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The Friedensstatue (statue of peace) (2020). © C.Suthorn / Creative Commons Attribution 4.0 International License / Free for use / Wikimedia Commons

Sexual and gender-based violence appears to have emerged as one of the most pervasive and destructive features of modern armed conflicts. Rape, sexual slavery and forced marriage are often considered as strategic weapons deployed to instil fear, displace populations and destroy communities. Although they have been long regarded as secondary harm in International Law, and have therefore been classified as either crimes against humanity or war crimes; these offences are not incidental by-products of war. Slavery and sexual violence, even when taken individually, are tools that can contribute to the destruction of a certain group, therefore reaching a genocidal feature and not only a corollary one.

As defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Article II), genocide is the deliberate perpetration of acts including killing, inflicting severe physical or mental harm, imposing detrimental living conditions, preventing birth rates and forcibly transferring children against a vulnerable group, with the intent of annihilating that group in its entirety or in part. Although the interpretation of “serious bodily and mental harm” has gradually been expanded by jurisprudence to encompass some forms of sexual violence, the conceptualisation of sexual slavery as a genocidal act has been seldom explored. This crime presents both features of slavery and sexual violence, making it intricately linked to a number of detrimental consequences. Among these consequences are repeated acts of rape and physical abuse, long-term harms such as reproductive incapacitation and forced impregnation, the social marginalisation of survivors and the breakdown of family and community structures.

Judicial bodies have historically classified sexual slavery under the category of crimes against humanity or war crimes, thereby constraining its recognition as a tool of group destruction, even though repercussions persist both on the individual and the collective level. The loss of the sense of identity and belonging due to the physical separation from the group is compounded by the effects of sexual slavery, which generates a profound erosion of the sense of self, severe psychological trauma and the marginalisation of victims by their families and communities. Slavery leads also to the dissolution of community links and of the relationships between the members. Indeed, the result of separating the components is that internal dynamics are affected, families separated and societal hierarchies compromised. The structure of the whole collectivity is, therefore, impacted if not damaged. Moreover, when enslaved individuals are subjected to sexual violence, they are forced to endure physical and sexual abuse, often in the form of sexually motivated torture, including systematic and extreme acts of brutality and severe bodily injury.

So far, considering the profound physical and psychological harm caused by sexual slavery, it is already clear that it can fulfil the conditions of a genocidal act on multiple levels. Additionally, its implications for communities or defined groups are also major. Sexual abuse may also lead to victims being unable to bear children or have to bear a child of rape, which in many cases results in the marginalisation of the mother and the baby from the community. Consequence of this is not only the destruction of the group in whole or in part, but also the creation of physical conditions or traumas that hinder the possibility of procreating within the group, and that therefore contribute to its extinction. When women are physically or emotionally unable to have children because of sexual violence, their family line ends. The consequences are such that the harm caused is often irreversible. These harms directly intersect with the physical and biological dimensions of destruction that the Genocide Convention seeks to capture.

Despite all this, the prevailing case law has exhibited a certain degree of reluctance in fully acknowledging this interconnection. Indeed, sexual slavery has been systematically employed to cause immediate physical and psychological harm and to destroy the social structure, reproductive capacity and identity of entire communities in conflicts, including those in Rwanda, the Democratic Republic of Congo, the Balkans and Iraq. These realities challenge the adequacy of international criminal law to account for the destructive force of this crime, as they perfectly showcased that the perpetration of sexual violence not only inflict harm upon its immediate victims but also exerts a detrimental impact on the community to which they belong: The undermining of an individual’s sexuality, reproductive rights and sexual health represents a direct assault on the individual but also on the collective. In terms of both intent and effect, sexual violence can be regarded as a method of destruction akin to any other employed to annihilate a population. When sexual abuse occurs within a context of enslavement, thereby constituting sexual slavery, the harms associated with both sexual violence and slavery converge at both the individual and collective levels. This harm is therefore amplified and able to achieve a higher level of destruction, since without women’s sexual health and integrity, the group is clearly unable to sustain its existence.

The interplay between the legal definition of genocide and the empirical realities in the aforementioned armed conflict shows that prevailing legal frameworks have frequently fallen short in adequately capturing the destructive nature of this offence. The jurisprudence of international courts has evolved steadily over time, yet significant gaps remain. As both the material and the theoretical foundations exist, the legal recognition of sexual slavery as an instrument of genocide is not only feasible but should also be considered a moral imperative, as it engenders forms of physical and biological destruction that are congruent with the acts enumerated by the Genocide Convention. Additionally, the continued reluctance to adopt this interpretation is not grounded in legal constraints, but it rather reflects conservatism, gender biases and the inertia of International Law.

Some obstacles to the full recognition of the genocidal feature of sexual slavery are, indeed, still present: Starting from the Genocide Convention itself, which does not explicitly mention sexual violence or sexual slavery as a means of achieving the destruction of a protected group, and extending to the lack of legal precedents, which has resulted in a gap in systematic interpretation and in the development of Customary International Law. However, it is important to note that this does not imply the absence of potential change and evolution in the current status quo of the law. On the contrary, judicial reasoning has increasingly adopted a more gender-sensitive perspective, thereby demonstrating the clear possibility of normative evolution in this direction. Indeed, as put forward above, the physical harm, psychological trauma, biological implications and the destruction of family and community ties inherent to the crime of sexual slavery reveals its capacity to annihilate both individual integrity and collective social structures. For all these reasons, as argued throughout this article, international law could, and should, still change. Such change is neither legally unfounded nor theoretically premature, but rather supported by existing material and conceptual bases within international criminal jurisprudence and critical legal scholarship.

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