Hostname: page-component-76fb5796d-x4r87 Total loading time: 0 Render date: 2024-04-27T21:46:09.626Z Has data issue: false hasContentIssue false
  • English
  • Français

Rape as a Crime under International Humanitarian Law

Published online by Cambridge University Press:  27 February 2017

Theodor Meron
Get access Rights & Permissions [Opens in a new window]

Abstract

An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.
Image of the first page of this content. For PDF version, please use the ‘Save PDF’ preceeding this image.'
Type
Editorial Comment
Information
American Journal of International Law , Volume 87 , Issue 3 , July 1993 , pp. 424 - 428
Copyright
Copyright © American Society of International Law 1993

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 UNTS 279 [London Agreement].

2 Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3516, 75 UNTS 287 [Geneva Convention No. IV].

3 SC Res. 808 (Feb. 22, 1993); SC Res. 827 (May 25, 1993). For a discussion of the prospects for and difficulties concerning the tribunal, see Theodor Meron, The Case for War Crimes Trials in Yugoslavia, Foreign Aff., Summer 1993, at 122. There has been a broad consensus outside Yugoslavia to consider the conflicts there as international.

4 The continued cooperation of Russia with regard to the conflict in former Yugoslavia is still uncertain.

5 In the statute of the international tribunal prepared by the UN Secretary-General and submitted to the Security Council in his Report pursuant to paragraph 2 of Security Council resolution 808 (1993), the Secretary-General proposed that the ratione materiae competence of the tribunal encompass grave breaches of the Geneva Conventions, violations of the laws and customs of war, genocide and crimes against humanity. UN Doc. S/25704, Annex, Arts. 2–5 (1993). In selecting these particular categories of crimes, the Secretary-General was guided by this consideration: “the application of the principle nullum crimen sine lege requires that the international tribunal should apply rules of international humanitarian law so that the problem of adherence of some but not all States to specific conventions does not arise.” UN Doc. S/25704, supra, at 9, para. 34. The above categories of crimes constituted “beyond doubt … part of international customary law … applicable in armed conflict.” Id., para. 35.

6 Tadeusz Mazowiecki, Report on the situation of human rights in the territory of the former Yugoslavia, UN Doc. A/48/92-S/25341, Annex, at 20, 57 (1993).

7 There has already been considerable recognition that custodial rape, or rape in circumstances for which a government is liable under the law of state responsibility, violates the prohibitions of torture or inhuman treatment in international human rights. The reports of Peter Kooijmans, special rapporteur of the UN Commission on Human Rights, have greatly contributed to this development. See also European Commission of Human Rights, Cyprus v. Turkey, Applications Nos. 6780/74 and 6950/75 (1976); Andrew Byrnes, The Committee against Torture, in The United Nations and Human Rights 509, 519 & n.38 (Philip Alston ed., 1992).

8 Theodor Meron, Henry’s Wars and Shakespeare’s Laws, chs. 6, 8 (forthcoming 1993).

9 Francis Lieber, Instructions for the Government of Armies of the United States in the Field, Art. 44, originally published as U.S. War Department, Adjutant General’s Office, General Orders No. 100 (Apr. 24, 1863), reprinted in The Laws of Armed Conflicts 3 (Dietrich Schindler & Jiří Toman eds., 3d rev. ed. 1988).

10 Meron, supra note 8, ch. 6; see also Theodor Meron, Common Rights of Mankind in Gentili, Grotius and Sudrez, 85 AJIL 110, 115–16 (1991).

11 For another example, see Walter Kalin, Report on the Situation of Human Rights in Kuwait under Iraqi Occupation, UN Doc. E/CN.4/1992/26, at 47–48.

12 “Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice must be respected.” Convention Respecting the Laws and Customs of War on Land, with Annex of Regulations, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631 [Hague Convention No. IV].

13 In some cases, enforced prostitution was prosecuted in national courts outside Germany. 15 United Nations War Crimes Commission, Law Reports of Trials of War Criminals 121 (1949). A Netherlands court in Batavia, for example, found some Japanese persons responsible for forced prostitution guilty of violating the laws and usages of war. Philip R. Piccigallo, The Japanese on Trial 179–80 (1979).

14 Charter of the International Military Tribunal for the Far East, Jan. 19, 1946, amended Apr. 26, 1946, TIAS No. 1589, 4 Bevans 20. The International Military Tribunal in Tokyo found some Japanese military and civilian officials guilty of war crimes, including rape, because they failed to carry out their duty to ensure that their subordinates complied with international law. See John Alan Appleman, Military Tribunals and International Crimes 259 (1971). The IMT considered rape a war crime. 2 The Tokyo Judgment: The International Military Tribunal for the Far East 965, 971–72, 988–89 (B. V. A. Roling & C. F. Ruter eds., 1977); 1 id. at 385; Gordon Ireland, Uncommon Law in Martial Tokyo, in 4 World Aff. Y.B. 54, 61 & n.14 (1950). Regarding the case of Admiral Toyoda, who was charged with violating laws and customs of war by tolerating various abuses, including rape (he was acquitted of all charges), see William H. Parks, Command Responsibility for War Crimes, Mil. L. Rev., Fall 1973, at 1, 69–73.

15 Control Council for Germany, Official Gazette, Jan. 31, 1946, at 50, reprinted in Naval War College, Documents on Prisoners of War 304 (International Law Studies vol. 60, Howard S. Levie ed., 1979).

16 Supra note 2, Art. 27.

17 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, Arts. 76(1) and 85, 1125 UNTS 3, 16 ILM 1391 (1977) [Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature Dec. 12, 1977, Art. 4(2)(e), 1125 UNTS 609, 16 ILM 1442 (1977) [Protocol II].

18 See generally Francoise Krill, The Protection of Women in International Humanitarian Law, 25 Int’l Rev. Red Cross 337, 341 (1985).

19 War crimes are crimes against the conventional or customary law of war that are committed by persons “belonging” to one party to the conflict against persons or property of the other side. The perpetrator, as the Nuremberg jurisprudence makes clear, need not necessarily be a soldier. Attacks committed by persons against other persons belonging to the same side are not considered war crimes.

20 ICRC, Aide-Mémoire (Dec. 3, 1992).

21 As early as 1958, the ICRC Commentary on the fourth Geneva Convention recognized that the grave breach of “inhuman treatment” (Art. 147) should be interpreted in the context of Article 27, which also prohibits rape. Commentary on the Geneva Conventions of 12 August 1949: Geneva Convention Relative to the Protection of Civilian Persons in Time of War 598 (Oscar M. Uhler & Henri Coursier eds., 1958).

22 The Department stated:

We believe that there is no need to amend the Geneva Conventions to accomplish the objectives stated in your letter, however, because the legal basis for prosecuting troops for rape is well established under the Geneva Conventions and customary international law. As stated in the authoritative Department of the Army Law of War Manual, any violation of the Geneva Conventions is a war crime (FM 27-10, para. 499.). Article 27 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War provides that women shall be “especially protected … against rape.” Article 13 of the Geneva Convention Relative to the Treatment of Prisoners of War provides that prisoners “must at all times be protected, particularly against acts of violence”; article 14 requires that women “be treated with all the regard due to their sex.” Both Conventions list grave breaches, including willful killing, torture or inhuman treatment, and (with regard to civilians) willfully causing great suffering or serious injury to body or health: Under the Geneva Conventions and customary international law, all parties to an international conflict (including all parties to the conflict in the former Yugoslavia) are required either to try persons alleged to have committed grave breaches or to extradite them to a party that will.

In our reports to the United Nations on human rights violations in the former Yugoslavia, we have reported sexual assaults as grave breaches. We will continue to do so and will continue to press the international community to respond to the terrible sexual atrocities in the former Yugoslavia.

Letter from Robert A. Bradtke, Acting Assistant Secretary for Legislative Affairs, to Senator Arlen Specter (Jan. 27, 1993).

23 UN Doc. S/25266, Ann. V, Art. VI(1)(b)(iv) (1993).

24 “Acts of murder, torture, extrajudicial and summary execution, illegal detention, and rape that are part of a campaign or attack against any civilian population in the former Yugoslavia on national, racial, ethnic, or religious grounds.” UN Doc. S/25575, Ann. II, Art. 10(b)(i) (1993), reprinted infra at p. 435. This article does not use the term crimes against humanity.

25 The formulation of the Islamic Conference reads: “Crimes against humanity, as defined in articles 6(c) and 5(c) of the London and Tokyo Charters, respectively and as further developed by customary international law, which includes: murder, torture, mutilation, rape ….” UN Doc. A/47/920-S/25512, Annex, Art. II(1)(c) (1993). For the wording in the charter proposed by Italy, see UN Doc. S/25300, Ann. I, Art. 4(c) (1993).

26 UN Doc. S/25704, supra note 5, Annex, Art. 5. This statute was approved by SC Res. 827, supra note 3.

27 15 United Nations War Crimes Commission, supra note 13, at 134–36.

28 The pernicious phenomenon of rape continues unabated in war as in peace. See, e.g., Majority Staff of the Senate Judiciary Committee, 102d Cong., 2d Sess., Violence Against Women: A Week in the Life of America (1992); Americas Watch, Untold Terror: Violence Against Women in Peru’s Armed Conflict (1992); Middle East Watch, Punishing the Victim: Rape and Mistreatment of Asian Maids in Kuwait (1992); Americas Watch, Criminal Injustice: Violence Against Women in Brazil (1991). For efforts by the Committee on the Elimination of Discrimination to combat violence against women, see CEDAW General Recommendation No. 19: Violence against Women, in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1, at 74 (1992).