Rape by agents of a state or other officials is classified as torture in the Convention against torture and other cruel, inhuman or degrading treatment or punishment.

Rape causes “severe pain or suffering, whether physical or mental”, it is intentional, and it has the purpose of punishing, intimidating or coercing. For example: Mariatu was abducted from the village of Mamamah, some 40 kilometers from Freetown, as rebel forces treated from the capital in January 1999. Both her parents were killed by rebel forces when they attacked the village.

Mariatu was repeatedly gang-raped by a number of rebels. If she attempted to resist rape she was denied food and beaten. She was forced to accompany rebel forces first to Lunsar and then to Makeni and was eventually forced to become the ‘wife’ of one of the rebels. Many other girls were held in the same situation. When she became pregnant, she was taken back to her family and abandoned. (Sierra Leone, rape and other forms of sexual violence against girls and women, Amnesty International, 29 June 2000).

Rape as a war crime: Rape is also classified as a war crime because it is a violation of the laws of war, which is “committed by persons ‘belonging’ to one party to the conflict against persons of the other side.” More specifically, the fourth Geneva Convention, which applies to areas considered occupied territory, states: “women shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution or any form of indecent assault.”

Article 4 of the Second Protocol of the Geneva Convention which regulates internal armed conflicts expressly forbids: “outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault;” The International Criminal Court (ICC) statute gives the ICC the power to try cases of rape or other sexual abuse as war crimes and when committed on a widespread or systematic basis, as crimes against humanity.

Rape as a crime against humanity: The Statutes of the International Tribunal for Yugoslavia and the International Tribunal for Rwanda list rape as a crime against humanity. To prove rape as a crime against humanity, the following must be established:

It must be directed against civilian populations; it must be widespread or large-scale, i.e. the rapes must be directed against a number of victims. Single or isolated acts fall outside the scope; it must be part of a systematic pattern of abuse through a pre-conceived plan or policy, of which rape is an element. In these circumstances, rape has become a weapon of war. Also it must be committed by state actors (e.g. soldiers, police etc) or by non-state actors (e.g. members of armed opposition groups, individuals acting at the direction of state officials or members of political groups, or with their consent or knowledge). This excludes inhuman acts committed by individuals on their own initiative or as part of criminal actions.

Rape as genocide: Under international humanitarian law, rape can be categorized as genocide. The Convention on the Prevention and Punishment of the Crime of Genocide defines genocide to mean: “any of the following act committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group as such…; causing serious bodily harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group.”

Under international law genocide is a crime in times of peace and armed conflict, whether international or internal.