Conflict-Related Sexual and Gender-Based Violence

Limitations in existing regulation

Conflict-related sexual and gender-based violence (SGBV) includes such conducts as ‘rape, sexual slavery, forced prostitution, forced pregnancy, forced abortion, enforced sterilization, forced marriage and any other form of sexual violence of comparable gravity’.¹ Despite the frequent occurrence of SGBV during armed conflict, IHL treaty rules have been criticized for failing to explicitly address these conducts,109 and for reproducing traditional stereotypes about gender.²

IHL provisions on SGBV

Despite these limitations, several IHL provisions, in particular those addressing humane treatment and specifically protecting women, include SGBV in their prohibitions,³ as echoed by customary law, which prohibits ‘rape and other forms of sexual violence’. ⁴ In IACs, parties to the conflict must treat the persons in their power humanely without any adverse distinction based upon sex or any similar criteria, protect them against violence, and respect their person as well as their honour.⁵ Women are entitled to special respect and ‘shall be protected in particular against rape, forced prostitution and any other form of indecent assault’.⁶ In NIACs, persons who do not (or no longer) take part in hostilities must be treated humanely, without any adverse distinction based on sex or any other similar criteria.⁷ In particular, they are protected against violence to their person, including cruel treatment and torture, as well as ‘outrages upon personal dignity, in particular humiliating and degrading treatment’,⁸ which explicitly includes ‘rape, enforced prostitution and any form of indecent assault’ under Additional Protocol II. ⁹ Such conduct might amount to grave breaches¹⁰ or other war crimes.¹¹

Required nexus

In order for an act of sexual or gender-based violence to be governed by IHL, there must be sufficient nexus between the act and an armed conflict. In accordance with jurisprudence in the International Criminal Tribunal for the former Yugoslavia (ICTY), unlawful conduct is considered sufficiently related to the armed conflict when the existence of the conflict has played a substantial part in the perpetrator’s decision or ability to engage in that conduct, the manner in which the act was committed, or the purpose for which it was committed.¹²Indicative factors of the requisite association with the armed conflict include the status of the perpetrator (for example, whether they had a combatant role); the apparent alignment of the unlawful conduct with the aim of a party to the conflict; or the fact that the conduct was part of, or committed in the context of, the perpetrator’s official duties.¹³

The International Criminal Court (ICC) has observed that although it is likely that ‘some relationship’ exists between a perpetrator and a party to the conflict, it is not necessarily the case that perpetrators must be members of a party to the conflict. Rather, the Court has observed, ‘the emphasis is on the nexus between the crime and the armed conflict’.¹⁴ Thus, not only combatants but also civilians can commit war crimes, including those of a sexual nature, and they can do so even if they have no special relationship with one party to the conflict.¹⁵

Finally, while the armed conflict alone ‘need not be considered to be the root of the conduct of the perpetrator’ and the unlawful conduct ‘need not have taken place in the midst of battle’,¹⁶ the fact that the chaos caused by an armed conflict or a climate of impunity facilitated sexual or gender-based violence is not in and of itself sufficient to establish the requisite nexus.¹⁷

1
‘Conflict-related sexual violence, Report of the Secretary-General’, UN Doc S/2024/292, 4 April 2024, para 3; Art 8(b)(xxii) and 8(e)(vi), ICC Statute
2
C. Chinkin, ‘Gender and Armed Conflict’, in A. Clapham et al (eds), The Oxford Handbook of International Law in Armed Conflict, Oxford University Press (Oxford, 2014), pp 682–683 and 697–698; J. Gardam and M. Jarvis, Women, Armed Conflict and International Law, Kluwer Law International (2001),pp 93 and 96–97; D Otto, ‘The Exile of Inclusion: Reflections on GenderIssues in International Law over the Last Decade’, 10 Melbourne Journal of International Law (2009), pp 11–26; S. Sivakumaran, ‘Sexual ViolenceAgainst Men in Armed Conflict’, 18 European Journal of International Law (2007), pp 253–277, at pp 253 and 260; M. Sassòli, International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare, Edward Elgar Publishing (2nd edn,2024), paras 10.167–10.169 and 10.175
3
M. Sassòli, International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare, Edward Elgar Publishing (2nd edn,2024), para 10.167
4
ICRC, Customary IHL Rule 93: ‘Rape and Other Forms of Sexual Violence’, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule93
5
Art 75(1) AP I; ICRC, Customary IHL Rule 87: ‘Humane Treatment’, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule87; ICRC, Customary IHL Rule 88: ‘Non-Discrimination’, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule88. See also Art 27(1) GC IV, which limits its application to protected persons
6
Art 76(1) AP I. See also Art 27(2) GC IV, which is limited to protected persons
7
Common Art 3(1) GCs; Art 4(1) AP II
8
Common Art 3(1)(a) and (c) GCs; Arts 4(2)(a) and (e) AP II
9
Arts 4(2)(e) and (f)AP II
10
Art 130 GC III; Art 147 GC IV. Inhuman treatment wilfully causing great suffering or serious injury to body or health amounts to grave breaches and shall be understood as including instances of SGBV: see M. Sassòli, International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare, Edward Elgar Publishing (2nd edn,2024), para 10.167.
11
Arts 8(2)(b)(xxii) and 8(2)(e)(vi), ICC Statute. Under the ICC Statute, war crimes include ‘committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2(f), enforced sterilization, and any other form of sexual violence also constituting a grave breach of the Geneva Conventions [or] a serious violation article 3 common to the four Geneva Conventions’.
12
ICTY, Prosecutor v Kunarac et al, Appeal Judgment, IT-96-23 and IT-96-23/1-A, 12 June 2002, para 58
13
ICTY, Prosecutor v Kunarac et al, Appeal Judgment, IT-96-23 and IT-96-23/1-A, 12 June 2002, para 59
14
ICC, Prosecutor v Bemba, Trial Judgment, ICC-01/05-01/08, 21 March 2016, para 143. See also, eg, ICC, Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Trial Judgment, ICC-01/12-01/18-2594-Red, 26 June 2024, para 1100
15
G. Gaggioli, ‘Sexual violence in armed conflicts: A violation of international humanitarian law and human rights law’, 96 International Review of the Red Cross (2014), pp 503–38, at p 516; see also ICTR, Prosecutor v Akayesu, Appeal Judgment, ICTR-96-4, 1 June 2001, para 444
16
ICC, Prosecutor v Katanga, Trial Judgment, ICC-01/04-01/07, 7 March 2014, para 1176
17
M. Sassòli, International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare, Edward Elgar Publishing (2nd edn,2024), para 6.90