The crime of rape in the case law of the strasbourg institutions

Criminal Law Forum

Volumn 13, Issue 2, 2002, Pages 245-265

  Zilli, Livio ^a  

^a AMNESTY INTERNATIONAL   (United Kingdom)

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EID: 52649104477     PISSN: 10468374     EISSN: 15729850     Source Type: Journal    
DOI: 10.1023/A:1022295224663     Document Type: Article

References (95)

1. The new European Court of Human Rights became operational on 1 November 1998 when Protocol No. 11 to the Convention entered into force. The new Court - a fulltime Court - replaced the original two-tier system of a part-time Commission and Court. Pursuant to Protocol No. 11, the Commission continued to function for one year (until 31 October 1999) to deal with cases which had been declared admissible before the date of entry into force.
2. The fundamental purposes of the Act are defined in its introductory paragraph as "[a]n Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights; to make provision with respect to holders of certain judicial offices who become judges of the European Court of Human Rights; and for connected purposes". There are two exceptions with respect to the substantive Convention rights to which the Act gives effect, namely articles 1 and 13.
3. See for example, "Rapist's Charter", an article featured in the 28 April 2001 print edition of the The Economist.
4. See for example, the recent judgment of the Court in the case of Z et al. v. United Kingdom, App. No. 29392/95, 10 May 2001. In that case, the Court stated that "[t]he obligation on High Contracting Parties under article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with article 3, requires states to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals ..." (emphasis added). While the Court's finding in relation to article 3 of the European Convention only refers to abuse without giving details as to whether the evidence of sexual abuse endured by at least one of the applicants (see para 48) was a determining factor in its conclusion that there had been an infringement of that provision, its implications for rape victims could, mutatis mutandis, be tremendous. For example, it could mean that the whole gamut of measures in respect of deterrence, prevention, investigation, prosecution, punishment and redress that states are to take under their article 1 could be subject to human rights adjudication.
5. Hilary Charlesworth, Christine Chinkin & Shelley Wright, Feminist Approaches to International Law, 85 AM. J. INT'L L. 613 (1991).
6. Geraldine Van Bueren, for example, has noted how "[t]he most obvious shared characteristic, as far as international human rights law is concerned, is that both women and children have been perceived as living primarily in the private sphere and, therefore, have been excluded arbitrarily from the full protection of international human rights law. International human rights law protects the individual against the state, but the limits of state responsibility have been drawn narrowly, thereby offering only an illusion of fairness to both women and children. This injustice in international human rights law is rooted in its historical development, but not inherent in it, as recent jurisprudence in the Inter-American and European regional human rights systems illustrates." See Geraldine Van Bueren, The International Protection of Family Members' Rights as the 21st Century Approaches, 17 HUM. RTS Q. 732 (1995), at pp. 748-749.
7. For an interesting appraisal of feminist critiques of liberalism, see Kate Nash, The feminist critique of liberal individualism as masculinist, 2 J. POLITICAL IDEOLOGIES 13 (1997).
8. Vera Baird quoted in The Guardian newspaper on 18 May 2001 commenting on the recent House of Lords judgment in the case R. v. A. The article is available at 〈www.guardian.co.uk/uk_news/story/0,3604,492740,00.html〉.
9. See Aileen McColgan, Women and the Human Rights Act, 51 NORTHERN IRELAND LEGAL Q. 417 (2000).
10. R. v. A., [2001] 2 W.L.R. 1546.
11. The case focussed on the complaint lodged by a male rape defendant (known as A) that section 41 of the Youth Justice and Criminal Evidence Act 1999 which "prohibits the giving of evidence and cross examination about any sexual behaviour of the complainant except with leave of the court" by virtue of excluding evidence relating to "a sexual relationship between a defendant and complainant" - which the defence argued was relevant to "the issue of consent" - contravened the defendant's right to fair trial in accordance with article 6 of the European Convention of Human Rights (as enshrined in Schedule 1, part 1 of the Human Rights Act 1998, supra note 2). With respect to the issue of consent, Susan Edwards has pointed out that "consent in intimate relationships is illusory" and what should count is "the need to protect the genuine victim from harm" (SUSAN S. M. EDWARDS, SEX AND GENDER IN THE LEGAL PROCESS 88 (1996)).
12. In turn, Catharine MacKinnon has noted that "[s]howing coercion is supposed to avoid this presumption [the mistaken presumption of a consensual relationship]. But the problem is getting anything private to be perceived as coercive. This is an epistemic problem of major dimensions and explains why privacy doctrine is most at home at home, the place women experience the most force, in the family .... The private is public for those for whom the personal is political. In this sense, for women there is no private, either normatively or empirically." CATHARINE MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE 190-191 (1989).
13. ' Christine M. Chinkin, Due Process and Witness Anonymity, 91 AM. J. INT'L L. 75 (1997), p. 78.
14. Of course it is worth pointing out that this "conflict" is not played out exclusively in domestic jurisdictions - whether under the human rights rubric or not - but equally it has been a contentious issue in the prosecution of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, violations of the laws or customs of war, violations of common article 3 of the Geneva Conventions and of Additional Protocol II undertaken in recent years by the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). For two conflicting views on this topic, see Monroe Leigh, Witness Anonymity is Inconsistent with Due Process, 91 AM. J. INT'L L. 80 (1997)
15. and Christine M. Chinkin, ibid.
16. Stephanie Palmer, Critical Perspectives on Women's Rights: the European Convention on Human Rights and Fundamental Freedoms, in FEMINIST PERSPECTIVES ON THE FOUNDATIONAL SUBJECTS OF LAW 227 (Anne Bottomley, ed., 1996), pp. 223-242.
17. EUROPEAN HUMAN RIGHTS LAW - TEXTS AND MATERIALS 94 (Mark Janis, Richard Kay & Anthony Bradley, eds., 2000).
18. See for example, The Greek Case (App. nos. 3321 - 3/67), 11 YEARBOOK ECHR 501 (1969).
19. Cited in Deborah E. Anker, Law of Asylum in the United States, available at 〈www.internationalstudies.uchicago.edu/torture/abstracts/deborahanker. html〉.
20. Tyrerv. United Kingdom, Series A, No. 26, 25 April 1978, para 31.
21. A. v. United Kingdom, App. No. 25599/94, 23 September 1998, para 22.
22. The Commission's report concerned an inter-state complaint, a rarity in human rights adjudication by an international judicial body. Turkey's 1974 invasion of Cyprus has been the only context in which the Commission and the Court have dealt with complaints arising out of an international armed conflict scenario (for a review of the way the Commission and the Court have dealt with cases where humanitarian law issues have arisen, see Aisling Reidy, The approach of the European Commission and Court of Human Rights to international humanitarian law, 324 INT'L REV. RED CROSS 513 (1998). Turkey refused to participate after the Commission had declared the case admissible. Turkey had argued that the Commission had "no jurisdiction ratione loci to examine the applications" since they concerned "alleged violations of the Convention in the island of Cyprus" and that the competence of the Commission ratione loci was limited, under article 1 of the Convention,
23. to acts committed within Turkish territory since Turkey had not "extended her jurisdiction to Cyprus or any part thereof" (18 YEARBOOK ECHR 116 (1975). Rejecting Turkey's argument, the Commission held that "[i]n article 1 of the Convention, the High Contracting Parties undertake to secure the rights and freedoms defined in Section I to everyone 'within their jurisdiction' (in French text: 'relevant de leur jurisdiction'). The Commission finds that this term is not, as submitted by the respondent Government, equivalent to or limited to the national territory of the High Contracting Party concerned. It is clear from the language, in particular of the French text, and the object of this article, and from the purpose of the Convention as a whole, that the High Contracting Parties are bound to secure the said rights and freedoms to all persons under their actual authority and responsibility, whether that authority is exercised within their own territory or abroad' (ibid., p. 118, emphasis added).
24. Cyprus v. Turkey (App. Nos. 6780/74 & 6950/75), 2 D & R 125, 18 YEARBOOK ECHR 86 (1975) (this is also known as the first Cyprus v. Turkey case to distinguish it from other two subsequent interstate cases). For current purposes, only the first case is relevant. Having joined the applications, and having declared them admissible on 26 May 1975 without prejudging their merits, the Commission went on to find that between the 20 July 1974 and 21 March 1975 Turkey had violated various provisions of the Convention, namely articles 2 (right to life), 3 (prohibition of torture), 5 (right to liberty and security), 8 (right to respect for private and family life), 13 (right to an effective remedy), and 14 (prohibition of discrimination) of the Convention, as well as article 1 (protection of property) of Protocol No. 1.
25. Yearbook Echr Ibid.
26. Yearbook Echr Ibid.
27. Yearbook Echr Ibid, p. 90.
28. The evidence given to the Commission included, inter alia, the "[t]estimony of doctors C and H, who examined the victims. Eye-witnesses and hearsay witnesses also gave evidence, and the Commission had before it written statements from forty-one alleged victims. Dr H said he had confirmed rape in seventy cases, including: a mentally-retarded girl of twenty-four was raped in her house by twenty soldiers. When she started screaming they threw her from the second floor window. She fractured her spine and was paralysed. One day after their arrival at Voni, Turks took girls to a nearby house and raped them. One woman from Voni was raped on three occasions by four persons each time. She became pregnant. One girl, from Palekythrou, who was held with others in a house, was taken out at gun point and raped. At Tanvu, Turkish soldiers tried to rape a seventeen year-old girl. She resisted and was shot dead. A woman from Gypsou told Dr H that twenty-five girls were kept by Turks at Marathouvouno as prostitutes. Another witness said his wife was raped in front of their children. Witness S told of twenty-five girls who complained to Turkish officers about being raped and were raped again by the officers. A man (name withheld) reported that his wife was stabbed in the neck while resisting rape. His granddaughter, aged six, had been stabbed and killed by Turkish soldiers attempting to rape her. A Red Cross witness said that in August 1974, while the island's telephones were still working, the Red Cross Society received calls from Palekythrou and Kaponti reporting rapes. The Red Cross also took care of thirty-eight women released from Voni and Gypsou detention camps; all had been raped, some in front of their husbands and children. Others had been raped repeatedly, or put in houses frequented with Turkish soldiers. These women were taken to Akrotiri hospital, in the British Sovereign Base Area, where they were treated. Three were found to be pregnant. Reference was also made to several abortions performed at the base." THE SUNDAY TIMES, 23 January 1977, available at 〈www.justice4cyprus.f2s.com/ECHR.htm〉.
29. Ibid.
30. 18 YEARBOOK ECHR 92 (1975).
31. Yearbook Echr Ibid.
32. Article 2 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide defines genocide as "... any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group."
33. 18 YEARBOOK ECHR 92 (1975).
34. See excerpts of the Commission's report, annex 1, available at 〈www.kypros.org/ Cyprus_Problem/hr/hr_14.htm〉.
35. "The evidence shows that rapes were committed by Turkish soldiers and at least in two cases even by Turkish officers, and this not only in some isolated cases of indiscipline. It has not been shown that the Turkish authorities took adequate measures to prevent this happening or that they generally took any disciplinary measures following such incidents. The Commission therefore considers that the non-prevention of the said acts is imputable to Turkey under the Convention". See paras. 373-374.
36. Supra note 30.
37. See AMNESTY INTERNATIONAL, BROKEN BODIES, SHATTERED MINDS (2001), available at 〈www.amnesty.org〉.
38. Deborah E. Anker, supra note 16.
39. This passage is actually reproduced in the judgment of Court in Ireland v. United Kingdom, January 18, 1978, Series A, No. 25, 2 E.H.R.R. 25, para 147(i). Interestingly, in its judgment the Court went on to rebut the finding of the Commission in this particular respect. The Court held, at paras. 167-168, that "[a]lthough the five techniques, as applied in combination, undoubtedly amounted to inhuman and degrading treatment, although their object was the extraction of confessions, the naming of others and/or information and although they were used systematically, they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood. 168. The Court concludes that recourse to the five techniques amounted to a practice of inhuman and degrading treatment, which practice was in breach of article 3 ..." At para 96, the judgment defines the five techniques as consisting of: "(a) wall-standing: forcing the detainees to remain for periods of some hours in a 'stress position', described by those who underwent it as being 'spreadeagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers'; (b) hooding: putting a black or navy coloured bag over the detainees' heads and, at least initially, keeping it there all the time except during interrogation; (c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise; (d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep; (e) deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations."
40. Deborah E. Anker, supra note 16.
41. Supra note 24.
42. Ibid.
43. Deborah E. Anker, supra note 16.
44. See Deborah Blatt, Recognizing Rape as a Method of Torture, 19 N.Y.U. REV. LAW & SOCIAL CHANGE 821 (1992);
45. Lisa M. Kois, 'Dance, Sisrer, Dancel', in AN END TO TORTURE: STRATEGIES FOR ITS ERADICATION 90 (Berti Dunér, ed., 1998).
46. Prosecutor v. Akayesu (Case no. ICTR-96-4-T), Judgment, 2 September 1998, was the first ever judgment by an international tribunal for the crime of genocide. It was also unprecedented in at least two other respects: first, because it recognised that rape and sexual violence constitute genocide if committed with the specific intent of destroying, in whole or in part, a particular targeted group, and secondly because it was the first attempt to define rape under international law. For a detailed analysis of it, see Kelly D. Askin, Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status, 93 AM. J. INT'L L. 105
47. . Poignantly, in relation to the finding of rape and sexual violence as constitutive elements of the crime of genocide in the Akayesu judgment, Hilary Charlesworth has pointed out that that decision "simply illustrates the inability of the law to properly name what is at stake: rape is wrong, not because is a crime of violence against women and a manifestation of male dominance, but because it is an assault on a community defined only by its racial, religious, national or ethnic composition. In this account, the violation of a woman's body is secondary to the humiliation of the group. In this sense, international criminal law incorporates a problematic public/private distinction: it operates in the public realm of the collectivity, leaving the private sphere of the individual untouched. Because the notion of the community implicated here is one defined by men within it, the distinction has gendered consequences." Hilary Charlesworth, Feminist Methods in International Law, 93 AM. J. INT'L L. 387 (1999).
48. Prosecutor v. Akayesu, Am. J. Int'l L., ibid., section 6.4.
49. "International Legal Principles Concerning National Minorities", prepared by the Open Society Institute Forced Migration Projects for the seminar on New Diasporas of Eastern Europe, Budapest, 22 June 1998, available at 〈www.soros.org/fmp2/html/ minority.html〉.
50. Supra note 35.
51. For more on this, see Joanne Conaghan, Gendered harms and the law of tort: remedying (sexual) harassment, 16 OXFORD J. LEGAL STUDIES 407 (1996).
52. For an interesting appraisal of these critiques of "liberal individualism" see Kate Nash, supra note 7.
53. See Hilary Charlesworth, Human Rights as Men's Rights, in WOMEN'S RIGHTS, HUMAN RIGHTS 103 (Julie Peters & Andrea Wolper, eds., 1995).
54. Stephanie Palmer, supra note 13, has remarked that "[c]onsistent with many other international human rights documents, the European Convention embodies the classical liberal position of the individual and there is an assumption that human rights discourse is gender-neutral".
55. See, inter alia, Geraldine Van Bueren, supra note 6, and Catherine MacKinnon, supra note 10.
56. Xand Y v. the Netherlands, Series A, No. 91. The Commission had found "as regards Miss Y. that there had been a breach of article 8 (art. 8) of the Convention (unanimously), but not of article 3 (art. 3) (fifteen votes against one); that it was not necessary to examine the application either under article 14 taken in conjunction with article 8 (art. 14+8) or article 3 (art. 14+3), or under article 13 (art. 13); - as regards Mr. X, that no separate issue arose concerning his right to respect for family life." Cited at para 19, ibid. Geraldine Van Bueren, supra note 6, p. 749, has noted that "[a]lthough the rape was in a private institution, the case of X. & Y. v. the Netherlands has major implications for the protection of individuals within other private institutions, including the family, where a state's legislation only provides for civil remedies against sexual attacks within the family".
57. That is, irrespective of legal semantics, if not de jure - according to the deficient Dutch law of the day - certainly de facto, she had been raped.
58. Interestingly, "[a]t the hearings, counsel for the Government informed the Court that the Ministry of Justice had prepared a Bill modifying the provisions of the Criminal Code that related to sexual offences. Under the Bill, it would be an offence to make sexual advances to a mentally handicapped person." X and Y v. the Netherlands, supra note 50, para 17, Judgment in the case of X and Y v. THE NETHERLANDS, para 17.
59. The Netherlands Ibid., para 12.
60. The Netherlands Ibid., para 18.
61. The Netherlands Ibid., para 19.
62. The Court found, ibid., para 23, that obligations under article 8 "may involve the adoption of measures designed to secure respect for private life even in the sphere of relations of individuals between themselves".
63. Deborah E. Anker, supra note 16.
64. X and Y v. the Netherlands, supra note 50, para 34. The Commission referred to "the field of protection covered" by article 3.
65. Professor Sir Nigel Rodley, then director of the Legal Office at Amnesty International's Headquarters, a former United Nations Special Rapporteur on torture and currently a member of the United Nations Human Rights Committee, cited in Hilary Charlesworth, Christine Chinkin & Shelley Wright, supra note 4, p. 628. For an interesting appraisal of the legal definition of torture in international law, as well as a critique of the work of the United Nations Special Rapporteur on torture, see Lisa M. Kois, supra note 40, p. 85.
66. Which incidentally begs the facetious and disturbing question of whether the Commission had taken into account the many incidents of multiple rape committed against the same individuals in the aftermath of Turkey's invasion of Cyprus.
67. X and Y v. the Netherlands, supra note 50, para 34.
68. In this connection, Hilary Charlesworth, supra note 41, notes that "[significantly, the ICC statute defines torture more broadly than the Convention against Torture, omitting any reference to the involvement of public officials". However, she also points out that "the statute, however, appears to regard rape and sexual violence as distinct from torture".
69. For example, it could be argued that article 1 (obligation to respect human rights), article 13 (right to an effective remedy), article 17 (prohibition of abuse of rights), article 18 (limitation on use of restrictions on rights), article 53 (safeguard for existing human rights) and all of the above taken together with article 14 (prohibition of discrimination) would nowadays be at odds with a finding of rape in the same terms as in Cyprus v. Turkey, supra note 20, or X and Y v. the Netherlands, supra note 50.
70. Aydin v. Turkey, App. No. 23178/94, was declared admissible by the Commission on 28 November 1994. The Commission adopted its report on 7 March 1996 finding, by 26 votes to 1, that there had been a violation of article 3 of the Convention. With respect to her rape in custody, the report states, at para 189: "The Commission notes that the applicant was aged approximately seventeen when she was taken into custody by the security forces. She was isolated from the other members of her family and blindfolded. She was in the circumstances in a highly vulnerable situation .... Rape committed by an official or person in authority on a detained person must in addition be regarded as treatment or punishment of an especially severe kind. The Court in a previous case has referred to the 'essentially debasing character of rape' and implied its incompatibility with the fundamental notions of human dignity and human freedom .... In the Commission's opinion, the nature of such an act, which strikes at the heart of the victim's physical and moral integrity, must be characterised as particularly cruel and involving acute physical and psychological suffering. This is aggravated when committed by a person in authority over the victim. Having regard therefore to the extreme vulnerability of the applicant and the deliberate infliction on her of serious and cruel ill-treatment in a coercive and punitive context, the Commission finds that such ill-treatment must be regarded as torture within the meaning of article 3 (art. 3) of the Convention". The judgment of the Court was issued on 25 September 1997. These decisions are all available at 〈www.coe.fr〉.
71. Aydin v. Turkey, App. No. 23178/94, Admissibility, 28 November 1994.
72. Supra note 27.
73. In this connection, the Commission's report explains, at para 163, that "[b]efore dealing with the applicant's allegations under specific Articles of the Convention, the Commission considers it appropriate first to assess the evidence and attempt to establish the facts, pursuant to article 28 para 1(a) (art. 28-1-a) of the Convention. It would make a number of preliminary observations in this respect: i. there have been no findings of fact reached by domestic authorities as regards the applicant's complaints ... ."
74. Ibid.
75. The Commission's report, at para 180 states: "[i]n rape cases, the nature of the crime is often such that the credibility of the complainant is of particular importance. The Commission has not been persuaded of the existence of any motivation which would induce the applicant to lie and her family to support a fabricated story of this kind. On the contrary, both the applicant and her father were credible and convincing in their answers to questions and impressed as people who had suffered distressing events. The Commission regards the expression 'dirty things' as a euphemism for sexual acts. It considers that the applicant's oral testimony regarding 'dirty things' while naked can be considered in its context to support her statement to the public prosecutor and it would note that the Government do not deny that she complained of rape to the public prosecutor" (emphasis added).
76. Ibid., para 163.
77. Ibid., para 187. Significantly, the Court's judgment also refers to article 13 and to article 12 of the UN Convention, respectively enshrining the right to complain and have a case promptly and impartially examined by competent authorities, and to protection against further victimisation resulting from raising the complaint; and that a prompt and impartial investigation of any act of torture be undertaken. See Aydin v. Turkey, App. No. 23178/94, Judgment, 23 September 1997, para 48.
78. The judgment states, at para 83: "[w]hile 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" (emphasis added). Moreover, at para 86, "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' (emphasis added). Aisling Reidy, supra note 19, has noted how this finding "has implications for the prosecution of persons for violation of the laws of armed conflict or persons indicted for war crimes".
79. Aydin v. Turkey, App. No. 23178/94, Report, 7 March 1996, para 180.
80. As she had herself argued in her application to the Commission.
81. Kelly D. Askin, supra note 41, has made this point in relation to the Tadic judgment by the International Criminal Tribunal for the former Yugoslavia. On a similar note, see also Professor Charlesworth's critique of the Akayesu judgment in relation to rape and sexual violence as constitutive elements of the crime of genocide, reproduced note 41, supra. On this particular point, see the excerpt from the judgment, supra note 72, and from the Commission's report, supra note 69.
82. In this connection, interestingly, Lisa Kois, supra note 40, has noted that "the Convention was clearly meant to address a very particular human rights abuse: politically motivated violence directed against an individual by an official state actor. Individuals are seen as needing heightened protection from such violence".
83. Referring to Amnesty International's amicus curiae submission, the judgment states, at para 51: "Amnesty International noted that the rape of a female detainee by an agent of the State for purposes such as the extraction of information or confessions or the humiliation, punishment or intimidation of the victim was considered to be an act of torture under current interpretations of international human rights standards".
84. Hilary Charlesworth, supra note 41, p. 388.
85. See the codification of rape as a crime against humanity under certain circumstances in article 7 of the Statute of the International Criminal Tribunal for the former Yugoslavia, U.N. Doc. S/RES/827 (1993), annex, and in article 3 of the Statute of the International Criminal Tribunal for Rwanda, U.N. Doc. S/RES/955 (1994), annex. For more information, see also Kelly D. Askin, supra note 41.
86. Prosecutors. Akayesu, supra note 41. Prosecutor v. Furundzija (Case no. IT-95-17/1-T), Judgment, 10 December 1998, found that aiding and abetting in outrages upon personal dignity, including rape, constitutes a war crime. See AMNESTY INTERNATIONAL REPORT 1999, pp. 52-53, as well as Kelly D. Askin, supra note 41.
87. For the first time under international law, the Statute of the International Criminal Court, U.N. Doc. A/CONF. 183/9, articles 7 and 8, explicitly codifies rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and other forms of sexual violence as both crimes against humanity and war crimes.
88. This being so by virtue of the different strength of article 3 and 8 of the Convention. Leaving aside the term "respect" in article 8 - which has been critiqued by eminent commentators elsewhere (see for example, Janis et al., supra note 14, p. 226) - the right to respect for private and family life enshrined in article 8 of the Convention is subject to limitations (article 8(2) reads "[t]here shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".) as well as being one of the Convention rights subject to derogation (see article 15 of the Convention). By contrast, the prohibition of torture and inhuman or degrading treatment enshrined in article 3 is absolute, unqualified, and not subject to limitations or derogation.
89. In this respect, in discussing rape as torture, Dr. Purna Sen has in fact argued that, for example, marital rape is a more destructive human rights abuse than rape by a total stranger, including a state official. This being so by virtue of the fact that for the marital rape victim the sense of betrayal is per se much more devastating. "Domestic Violence Against Women as Torture: the case of India", paper presented by Dr. Purna Sen at "The Expert meeting on torture of women: confronting gender biases in the fight against torture", organised by Amnesty International's International Secretariat on 18 February 1997, on file with the author.
90. Supra note 4.
91. Osman v. United Kingdom, 28 October 1998, Reports 1998-VIII 3124, 29 E.H.R.R. 245. On this point, Janis et al., supra note 14, have remarked that "the Court has defined a state's positive obligation to protect human life against attacks by private persons to go beyond 'putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions'."
92. This being so not exclusively in the context of future article 3 findings but, speculatively, also as far as other Convention provisions are concerned.
93. See Aileen McColgan, supra note 9.
94. See the judgment of the House of Lords in R. v. A., supra note 10.
95. C.R. v. United Kingdom, Series A, No. 335-C, 22 November 1995; S.W. v. United Kingdom, Series A, No. 335-B, 22 November 1995. See Stephanie Palmer, Rape in Marriage and the European Convention on Human Rights: C.R. v. U.K., S.W. v. U.K., 5 Feminist Legal Studies 91 (1997).