One of the most pressing concerns in international human rights law is undoubtedly violence against women and the failure of international human rights frameworks to adequately protect women from sexual violence. The World Health Organization (WHO) defines sexual violence as any sexual act, attempt to obtain a sexual act, unwanted sexual comments or advances, or acts to traffic, or otherwise directed against a person’s sexuality using coercion, by any person regardless of their relationship to the victim, in any setting, including but not limited to home and work.
INADEQUATE LEGAL INTRUMENTS
The fact that there exists no legally binding international instrument that is expressly and exclusively devoted to the proscription of sexual violence attests to the fact that this is a concern which needs to be addressed in international human rights law. In addition, even though there are declarations, recommendations, and resolutions regarding this issue at the international level, the enforcement mechanisms therefor are fragile, or do not exist in many parts of the world.
For instance, instruments such as the Declaration on the Elimination of Violence Against Women (DEVAW) give a detailed description of the forms of sexual violence against women such as rape, sexual abuse, marital rape, and sexual abuse of female children, among other things. It also speaks of how governments should ensure their elimination, by refraining from engaging in violence against women, taking affirmative measures to prevent and punish sexual violence committed by public and private actors alike and establish support networks to care for victims.
However, DEVAW does not have the binding legal authority of a convention or treaty, thus, apart from these recommendations, it fails to bring states and non-state actors to account. The Vienna Declaration and Programme of Action speaks of eliminating all forms of sexual harassment and exploitation, however, like DEVAW, it does not have a binding effect. Instead, it gives recommendations to governments drawing up a national action plan, identifying steps whereby they could address sexual violence against women, among other things.
Where internationally binding instruments do exist, they are of limited application to a few states. For instance, the Council of Europe has the Convention on preventing and combating violence against women and domestic violence (Istanbul Convention). States that ratify the Istanbul Convention must criminalize several offences, including sexual violence under article 36.
One of the solutions posited to deal with sexual violence against women is to change society’s attitudes towards women. The Istanbul Convention has sought to address this by putting an obligation on state parties to include teaching material on non-stereotyped gender roles. However, this has been rejected by state parties like Turkey, a country with one of the highest femicide rates in the top 34 OECD countries. In 2019, 474 women were murdered, mostly by partners and relatives in Turkey. Alarmingly, 42 per cent of Turkish women aged between 15 and 60 have suffered physical or sexual violence at the hands of their husbands or partners. Turkey has sought to withdraw from the Istanbul Convention citing that it encourages divorce and “immoral lifestyles”.
Although the Istanbul Convention makes some gains in international law, the provisions therefor can be bolstered to address sexual violence. For example, it can impose an obligation on state parties to strengthen the principle of affirmative consent, which states that sex without affirmative consent is rape. Article 36(2) of the Istanbul Convention states that “Consent must be given voluntarily as the result of the person’s free will assessed in the context of the surrounding circumstances.” This provision can be improved by including express acknowledgement that consent must be specific, meaning that if an individual consents to a specific sexual act, it does not mean they consent to all sexual acts, and that the consent envisaged is positive agreement, communicated by either unequivocal words or actions. The lack of affirmative consent law is one of the reasons why it has been difficult to prosecute rape in many jurisdictions around the world, particularly in jurisdictions where proof of use of force by the perpetrator is still required. This proposed amendment would therefore be a step in the right direction, and would allow for more cases to be prosecuted domestically and potentially internationally.
THE ABSENCE OF A UNIFORM DEFINITION FOR RAPE
The application of inconsistent definitions for the crime of rape by international courts or tribunals has added fuel to the fire. For instance, the International Criminal Court (ICC), the International Criminal Tribunal of the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) did not have the same definitions for the crime of rape. This led Patricia Sellers, the Special Advisor for Gender for the Office of the Prosecutor of the ICC, to ask if a 16-year-old girl victim of the Sierra Leone civil war is less protected against sexual violence than, for example, a 16-year-old girl whose perpetrator will be judged by the ICC.
In the case of Prosecutor v. Jean Paul Akayesu, the ICTR Trial Chamber defined the elements of rape as “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive”.[1] In the case of Prosecutor v. Anto Furundzija, the ICTY Trial judgment defined the elements of rape as “the sexual penetration, however slight: of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or of the mouth of the victim by the penis of the perpetrator; by coercion or force or threat of force against a victim or third person”.[2] It is clear that the Furundzija elements of rape depart from the Akayesu definition. Among other things, the reference to force threatened against (gender neutral) third persons was used in the Furundzija case. It also seems that the definition given in Akayesu is rather vague. The Furundzija Trial Chamber further stated that “any form of captivity vitiated consent”, meaning that even if “genuine” consent may have been given, the fact that the individual was in captivity nullified it.
The ICC definition of rape is a mixture of the ICTY and ICTR rape definitions. It refrains from making a decisive choice between Akayesu or Furundzija elements, but rather combines them. It also eliminates any inquiry into situations where, due to incapacity, genuine consent is impossible. The existence of several international legal definitions of rape makes one wonder if this undercut each judicial forum’s definitive interpretation and ability to ensure that justice prevailed.
This uncertainty surfaces in how sexual violence is defined by international institutions - for instance, how WHO and the International Committee of the Red Cross define sexual violence is not the same - and also plays out in the domestic-international divide. In the United Kingdom (UK), the Sexual Offences Act 2003 defines rape as the intentional and non-consensual penetration of the vagina, anus or mouth of another person with the penis of the perpetrator. This means that the penetration of another person's vagina or anus with any part of the body other than the penis, or with any object, without their consent is not defined as rape under UK law, but as sexual assault, while under international criminal/human rights jurisprudence, this would constitute rape. It also means that, under UK law, women and men cannot be raped by other women, but under international law this is possible. This goes to show a glaring lacuna, which needs to be filled by a legally binding international instrument.
A WORLDWIDE PROBLEM
A study conducted by WHO states that almost one third of all women who have been in a relationship have experienced sexual violence by their intimate partner. In United States, a study found that 15 per cent of young women were allegedly raped during their first year of college in the United States. A survey of sex workers in Bangladesh revealed that 49 per cent of the women had been raped. In South Africa, 6,253 sexual assaults were reported in 2017 alone. According to the statistics released by the South African Police Service for the 2019/20 year, sexual offences have increased by 1.7 per cent from the previous year.
Meg Weddle, a senior content editor at the International Bar Association, states that stronger legal frameworks are needed to address sexual violence in conflict, which is mainly experienced by women. Weddle says that more than half the 480,000 refugees forced to flee Myanmar to neighbouring Bangladesh were women and girls, and a substantial number of those women and girls were victims of sexual violence.
Strengthening international law requirements as regards sexual violence will compel states to adopt more proactive measures to deal with this issue in domestic contexts. An international legal instrument with a monitoring mechanism is essential in this regard, and where implementation fails, international bodies should investigate and prosecute these crimes to the extent possible.
ENDNOTES
[1] Prosecutor v. Jean-Paul Akayesu, Judgment, Case No. ICTR-96-4-A, 1 June 2001 Judgment (Akayesu Appeals Judgment)
[2] Prosecutor v. Anto Furundzija, Judgment, Case No. IT-95-17/1-T, 10 December 1998 Judgment (Trial Chamber Judgment)
Nigel has an LLB in International Law from Near East University (Cyprus). Currently, he is a member of an NGO called VOIS Cyprus which advocates for the rights of international students in Cyprus.