Introduction
War and armed conflict have always left women disproportionately vulnerable to violence, especially sexual violence. Even with legal frameworks to protect human rights in conflict, women still face conflict-related sexual violence (CRSV), wartime rape, sexual slavery, and forced prostitution. These are not accidental acts but deliberate strategies to subjugate, terrorize, and destabilize communities. International Humanitarian Law (IHL) aims to protect women, yet legal gaps and weak enforcement still exist.
Feminist legal theory shows how patriarchal structures in legal institutions marginalize women’s experiences. From missing legal definitions of gender-based crimes to failures in prosecuting wartime rape as a war crime, laws have often failed women. Sexual violence has long been framed as a violation of honor, not bodily autonomy, showing the need for survivor-centered justice.
Historical and Legal Context of CRSV
According to Berman et al., “women’s bodies become a battlefield where men communicate their rage to other men because women’s bodies have been the implicit political battlefields all along.” In history, women have been targeted, and violence against them has been seen as a trophy by the victorious side. The losing side in war also targets women to show aggression from frustration due to defeat, explained by the frustration-aggression hypothesis by Dollard, which says, “The occurrence of aggressive behavior always presupposes the existence of frustration.”
Sexual violence does not end with war; the post-war period brings new suffering. Victorious parties have followed war customs of abducting women for sexual slavery, abusing them, and selling them to slave markets, treating such acts as a right of triumph. With time, such acts of CRSV are now widely recognized as a weapon of war used as a strategic tool, and international law has declared conflict-related sexual violence and wartime rape as crimes punishable by law.
Article 3 of the Geneva Convention prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment,” condemning sexual violence concerning family honor and community honor attached to the name of women. Moreover, Article 27(2) states that “[w]omen shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault.” Furthermore, Art. 75(2)(b) of Additional Protocol I prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution, and any form of indecent assault.”
Landmark Cases and Trials
The UN ICTY was one of the first tribunals for war crimes established by the UN on 25 May 1993 under UN Security Council Resolution 827 in the Netherlands and was operational until 31 December 2017. “FOČA” (IT-96-23 and 23/1) is one of the most important cases of the ICTY in this regard for convicting high-ranking officers for crimes against humanity for the act of rape and sexual violence. The case has been landmarked, as for the first time, rape and enslavement were treated as crimes against humanity under the statutes of law.
It opened the way for future adjudication of crimes against humanity, especially rape, torture, enslavement, and outraging personal dignity. Through its verdicts, the ICTY made sure that conventions and treaties written on paper were implemented by punishing perpetrators for their violence and treaty violations.
Legal Gaps: Promise on Paper vs. Practice
International law’s legal framework appears promising on paper, but in practice, major flaws and loopholes are exposed. The Council of Europe Parliamentary Assembly report “Rape in Armed Conflicts” notes that despite legal promises, ongoing rape and sexual violence in conflict reveal weak enforcement and protection. Law has criminalized war rape, yet it is still used as a weapon in cases like Kosovo and Chechnya, targeting vulnerable women.
Another key gap is the silence of victims due to fear, stigma, and privacy concerns, which is inherent to rape crimes. Although Roman Statutes, especially Article 68, guarantee to “protect the safety, physical and psychological well-being, dignity, and privacy of victims,” they failed to protect women, as seen in historical trials where victims rarely appeared or faced ill-treatment, reflecting patriarchal and misogynistic legal practices.
The Nuremberg Trials failed in delivering the justice they claimed, as they ignored rape despite widespread wartime violence. The structure of Nuremberg justice reflected victory for the powerful and punishment for the defeated, showing power politics and gender politics. Similarly, the Tokyo trials were criticized as imperialists imposed victor’s justice and overlooked violence against women. According to Susan Brownmiller (1976), rape was central to Nazi goals to conquer, humiliate, and destroy “inferior people” in pursuit of an “Aryan” race.
During Kristallnacht on November 9–10, 1938, the Nazi government committed violence and rape against Jews, and German soldiers also raped Russians and Poles. Yet rape was not explicitly listed as a crime in the Nuremberg Charter nor prosecuted, despite its implicit prohibition in international humanitarian law.
Moreover, the first ICC conviction involving rape was the 2016 trial against Jean-Pierre Bemba, which raised hopes for justice against sex crimes, as stated by Prosecutor Fatou Bensouda, who called it “an important day for international criminal justice.” But hopes faded in 2018 when Bemba was acquitted due to a lack of effective investigation. This failure highlighted an ICC pattern since 2002, as there have been no final convictions on conflict-related sexual violence and wartime rape, showing the ICC’s lethargy in securing justice for women victims.
The Security Council has also remained legally lethargic in protecting women from conflict sexual violence. In 2016, Bensouda criticized the Council’s “inaction” on Darfur prosecutions, calling it an “aggravating factor” that weakens the Council’s credibility in turning promises on paper into real protection.
Feminist Jurisprudence Insights
In the light of feminist legal theory, the four major loopholes are, firstly, systemic limitations, gender biases, and patriarchal structure are the boulders blocking the path of real accountability and justice for survivors. Moreover, in its essence, international humanitarian law is traditional in nature, with implementation primarily being state-centric. The nature of international law doesn’t center primarily on human experiences and lacks evolution.
Due to this, women’s experiences as victims of wartime rape have never been deliberately taken into consideration under high-profile trials and conventions. All the rulings and so-called justice have been state-centric and influenced by power politics. Human beings, hence, are nothing but objects of rules and principles, with the states occupying most of the privileges. This has made women suffer the painful consequences of injustice and brutality in the name of wartime rape and conflict-related sexual violence.
Secondly, legal statutes treat rape as “a violation of honor,” reflecting male-dominated political bias. Rape is a violation of bodily autonomy and human rights, which the law fails to recognize. Such male-dominated legal instruments focus entirely on political motives and harms like genocide but treat rape and sexual violence as secondary. Moreover, the patriarchal nature of law has been a core factor behind the absence of women in international legal forums that perpetuates silence. Such treatment reflects that international law has miserably failed to recognize gender-based crimes as a central violation.
Thirdly, the treatment of rape differs in the social setting and the legal setting. According to MacKinnon (1989: 172), “Under law, rape…is not regarded as a crime when it looks like sex.” This blunt, rather true statement exposes the judicial blindness of international humanitarian law, which was evident in the Tokyo trials when it failed to prosecute the sexual enslavement of “comfort women,” the failure to address German women’s victimization during the 1945 Soviet invasion of Berlin, the suggestive cross-examination of Muslim women during the Yugoslav conflict, and the silence of post-conflict justice mechanisms regarding forced marriage and other forms of coercive sexual encounters in conflict zones. These historical failures reflect how the law has been fixating on consent instead of sexual autonomy as a driving factor in securing a guilty verdict, making the authentic victim comply with her subjugation.
Lastly, sexual violence in war is rooted in patriarchal militarism. By patriarchal militarism, one means the amalgamation of military power and male dominance. It is a system in which military values and ethos are deeply rooted in patriarchal norms, playing a role in victimizing, weaponizing, dominating, and suppressing women in war and conflicts. Due to this, women have been victims of wartime rape and conflict-related sexual violence. According to legal scholars of feminist jurisprudence, the concept exists because in militarism, male hegemonic traits are ascribed, aligning with a patriarchal mindset, and hence they value traits like aggression, dominance, and violence, proving to be a motivating factor to exercise rape on women.
Concluding Remarks
Historically, women have been victimized and weaponized in war and conflict by being targets of conflict-related sexual violence, particularly wartime rape. International law has provided a legal framework and treaties as an effort to curb the menace of rape. As an ink of paper, international law promises utopian ideals. But when in the real world, where realist ideals dominate through the shadow of power politics, law fails to deliver the promise, and clouds of false hopes linger. In such a turmoil, feminist jurisprudence shines as a beacon of light in the forest of darkness by assessing the loopholes in legality and presenting a way forward for the protection of women.
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