Challenges to Adjudication and Investigation
Edited by Fausto Pocar, Marco Pedrazzi and Micaela Frulli
Chapter 8: Criminalizing rape and sexual violence as methods of warfare
Although national codes have historically prohibited rape, for a longtime States failed to prosecute it as a war crime. Rape was often condoned and seen as a private act, committed by indecent soldiers who went unpunished. The International Criminal Tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR) made significant progress in this respect and filled some critical gaps in the law. The International Committee of the Red Cross (ICRC) confirmed that the prohibition of rape and other forms of sexual violence constitutes a norm of customary international law, applicable in both international and internal armed conflicts. Prior to the1990s and the establishment of the ICTY and ICTR rape was considered a by-product of war; now, however, sex crimes are correctly considered key strategies of war designed to inflict pain and terror on or even to wipeout entire communities. This chapter evaluates the criminalization of rape and other forms of sexual violence as violations of IHL. The prosecution of sex crimes as war crimes is one of the foremost accomplishments of international criminal law and a great step towards repressing the unlawful conduct of hostilities.
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