The Evolution of International Law on Sexual

and Gender-Based Crimes

Major efforts have been done since the end of World War II to include sexual violence
within the perimeter of humanitarian law applicable during armed conflicts.

Indeed, before WW2, sexual violence was barely mentioned in humanitarian law
instruments. The Hague Regulation of 1907 only had a reference to the army’s obligation
to respect “family honour and rights”. References to the protection of women against “any
attack on their honour, in particular against rape, enforced prostitution, or any form of
indecent assault” only emerged in the 1949 Geneva Conventions. Colonial wars waged by
European powers against the local populations included extensive use of sexual violence
as a means of war and subjugation, but rapes and persecutions were only occasionally
investigated and punished.

A Missed Opportunity for the Military Tribunals established after WW2

In the charter establishing the International Military Tribunal of Nuremberg (held in London
on August 8, 1945), the offence of “crimes against humanity” was supposed to include
sexual violence as part of “other inhumane acts”.

However, sexual crimes were not included in the charges against Nazi leaders, and the
Nuremberg Tribunal did not take into consideration these crimes in its
judgements—neither as war crimes nor as crimes against humanity.

It is worth mentioning that the Control Council Law N. 10 that followed in 1945 was more
explicit, introducing for the first time a reference to “rape” as an international crime.

The International Military Tribunal for the Far East (the Tokyo tribunal) prosecuted rape as
a crime, even if the instituting Charter did not explicitly mention it. However, the
circumstance of thousands of Korean and other Asian women and girls forced into
prostitution for the Japanese troops–the infamous practice of exploiting them as “comfort
women”–was not treated at all and is still an open wound.
The crime of rape, its definition and characterization, was the starting point in expanding
the legal framework of international criminal law against sexual and gender-based
violence. The real advancement on this matter came in the 1990s, when the UN
established international criminal tribunals for the Former Yugoslavia and for Rwanda.

Other forms of sexual violence were recognised as international crimes in these charters
as well as of other mixed or hybrid tribunals, which includes the Special Court for Sierra
Leone, The Special Panels for Serious Crimes (also called the East Timor Tribunal), and
the Extraordinary Court Chambers for Cambodia.

The Provisions of the International Tribunals

● Both Article 3 (g) of the ICTR Statute and Article 5 (g) of ICTY statute list rape as a
crime against humanity. In addition, Article 4 of the ICR, beyond rape, lists as war
crimes “enforced prostitution and indecent assault of any kind as a serious violation
of Article 3 common to the Geneva Conventions and of Additional Protocol II thereto
of 8 June 1977”. The reference to Art. 3 common to the Geneva Conventions
makes clear that these crimes must be prosecuted regardless of the character of
the armed conflict—whether international or internal.

● The Statute of the East Timor Tribunal identified rape, sexual slavery, enforced
prostitution, forced pregnancy, and enforced sterilization as well as any other form
of sexual violence “as constituting a grave breach of the Geneva Conventions and
serious violations of Article 3 common to the four Geneva Conventions”, thus as
war crimes. (Section 6(1)(b)(xxii) and 6 (1)(e)(vi)).

The list of sexual assaults that amount to an international crime and fall under the
jurisdiction of the international criminal tribunals has been expanded gradually.

● Article 2 of the Statute of the Special Court for Sierra Leone lists rape, sexual
slavery, enforced prostitution, forced pregnancy, and any other forms of sexual
violence as a crime against humanity; while article 3 (e) lists outrages upon
personal dignity, in particular humiliating and degrading treatment, rape, enforced
 prostitution and any form of indecent assault, as serious violations of article 3
common to the Geneva Conventions and of Additional Protocol II, thus war crimes.

The Provisions of the Rome Statute

The Rome Statute of the ICC, finally, has further consolidated and corroborated the
progress made by these institutions.

Indeed, the Rome Statute is the first international treaty to establish conflict-related sexual
violence as a crime against humanity, war crime and genocide—when they are conceived
as a means to destroy a population or a part of it. The Statute’s provisions represent a
groundbreaking starting point to investigate and prosecute these heinous crimes. The
Rome Statute lists in Articles 7-8 and 9 those sexual crimes that can be prosecuted by the
Court. In particular:

● Article 7(1)(g) criminalises: rape, sexual slavery, enforced prostitution, forced

pregnancy, enforced sterilisation or “any other form of sexual violence of
comparable gravity” as crimes against humanity;
● Article 8(2)(b)(xxii) mentions the same crimes as eventual war crimes when
committed in international armed conflicts;
● Article 8(2)(e)(vi) expands the scope of the jurisdiction of the court to crimes
committed in conflicts that have not international character, according to the
common article 3 to the four Geneva conventions.

In relation to ‘rape’, ‘enforced prostitution’, and ‘sexual violence’, the elements of crimes–a
document that complements the ICC statute and provides fundamental guidelines to the
prosecutor and the judges–require the perpetrator to have committed an act of a sexual
nature against a person, or to have caused another to engage in such an act, 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, or by taking advantage of a coercive
environment or a person’s incapacity to give genuine consent. An act of a sexual nature is
not limited to physical violence, and may not involve any physical contact. For example,
forced nudity can amount to sexual violence. Sexual crimes, therefore, cover both physical
and non-physical acts with a sexual element.

According to the Rome Statute, gender based crimes are those crimes committed against
persons, whether male or female, because of their sex and/or socially constructed gender
roles. Gender-based crimes do not always imply the subsistence of a form of sexual
violence. They may include non-sexual attacks on women and girls, and men and boys,
just because of their gender.

Quite importantly, however, sexual and gender-based crimes may also be prosecuted
through other non sex and gender based violence charges, such as torture (articles 7 (1)
(f) of the Rome Statute), torture or inhumane treatment (article 8 (2) (a) (ii) of the Rome
Statute), persecution (article 7 (1) (h) of the Rome Statute), outrages upon personal dignity
(articles 8 (2) (b) (xxi) and 8 (2) (c) (ii) of the Rome Statute), other inhumane acts (article 7
(1) (k) of the Rome Statute), mutilation (articles 8 (2) (b) (x) and 8 (2) (e) (xi) of the Rome
Statute) or serious bodily or mental harm (article 6 (b) of the Rome Statute).

According to the ICC Statute two forms of individual liability exist: direct and indirect
criminal responsibility. The recognition of these two forms of liability has made it possible
to overcome the lack of redress for sexual violence victims, based on the argument that
non-physical perpetrators, even if responsible as decision-makers, political or military
leaders and commanders, could not be charged of sexual crimes​. Direct responsibility
implies charges for having planned, instigated, committed ordered, aided or abetted the
execution of the alleged crimes. Many convictions decided by the ICTY and the ICTR
reported sexual crimes for having committed, aided or abetted and instigated the acts. A
perpetrator is not necessarily the person who physically assaulted the victim.

The second form of individual liability refers to the so called “superior responsibility”: a
person in a position of superior authority, whether military, political business, or any
hierarchical status, can be convicted for acts directly committed by his or her subordinates.
This concept marks an important development in ICL since in the context of war, military
personnel are typically organised according to a chain of command or other kind of
political hierarchies.