Prosecuting Wartime Sexual Torture: The Uneven Trajectory of International Jurisprudence

Sexual violence in armed conflict is rarely the product of a few undisciplined soldiers. In today’s major wars, it is frequently deployed as a deliberate method of domination, punishment, and control. Rape, genital mutilation and electrocution, forced nudity, and other forms of sexual abuse are used to humiliate individuals, extract information, punish perceived disloyalty, and terrorise communities; and often with the knowledge, tolerance, or direction of those in authority.

The evidence from contemporary conflicts is overwhelming. In Ukraine, Russian forces have committed rapes, genital electrocutions, and mock castrations against civilians and prisoners of war, with men comprising a significant proportion of victims. In the Democratic Republic of Congo, the United Nations has long documented widespread sexual violence, including a sharp rise in child abuse and gang rape. The Prosecutor of the International Criminal Court (ICC) has warned of weaponized sexual violence in Sudan. Following the attacks of October 7, 2023, credible reports have documented sexual torture inflicted on Israeli victims and hostages in Gaza, as well as sexual torture against Palestinian detainees in Israeli custody. Medical research confirms the systematic sexual torture of detainees, particularly men, during the Syrian conflict.

These are not isolated or incidental acts. They are embedded within broader systems of coercion and violence, often used alongside other methods—beatings, stress positions, deprivation—to break the will of victims and communities. In my report to the General Assembly as the United Nations Special Rapporteur on torture (A/79/181), it was clear that wartime sexual violence almost invariably satisfies the elements of torture or other inhumane acts. I argued that there are sound reasons why it should be investigated and prosecuted accordingly. That report, alongside the development of practical standards such as the Istanbul Protocol and survivor-centred initiatives including the Murad Code, reflects a growing recognition that sexual violence must be understood within the broader architecture of coercive abuse. Yet, despite progress, wartime sexual crimes remain under-investigated and under-prosecuted, and they are often narrowly framed as opportunistic conduct or reduced to gendered stereotypes that obscure both the diversity of victims and the structural nature of the violence.

This post builds on that work. Through a review of historic and recent jurisprudence, from the ad hoc tribunals to developments at the International Criminal Court, as well as evolving legal and policy approaches, it examines how and why sexual violence has come to be recognised as a form of torture, and the complexities and advantages of such charging. It traces the direction of travel: from early legal clarity to confused reluctant recognition, to doctrinal clarification, and today, to more recent inconsistencies in application. It also identifies what remains missing and ultimately asks whether investigators, prosecutors, and courts are prepared to hold perpetrators accountable for torture of a sexual nature in the same manner as they are prosecuted for non-sexual torture, and to do so consistently and rigorously.

Pre-ICC Jurisprudence

Wartime sexual violence is an ancient violation that has long been legally acknowledged as prohibited conduct in hostilities, yet prosecutions have lagged.

The first comprehensive work on systematizing international laws of war in 1625, De jure belli ac pacis, by Hugo Grotius concluded that rape, phrased as “the violation of women,” “should not go unpunished in war any more than in peace.” In the Lieber Code of 1863, rape against inhabitants in the invaded country was explicitly outlawed, punishable by death, being killed on the spot for disobeying an order to abstain from such violence, or by severe punishment (arts. 44 and 47). Torture to extort confessions was listed separately as an unlawful form of cruelty (art. 16).

The Regulations annexed to the 1907 Hague Convention (IV) implicitly prohibited rape and sexual assault in the form of protection of family honour and rights (art. 46). The 1919 War Crimes Commission established after the First World War, included “rape” and “abduction of girls and women for the purpose of forced prostitution” among the list of war crimes. Torture was in the same list of “breaches of the laws and customs of war.” Article 3 of the 1929 Geneva Convention implicitly prohibited sexual violence and rape by providing that “Prisoners of war are entitled to respect for their persons and honour. Women shall be treated with all consideration due to their sex.”

Then came the Nuremberg and Tokyo Charters after the Second World War, which did not, contrary to prior rules, explicitly enumerate sex crimes as war crimes. Although sexual violations were documented in the war, they were prosecuted under the rubric of “torture.” The Nuremberg Tribunal implicitly recognized sexual violence as “outrageous forms of torture” (p. 493). Control Council Law No. 10, used in subsequent trials held by Allied forces, listed rape as a crime against humanity. In Tokyo, rape was prosecuted as “inhumane treatment,” “mistreatment,” “ill-treatment,” and a “failure to respect family honour and rights.”

Similarly, the provisions of the 1949 Geneva Conventions relating to grave breaches and Common Article 3 do not expressly prohibit rape or other sexual offences. However, rape, enforced prostitution, and indecent assault against women are expressly prohibited in Article 27 of the Fourth Geneva Convention, Article 4(1) and 4(2) of Additional Protocol II, and Article 76(1) of Additional Protocol I.

Fast forward to the statutes of the ad hoc tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR). Key ICTY judgments established crucial principles. In Tadić, although the indictment included charges for the torture and gang rape of female detainees, those allegations were not pursued due to insufficient direct evidence. But Tadić was convicted for forcing male prisoners to sexually abuse one another, conduct capable of amounting to torture; the convictions were entered for “inhuman treatment” and “wilfully causing great suffering.” The judgment also addressed whether a single act of rape or torture can constitute a crime against humanity, affirming that even an isolated act may qualify if it forms part of, or is enabled by, a broader system of persecution or terror.

In the Čelebići case (Musić, Delić, Delalic, and Landžo), deputy camp commander, Hazim Delić, was convicted of torture for multiple rapes of a woman committed in detention. In the absence of rape as a grave breach crime in the ICTY’s Statute, the rapes were charged as “torture or inhuman treatment.” The Trial Chamber held that, “[W]henever rape and other forms of sexual violence meet the [torture] criteria, then they shall constitute torture, in the same manner as any other acts that meet this criteria.” In Furundžija, being forced to watch serious sexual attacks inflicted on another person was determined to be torture and the ICTY judges found unequivocally that “any form of captivity vitiates consent.”

In Kunarac, the ICTY held “[s]evere pain or suffering, as required by the definition of the crime of torture, can thus be said to be established once rape has been proved, since the act of rape necessarily implies such pain or suffering.” This case also removed the public official requirement for torture which was applied in subsequent cases.

The ICTR extended these principles. In Akayesu, the ICTR stated that rape, like torture, is used to intimidate, degrade, humiliate, discriminate, punish, control, or destroy. It also recognised rape as a constitutive act of genocide when used with specific intent to destroy a protected group. In Semanza, the ICTR found that the rape of women because of their ethnicity constituted torture as a crime against humanity.

Hybrid courts also expanded the jurisprudence. The Extraordinary Chambers in Cambodia held in Duch that rape could be prosecuted as torture. The Extraordinary African Chambers (EAC) in Habré recognised that male and female detainees suffered sexual violence and ill-treatment under Habré’s regime even as its analysis focused on the acts committed against women. Habré was convicted of rape and sexual abuse as crimes against humanity and torture. The War Crimes Chamber in Bosnia and Herzegovina permits cumulative charges and conviction for rape and torture. In Goran Mrđa, the Chamber held that this was permitted provided that “each of the crimes contains a distinct element which requires proof of a fact not required by other crimes (for rape – sexual penetration; for torture – the prohibited purpose).”

Trouble at the ICC

The Rome Statute of the ICC deliberately included rape, sexual slavery, enforced pregnancy, and other forms of sexual violence as distinct war crimes and crimes against humanity. This was considered an improvement on the ICTY and ICTR statutes to advancement of prosecution of sex-based crimes. Despite this, prosecutions have been extremely limited.

Only six of the 33 completed ICC cases have meaningfully addressed sexual crimes. Early investigations by the Office of the Prosecutor (OTP) were criticised for failing to prioritise sexual and gender-based crimes. Even when charges were included, the Pre-Trial Chamber sometimes declined to confirm them.

Early setbacks included Katanga, where despite the court finding that rape and sexual slavery took place, the defendant was acquitted of those charges due to what was arguably a higher standard of proof for modes of liability for such crimes. In Bemba, cumulative charges for torture and rape were rejected, and the conviction for rape was overturned on appeal due again to the strict approach to modes of liability.

Progress followed after the OTP’s first Policy on Sexual and Gender-Based Crimes (SGBC) in 2014. Ntaganda was found guilty of intra-party rape and sexual slavery. In Ongwen, the ICC found that the enslavement of women and girls who were then distributed to brigade members for forced sexual intercourse constituted torture as a war crime and crime against humanity.

The OTP’s 2023 Policy on Gender-Based Crimes recognises sexualized torture. It affirms that if the evidence meets the distinct elements of both rape and torture, cumulative charging is appropriate. In a recent case, Ali Kushayb/Al-Rahman, there were cumulative charges and convictions for both torture and gender persecution.

More recent setbacks include the Yekatom and Ngaïssona judgment, where only one leader was charged with rape and was acquitted because the Court held that the mental element for aiding or abetting rape had not been established. It was not enough, the Court said, that rape perpetration was “common knowledge.” This high standard of proof starkly contrasts with what we know: that sexual violence in war is prevalent and raises questions about impunity.

Finally, Al Hassan was acquitted of all SGBC charges, despite a majority finding the elements of the crimes and his responsibility under Article 25(3)(d) to have been made out. A notable aspect was a dissenting opinion rejecting the sufficiency of indirect evidence used to support the rape charges. This judicial caution, and the acquittals in the ICC’s most recent cases, underscore the persistent challenges in securing convictions for sexual violence.

The Way Forward

Across decades of jurisprudence, from the ad hoc tribunals to more recent policy developments at the ICC, it is now well established that sexual violence in armed conflict frequently meets the legal definition of torture when it is intentionally inflicted to punish, coerce, intimidate, or discriminate, and occurs in situations of custody, control, or power imbalance. The law is no longer the primary obstacle. The difficulty lies in application.

The task ahead is not to displace existing legal frameworks on rape and other forms of sexual violence, but to apply them alongside, and, where appropriate, through the established law of torture. The recognition of sexual violence as torture does not diminish the gravity or autonomy of offences such as rape; rather, it reinforces them by situating such acts within one of the clearest and most absolute prohibitions in international law. However, one does not need to establish the underlying sexual crimes to establish torture; one only needs to deal with the elements of the crime of torture itself.

In practice, the torture framework offers a more consistent and objective legal lens across jurisdictions, particularly where cultural, evidentiary, or doctrinal barriers have historically constrained the prosecution of sexual crimes. It is also inherently inclusive and non-gendered, capturing the full spectrum of victims—women, men, boys, girls, and LGBTI persons—and enabling a more complete account of wartime abuse. Importantly, it can shift the narrative away from stigma and silence often associated with sexual violence, and toward the unambiguous condemnation of perpetrators for acts of cruelty and domination. Over years, experts have developed investigative standards, such as the Istanbul Protocol and complementary guidance on effective interviewing, for documenting torture in contexts where physical evidence is scarce and survivor testimony is central.

For military practitioners and those engaged in the law of armed conflict, this is not an abstract doctrinal refinement but a matter of operational consequence. Where sexual violence meets the legal threshold of torture, it engages the highest obligations under the Geneva Conventions, the Convention against Torture, and customary international law: prevention, command responsibility, investigation, prosecution, and the provision of reparation and rehabilitation. These obligations are non-derogable and admit no justifications, defences, amnesties or immunities. Recognizing sexual violence as torture therefore strengthens, not weakens, the broader Women, Peace and Security agenda by ensuring that such crimes are addressed with the full weight of international law. The jurisprudence, while mixed, has opened doors to make this possible. The task now is to ensure that practice on the battlefield, in detention facilities, and in courtrooms, catches up.

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Alice Edwards is the United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment. Thank you to pro bono legal advice received from Freshfields and the team of Alexandra van der Meulen, Joshua Kelly, April Lacson, Miranda Shaw, Celine Leong and Gustav Brincat; as well as Grace Chen.

The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.

Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.

Photo credit: Ken Kahiri via Unsplash