United Nations Security Council officially recognized rape as a tactic
of war. Rape is classified as an act of torture within international
human rights, humanitarian and criminal law. Rape is used to discourage
dissent and to demonstrate power and it can be used to create an
environment of fear that systematically breaks down the cohesion of a
community by creating division and shame which tears apart social and
family bonds. Rape in such a context is a war crime. Rape occurs also
frequently in detention and in some countries is almost expected when a
woman has been tortured.
Rape affects the entire community, although sexual assault is most often a crime defined by gender, with women and girls the predominant victims. It is a tactic to rape a woman in order to shame and humiliate the men in her family who were unable to protect her. Thus the sexual assault causes vicarious trauma to all who care about the rape victim and gives the rapist power over others who witness or hear about the rape. Men and boys have also been subjected to sexual abuse and rape. The shame and humiliation of such sexual violations leaves many victims unable to tell their stories. Being raped has consequences far beyond the event itself. There is a risk of pregnancy, sexually transmitted diseases and physical injury, as well as psychological consequences that last for a lifetime. Those who have experienced rape as torture often experience depression, anxiety and inability to trust as well as headaches, nightmares and intrusive memories. There is long term impact on themselves, their families and society.
Article 1 of the Universal Declaration of Human Rights (1948) states: "All human beings are born free and equal in dignity and rights..."
There is a human right to self autonomy and personal dignity. A person whether a man or woman has the human right to refuse sex with any particular person, at any particular time, under any particular set of circumstances. Consent is the issue, no one else has the right to make that decision for another. It does not matter whether force, coercion or fraud have been used, if the person's right to decisions regarding her/his personal autonomy has been ignored and he/she has been humiliated then it is rape - only if she/he has consented would it not be rape.
There were four types of international crimes the court was created to address:
"¢ Crimes against humanity,
"¢ War crimes,
"¢ Aggressive wars.
"¢ Enforced disappearance, defined as the detention or abduction of people (with the acquiescence of the state) along with a refusal to acknowledge their whereabouts or fate,
"¢ Rape, sexual slavery, forced pregnancy and enforced prostitution and sterilization,
"¢ Deportation or forcibly transferring a population,
"¢ Persecution, defined as the intentional and severe deprivation of fundamental rights.
Rape causes serious bodily or mental harm and international criminal tribunals have indicated that rape can constitute genocide when it is directed toward destroying a national, ethnic, racial or religious group. Under international law the crime of rape is a physical invasion of a sexual nature, which is not limited to a physical invasion of the body and may involve acts where there is no penetration or even physical contact.
The definition of rape in The Statute of the International Criminal Court (ICC) includes two key elements:
"The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or the perpetrator with a sexual organ or of the anal or genital opening of the victim with any object or any other part of the body."
"The invasion was committed by force, or by the threat of force or coercion, such as that was caused by fear of violence, duress, detention, psychological oppression, or abuse of power, against such person or another person, or by taking advantage of a coercive environment or the invasion was committed against a person incapable of giving genuine consent."
One of the most significant aspects of the above elements is the presence of the "coercive environment" and the inability of a person to give consent. This moves away from an assumption of implied consent and recognizes that under certain coercive circumstances the assumption works the other way--namely, the assumption is that the sex was unwanted.
When does rape change from sexual assault carried out by one individual against another to become a crime against humanity?
The Foca rape case verdict in February 2001 was the first time that individuals were convicted for rape as a crime against humanity. The Foca rape case was prosecuted by the International Criminal Tribunal for the Former Yugoslavia (the ICTY) in an effort to bring to justice those responsible for crimes against humanity in the war in Bosnia. Prior to the Foca rape case no one had ever been convicted of rape as a crime against humanity.