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Our Introduction

Sexual violence includes, but is not limited to rape. Although there is no agreed upon definition of sexual violence, the ones commonly applied encompass any act of sexual nature, or an attempt to obtain a sexual act, carried out through coercion. Sexual violence also includes physical and psychological violence directed at a person’s sexuality, including unwanted comments or advances, or acts of traffic such as forced prostitution or sexual slavery.

Sexual violence, both in times of peace and armed conflict situations, is widespread and considered to be one of the most traumatic, pervasive, and most common violations human beings suffer. It is a serious public health and human rights problem and has a profound both short- and/or long- term impact on physical and mental health. Though women and girls suffer disproportionately from this kind of violence, it can occur to anybody at any age. It is also an act of violence that can be perpetrated by parents, caregivers, acquaintances and strangers, as well as intimate partners. Sexual violence is rarely a crime of passion, it is rather an aggressive act that frequently aims to express power and dominance over the victim.

Sexual violence remains highly stigmatized in all settings, thus levels of disclosure of the assault vary between regions. In general, it is a widely underreported phenomenon, thus available data tend to underestimate the true scale of the problem. In addition, sexual violence is also a neglected area of research, thus deeper understanding of the issue is imperative in order to promote a coordinated movement against it. It is important to distinguish between domestic sexual violence and conflict-related sexual violence. Often, people who coerce their spouses into sexual acts believe their actions are legitimate because they are married.In times of conflict, sexual violence tends to be an inevitable repercussion of warfare trapped in an ongoing cycle of impunity. Rape of women and of men is often used as a weapon of war, as a form of attack on the enemy, typifying the conquest and degradation of its women or men or captured male or female fighters. Even if strongly prohibited by IHRL, Customary law and IHL, enforcement mechanisms are still fragile or even non-existent in many corners of the world.

From a historical perspective sexual violence was considered as only happening to women and as being commonplace and “normal” during both war and peace times from the Ancient Greeks to the 20th century. This led to the negligence of any indications of what the methods, aims and magnitude of such violence was. In fact, only at the end of the 20th century sexual violence was not considered anymore as a minor issue and was gradually criminalized with a wider focus on the victims.

A historical perspective of sexual violence

Sexual violence can be traced back to the Greeks and Romans where women were seen as property without any rights over their bodies or sexual integrity. Rape of women during peace times was therefore considered as property crime only affecting their owners: the husbands, sons or brothers. During armed conflict sexual violence, particularly rape, was perceived as a normal byproduct of war, as “a socially acceptable behavior well within the rules of warfare”. In Ancient Greece women were sometimes the reason for the attack of a city, conquering women as new wives or concubines, legitimate booty, as slaves or as trophies. The fact that sexual violence to women was "commonplace" during both war and peace times, led to the negligence of any indications of what the methods, aims and magnitude of such violence was; it was face- and nameless.

Sexual violence in the Middle Ages

The Middle Ages still strongly reflected this patriarchal view on women. During times of peace, spouses had no right to refuse sex with their husbands. Even though laws punishing rapes existed, sexual violence was usually considered as justified or inconsequential. Usually, depending on the elite's views, which perceived sexual violence as a minor issue, sexual violence was not prosecuted. This view was also transferred to the colonies. In Alta California for example, the Catholic clergy relied heavily on corporal punishment such as flogging, placing in the stocks or shackling of Amerinindian women within their programs of Christianization. Within this context of trying to restore a certain social order, women were often the victims of sexual violence if politically active and posing a threat to the existing order. With regard to times of war, jurists, writers and scholars argued that as soon as war is just, no boundaries would be set towards methods used in order to achieve victory. However, with Alberico Gentili (1552-1608) discussions started that suffering of women should be reduced and rape prohibited during peace and war times. However, this view was not accepted for a long time, as women and children not participating in the fighting were still considered as being the enemy and the patriarchal view on women prevailed during peace and war times.

Codification of Laws of War on Gender related Crimes

Gradually, over the centuries laws and customs of war changed in direction of a wider understanding of sexual violence and the need to protect the victims. During the American civil war, the US started to codify the customary rules regulating land-based wars. With the Lieber Code of 1863 President Lincoln tried to regulate the conduct of Union soldiers and prohibited explicitly rape. The Geneva Conventions one year after and the Fourth Hague Conventions 1907 followed this line by advocating the protection of family rights and honour, implying specifically also the prohibition of rape. But the only enforcement mechanisms were the military commanders themselves, having the right to execute the soldiers immediately. After the First World War a War Crimes Commission was established in order to bring war criminals before justice. Forced prostitution and rape was seen as grave violation of the customs and laws of war. Under the International Military Tribunal at Nuremberg (IMT) and the International Military Tribunal for the Far East at Tokyo (IMTFE), the spectrum of sexual violence as war crime was widened even though rape was not explicitly mentioned. The transcripts of the trials contain evidence of rape, sexual slavery, sexual torture, forced prostitution, forced sterilization, forced abortion, pornography, sexual mutilation, forced nudity and sexual sadism. But only after the Tokyo Tribunal, when Japanese commanders were prosecuted the first time based on the chain of command for not having prevented rape and sexual slavery of Comfort Women during the Second World War, was sexual violence gradually considered as a grave war crime in itself. This view was the first time expressed after Nuremberg and Tokyo in the second series of trials for the prosecution of "lesser" war criminals where the Control Council Law No. 10 explicitly listed rape constituting a crime against humanity.

See also

Nuremberg Trials Fact Sheet

The Tokyo War Crimes Trial

Further readings

Heineman, Elizabeth D. (2011): Sexual Violence in Conflict Zones. From the Ancient World to the Era of Human Rights. Philadelphia: University of Pennsylvania Press. De Brouwer, Anne-Marie, Charlotte Ku, Renée Römkens and Larissa van den Herik (2013): Sexual Violence as an International Crime: Interdisciplinary Approaches. Cambridge: Intersentia.