There is no doubt that sexual violence has been used as a warfare strategy by Da’esh in Iraq and Syria. Over the past three years, there have been increasing stories of women and girls, and men and boys, being subjected to sexual violence by Da’esh as they push forward with their war and extremist agenda. While there is currently no comprehensive data, reports begin with tens of thousands of women and girls being kidnapped, raped and forced into marriage by Da’esh fighters in Iraq and Syria.

Sexual violence is a serious violation of the laws of war when committed as part of an armed conflict. The conflict between Da’esh and other parties is classified as a non-international armed conflict for legal purposes, because Da’esh are a non-state armed group. In a non-international armed conflict, it is a war crime to commit “rape, sexual slavery, enforced prostitution, forced pregnancy, … enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions” under article 8 of the Rome Statute.

Common article 3 of the Geneva Conventions, contains an absolute obligation regarding humane treatment. It particularly prohibits violence to life and person, including cruel treatment and torture; and outrages upon personal dignity, especially humiliating and degrading treatment. Rape and other forms of sexual violence can fall under one or more of those prohibitions, as outlined by a number of international criminal tribunal decisions. The new ICRC Commentaries to Geneva Convention I states “sexual violence encompasses acts such as rape, enforced prostitution, indecent assault, sexual slavery, forced pregnancy and enforced sterilization… Sexual violence has also been considered to include acts such as forced marriage, forced inspections for virginity, sexual exploitation, such as obtaining sexual services in return for food or protection, forced abortions, and trafficking for sexual exploitation.”

Additional Protocol II  to the Geneva Conventions (1977) also prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault” with regard to any person not directly participating in hostilities.

Charges can be bought against commanders for ordering or allowing sexual violence to take place, even if they were not directly responsible as an individual for the sexual violence. The landmark case for holding military leaders responsible for sexual violence perpetrated by their subordinates was the Čelebići judgement of the International Criminal Tribunal for the former Yugoslavia. Having known or had reason to know subordinates sexually abused detainees, the superiors in the Čelebići Camp were charged with superior responsibility for ‘wilfully causing great suffering’ and ‘inhumane treatment’ as grave breaches of the Geneva Conventions, or ‘cruel treatment’ as a violation of the laws or customs of war. More recently, the International Criminal Court found Jean-Pierre Bemba Gombo guilty of three counts of war crimes (murder, rape, and pillaging), along with other crimes, in the Central African Republic. He was charged as a military commander with effective authority and control over the forces that committed the crimes.

The suite of United Nations Security Council Resolutions (UNSCR) on Women, Peace and Security add to the international legal architecture on sexual violence in armed conflict. The first of those resolutions, UNSCR 1325 emphasised “the responsibility of all States to put an end to impunity and to prosecute those responsible for genocide, crimes against humanity, and war crimes including those relating to sexual and other violence against women and girls”. UNSCR 2106 also states that serious sexual violence in armed conflicts constitutes war crimes. It “calls upon Member States to comply with their relevant obligations to continue to fight impunity by investigating and prosecuting those subject to their jurisdiction who are responsible for such crimes; encourages Member States to include the full range of crimes of sexual violence in national penal legislation to enable prosecutions for such acts,” and “recognizes that effective investigation and documentation of sexual violence in armed conflict is instrumental both in bringing perpetrators to justice and ensuring access to justice for survivors.”

Many other Security Council resolutions have emphasized this obligation and have called for an end to impunity for sexual violence in armed conflict. Most recently, UNSCR 2242  reiterated the need for the “implementation of relevant obligations under international humanitarian law and international human rights law.” It also affirmed “the primary role of Member States to implement fully the relevant provisions of Security Council resolutions on women, peace and security”. As such, this obligation under international humanitarian law to search for, investigate and punish persons who violate international humanitarian law is well established.

In Australia, war crimes and violations of the laws and customs of war are criminalised in the Geneva Conventions Act 1957 (last updated in 2009) and the War Crimes Act 1945 (last updated in 2010). These two acts have been incorporated in Division 268 of the Criminal Code Act 1995. Investigation and prosecution of these crimes also supports the implementation of Australia’s National Action Plan on Women, Peace and Security 2012-2018 which is designed to implement the United Nations Security Council Resolutions on Women, Peace and Security.