Sexual and Gender-Based Violence under International Humanitarian Law
There is an absence of a definition of torture or other forms of ill-treatment in the Geneva Conventions.
By Grant Shubin, J.D.
DIGNITY, Danish Institute against Torture
When stories of armed conflict make their way from the battlefield into news or other media outlets, torture and sexual violence are often linked together as the lurid and quintessential markers of atrocity. For example, in Ukraine, an NPR report explains how “murder, rape and torture, all alleged against Russian troops…constitute potential war crimes.” The crisis in Mali, “has led to serious human rights violations, including extrajudicial killings, rape and torture.” In Burkina Faso, U.N. research found that extremists “rape and torture women.” In Ethiopia, Reuters reported that Eritrean soldiers “routinely killed civilians, gang-raped and tortured women.” And in Myanmar BBC News describes how activists are “sexually assaulted and tortured.” The list goes on.
These descriptions show both how sexual violence and torture are standard qualifiers for the horrors of war and that they are somehow meaningfully distinct. But this distinction, often echoed by human rights groups, is not always beneficial. From a legal and technical perspective there can be good reasons to emphasize the overlaps between torture and sexual violence — or more appropriately torture and gender-based violence. Understanding such overlaps can uncover how patriarchal, heteronormative, and misogynist logics of power are exploited by perpetrators to increase their victim’s mental suffering. A better understanding of how prevailing gender norms are used by perpetrators as a tool for torture can pave the way for a more nuanced and accurate approach to sexual and gender-based violence (SGBV) as torture by prosecutors and judges.
Historically, the façade between torture and gender-based violence stems in part from the stubborn tendency to view torture as an act that only occurs during interrogations or criminal investigations — an overly narrow framing long-since rejected in International Humanitarian Law (IHL). It also likely has something to do with that fact that sexual violence as wartime violence was historically seen as a unique category of violation occurring only against women – another damagingly limited lens that IHL has left behind.
Whatever the historical origin, a practical challenge to drawing out such overlaps is the absence of a definition of torture or other forms of ill-treatment in the Geneva Conventions. Instead, legal understandings of these acts have come through judicial interpretations, which draw on International Human Rights Law (most notably the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment).
To be sure, as the work of the recently appointed U.N. Special Rapporteur on Torture, Alice Edwards, makes clear, human rights bodies have interpreted prohibitions on torture to be inclusive of acts of sexual violence. Edwards discusses these developments in her 2006 article on “Feminizing” of Torture under International Human Rights Law, and her 2011 book on Violence against Women under International Human Rights Law.
For its own part, IHL has held out sexual violence as particularly reprehensible. As far back as the Lieber Code of 1863 rape was explicitly prohibited. Nearly 100 years later in the 1958 International Committee of the Red Cross (ICRC) Commentaries to Geneva Convention, Art. 27, rape is described as an “outrage of the worst kind” that “revolt[s] the conscience of all mankind.”
Importantly, IHL distinguishes itself from human rights law on torture and ill-treatment by taking “humane treatment” as its centerpiece and starting point. Indeed according to Jean Pictet, humane treatment is “in truth the leitmotiv” of IHL, and the prohibitions on torture, cruel treatment, and outrages on personal dignity including humiliating and degrading treatment, all emanate from Common Article 3’s mandate of humane treatment (para. 555). To understand how SGBV is placed in IHL’s torture and ill-treatment framework, we must first understand the differences between these separate offenses, and the ways in which gender is woven through their commission.
In the absence of a textual definition, the International Criminal Tribunal for the Former Yugoslavia’s (ICTY) Foča trial held that under IHL, torture is: an act or omission, of severe pain or suffering, whether physical or mental, committed for such purposes as to obtain information or a confession, to punish, intimidate or coerce a victim or a third person, or to discriminate, on any ground, against the victim or a third person (para. 497).
This definition closely mirrors the definition in the U.N. Convention against Torture (CAT), excepting the public official requirement (CAT requires that the violence be inflicted by or with the instigation, consent, or acquiescence of a state official). This means that under IHL, the key criteria separating torture from other acts of ill-treatment are the degree of suffering (severe) and that the act be committed for a prohibited purpose.
The degree of suffering requirement is not without its controversies (para. 630), and in any case depends on a highly fact-specific analysis based on objective elements about the severity of harm and subjective elements about the condition of the victim. In practical terms, this includes considering a number of factual elements, including, among others, the nature and context of the infliction of pain, the manner and method used, and the position of inferiority (or powerlessness) of the victim — all of which intertwine with gender as a structuring logic of power relations and social contexts. In other words, the nature of the pain inflicted, the method of violence committed, or the victim’s position vis-à-vis the perpetrator will each be woven with their own gender dynamics which are relevant to a severity analysis. Such a view may reveal in finer grain how gender norms fit within a structure of power relations which perpetrators exploit to increase the suffering of their victims. Torture does not occur in a social vacuum. In committing violent acts, especially in situations of armed conflict, perpetrators leverage gender norms to exercise their power over their victim to intimidate, degrade, humiliate, discriminate, punish, control, and/or destroy their victim (para. 485).
Specifically, the ICTY has found that “in certain circumstances the suffering can be exacerbated by social and cultural conditions and [a court] should take into account the specific social, cultural and religious background of the victims when assessing the severity of the alleged conduct” (para. 237). Of course, gender, as a social construct, offers an extremely potent lens through which to interpret such harm.
International courts have already come a long way in this regard in ruling that rape per se meets torture’s threshold of severity, as well as finding electrocution of the genitals and being forced to watch serious sexual attacks on an acquaintance constitute other overtly gendered examples of torture. But gender’s role in the suffering emanating from torture or other acts of ill-treatment may not always be so overt, and instead may be found folded into the performances of power, domination, and conquest at play in conflict (or other) situations.
This is not to say that gender-based violence and torture should be collapsed into each other — that creates its own problems. Instead, in looking at objective and subjective factors, the severity analysis in torture (or other acts of ill-treatment) should include appreciation for the prevailing structures and systems of power being brought to bear on a victim, and how gender influences those dynamics.
If humane treatment is the leitmotiv of IHL, prohibiting cruel treatment is object. In light of the absence of a definition of “cruel treatment” in IHL, the ICTY concluded that the prohibition of cruel treatment under Common Article 3 is a means to the ends of treating all persons taking no active part in hostilities humanely. The Rome Statute of the International Criminal Court takes the same approach (Article 8(2)(a)(ii)-2 (war crime of inhuman treatment) and (c)(i)-3 (war crime of cruel treatment)), effectively meaning that “cruel” and “inhumane” treatment are to be used interchangeably.
As the ICTY has explained, to qualify as cruel or inhumane treatment, an act must cause physical or mental suffering of a serious nature. As with the case of torture, to determine whether the suffering meets the “serious” threshold, there must be an individual assessment of circumstances of each case, considering both the objective elements related to the severity of the harm and the subjective elements related to the condition of the victim.
In this vein, the 2016 ICRC Commentaries to Article 12 of Geneva Convention I note that “in order to treat people humanely, it is important to understand and take into account the ways in which gender, economic, cultural and political factors shape social structures and affect men and women differently.” The Commentaries go on: “in order to treat female wounded or sick combatants with all consideration due to their sex” in the pursuit of treating them humanely, “Parties to an armed conflict must ensure that their protection and care takes into account their specific needs with regard to hygiene, ante- and post-natal care and gynecological and reproductive health.”
The U.N. Committee against Torture and Inter-American Commission on Human Rights have followed this thread of gender as a probative subjective factor of suffering in determining that involuntary sterilization, gender-based humiliation such a shackling women detainees during childbirth, and witnessing others being raped all constitute cruel and inhuman treatment, all of which would also amount to violations under Common Article 3.
These determinations are reflective of the fact that acts of sexual and gender-based violence are not free of social, cultural, and political entanglements. They are acts that communicate something about the power differential between perpetrator and victim, and that are intended from the outset to limit, alter, or nullify the recognition, enjoyment or exercise of that victim’s human rights and dignity.
Outrages on Personal Dignity
Like the previous two modes of violence, IHL does not define “outrages on personal dignity.” Again, the ICTY has filled in the gaps, formulating the following set of requirements: “the accused intentionally commit or participate in an act or omission which would be generally considered to cause serious humiliation, degradation, or otherwise be a serious attack on human dignity.” Also like cruel treatment and torture, the assessment of whether an act meets these elements requires considering objective and subjective criteria related to its gravity. As to a threshold, the ICTY used a “reasonable person” basis to determine whether a particular act was a sufficient outrage.
Specific acts that have been considered as degrading treatment by international criminal tribunals include forced public nudity, rape and sexual violence, sexual slavery including the abduction of women and girls as “bush wives,” and enduring the constant fear of being subjected to sexual violence.
Notably, the International Criminal Court’s elements of crimes include outrages on dead persons, for example the mutilation of dead bodies — a category of acts that often contains a gendered element. For example, the International Criminal Tribunal for Rwanda (ICTR) found in the Niyitegke case that such mutilations often targeted the deceased’s genitals (paras. 303, 312, 316).
While none of the international criminal tribunals have attempted to distinguish between “humiliating” and “degrading” treatment, they generally more readily designate acts of sexual and gender-violence as “outrages” crimes rather than as “torture” or “cruel treatment.” This is a curious trend in light of the fact that all modes of ill-treatment require an objective and subjective evaluation of the severity of harm — why are acts of sexual or gender-based violence more commonly categorized as outrages on personal dignity (relatively lower in severity), rather than torture or cruel treatment (relatively higher in severity)? As described above, the opposite should be true — gender norms and power relations should be seen as a tool of perpetrators to augment the suffering, mentally and socially, imposed on a victim. One explanation for the disparity in characterizations could be humanitarian law’s historical bent to protect women’s “honor” — including a woman’s place in the family and/or community — rather than personal integrity, and hence the preoccupation with describing gendered violence in the terms of dignity.
Conclusion – Seeing Gender Ahead
All of this amounts to significant, if still underexplored in places, overlaps between sexual and gender-based violence and torture and ill-treatment. But what practically should be done in light of these overlaps?
Common Article 1 calls on all States Parties to respect and ensure respect for the Geneva Conventions in all circumstances. Measures to “ensure respect” for the various prohibitions of ill-treatment might include diplomatic pressure exerted by third States on parties which are violating, for example, Article 3. This obligation, in turn, requires States to accurately apprehend the nature of the offenses occurring and how they may constitute violations of IHL — including gender-based violence and where such violence amounts to ill-treatment based on objective and subjective factors.
Moreover, the Conventions’ grave breaches regime requires States to incorporate universal jurisdiction in national legislation so that any State Party, and not only States Parties to a particular armed conflict, can hold alleged offenders accountable, regardless of their nationality. According to the 2016 ICRC Commentaries to Geneva Convention I, “it is widely acknowledged that, to be effective, penal sanctions must be sufficiently dissuasive: they should stop ongoing violations of humanitarian law and prevent their repetition or the occurrence of new violations.” To meet this goal, penal sanctions must sufficiently address the criminal acts occurring in conflict — including all their gendered components.
States cannot prevent what they cannot see or do not acknowledge. If States, legal advisors, prosecutors, victims’ advocates, military trainers, courts, and others are to fully deliver on their obligations to ensure respect for the Geneva Conventions, they must recognize all forms of gender-based violence and act accordingly — including by placing these acts into their appropriate legal categories, where their gravity will be immediately apparent and universally condemned. Only then can these actors deliver on IHL’s core mandate.
Originally published by the Just Security, 11.28.2022, New York University School of Law, under the terms of a Creative Commons Attribution-No Derivs-NonCommercial license.