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Abuse of Sex Workers

Sex workers in Africa, as around the world, face especially high risk of HIV/AIDS, frequently compounded by rape, stigma, discrimination, and entrenched poverty. It is rarely understood that a sex worker can be a victim of rape; policies or programs to prevent such abuses and provide redress when they occur are all but unheard of in the continent. In Africa as in many parts of the world, mainstream women’s rights groups have largely not included the rights of sex workers among their priorities. With a few notable exceptions, such as the Sex Workers Education and Advocacy Task Force in South Africa, sex worker collectives or support groups have been relatively rare on the African scene. This is in stark contrast to parts of southern and eastern Asia where large and prominent sex workers collectives have enjoyed remarkable success in raising rates of condom use among their clients and some progress in protecting sex workers from violence.¹⁷²

In the context of the entrenched poverty and the absence of organized sex worker collectives in sub-Saharan Africa, sex workers are at particular risk because they often do not have the luxury of refusing clients who are violent or who insist on sex without condoms. In several African countries, Human Rights Watch spoke with girls and young women working in the sex trade who understood the risks of sex without condoms but did not feel they had much choice in the matter. In Togo, Human Rights Watch met seventeen-year-old Sefako K. working in the sex trade in Lome. Her mother had died about a year previously after becoming very thin; her grandmother told her that her mother was bewitched. Soon after, a woman approached her and asked her if she wanted to make some money in Lome. The woman brought her to another woman who sold rice in Dekon, a neighborhood of Lome, and she was offered a room and 200 CFA (U.S.$0.30) per day to wash dishes. Although the money was reportedly deposited into a savings scheme on her behalf, she said she was never allowed to withdraw. She decided to go live with a girlfriend who turned out to be engaged in sex work and suggested she start going out with her. Sefako K. was making about 1,000-1,500 CFA (U.S.$1.50-$2.25) per night as a sex worker. Once, she said, a man offered her 6,000 CFA (U.S.$9) to have sex without a condom and she said yes.¹⁷³ A 1992 study of sex workers in Lome reported that nearly 80 percent of the women tested were HIV-positive.¹⁷⁴

In interviews with Human Rights Watch, most child sex workers said they did not make their clients use condoms at first, but they did now because of the efforts of outreach workers.¹⁷⁵ However, some girls said clients continued to offer them extra money to forgo condom use, and that sometimes they welcomed the extra income. Nineteen-year-old Efua S., who came to Lome from Ghana, added that fears of violence made it difficult to insist on condom use. “If I don’t pay my rent, they beat me up,” she told Human Rights Watch. “I try to use condoms, but sometimes the clients get rough. Three days ago, some guy invited me to his house, and when I got there there was a group of men wanting to sleep with me, one after another. I had to run away.”¹⁷⁶

As in many parts of the world, sex workers are especially susceptible to police abuse in addition to the abuse and stigma they face from the larger society. In Zambia, as in many African countries, though prostitution is not forbidden by law, it is illegal to solicit customers or to live off the earnings of someone engaged in sex work.¹⁷⁷ It is therefore difficult for sex workers who suffer physical violence or rape to report it to the police. Social attitudes against sex workers and the stigma associated with them further discourage reporting. Police conduct round-ups of sex workers and charge them with loitering or indecent exposure. Usually, the women pay 10,000 kwacha (U.S. $2.30) and are freed in the morning;¹⁷⁸ other times, the police take the women’s money or demand sexual services as payment.¹⁷⁹ In April 2002, a group of sex workers publicly complained about abuses by Zambian police officers who they said had repeatedly arrested them and abused them sexually.¹⁸⁰ Several persons interviewed by Human Rights Watch said this case has simply faded away as the investigations are not being pursued.¹⁸¹ Stigma and abuse may also contribute to a reluctance of sex workers to be tested for HIV or otherwise to seek HIV/AIDS services.¹⁸²

Two Zambian NGOs providing services to sex workers are Tasintha, which means “we have changed” in the Nyanga language, and MAPODE or Movement of Community Action for the Prevention and Protection of Young People Against Poverty, Destitution, Diseases and Exploitation. These groups describe a life of violence and deprivation among sex workers: “Girls die in a very short time—that’s the bottom line. STDs, HIV/AIDS, violence, mental abuse, physical abuse. They don’t have time to make money,” said Clemire Karamira of MAPODE. She noted that the majority of prostitutes she had worked with were twelve to eighteen years old. “They are dramatically young—that’s one aspect of vulnerability.”¹⁸³ Professor Nkandu Luo, founder of Tasintha, former Minister of Health and professor of microbiology and immunology, told Human Rights Watch: “There have been so many deaths [among sex workers]—we’ve lost a lot. That’s one of the biggest tragedies. The majority are from HIV-associated deaths.”¹⁸⁴

Emily Joy Sikazwe, executive director of Women for Change, an NGO in Lusaka, Zambia has worked with a number of girls and young women who have turned to sex work. She observed:

A girl [orphan] told me: “HIV is not a monster . . . what I see [of it] is hunger. I’m fourteen—my siblings are crying for food, so I sell my body. I use condoms sometimes; otherwise, it’s raw sex. I need to buy mealie meal¹⁸⁵ and relish for the children. Yes, I know I’ll die. But my brothers and sisters are crying.”¹⁸⁶

Rape and Other Gender-based Abuses in War and Civil Conflict

Rape is a common weapon of war in Africa. During the Rwandan genocide on 1994, in the war in Sierra Leone, and to this day in the war in the Democratic Republic of Congo (DRC), among other instances, regular armies and guerrilla forces have used rape to terrorize, humiliate, punish, and ultimately control the civilian population into submission. It also disrupts communities dependent on the labor and household leadership of women. In northern Uganda, thousands of children have been abducted by the Lord’s Resistance Army and have suffered sexual abuse and sexual slavery, part of that group’s campaign of terror and violence. In all these cases, HIV transmission is only one of the consequences of horrific sexual abuse suffered by women, girls, and sometimes boys, but it is a consequence that amplifies the stigma of rape and adds to the medical and psychological injuries of these violations.

In DRC, Human Rights Watch’s investigation took place in North and South Kivu provinces, an area controlled since 1998 by rebel forces fighting the government of President Kabila, the Rassemblement congolais pour la démocratie (RCD) and RCD’s patron, the Rwandan army. The Rwandan army, which occupies large parts of eastern Congo, and the RCD are opposed by several armed groups operating in eastern Congo, including Burundian armed groups and rebel Rwandans associated with the forces involved in the Rwandan genocide of 1994. Rape has been used as a weapon of war by most of the forces involved in this conflict. Combatants of the RCD, Rwandan soldiers, as well as combatants of the forces opposed to them—Mai-Mai, armed groups of Rwandan Hutu, and Burundian rebels of the Forces for the Defense of Democracy (Forces pour la défense de la démocratie, FDD) and Front for National Liberation (Front pour la libération nationale, FNL)—frequently and sometimes systematically raped women and girls in the last year.

In some cases soldiers and combatants raped women and girls as part of a more general attack in which they killed and injured civilians and pillaged and destroyed their property. They did this to terrorize communities into accepting their control or to punish them for real or supposed aid to opposing forces, particularly if they themselves had recently been attacked by these forces. In cases where there were no larger attacks, individuals or small groups of soldiers and combatants also raped women and girls whom they found in the fields, in the forest, along the roads, or in their homes.

The war which has ravaged this region of Congo intermittently since 1996 has destroyed the local economy. Driven by desperate poverty, women who provided the resources to keep their families alive continued going to the fields to cultivate, to the forest to make charcoal, or to markets to trade their goods even though doing so put them at risk of rape. Soldiers and combatants preyed upon such women and girls as well as on others who had fled combat to live in temporary and fragile structures in the forest. Bijou K., a young mother living near the Kahuzi-Biega National Park, described an incident from June 2001:

I left my house in the evening to buy food for my children. A soldier attacked me and pushed me off the road. He asked me in Kinyarwanda for my identity card. He wore a uniform and had a rifle. He threw me into the bushes. My baby, who was one month and one week old, was on my back. He threw the baby off my back—the baby was on his stomach on the ground—and put a gun to my chest. When I reached to save my baby, he took off my clothes and raped me. It happened fast; he wasn't there a long time. Afterwards, he took off. I picked up the baby and went home. I told my husband what happened. I had just had a baby and I needed help. I was treated [at a clinic]. It turns out that I got a sexually transmitted disease, and now my husband has it too.187¹⁸⁷

In many cases in the eastern DRC, combatants abducted women and girls and took them to their bases in the forest where they forced them to provide sexual services and domestic labor, sometimes for periods of more than a year. Sophie W., a young mother living near the rain forest in Shabunda, was held for over a year with her four young children. Her testimony exemplifies many stories told to Human Rights Watch by women abducted to forested areas:

We went into the forest at the beginning of the war. My husband thought the forest was safer, and there was nothing to eat in town. But we moved back to town in 2000. In July 2000 the Mai-Mai came and took my husband. They beat me up and shot him and then cut up his body in front of me. They said my husband was a spy for the Tutsi. There were eight Mai-Mai. Two of them held me down and the others raped me. They put two knives to my eyes and told me that if I cried, they would cut out my eyes . . . . They were filthy—they had fleas. We had no shelter. There were only leaves to sleep on, and when it rained, we got soaked. We had mats with us, but the Mai-Mai took them away.¹⁸⁸

Some rapists aggravated their crimes by other acts of extraordinary brutality, shooting victims in the vagina or mutilating them with knives or razor blades. Some attacked girls as young as five years of age or elderly women as old as eighty. Some killed their victims outright while others left them to die of their injuries. The mother of a young woman whose breasts were cut off by soldiers told Human Rights Watch that this horrific act occurred partly because her daughter so vigorously resisted being raped.189¹⁸⁹

Unimaginable brutality also characterized much of the sexual violence in the Sierra Leone war. Throughout the armed conflict from 1991 to 2001, thousands of women and girls of all ages, ethnic groups, and socioeconomic classes were subjected to widespread and systematic sexual violence, including individual and gang rape, and rape with objects such as weapons, firewood, umbrellas, and pestles. The main perpetrators of sexual violence, including sexual slavery, were the rebel forces of the Revolutionary United Front (RUF), the Armed Forces Revolutionary Council (AFRC) and the West Side Boys, a splinter group of the AFRC. From the launch of their rebellion from Liberia in March 1991, which triggered the war, the RUF perpetrated widespread and systematic sexual violence. Its ideology of salvaging Sierra Leone from the corrupt All People's Congress (APC) regime quickly degenerated into a campaign of violence, including such horrible abuses as amputation of limbs, whose principal aim was to gain access to the country's abundant diamond mines.

In Sierra Leone, as in Congo, thousands of women and girls were abducted by the rebels and subjected to sexual slavery, forced to become the sex slaves of their rebel "husbands." Abducted women and girls who were assigned "husbands" remained vulnerable to rape by other rebels. Many survivors were kept with the rebel forces for long periods and gave birth to children fathered by rebels. Escape for these women and girls was often extremely difficult: In many instances, the women and girls, intimidated by their captors and the circumstances, felt powerless to attempt escape and were advised by other female captives to tolerate the abuses "as it was war." The rebels sometimes made escape more difficult by deliberately carving the name of their faction onto the chests of abducted women and girls. If these marked women and girls were caught by pro-government forces, they would be suspected of being rebels, and often killed.

As in the Congo war, in Sierra Leone these crimes of extraordinarily brutal rape were frequently preceded or followed by other egregious human rights abuses against the victim, her family, and her community. Although the rebels raped indiscriminately irrespective of age, they targeted young women and girls whom they thought were virgins. Many of these younger victims did not survive these crimes of sexual violence. Adult women were also raped so violently that they sometimes bled to death or suffered from tearing in the genital area, causing long-term incontinence and severe infections. Many victims who were pregnant at the time of rape miscarried as a result of the sexual violence they were subjected to, and numerous women had their babies torn out of their uterus as rebels placed bets on the sex of the unborn child.

Fifteen-year-old F.K. was raped by the RUF in Lunsar in Port Loko district (Sierra Leone) in May 2000 and witnessed the sexual mutilation of a pregnant woman as well as the killing of her three male relatives, and six amputations:

I was raped when the RUF attacked Lunsar by four rebels including one man called "Put Fire," who had made me his rebel wife from 1997 to 2000. One of the other rebels was called "Kill Man No Blood." While I was being raped, the rebels found my three male relatives who were hiding under their beds. They stabbed them with their bayonets and then shot them. They raped me in my bedroom and then brought me into the living room. Three men and three women were also brought into the room. They were put in line and then the rebels gave them the choice between their life or their money. The rebels strip- searched each one and then killed them on the spot. The group was forced to watch as each was killed. One of the women was six months pregnant and slightly disabled. She was last in the row. When it was her turn, she was stabbed in the neck and fell down. The rebels started to discuss whether she was carrying a boy or a girl. They bet on the sex of the baby so they decided to check it. Kill Man No Blood split open her belly. It was a boy. One of the other rebels took the baby out and showed everyone that it was a boy. The baby was still alive when he threw it on the ground next to the woman but died shortly after. As the rebels took me away, I saw six men who had just been amputated. Some had an arm cut off below the elbow, others above the elbow. They were screaming, "Please kill us, don't leave us this way."¹⁹⁰

S.G., a fifty-year-old widow, was raped by a teenage rebel called Commander "Don't Blame God" and subsequently had both arms amputated in Mattru village in Bo district prior to the 1996 elections:

I pleaded but Commander Don't Blame God said he was going to kill me if I didn't lie down. I told him it had been such a long, long time since I had sex. During the rape I was pleading with him saying, "Don't kill me, please don't kill me." He was so rough with me. Then he took me up a big dune above Mattru village. As we were walking, he said he was going to kill me. I pleaded with him and he then said, "I've changed my mind, I'm going to give you a letter." Once we got there I saw many more rebels, about twenty. I was stripped naked down to my underwear. It was humiliating. Then they asked me to sit down and wait. Commander Don't Blame God said: "I have a letter for you but wait for the cutlass man to come." Then the one with the machete came and told me to put out my left arm. It took them three chops with the cutlass to cut off my arm. After this I begged them not to cut my other arm but they struggled with me and a rebel held it down and cut it off. The cutlass man said, "We belong to Foday Sankoh's group." Then one of them took my left arm and put it under my vagina and kicked me twice in the vagina . . . very, very hard.¹⁹¹

R.F., a thirty-three-year-old farmer, described being gang-raped by West Side Boys, including four child combatants, at Petifu village in Port Loko district in November 1999:

Four children between ten and twelve years used me. They were so small I could barely feel them inside me. The small ones tried to imitate the older ones and one of them kept saying, "I'm trying it, I'm trying it." It was the war that brought that humiliation. I kept comparing them to my own children; my first-born son is ten. I forgave them because they are children. It was not of their own making. They must have been drugged.¹⁹²

In December 1994, thirty-year-old A.B. was abducted with six other women from Yonibani in Tonkolili district by the RUF when they launched a surprise attack with the collusion of the SLA. The RUF made the women carry looted items to their camp, where A.B. stayed for a week before escaping. She herself was repeatedly raped by two rebels, including one Liberian, and witnessed the rape of an old woman with gray hair:

At least four of the women I had been abducted with were raped. Before they raped me, the rebels went for an old woman with white hair. When she realized what they wanted, she took off her headscarf to show her white hair and said, "I'm old, I have stopped having sex." At first the commander said the rebels should not touch her because she was old. But the other rebels got annoyed and started insulting the commander saying, "Fine, you can fuck any woman you want, anytime you want, but now that we have one we want, you say no." The commander finally said that they could go ahead so all five rebels, including a small boy of fifteen years raped her. One was on his knees with his trousers down while the others stood around watching.¹⁹³

In both Congo and Sierra Leone, the humiliation, pain, and fear inflicted by the perpetrators serve to dominate and degrade not only the individual victim but also her community. Combatants who rape in war often explicitly link their acts of sexual violence to this broader social degradation. The perpetrators in both wars sought to dominate women and their communities by deliberately undermining cultural values and community relationships, destroying the ties that hold society together. Combatants raped women who were old enough to be their grandmothers, soldiers raped pregnant and breastfeeding mothers, and fathers were forced to watch their daughters being raped.

To date there has been no accountability for the thousands of rapes or other appalling human rights abuses committed during the war in Sierra Leone but, unlike the case of Congo, there are at least mechanisms that may be able to bring some of the perpetrators to justice. The Special Court for Sierra Leone and the Truth and Reconciliation Commission have been established with U.N. assistance and are tasked with investigating the human rights abuses, including sexual violence and sexual slavery, committed by all parties during the war. Investigating crimes of sexual violence and sexual slavery were from the very beginning part of the prosecutorial strategy and as such an integral part of the work of the SCSL's investigation team.¹⁹⁴ In a pioneering action, the SCSL promptly appointed two gender crimes investigators, and a majority of the indictees at this writing have been charged with crimes of sexual violence as crimes against humanity and violations of international humanitarian law. A challenge for the Special Court is to ensure that the upcoming trials are conducted in a manner sensitive to the survivors of these crimes as well as to further develop the jurisprudence on crimes of sexual violence. Human Rights Watch calls on the SCSL to ensure appropriate training of judges, and of defense and prosecution personnel as soon as possible.

As a war crime, rape in both Congo and Sierra Leone has been obscured by inattention and denial. Until recently, little attention has been paid either nationally or internationally to this less visible human rights abuse, although sexual violence was committed on a much larger scale than the highly visible amputations for which Sierra Leone became notorious. The underreporting is a reflection of the low status of women and girls in Africa as well as the shame that rape survivors suffer and their fear of rejection by family and communities. Women and girls in Sierra Leone and the DRC are subjected to structural discrimination by practice, custom and law. They face discrimination in education and employment, in property ownership, in the political arena, and in other walks of life.

Legal mechanisms to prosecute rape in both countries stem from a tradition of inadequate treatment of rape as a crime even in peacetime. In Sierra Leone, the provisions pertaining to rape under general and customary law offer little protection to victims. The misinterpretation of the complicated provisions of general law by the police and courts means, for example, that those who are alleged to have sexually assaulted a minor are generally charged with "unlawful carnal knowledge of a child," for which the sentence is lighter, rather than rape. Under customary law, the perpetrator is generally required to pay a substantial fine to the victim's family as well as to the chiefs. The victim may also be forced to marry the perpetrator. The concept of rape as a crime in itself is a very recent one in Sierra Leone's patriarchal society. Only rape of a virgin is seen as a serious crime. Rape of a married woman or a non-virgin is often not considered a crime at all: as in many countries, there is often a belief that the woman must have consented to the act, or she is seen as a seductress. In Congo, similarly, the system of justice never favored adequate prosecution of rapists, and the continuing hostilities in eastern Congo make judicial reform an unlikely prospect. NGOs have recently reported to Human Rights Watch that after much effort and with concerted support, some women are beginning to find the courage to speak about these crimes and to take the first steps to filing formal complaints. But real justice is a long way off.

The fear of being stigmatized also kept rape survivors in both wars from seeking medical attention. Many others who wished medical help had nowhere to go because of the deterioration of services associated with war and decades of misrule in both countries. The lack of such assistance was particularly critical given that the prevalence of HIV and other STDs among soldiers and irregular combatants both is generally estimated to be much higher than in the general population. In Congo, it is estimated that more than half the combatants may be HIV-positive.¹⁹⁵

These crimes of sexual violence have direct, profound, and life-changing consequences for the women and girls attacked and for their wider communities. Many women and girls will never recover from the physical, psychological, and social effects of these assaults and some will die from them. A significant number became pregnant as a result of rape and now struggle to provide for the children they have borne. Some women and girls have been rejected by their husbands and families and ostracized by the wider community because they were raped or because they are thought to be infected with HIV/AIDS. Survivors of rape and other forms of sexual violence must now attempt to make a new life for themselves, sometimes by relocating to communities far from their former homes.

The abuses still being committed in Uganda by the insurgent group called Lord’s Resistance Army (LRA), known for the brutality of its tactics, represent another form of sexual and gender-based violence, particularly targeting children. Since the beginning of the LRA’s conflict with the Ugandan government, it has abducted, by a conservative estimate, more than 20,000 children¹⁹⁶ and subjected them to brutal treatment as soldiers, laborers and sexual slaves. Since June of 2002, an estimated 5,000 children have been abducted from their homes and communities—a larger number than any previous year in the conflict and a dramatic increase from the less than 100 children abducted in 2001.

Children are abducted from their homes, schools, and off the streets. They are frequently beaten and forced to carry out raids, burn houses, beat and kill civilians, and abduct other children. They must carry heavy loads over long distances and work long hours. Many are given weapons training and some are forced to fight against the Ugandan army. The LRA uses brutal tactics to demand obedience from abducted children. Children are forced to beat or trample to death other abducted children who attempt to escape, and are repeatedly told they will be killed if they try to run away. Children who fall behind during long marches or resist orders are also killed. Many others have been killed in battle or have died from mistreatment, disease and hunger.

Although not as numerous as boys, girls are abducted in large numbers by the LRA. They are used as domestic servants for commanders and their households. At age fourteen or fifteen, many are forced into sexual slavery as "wives" of LRA commanders and subjected to rape, unwanted pregnancies, and the risk of sexually transmitted diseases, including HIV/AIDS.

After abduction, younger girls are assigned to commanders as ting ting (servants). They often begin work before dawn and continue until evening. Janet M., who was twelve when she was abducted in November 2002, explained: "You must work all of the time. The moment you refuse to work, they will kill you or beat you to death." She, like other girls, was forced to carry heavy loads, fetch water and firewood, cook, wash, "dig" (farm), and tend the commanders' children.

After reaching puberty, girls are forced to become "wives" to commanders. Angela P. was abducted at age ten and became a “wife” at age fifteen. She said, "when I became a wife I was smeared with shea nut butter and told my loyalty was to [the] Commander." Forced into sexual relationships, many girls become pregnant and give birth in the bush, with only other young girls to assist them. For Angela P., life was better as a ting ting. She said: “As a wife, I was beaten and sexually abused. As a ting ting, I was beaten twice; as a wife, I was beaten so many times I couldn’t count.”¹⁹⁷

Christine A. was released with her two young sons in June 2002 after ten years in captivity. She said she feared that the LRA would come back for her and had heard from children who escaped the LRA more recently that the LRA leadership now regretted their decision to release child mothers, especially those with boy children. Christine A. had no relatives in towns that are thought to be safe, so felt she has no choice but to return to the village from which she was abducted.¹⁹⁸ According to one girl, by the late 1990's, over 800 children had been born to young LRA “wives.”

Many "wives" contract sexually transmitted diseases (STDs). A nurse at World Vision’s center for children who have escaped abduction in Gulu, Uganda reported that of the children who came to the center in early 2003, about 50 percent had STDs, including syphilis, gonorrhea, and chlamydia. Two years earlier, when returnees were more likely to have been in captivity for longer periods, the rate was much higher—nearly 85 percent.¹⁹⁹ The rate of HIV infection among abductees is unknown. World Vision has offered HIV testing to children in its center; not all accept. As of March 2003, they had tested eighty-three formerly abducted children, and thirteen or 15 percent were positive in this self-selected group.

Brutality against civilians, and specifically sexual violence, is an integral part of the war in eastern Congo and the conflict in northern Uganda, and it was a heinous weapon in Sierra Leone. The wars of gender-based violence within these wars are grossly underrepresented as the focus of action by governments of affected countries and international actors alike. Exemplifying the cruelest and most violent edge of the subordination of African women, these abuses leave no room for protection from grievous bodily harm, including HIV/AIDS.

Humanitarian law and international human rights law on rape in war

Rape is explicitly prohibited under international humanitarian law governing both international and internal conflicts. The Fourth Geneva Convention of 1949 specifies in Article 27 that "women shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault."²⁰⁰ Further, Article 147 of the same convention designates "willfully causing great suffering or serious injury to body or health," "torture," and "inhuman treatment" as war crimes and as grave breaches of the conventions.²⁰¹ As the International Committee of the Red Cross (ICRC) has recognized, rape constitutes "willfully causing great suffering or serious injury to body or health" and thus should be treated as a grave breach of the convention.²⁰² The ICRC has stated in its authoritative Commentary that "inhuman treatment" should be interpreted in light of Article 27 and its specific prohibition against rape.²⁰³ The Geneva Conventions specify that governments are obliged to find and punish those responsible for grave breaches and to make those accused available for trial.

As with international armed conflicts, humanitarian law clearly prohibits rape in internal conflicts, such as the civil wars in Sierra Leone and D.R. Congo. Rape committed or tolerated by any party to a non-international conflict is prohibited by Common Article 3 of the Geneva Conventions insofar as it constitutes "violence to life and person," "cruel treatment," "torture," or "outrages upon personal dignity." Moreover, Protocol II of 1977 to the Geneva Conventions, which applies to conflicts between a government's and its opposition's armed forces that control territory within the country, prohibits "outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault" committed by any party.²⁰⁴ The ICRC explains that this provision "reaffirms and supplements Common Article 3 . . . [because] it became clear that it was necessary to strengthen . . . the protection of women . . . who may also be the victims of rape, enforced prostitution or indecent assault."²⁰⁵

Rape committed not in the course of conflict but as part of political repression is also prohibited under international law as torture or cruel, inhuman or degrading treatment. The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment all promote the dignity and physical integrity of the person and prohibit torture and other mistreatment. Various international authorities have recognized rape to constitute a form of torture, as defined by the Convention against Torture, when it is used in order to obtain information or confession, or for any reason based on discrimination, or to punish, coerce or intimidate, and is performed by state agents or with their acquiescence.²⁰⁶

International criminal tribunals have recognized rape and other forms of sexual violence as war crimes and crimes against humanity.²⁰⁷ The Rome Statute of 1998 that established the International Criminal Court, which came into effect in 2002, recognizes “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity” as war crimes within the jurisdiction of the court.²⁰⁸ These same crimes, when “committed as part of a widespread or systematic attack directed against any civilian population” are recognized as crimes against humanity by the court.²⁰⁹ These provisions allow for prosecution of the specified sexual crimes by the International Criminal Court if they occur in a country where the court has jurisdiction.

Rape during armed conflict — committed by government forces or armed insurgents as a matter of policy or as individual acts of torture — constitutes an abuse of power and a grave violation of international law. Official involvement and acquiescence in wartime rape is all the more striking given that, until recently, it has not been condemned like other war crimes, but treated as an inevitable consequence of war. Differential treatment of rape makes clear that the problem in large measure lies not in the absence of adequate legal prohibitions but in the international community's willingness to tolerate sexual abuse against women.