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Rape as torture : an analysis of sexual torture in international humanitarian law and the domestic law of Sri Lanka Merry, Michelle Elizabeth

Abstract

Sexual violence has become an increasingly visible aspect of armed conflict. Over the last decade, feminists have critiqued the lack of attention given to sexual violence in international humanitarian law and have made important contributions to the developing area of international criminal law by bringing a gender perspective to that field. This thesis examines whether characterizing rape as torture is the best way to respond to the injustices suffered by women during armed conflict. Charging rape as torture offers substantive benefits; yet, such a characterization risks leaving the sexual and gender aspects of the crime invisible. First, I examine the development of recognizing rape as torture by reviewing jurisprudence from the ICTY, ICTR, and regional human rights courts. Second, in order to measure the potential benefits of characterizing rape as torture in national legal systems, I examine reports of custodial rape from Sri Lanka and analyze provisions in Sri Lankan law which could be used to deal with such cases. I conclude that characterizing rape as torture offers significant legal advantages; however, in order to properly recognize the experiences of women who have suffered rape during armed conflict both rape and torture should be charged. The central element in the crime of rape is that a physical invasion of a sexual nature occurred under coercion, whereas the central element in torture is that an act of severe pain or suffering took place.

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