ha[d] a substantial effect on the perpetration of the crime' when his subordinate orally, anally and vaginally raped a Bosnian Muslim woman Furundzija was interrogating. Kunarac, Kovac and Vukovic were convicted of rape as a violation of the laws or customs of war, a war crime.

According to the Rome Statute, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Convention (in international armed conflict) or constituting a serious violation of article 3 common to four Geneva Conventions (in a non-international conflict) are war crimes.²⁶