Rape

The crime of rape has long existed under customary international law and in the 20th century the Hague Conventions, World War II prosecutions, as well as the Geneva Conventions reinforced and codified the prohibition of rape and other sexual violence. More recently, the Rome Statute of the International Criminal Court   establishes rape as a war crime.

The International Criminal Tribunals for Rwanda (ICTR) and for the Former Yugoslavia (ICTY) have elaborated on the concept of rape as torture and a war crime. In its landmark decision, Prosecutor v. Jean-Paul Akayesu (Case No. ICTR-96-4-T, Judgement of 2 September 1998), the ICTR put rape and sexual violence on equal footing with all other crimes of war. The Tribunal elaborated:

Like torture, rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person. Like torture, rape is a violation of personal dignity, and rape in fact constitutes torture when it is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

Similarly, the ICTY has recognised rape as a violation of the Laws and Customs of War and as a basis of torture under the Geneva Conventions. An example is the Celebici case of 1998 where the Tribunal stated that it: ‘considers the rape of any person to be a despicable act which strikes at the core of human dignity and physical integrity’.

The international human rights supervisory bodies have established that rape is an affront to human dignity and can amount to torture. In the  Malawi African Association, Amnesty International, Ms. Sarr Diop, Union Interafricaine des Droits de l’Homme and RADDHO, Collectif des Veuves et Ayants-droit and Association Mauritanienne des Droits de l’Homme v. Mauritania   case (see above), rape is mentioned in the context of torture and cruel, inhuman and degrading forms of treatment that constitute a violation of Article 5 of the African Charter :

115. Article 5 of the African Charter prohibits torture, cruel, inhuman or degrading punishment and treatment. This article also stipulates that “Every individual shall have the right to the respect of the dignity inherent in a human being”. All the communications detail instances of torture, and cruel, inhuman and degrading treatments.

[?]

117. Both within and outside the prisons, the so-called “Jaguar” position was the form of torture utilised, (see paras 20 and 22). The prisoners were beaten (paras 12 and 20) and their bodies burnt using various instruments (paras 20 and 22). The women were raped (para 20).

118. The government did not produce any argument to counter these facts. Taken together or in isolation, these acts are proof of widespread utilisation of torture and of cruel, inhuman and degrading forms of treatment and constitute a violation of article 5. [?]

The European Court has defined rape as torture. 

Aydin v. Turkey 

 European Court of Human Rights

Application No.29289/95

Judgement of 25 September 1997

Keywords: rape - inhuman treatment or punishment – torture - effective remedy

[?]

AS TO THE FACTS

1. The applicant

46. The applicant, Mrs Sükran Aydin, is a Turkish citizen of Kurdish origin. She was born in 1976. At the time of the events in issue she was 17 years old and living with her parents in the village of Tasit [?]

[?]

A. The detention of the applicant

47. According to the applicant, a group of people comprising village guards and a gendarme arrived in her village on 29 June 1993. [?]

48. Four members of the group came to her parents’ home and questioned her family about recent visits to the house by PKK members (see paragraph 14 above). Her family were threatened and subjected to insults. They were then taken to a village square where they were joined by other villagers who had also been forcibly taken from their homes.

49. The applicant, her father, Seydo Aydin, and her sister-in-law, Ferahdiba Aydin, were singled out from the rest of the villagers, blindfolded and driven away to Derik gendarmerie headquarters.

[?]

B. Treatment of the applicant during detention

50. The applicant alleges that, on arrival at the gendarmerie headquarters, she was separated from her father and her sister-in-law. At some stage she was taken upstairs to a room which she later referred to as the “torture room”. There she was stripped of her clothes, put into a car tyre and spun round and round. She was beaten and sprayed with cold water from high-pressure jets. At a later stage she was taken clothed but blindfolded to an interrogation room. With the door of the room locked, an individual in military clothing forcibly removed her clothes, laid her on her back and raped her. By the time he had finished she was in severe pain and covered in blood. She was ordered to get dressed and subsequently taken to another room. According to the applicant, she was later brought back to the room where she had been raped. She was beaten for about an hour by several persons who warned her not to report on what they had done to her.

[?]

C. Release from detention

51. According to the applicant, she, her father and her sister-in-law were taken away from the gendarmerie headquarters on or about 2 July 1993. They were driven by members of the security forces to the mountains where they were questioned about the location of PKK shelters. They were subsequently released separately. The applicant made her own way back to her village. [?]

D.The investigation of the applicant’s complaint

52. On 8 July 1993 the applicant together with her father and her sister-in-law went to the office of the public prosecutor, Mr Bekir Özenir, in Derik to lodge complaints about the treatment which they all alleged they had suffered while in detention. The public prosecutor took statements from each of them. The applicant reported that she had been tortured by being beaten and raped. Her father and sister-in-law both alleged that they had been tortured. [?]

1. Medical examination of the applicant

53. [?]In his report on the applicant dated 8 July 1996, Dr Akkus, who had not previously dealt with any rape cases, stated that the applicant’s hymen was torn and that there was widespread bruising around the insides of her thighs. He could not date when the hymen had been torn since he was not qualified in this field; nor could he express any view on the reason for the bruising. In separate reports he noted that there were wounds on the bodies of the applicant’s father and sister-in-law.

[?]

FINAL SUBMISSIONS TO THE COURT

54. [?]The applicant, for her part, requested the Court to rule that she had been the victim of violations of Articles 3, 6, 13 and 25 of the Convention and that the Government had failed to respect their obligations under Articles 28§ 1 (a) and 53 of the Convention. She also requested the Court to award her just satisfaction under Article 50 of the Convention.

AS TO THE LAW

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

[?]

2. The Court’s assessment

h. The Court recalls that it has accepted the facts as established by the Commission, namely that the applicant was detained by the security forces and while in custody was raped and subjected to various forms of ill-treatment (see paragraph 73 above).

55. As it has observed on many occasions, Article 3 of the Convention enshrines one of the fundamental values of democratic societies and as such it prohibits in absolute terms torture or inhuman or degrading treatment or punishment. Article 3 admits of no exceptions to this fundamental value and no derogation from it is permissible under Article 15 even having regard to the imperatives of a public emergency threatening the life of the nation or to any suspicion, however well-founded, that a person may be involved in terrorist or other criminal activities (see, for example, the Aksoy judgment cited above, p. 2278,§ 62).

56. In order to determine whether any particular form of ill-treatment should be qualified as torture, regard must be had to the distinction drawn in Article 3 between this notion and that of inhuman treatment or degrading treatment. This distinction would appear to have been embodied in the Convention to allow the special stigma of “torture” to attach only to deliberate inhuman treatment causing very serious and cruel suffering (see the  Ireland v. the United Kingdom   judgment cited above, p. 66,§ 167).

57. While being held in detention the applicant was raped by a person whose identity has still to be determined. 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 victim which do not respond to the passage of time as quickly as other forms of physical and mental violence. The applicant also experienced the acute physical pain of forced penetration, which must have left her feeling debased and violated both physically and emotionally.

58. The applicant was also subjected to a series of particularly terrifying and humiliating experiences while in custody at the hands of the security forces at Derik gendarmerie headquarters having regard to her sex and youth and the circumstances under which she was held. She was detained over a period of three days during which she must have been bewildered and disoriented by being kept blindfolded, and in a constant state of physical pain and mental anguish brought on by the beatings administered to her during questioning and by the apprehension of what would happen to her next. She was also paraded naked in humiliating circumstances thus adding to her overall sense of vulnerability and on one occasion she was pummelled with high-pressure water while being spun around in a tyre.

59. The applicant and her family must have been taken from their village and brought to Derik gendarmerie headquarters for a purpose, which can only be explained on account of the security situation in the region (see paragraph 14 above) and the need of the security forces to elicit information. The suffering inflicted on the applicant during the period of her detention must also be seen as calculated to serve the same or related purposes.

60. Against this background 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. Indeed the Court would have reached this conclusion on either of these grounds taken separately.

61. In conclusion, there has been a violation of Article 3 of the Convention.

Comment

In this case the European Court states that rape by state agents is an ‘especially grave and abhorrent form of ill-treatment’ and that the ‘especially cruel act of rape the victim was subjected to amounted to torture.’

Another case dealing with sexual violence is M.C. v. Bulgaria    (Application No. 39272/98, Judgement of 4 December 2003) that dealt with the fact that Bulgarian law and practice do not provide effective protection against rape and sexual abuse, as only cases where the victim resists actively are prosecuted. The Court observed that, historically, proof of the use of physical force by the perpetrator and physical resistance on the part of the victim was often required under domestic law and practice in a number of countries, but that it appeared that this was no longer the case in Europe; in most common-law jurisdictions reference to physical force has been eliminated from legislation and/or case-law. Although in most European countries influenced by the continental legal tradition, the definition of rape contained references to the use of violence or threats of violence by the perpetrator, in case-law and legal theory, it was lack of consent, not force, that was critical in defining rape. The Court noted that the member states of the Council of Europe had agreed that penalising non-consensual sexual acts, whether or not the victim had resisted, was necessary for the effective protection of women against violence and had urged the implementation of further reforms in this area. On the applicant’s allegations that the authorities’ attitude in her case was rooted in defective legislation and reflected a practice of prosecuting rape perpetrators only where there was evidence of significant physical resistance, the Court found that the Bulgarian government was unable to provide copies of judgements or legal commentaries clearly disproving the applicant’s allegations of a restrictive approach in the prosecution of rape. Given contemporary standards and trends, states’ positive obligations under Articles 3 and 8 of the European Convention   require the penalisation and effective prosecution of any non-consensual sexual act, even where the victim has not resisted physically. The Court considered that the Bulgarian authorities should have explored all the facts and should have decided on the basis of an assessment of all the surrounding circumstances. The investigation and its conclusions should also have been centred on the issue of non-consent. The Court found that the effectiveness of the investigation of the applicant’s case and, in particular, the approach taken by the investigator and the prosecutors fell short of Bulgaria’s positive obligations under Articles 3 and 8 of the Convention - viewed in the light of the relevant modern standards in comparative and international law - to establish and apply effectively a criminal-law system punishing all forms of rape and sexual abuse.

In the Loayza Tamayo case  (above), the Inter-American Commission claimed that alleged rape of the victim was a violation of human dignity. The Inter-American Court, however, contrary to its jurisprudence, found that as the accusation could not be proven (even though the state had not contested it), it would not deal with the issue. In the case of Rivas Quintanilla v. El Salvador   (Case 10.772, Decision of 1 February 1994, Report No. 6/94), the Inter-American Commission dealt with rape, finding that the rape of a seven-year-old girl by a soldier violated the right to ‘have one’s physical, psychological and moral integrity respected’ under Article 5 (1) of the  American Convention.