Genuine Consent to Sexual Violence under International Criminal Law
![handle is hein.journals/ajil101 and id is 129 raw text is: NOTES AND COMMENTS
GENUINE CONSENT TO SEXUAL VIOLENCE UNDER INTERNATIONAL
CRIMINAL LAW
By Wolfgang Schomburg and Ines Peterson *
Sexual violence has long formed part of armed conflicts and has empirically been shown not
to be an incidental byproduct, but a frequently used, weapon of war.' Various treaties of
international humanitarian law outlaw sexual violence in times of armed conflict.' This pro-
hibition has acquired the status of customary international law.3 Moreover, several interna-
tional tribunals have recently come to try violations of this prohibition under international
criminal law. Although the term international criminal law is used in a variety of ways, for
the purposes of this essay the term refers only to the core crimes of genocide, crimes against
humanity, and war crimes, as specified in the statutes of the currently operative international
war crimes tribunals and courts, particularly the International Criminal Tribunal for the
* Wolfgang Schomburg is Judge of the Appeals Chambers of the International Criminal Tribunals for Rwanda
and for the Former Yugoslavia. He was formerly a Senior Public Prosecutor and Judge in Berlin, and a Judge of the
German Federal Supreme Court (Bundesgerichtshof). Ines Peterson is a Senior Research Fellow at Humboldt Uni-
versitat Berlin, and a former intern at the Yugoslavia Tribunal. The authors are grateful to Matthias Schuster for
his valuable comments.
Regarding the armed conflict in Rwanda in 1994, the United Nations special rapporteur observed that rape
was the rule and its absence the exception. Report on the Situation of Human Rights in Rwanda Submitted by Ren6
Degni-S~gui, UN Doc. E/CN.4/1996/68, para. 16; see also Report on the Situation of Human Rights in the Ter-
ritory of the Former Yugoslavia Submitted byMr. Tadeusz Mazowiecki, UN Doc. E/CN.4/1993/50, para. 85 (stat-
ing that rape has been used not only as an attack on the individual victim, but is intended to humiliate, shame,
degrade and terrify the entire ethnic group); Patricia Viseur Sellers, The Context ofSexual Violence: Sexual Violence
as Violations ofInternationalHumanitarian Law, in 1 SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNA-
TIONAL CRIMINAL LAW: THE EXPERIENCE OF INTERNATIONAL AND NATIONAL COURTS: COMMENTARY
263, 265-77 (Gabrielle Kirk McDonald & Olivia Swaak-Goldman eds., 2000). For crimes of sexual violence
against German women by members of the Red Army during World War II, see ANTONY BEEVOR, BERLIN: THE
DOWNFALL, 1945 (2002).
2 Specifically for rape, see Convention Relative to the Protection of Civilian Persons in Time of War, Art. 27(2),
Aug. 12, 1949, 6 UST 3516, 75 UNTS 287 [hereinafter Geneva Convention IV]; Protocol Additional to the
Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Con-
flicts, Art. 76(1), June 8, 1977, 1125 UNTS 3 [hereinafter Additional Protocol I]; Protocol Additional to the
Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed
Conflicts, Art. 4(2) (e), June 8, 1977,1125 UNTS 609 [hereinafter Additional Protocol II]. For other serious sexual
assaults, see common Article 3 to the four Geneva Conventions, Convention for the Amelioration of the Condition
of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 UST 3114, 75 UNTS 31; Convention
for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea,
Aug. 12, 1949, 6 UST 3217, 75 UNTS 85; Convention Relative to the Treatment of Prisoners of War, Aug. 12,
1949, 6 UST 3316, 75 UNTS 135; id, Art. 147; Additional Protocol I, supra, Art. 85(4)(c); Additional Protocol
II, supra, Arts. 4(1), 4(2)(a); all of which serve to prohibit cruel and degrading treatment. It should be noted that
these provisions often refer especially to women as victims. Women and girls still suffer disproportionately from
sexual violence in armed conflicts, and certain crimes such as forced pregnancy can be committed only against them.
For more details, see Christine Chinkin, Rape and SexualAbuse of Women in International Law, 5 EUR. J. INT'l L.
326 (1994); Catharine A. MacKinnon, Rape, Genocide, and Women s Human Rights, 17 HARV. WOMEN'S L.J. 5
(1994). However, men and boys have increasingly become victims of sexual violence in armed conflict. See, e.g.,
Prosecutor v. Tadi, No. IT-94 -1-T, para. 198 (May 7, 1997) [hereinafter Tadie5Trial Judgment]; R. Charli Car-
penter, Recognizing Gender-Based Violence Against Civilian Men and Boys in Conflict Situations, 37 SECURITY DIA-
LOGUE 83 (2006). For this reason, this article intends to be gender neutral.
' Theodor Meron, Rape as a Crime Under International Humanitarian Law, 87 AJIL 424, 425 (1993).
2007]](ViewImageLocal?handle=hein.journals/ajil101&div=13&collection=journals&method=preview&ext=.png&size=3)
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