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Introduction
Rape allegations in war-torn countries like Syria, Sudan (Darfur conflict), Somalia, Ethiopia, and the ongoing Israel-Palestine conflict have brought much-needed international attention to the issue of sexual violence in war. Reports of sexual abuse and torture, including allegations against Israeli Defence Forces (IDF) soldiers during the 2023–2024 Israel–Hamas war, have highlighted the gravity of this problem. Allegations include incidents of sexual violence in detention facilities, often accompanied by other forms of torture and cruel treatment, sometimes resulting in the victim's death. These acts have sparked global concern and debate about the responsibilities and legal status of combatants under international law.
The Legal Status of Combatants
Under international law, combatants have specific responsibilities and protections. The Hague Regulations of 1899 and 1907, particularly Article 3, define combatants as members of the armed forces of warring parties, including both combatants and non-combatants. Combatants must adhere to international humanitarian law (IHL) principles and distinguish themselves from civilians. They are prohibited from targeting civilians or civilian objects and must use lawful methods and tactics of warfare. Violations of IHL can result in various forms of accountability, including disciplinary, administrative, civil, financial, and criminal consequences. These responsibilities are critical to maintaining the distinction between combatants and civilians and ensuring the protection of non-combatants during armed conflicts.
International Humanitarian Law and Rape
Rape and similar forms of sexual violence are considered severe violations under international law. The Rome Statute, specifically Article 7(1)(g), classifies these acts as crimes against humanity. Article 8(2)(b)(xxii) further defines sexual violence, including rape, as a "serious violation of the laws and customs applicable in international armed conflict." Moreover, Article 8(e)(vi) of the Rome Statute includes rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilisation, and other types of sexual assault as serious violations of Article 3 common to the four Geneva Conventions.
International humanitarian law has made significant strides in codifying protections against rape, particularly after World Wars I and II. The Fourth Geneva Convention, especially Article 27, explicitly prohibits rape, stating, "Women shall be especially protected against any attack on their honour, particularly against rape, forced prostitution, or any other form of indecent assault." This provision aims to protect civilians, particularly women, in areas occupied by enemy forces.
Rape Offences Committed by Combatants
Sexual violence against women in conflict zones, including rape, manifests in various forms. While other war crimes, such as murder, have long been condemned, rape has often been dismissed as an unfortunate but inevitable consequence of war. This dismissal has led to a lack of recognition of rape as a violation of human rights. Even when reported, instances of rape and other forms of sexual violence are often met with shallow condemnation, as seen during the Bosnian-Herzegovina war, where the abuses were described as "unprecedented" and "unique" in scope.
The United Nations has recently intensified efforts to document and highlight sexual violence in conflict, recognizing its critical role in improving accountability. However, these efforts often risk isolating sexual assault from other abuses experienced by women and men. Women's rape in war is frequently accompanied by other forms of violence directed at them or their families. For instance, in Burma, Burmese soldiers have been reported to force Rohingya Muslim men into labor while abusing the women left behind.
Obstacles in Prosecuting Rape Offences Under IHL
Despite advancements in international humanitarian law and international criminal law, significant challenges remain in prosecuting rape as a war crime. One of the main issues is ensuring access to courts and equal justice for women under humanitarian norms. A landmark case in this regard is the Akayesu case, the first trial judgment by the International Criminal Tribunal for Rwanda (ICTR). Akayesu, a political official during the Rwandan genocide, was found guilty of genocide and rape, both constituting crimes against humanity. The tribunal emphasized that consent must be freely given and that coercion, which is nearly universal in conflict situations, invalidates any semblance of consent. Notably, the tribunal clarified that children under 14 cannot give valid consent.
Conclusion
The recognition of rape and other sexual violence as gender-based crimes under international law remains inadequate. Feminist scholars, like Rhonda Copelon, argue that separating sexual assault from other violent crimes, such as murder and torture, is discriminatory. This separation obscures the reality that such abuses constitute violence against women and assaults on their human rights. Recognizing rape as a form of abuse is crucial for the criminal justice system. Future legal reforms are urgently needed, including new conventions or international norms addressing women and armed conflict. Additionally, existing provisions should be reinterpreted with a modern gender perspective to ensure comprehensive protection against sexual violence in war.
