204.
The Court has also found that rape “pursues the objective of intimidating, degrading,
humiliating, punishing or controlling the victim.”280
205.
For its part, the European Court ruled in the case of Aydin v. Turkey on the categorization of
sexual violence as torture. The European Court looked at the distinction drawn between certain types of
abuse that could be categorized as torture in the context of acts that are committed deliberately and cause
grave suffering, along with aspects such as the sex of the victim and the fact that she was a young woman. The
Court found that “the accumulation of acts of physical and mental violence inflicted on the applicant and the
especially cruel act of rape to which she was subjected” constituted torture.281
206.
In that same sense, in the framework of international criminal law, the International
Criminal Tribunal for the former Yugoslavia (the “ICTY”) has indicated that:
[...] the rape of any person to be a despicable act which strikes at the very core of human
dignity and physical integrity. The condemnation and punishment of rape becomes all the
more urgent where it is committed by, or at the instigation of, a public official, or with the
consent or acquiescence of such an official. Rape causes severe pain and suffering, both
physical and psychological. The psychological suffering of persons upon whom rape is
inflicted may be exacerbated by social and cultural conditions and can be particularly acute
and long lasting. Furthermore, it is difficult to envisage circumstances in which rape, by, or at
the instigation of a public official, or with the consent or acquiescence of an official, could be
considered as occurring for a purpose that does not, in some way, involve punishment,
coercion, discrimination or intimidation.
[...] Accordingly, whenever rape and other forms of sexual violence meet the aforementioned
criteria, then they shall constitute torture, in the same manner as any other acts that meet
this criteria. 282
207.
Similarly, the United Nations Special Rapporteur on Torture, Manfred Nowak, discussed in
detail the need for the “the torture protection framework [to be] applied in a gender-inclusive manner with a
view to strengthening the protection of women from torture.” Along these lines, he indicated that the
implications of classifying an act of sexual violence against a woman or rape as “torture” results in
strengthened “legal implications, which include the strong obligation to criminalize acts of torture, to bring
perpetrators to justice and to provide reparation to victims.”283He also stated that “other forms of sexual
violence, whether defined as rape or not, may constitute torture or ill-treatment18 and must not be dealt with
as minor offences.”284 The Rapporteur stated that in situations of violence against women, “the purpose
element is always fulfilled, if the acts can be shown to be gender-specific,” taking into account that
discrimination is one of the elements included under the definition found in the Convention against
Torture.285
280 Inter-American Court, Case of Rosendo Cantú et al. v. Mexico, Preliminary Objections, Merits, Reparations and Costs,
Judgement of August 31, 2010. Series C No. 216, para. 117.
281
ECHR. Case of Aydin v. Turkey (GC), Judgment of 25 September 1997, App. No. 57/1996/676/866, para. 82-86.
Case No. IT-96-21-T, Judgment, paras. 495 – 496, November 16, 1998. Also see: ICTY, Prosecutor v. Anto Furundzija,
judgment of December 10, 1998, para. 163. This judicial decision was upheld by the ICTY Appeals Chamber in a judgment issued July 21,
2000.
282
283 United Nations. Second Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment, Manfred Nowak, before the Human Rights Council. A/HRC/7/3. January 15, 2008, para. 26.
284 United Nations. Second Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment, Manfred Nowak, before the Human Rights Council. A/HRC/7/3. January 15, 2008, para. 35.
285 United Nations. Second Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment, Manfred Nowak, before the Human Rights Council. A/HRC/7/3. January 15, 2008, para. 27.