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After the adoption of the Torture Convention rape has been identifired as early as in
1992 by the Special Rapporteur on Torture, as method of torture fulfilling all the
essential elements of the definition.
It is physical and mental act that gives rise to severe pain and suffering. The
perpetrator is inflicting pain and suffering for a purpose or an intent, the perpetrator
Is an official or a person acting in an official capacity. (See article of OVR, BS, HM
for a more extensive definition of torture). However, this recognition was incomplete
in International Law until the International Criminal Tribunal for the former
Yugoslavia (ICTY) created law-history by convicting a Croatian Commander (Blascic
Case) as responsible for mass sexual abuse of women in Bosnia (1991-1995); and
by recognizing rape as a crime against humanity and as torture, sentencing three
Serbian soldiers to severe punishments in February 2001. The commander could
not plead ignorance. He should have known and he should have prevented rape by
punishing the agents. (Report of the Special rapporteur on Gender violence 1998).
Furthermore, a recent decision by the European Court of Human Rights in the case
of Aydin v. Turkeyat 25 September 1997 found that the:
“rape of a detainee by an official of the State must be considered to be an especially grave and
abhorrent form of ill-treatment given the ease with which the offender can exploit the vulnerability and
weakened resistance of his victim. Furthermore, rape leaves deep psychological scars on the victims
which do not respond to the passage of time as quickly as other forms of physical and mental violence
the Court is satisfied that the accumulation of acts of physical and mental violence inflicted on the
applicant and the especially cruel act of rape to which she was subjected amounted to torture in
breach of article 3 of the Convention”. (my underlining) (Spec. Rapport 1999)
In addition to the Torture Convention, the convention on the Prevention and
Punishment of the Crime of Genocide, the Slavery Convention, the International
Covenant on Civil and Political Rights, the International Covenant on Economic,
Social and Cultural Rights and the Convention on the Elimination of All Forms of
Discrimination against Women are other human rights instruments which have
bearing on the concept of sexual violence during times of armed conflict.
Defendants before the ICTY, who have committed sexual violence, have been
charged with ‘torture’ in cases of multiple and repetitive instances of rape, causing
serious bodily harm or suffering. In situations of rape where there was no serious
physical injury, they have been charged with cruel, inhuman and degrading
treatment. Thus, rape during armed conflict is recognized for the first time in history
as sexual torture by an International Court (1998).
Furthermore, the Office of the Prosecutor of the ICTY included enslavement as
sexual violence in for the first time in International Law in situations where Bosnian
women were detained against their will and forced for several months to provide
sexual and household services for soldiers (the Foca indictment).
A question that occupies many minds and is of relevance for Prevention of torture is:
Posted on 2002-11-11
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