Protection of Detainees from Sexual Violence under International Humanitarian Law

Abstract

This article addresses the question of whether current frameworks under international humanitarian law offer adequate protection to persons detained for reasons relating to armed conflict from crimes of sexual violence. Sexual violence against detainees is a persistent issue in both international and non-international armed conflicts. Sexual violence against male detainees is also a widespread issue, with men and boys constituting the bulk of persons detained in conflict, and also facing unique barriers in reporting abuses. An evaluation of current legal frameworks under the Geneva Conventions of 1949 and the Additional Protocols of 1977 identifies key fault-lines in the law, including a widespread statutory characterisation of sexual violence as a crime principally committed against women. Case law demonstrates a resultant tendency to conceptualise sexual abuse of male detainees as torture, rather than sexual violence. Additionally, state interpretations of the law reflect this absence of gender neutrality. Compliance mechanisms are furthermore held back by the lack of clarity and specificity of prohibitions on sexual violence against detainees in international and non-international armed conflicts. Ultimately, options for strengthening the law in this area are subject to the political will of states and carry the risk of winding back existing standards of protection. The development of a non-binding but standard-setting instrument devised with the support of states and specifically prohibiting the issue of sexual violence against detainees in gender- neutral and comprehensive terms may ultimately be the most effective means of strengthening existing legal frameworks.