|No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.|
Rape and Other Forms of Sexual Violence
As result of sustained and concerted advocacy efforts, rape has now been recognized as a form of torture and as a war crime.
One of the first major breakthroughs came in 1986, when the Special Rapporteur on Torture of the UN Commission on Human Rights, at that time Professor Pieter Kooijmans, included rape in an enumeration of "methods of physical torture" in his first report to the Commission.2 In his oral introduction to his 1992 report to the Commission, Professor Kooijmans noted:
Since it was clear that rape or other sexual assaults against woman in detention were a particular ignominious violation of the inherent dignity and the right to physical integrity of the human being, they accordingly constituted an act of torture.3
Professor Kooijmans' recognition of rape as a form of torture has been reaffirmed by his successor, Sir Nigel Rodley.
In several reports issued between 1982 and 1994, the Inter-American Commission on Human Rights found that raped attributable to government forces constituted violations of the right to humane treatment assured by Article 5 without specifying whether the breaches amounted to torture or other forms of inhumane treatment. The distinction is significant because international law regards torture as a severe or an aggravated form of cruel, inhuman or degrading treatment or punishment. Since 1995, however, the Commission has forthrightly determined rape to constitute torture in violation of Article 5(2) of the American Convention.
Comparatively few of the cases decided by the European Court and Commission of Human Rights have involved allegations of sexual violence. For many years, when these bodies had occasion to consider such allegations, they tended to characterize rape as a form of "inhuman treatment" or a breach of the right to private life. In 1996, the European Commission finally found that the rape of a female detainee constituted torture within the meaning of Article 3 of the European Convention (the case of Aydin v. Turkey).
See further Henkin et al, Human Rights (1999) at 372 ff.
2. Report by the Special Rapporteur, Mr. P Kooijmans, appointed pursuant to Commission on Human Rights resolution 1985/33, UN Doc. E/CN.4/1986/15 at 29 (1986).
Peter Danchin, Columbia University