United Nations A/hrc/19/68

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Applicable law

  • Rape violates the prohibition on torture and cruel, inhuman or degrading treatment and also impairs other human rights including the right to the highest attainable standard of physical and mental health under the Covenant on Economic, Social and Cultural Rights. It is also expressly prohibited in armed conflict, with Protocol II prohibiting “rape, enforced prostitution and any form of indecent assault” (art. 4, para. 2 (e)). Common article 3 to the Geneva Conventions also prohibits “violence to life and person, in particular … cruel treatment and torture” and “outrages upon personal dignity, in particular, humiliating and degrading treatment”. Rape constitutes a war crime under the Rome Statute as well as potentially constituting a crime against humanity if it is part of a widespread or systematic attack on civilians.751 The elements of the crime of rape in non-international armed conflicts in the Rome Statute are as follows:

    1. 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 of 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.

    2. The invasion was committed 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 another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.

    3. The conduct took place in the context of and was associated with an armed conflict not of an international character.

    4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

  • The Security Council has urged parties of armed conflict to protect women and children from sexual violence. Its resolution 1325 (2000) calls on all parties to the conflict to take special measures to protect women and girls from rape and others forms of sexual abuse and its resolution 1820 (2008) stresses that “sexual violence, when used or commissioned as a tactic of war in order to deliberately target civilians or as part of a widespread or systematic attack against civilian populations, can significantly exacerbate situations of armed conflict”.

  • Sexual violence can meet the definition of torture and has been presented as such.752

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