¹ Aydin v Turkey (1998) 25 EHRR 251.

² Prosecutor v Akayesu, Case no ICTR-96-4-T, 2 September 1998.

³ See, for example, the Special Issue on Torture in (2006) 2 EHRLR, the Special Issue ‘Law as Cruelty: Torture as an International Crime’ (2008) 6 Journal of International Criminal Justice 157 and the debates surrounding attempts by the UK, and other governments, to review the Court's absolute protection from deportation to face torture or ill-treatment established in Chahal v UK (1997) 23 EHRR 413 and reiterated again in Saadi v Italy (Judgment) (37201/06) (28 February 2008).

⁴ MC v Bulgaria [2003] ECHR 646. See for example: Radacic, I, ‘Rape Cases in the Jurisprudence of the European Court of Human Rights: Defining Rape and Determining the Scope of the State's Obligations’ (2008) 3 EHRLR 357Google Scholar; Pitea, C, ‘Rape as a Human Rights Violation and a Criminal Offence: the European Court's Judgment in MC v Bulgaria’ (2005) 3 Journal of International Criminal Justice 447CrossRefGoogle Scholar; Londono, P, ‘Positive Obligations, Criminal Procedure and Rape Cases’ (2007) 2 EHRLR 158.Google Scholar

⁵ See Edwards, A, ‘The “Feminizing” of Torture under International Human Rights Law’ (2006) 19 Leiden J of Intl L 349CrossRefGoogle Scholar and citations therein.

⁶ A Clapham, Human Rights Obligations of Non-State Actors (OUP, Oxford, 2006) 1.

⁷ While this analysis focuses on rape, it has implications for all forms of sexual violence.

⁸ Aksoy v Turkey [1996] ECHR 68.

⁹ Aydin v Turkey (n 1) para 83.

¹⁰ ibid para 84.

¹¹ ibid para 85.

¹² ibid para 86.

¹³ Cyprus v Turkey (1982) 4 EHRR 482.

¹⁴ MC v Bulgaria (n 4).

¹⁵ For example, Costello-Roberts [1993] ECHR 16.

¹⁶ Ireland v UK (1979–80) 2 EHRR 25 para 162.

¹⁷ Moldovan v Romania [2005] ECHR 458 para 100.

¹⁸ For a criticism of this hierarchical, or ‘vertical’, approach, see Malcolm Evans ‘Getting to Grips with Torture’ (2002) 51 ICLQ 365.

¹⁹ Cyprus v Turkey (n 13) paras 371–374.

²⁰ There was no finding of torture, despite the evidence of mass rape, often committed with extreme violence and the evidence that the rapes were directed against Greek Cypriots, by Turkish forces, because of the differences in ethnic origin: Cyprus v Turkey, ibid, discussed in Zilli, L, ‘The Crime of Rape in the Case Law of the Strasbourg Institutions’ (2002) 13 Criminal Law Forum 245, 250–251CrossRefGoogle Scholar.

²¹ X and Y v the Netherlands [1985] ECHR 4.

²² SW & CR v UK [1995] ECHR 52 para 44.

²³ E v the UK, application no 33218/96, 26 November 2002, para 89.

²⁴ MC v Bulgaria (n 4).

²⁵ ibid para 153.

²⁶ The Court confirmed in Dikme v Turkey that assaults causing mental suffering ‘may fall within the scope of Article 3 of the Convention even though they may not necessarily leave medically certifiable physical or psychological scars’: [2000] ECHR 366, para 80.

²⁷ For a discussion of this research, see J Temkin, Rape and the Legal Process, (2^nd edn, OUP, Oxford, 2002) 2.

²⁸ W Young, Rape Study—A Discussion of Law and Practice, (Wellington, New Zealand: Department of Justice, 1983) 34, discussed in Temkin, ibid 1–3.

²⁹ V Wiehe and A Richards, Intimate Betrayal: Understanding and Responding to the Trauma of Acquaintance Rape (London, Sage, 1995).

³⁰ Prosecutor v Delalic, Judgment, IT-96-21-T, 16 November 1998, para 495.

³¹ Ireland v UK (1979–80) 2 EHRR 25.

³² Aksoy v Turkey (n 8) para 62.

³³ ibid.

³⁴ ibid para 63.

³⁵ ibid para 64.

³⁶ ibid.

³⁷ The Court did highlight other factors, such as the purpose of the treatment, namely for ‘obtaining admissions or information’: Aksoy v Turkey (n 8) para 64. Further, the status of the perpetrators was also likely to prove important, namely that the conduct in question was administered by the Turkish security forces in detention. These criteria are discussed further below.

³⁸ Prosecutor v Kunarac, (IT-96-23&23/1) Appeals Chamber, 20 June 2002, para 150.

³⁹ Kunarac, ibid paras 150–151.

⁴⁰ ibid. This has been affirmed in Braanin where it was said that rape is an act which ‘appears by definition to meet the severity threshold’: Braanin (IT-99-36) Trial Chamber, 1 September 2004, para 485.

⁴¹ C MacKinnon, Are Women Human? And Other International Dialogues (Cambridge, Harvard University Press, 2006) 17, reproduced from her earlier essay ‘On Torture: A Feminist Perspective on Human Rights’, in K Mahoney and P Mahoney (eds), Human Rights in the Twenty-first Century: A Global Challenge (The Netherlands, Martinus Nijhoff Publishers, 1992) 21.

⁴² Further discussed in C McGlynn, ‘Rape as “Torture”: Catharine MacKinnon and Questions of Feminist Strategy’ (2008) 16 Feminist Legal Studies 71.

⁴³ For example, in the specific Convention context, Ivana Radacic has argued that the Court should make clear that ‘any rape’ reaches the level of severity for a finding of torture (n 4) 363.

⁴⁴ ibid (n 41) 17.

⁴⁵ K Engle, ‘Feminism and its (Dis)Contents: Criminalising Wartime Rape in Bosnia and Herzegovina’ (2005) 99 AJIL 778, 813.

⁴⁶ Rhonda Copelon makes this argument in respect of survivors of domestic violence, though she still argues that such violence should be recognized as torture: ‘Intimate Terror: Understanding Domestic Violence as Torture’, in R Cook (ed) Human Rights of Women: National and International Perspectives (Pennsylvania, University of Pennsylvania Press, 1994) 116.

⁴⁷ Engle (n 45) 813.

⁴⁸ McGlynn (n 42).

⁴⁹ For a similar example, see the discussion around the term ‘genocidal rape’, discussed in McGlynn (n 42) 79–80.

⁵⁰ This ‘vulnerability’ is most evident in matters involving children and/or education. See for example A v UK (1999) 27 EHRR 611, discussed in Clapham (n 6) 373–374.

⁵¹ The ICTR and ICTY have also included ‘sex’ within their list of variables when considering whether torture has occurred. See further Burchard, C, ‘Torture in the Jurisprudence of the Ad Hoc Tribunals’ (2008) 6 Journal of International Criminal Justice 159, 165CrossRefGoogle Scholar.

⁵² On the harm of male rape: G Mezey and M King, Male Victims of Sexual Assault (2^nd edn, OUP, Oxford, 2000) and Rumney, P, ‘Policing Male Rape and Sexual Assault’ (2008) 72 Journal of Criminal Law 67.CrossRefGoogle Scholar

⁵³ Similar issues arose in Prosecutor v Delalic where the ICTY Trial Chamber emphasised that in considering whether rape gives rise to pain and suffering, one ‘must not only look at the physical consequences, but also at the psychological and social consequences of rape’ (n 30) para 486.

⁵⁴ However, even in such circumstances, it is not clear that a distinction on the grounds of ‘sex’ is justifiable.

⁵⁵ This argument is put forward in Colin Yeo, ‘Agents of the State: when is an official of the state an agent of the state?’ (2002) 14 International Journal of Refugee Law 509, 523.

⁵⁶ Aksoy (n 8) para 56.

⁵⁷ Delalic (n 30) para 495.

⁵⁸ In Costello-Roberts (n 15) Article 3 was not found to be violated where a step-father hit the victim with a slipper a number of times. On the contrary, in Tryer, application no 5856/72, judgment of 25 April 1978, the treatment of the victim who was ‘birched’ in the Isle of Man was found to constitute degrading treatment contrary to Article 3. Among the factors distinguishing the two cases, the Court in Tryer emphasized the ‘institutionalized character’ of the violence as being significant (para 33). This is akin to the argument being made here regarding the breach of trust where a state official commits the violent acts.

⁵⁹ In sentencing guidelines produced in England and Wales in relation to sexual assaults, including rape, a number of aggravating factors are listed which will increase sentence and these include the abuse of power and/or abuse of a position of trust: Sentencing Guidelines Council, Sexual Offences Act 2003—Definitive Guideline (London, Sentencing Guidelines Council, 2007), 9–10, available at: http://www.sentencing-guidelines.gov.uk/docs/0000_SexualOffencesAct1.pdf [accessed 26 May 2008].

⁶⁰ On the contrary, Radacic argues that whether ‘an individual was raped by a state agent or by a private individual should not be relevant in assessing the severity of treatment, as distinct from establishing the responsibility of the state’ (n 4) 364.

⁶¹ Aydin v Turkey (n 1) para 83.

⁶² It is certainly clear since Ilhan v Turkey [2000] ECHR 354 that for treatment to amount to torture it does not have to take place in state detention. In this case, the victim was beaten by security forces in a field near to his village, prior to being taken into detention. Thus, while the treatment under examination did not exclusively take place in detention, it was an element of the case and the fact of being taken into detention did confirm state involvement and the vulnerability of the victim. So, while the acts do not all need to take place within detention, to presage a finding of torture, thus far it has been an element in all torture cases. It would certainly be an arbitrary distinction were the place of the conduct in question to become a criterion for a finding of torture. Note that there is no specification regarding the place of the torture in the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, S Treaty Doc No 100-20, 1465 UNTS 85, 114 (entered into force on 26 June 1987) Article 1.

⁶³ The ICTY recognized in Kunarac, when considering the crime of enslavement, that even when the women involved had the physical means to leave the house in which they were being held, via keys or the house being left open, in practice this was not a reasonable possibility as they had nowhere else to go and had no place to hide from their persecutors even had they left. They therefore had ‘no realistic option whatsoever to flee the house’ (n 38) para 742.

⁶⁴ Rhonda Copelon has examined the criterion of state detention for a finding of torture in the domestic violence context and explains the reality that victims of domestic abuse do indeed feel imprisoned in their own homes and unable to leave. They are in effect in detention; detention at the hands of their abusers. Women do theoretically have the opportunity to leave, but it is now generally accepted that this does not conform to the reality of the victim's experience: Copelon (n 46) 138.

⁶⁵ D Blatt, ‘Recognizing Rape as a Method of Torture’ (1991–1992) 19 New York University Review of Law and Social Change 821, 851. Indeed, Blatt continues that in some circumstances of rape, such as mass rape, the ‘intimidation of a populace is most effectively accomplished when officials rape women in their homes because family members often witness the attack and share the feelings of degradation and powerlessness’ 851.

⁶⁶ Aksoy (n 8) para 63.

⁶⁷ For a discussion of this requirement in international criminal law, see Burchard (n 51).

⁶⁸ As discussed in E Smith, ‘A Legal Analysis of Rape as Torture: Article 3 ECHR and the Treatment of Rape within the European System’ in Michael Peel (ed) Rape as a Method of Torture (Medical Foundation for the Care of Victims of Torture, Report No 1000340, 2004) 202.

⁶⁹ Malcolm Evans discusses the practice of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment of Punishment, which reports on the operation of Article 3, to reserve the term ‘torture’ to describe activities inflicted for a particular purpose and which have usually required some form of ‘preparation’, largely in terms of equipment for the conduct of torture. Were such an approach to be adopted, in general, to torture it would be regrettable as it would preclude acts of sexual violence which generally do not require, though often involve, forms of equipment. See Evans (n 18) 374.

⁷⁰ R Copelon, ‘Gender Crimes as War Crimes: Integrating Crimes against Women into International Criminal Law’ (2000–2001) 46 McGill Law Journal 217, 234.

⁷¹ See further McGlynn (n 42).

⁷² K Askin, ‘Prosecuting Wartime Rape and Other Gender-Related Crimes under International Law: Extraordinary Advances, Enduring Obstacles’ (2003) 21 Berkeley Journal of International Law 288, 347.

⁷³ Selmouni v France (2000) 29 EHRR 403, para 101.

⁷⁴ ibid.

⁷⁵ The Greek case, [1969] 12 YB 1.

⁷⁶ ibid 186.

⁷⁷ Indeed Evans argues that the Commission and Court ‘have never fully subscribed to the severity of suffering approach, despite their mantra-like espousal of it over the years’: (n 18) 373.

⁷⁸ In Aydin v Turkey the Court stated that the conduct in question was ‘for a purpose, which can only be explained on account of the security situation in the region … and the need of the security forces to elicit information’: (n 1) para 85. These points were made without hearing evidence on this particular point. In other words, it was just assumed that this was the reason for the conduct and that this satisfied any insipient ‘purposive’ criterion. This is also the case in the more recent case of Dikme v Turkey (n 26).

⁷⁹ Ilhan v Turkey (n 62) para 85; Salman v Turkey (2002) 34 EHRR 17, para 114. See also Akkoc v Turkey (2002) 34 EHRR 51; Mahmut Kaya v Turkey [2000] ECHR 129, para 117.

⁸⁰ Ilhan v Turkey ibid; Salman v Turkey ibid. UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (n 60), Article 1: ‘For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.’

⁸¹ ibid.

⁸² Zilli has criticized the reference to the purpose for which Aydin was raped as this ignores the fact that not only was her rape an action of discrimination on the grounds of her ethnicity, being Kurdish, but also of gender discrimination—she was raped because she was a woman: (n 20) 261–262.

⁸³ Egmez v Cyprus (2002) 34 EHRR 29, para 78 and Denizci and others v Cyprus [2001] ECHR 351, para 384.

⁸⁴ Edwards (n 5) 375–376.

⁸⁵ Kunarac (n 38), para 816.

⁸⁶ ibid.

⁸⁷ Delalic (n 30) para 941.

⁸⁸ Askin (n 72) 324.

⁸⁹ There is some debate as to whether or not this is the definitive conclusion from this case. In the subsequent Kunarac case the Trial Chamber held that rape and torture could be cumulatively charged. Rosalind Dixon has suggested this means, implicitly, that ‘rape does not inherently embody gender discrimination as a constituent mental element’: Dixon, R ‘Rape as a Crime in International Humanitarian Law: where to from here?’ (2002) 13 European Journal of International Law 697, 700CrossRefGoogle Scholar, citing paras 443–460 of Kunarac (n 38). However, it could equally be the case that not every rape is torture as the other conditions for a finding of torture are not met. In this light, once the other prerequisites have been satisfied, the purposive burden has also been met.

⁹⁰ Prosecutor v Kvocka, ICTY-98-30-T (2 November 2001) para 560.

⁹¹ See the discussion in Edwards (n 5) 375–376 and Smith (n 68) 206.

⁹² H Burgers and H Danelius, The United National Convention Against Torture—A Handbook on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Dordrecht, Martinus Nijhoff, 1988) 118, discussed in Copelon, ‘Recognising the Egregrious in the Everyday: Domestic Violence as Torture’ (1994) 25 Columbia Human Rights Law Review 291, 329.Google Scholar

⁹³ Niarchos, C, ‘Women, War and Rape: challenges facing the ICTY’ (1995) 17 Human Rights Quarterly 649, 650.CrossRefGoogle Scholar

⁹⁴ MacKinnon rightly asserts that sexual assault is ‘best understood as social—attitudinal and ideological, role-bound and identity-defined—not natural’. In other words, there is no biological reason or justification, as such an explanation would not explain female sexual aggressors and male victims, or why many men do not sexually assault others (n 41) 240–241. That rape and sexual assault is gender based is also internationally accepted in various instruments including the UN Convention on the Elimination of all forms of Discrimination Against Women and the Council of Europe: MacKinnon (n 41) 241.

⁹⁵ ibid (n 41) 22.

⁹⁶ Bunch, C, ‘Women's Rights as Human Rights: Towards a Re-vision of Human Rights’ (1990) 12 Human Rights Quarterly 486, 491.CrossRefGoogle Scholar

⁹⁷ Askin, K, ‘Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status’ (1999) 93 AJIL 97, 103.CrossRefGoogle Scholar

⁹⁸ Copelon, R, ‘Surfacing Gender: Re-Engraving Crimes Against Women in Humanitarian Law’ (1994) 5 Hastings Women's Law Journal 243, 246.Google Scholar

⁹⁹ Copelon ibid.

¹⁰⁰ CEDAW GR No 19: Violence Against Women, UN Doc A/47/38 (1992), para 6, discussed in Edwards (n 5) 377. See also Copelon (n 46) 134.

¹⁰¹ Discussed in Hilary Charlesworth and C Chinkin, The Boundaries of International Law (Manchester University Press, Manchester, 2000) 235.

¹⁰² R v Oslin [1993] 4 SCR 595, 669.

¹⁰³ Recommendation of the Committee of Ministers of the Council of Europe on the Protection of Women Against Violence (2002), para 35, referred to in MC v Bulgaria (n 4) paras 101 and 162, emphasis added.

¹⁰⁴ Council of Europe, Committee of Ministers, Recommendation Rec (2002) to member states on the protection of violence against women, 30 April 2002.

¹⁰⁵ MC v Bulgaria (n 4) para 165, emphasis added.

¹⁰⁶ Akayesu (n 2) para 597.

¹⁰⁷ Discussed in Edwards (n 5) 382–384.

¹⁰⁸ Prosecutor v Furundzija (Judgment) ICTY-95-17/1-T, 10 December 1998, para 162.

¹⁰⁹ ibid paras 124, 130. Subsequent case law has doubted whether ‘humiliation’ is a prohibited purpose: see Krnojelac (ICTY-97-25), Trial Chamber, 15 March 2002, para 186 and Simic et al (ICTY-95-9), Trial Chamber, 17 October 2003, para 79, both discussed in Burchard (n 51) 168–170.

¹¹⁰ As discussed in Edwards (n 5) 375.

¹¹¹ On the status of the UN Convention approach to torture, the ICTY has opined that there is ‘now a general acceptance of the main elements contained in the definition set out in article 1’ of the UN Convention: Furundzija (n 108) para 153.

¹¹² N Rodley, ‘The Evolution of the International Prohibition of Torture’ in Amnesty International, The Universal Declaration of Human Rights 1948–1988: Human Rights, the UN and Amnesty International, 63, discussed in H Charlesworth, C Chinkin and S Wright ‘Feminist Approaches to International Law’ (1991) 85 AJIL 613, 628.

¹¹³ Article 1 (n 62).

¹¹⁴ P Alston, ‘The “Not-a-Cat” Syndrome: Can the International Human Rights Regime Accommodate Non-State Actors?’ in P Alston (ed), Non-State Actors and Human Rights (OUP, Oxford, 2005) 3, 4. See also McCorquodale, R, ‘An Inclusive International Legal System’ (2004) 17 Leiden J of Intl L 477.CrossRefGoogle Scholar

¹¹⁵ Edwards (n 5) 368.

¹¹⁶ Charlesworth et al (n 112) 629.

¹¹⁷ Evans (n 18) 378.

¹¹⁸ In relation to acts by State actors, the Court does appear willing to draw the net wider than just state sanctioned acts. In Cyprus v Turkey (1982) 4 EHRR 482 while there was no finding of torture for the rape of Cypriot women by Turkish soldiers, there was inhuman treatment carried out by ‘State actors’ which was beyond their official authority. This responsibility for ultra vires acts has been accepted by the Human Rights Committee responsible for the implementation of the International Covenant on Civil and Political Rights. The Human Rights Committee has found that State responsibility extends to ultra vires acts of State officials, HRC GC no 7, para 2, by stating that state responsibility extends to acts ‘whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity’: HRC GC no 20, paras 2 and 13, discussed in Edwards (n 5) 365. This is a logical extension in the scope of acts attributed to States in that a victim may not know whether the person is acting under State authority, or ultra vires, and due to that lack of knowledge, the perception of the nature of the ill-treatment does not change. In other words, the aggravation of the harm of rape by a state official, as discussed above, is present whether or not the person is acting within their authority or not. Equally, control exercised by the state over its officials may well be greater if liability extends to ultra vires acts. Therefore, it is argued that the European Court should develop its jurisprudence, if/when confronted with this issue, to extend liability for ultra vires acts to encompass tortuous treatment, following the international example of the Human Rights Committee.

¹¹⁹ Kaya v Turkey [2000] ECHR 129, para 114.

¹²⁰ ibid para 117.

¹²¹ ibid para 118.

¹²² Selmouni v France (n 73) para 101.

¹²³ D v UK (1997) 24 EHRR 423, para 49.

¹²⁴ ibid para 49, discussed in McCorquodale, R and La Forgia, R ‘Taking off the Blindfolds: Torture by Non-State Actors’ (2001) 1 Human Rights Law Review 189, 210–211.CrossRefGoogle Scholar

¹²⁵ (120/1998), 7 IHRR (2000). Discussed in McCorquodale and La Forgia, ibid 193–198.

¹²⁶ Edwards (n 5) 374.

¹²⁷ Edwards (n 5) 388.

¹²⁸ With the obvious exception of the Balkan conflict.

¹²⁹ Dzemajl v Yugoslavia, Communication No 161/2000, UN Doc CAT/C/29/D/161/2000 (11 November 1999) para 9.2.

¹³⁰ ibid para 9.2.

¹³¹ Note that there was an Individual Opinion submitted by two members in dissent at the Committee's decision which argued that the conduct in question did amount to torture within the meaning of Article 1 of the UN Convention, discussed in Edwards (n 5) 373.

¹³² Edwards (n 5) 373.

¹³³ Z v UK (2002) 34 EHRR 3. See also Al Adsani v UK (2002) 34 EHRR 11, para 38: ‘It is true that taken together, Articles 1 and 2 place a number of positive obligations on the High Contracting Parties, designed to prevent and provide redress for torture and other forms of ill-treatment.’ See also A v UK (1999) 27 EHRR 611, para 22.

¹³⁴ Z v UK, ibid.

¹³⁵ ibid para 73.

¹³⁶ Evans (n 18) 379.

¹³⁷ Kaya (n 119) para 74.

¹³⁸ ibid para 116.

¹³⁹ ibid.

¹⁴⁰ ibid para 115.

¹⁴¹ ibid.

¹⁴² N Rodley, The Treatment of Prisoners under International Law, (2^nd edn, Clarendon Press, Oxford, 1999) 100, quoted in McCorquodale and La Forgia (n 124) 206.

¹⁴³ As suggested by McCorquodale and La Forgia (n 124) 206.

¹⁴⁴ Edwards (n 5) 374.

¹⁴⁵ Evans (n 18) 379.

¹⁴⁶ Clapham (n 6) 376.

¹⁴⁷ Edwards (n 5) 375.

¹⁴⁸ Report of the Secretary-General submitted pursuant to Commission Resolution 1998/29, 18 December 1998, UN Doc E/CN.4/1999/92, para 12, discussed in Clapham (n 6) 15.