Wartime sexual violence is rape or other forms of sexual violence committed by combatants during an armed conflict, war, or military occupation. This type of violence is often committed as spoils of war, but in the case of ethnic conflict, the phenomenon has broader sociological motivations. During periods of armed conflict, cases of sexual violence may encompass a range of behaviors, including gang rape and rape with the use of objects. It is distinct from sexual harassment and sexual assaults and rape committed amongst troops in military service. During war and armed conflict, rape is frequently used as a means of psychological warfare in order to humiliate and terrorize the enemy. Wartime sexual violence may occur in a variety of situations, including institutionalized sexual slavery, wartime sexual violence associated with specific battles or massacres, as well as individual or isolated acts of sexual violence. Rape can also be recognized as genocide when it is committed with the intent to destroy, in whole or in part, a targeted group. International legal instruments for prosecuting perpetrators of genocide were developed in the 1990s, and the Akayesu case of the International Criminal Tribunal for Rwanda, between the International Criminal Tribunal for Yugoslavia and itself, which themselves were "pivotal judicial bodies [in] the larger framework of transitional justice", was "widely lauded for its historical precedent in successfully prosecuting rape as an instrument of genocide". According to the Rome Statute of the International Criminal Court (ICC), the following acts are classified as crimes against humanity and as war crimes: rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity.
Definition
There is no consensus definition of wartime sexual violence, as there is variance in what forms of violence are included in the definition and variance in which violence is considered conflict-related. The terms rape, sexual assault and sexual violence are frequently used interchangeably. The Explanatory Note of the Rome Statute, which binds the International Criminal Court, defines rape as follows:
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. and
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. The concept of "invasion" is intended to be broad enough to be gender-neutral and the definition is understood to include situations where the victim may be incapable of giving genuine consent if affected by natural, induced or age-related incapacity. A prominent data-set on conflict-related sexual violence, Sexual Violence in Armed Conflict (SVAC), builds on the ICC definition and covers seven forms of violence: "(a) rape, (b) sexual slavery, (c) forced prostitution, (d) forced pregnancy, (e) forced sterilization/abortion, (f) sexual mutilation, and (g) sexual torture". The data-set defines conflict-related sexual violence as the sexual violence committed by "armed actors (specifically, state militaries, rebel groups, and progovernment militias) during periods of conflict or immediately postconflict", thus excluding sexual violence by civilians. More expansive definitions may define wartime sexual violence as being committed even by civilians if the conflict creates a sense of impunity. In 2009, the UN established a mandate and adopted SCR 1888 resolution 2009 to tackle conflict-related sexual violence (CRSV) as a peace and security issue and related violations. CRSV refers to rape, sexual slavery, forced prostitution, forced pregnancy, forced abortion, enforced sterilization, forced marriage, trafficking in persons when committed in situations of conflict for the purpose of sexual violence/exploitation and any other form of sexual violence of comparable gravity perpetrated against women, men, girls or boys that is directly or indirectly linked to a conflict.
History of laws against sexual assault during war
Prosecution of rapists in war crime tribunals was rare prior to the late 1990s. Kelly Dawn Askin, the senior legal officer at the Open Society Foundation, argued that the lack of explicit recognition of war rape in international law or applicable humanitarian law can not be used as a defense by a perpetrator of war rape. Laws and customs of war prohibit offenses such as "inhuman treatment" or "indecent assaults", adding to this domestic military codes and domestic civil codes (national law) may make sexual assault a crime. In 1999, humanitarian law concerned the maltreatment of civilians and "any devastation not justified by military necessity".
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