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EUROPEAN CENTER FOR CONSITUTIONAL AND HUMAN RIGHTS e.V. _ ZOSSENER STR. 55-58 AUFGANG D 10961 BERLIN, GERMANY _ PHONE FAX MAIL WEB +49.(030).40 04 85 90 +49.(030).40 04 85 92 INFO@ECCHR.EU WWW.ECCHR.EU

ECCHR Amicus Curiae

Sexual Violence as Torture

Berlin, August 2010

TABLE OF CONTENT

INTRODUCTION ...................................................................................................................... 2 a) Presentation ........................................................................................................................ 2 b) Purpose of the amicus curiae brief ..................................................................................... 3 c) Structure of the document .................................................................................................. 4 SECTION 1: Torture and Sexual Violence: General Overview ................................................ 6 a) Torture ................................................................................................................................ 6 i) International Law ............................................................................................................... 6 ii) Argentine Law .................................................................................................................. 10 b) Sexual Violence and Rape ............................................................................................... 11 i) International Law ............................................................................................................. 11 ii) Argentine Penal Law ....................................................................................................... 17 SECTION 2: Sexual Violence as Torture ................................................................................ 18 Stage 1: From Nuremberg to the Convention on the Elimination of All Forms of Discrimination Against Women in 1981 .............................................................................. 19 Stage 2: From the Convention on the Elimination of all forms of Discrimination against Women to International Law................................................................................................ 20 Stage 3: International and Regional Case Law .................................................................... 23 Stage 4: Considerations after the Rome Statute ................................................................... 27 Conclusion ............................................................................................................................ 28 SECTION 3: Sexual Violence as Torture committed in Argentina during the Military Dictatorship .............................................................................................................................. 29 a) Sexual violence in the clandestine centres of detention ................................................... 29 b) Legal analysis of sexual violence committed during the military dictatorship ............... 30 CONCLUSION ........................................................................................................................ 33

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INTRODUCTION
The European Center for Constitutional and Human Rights (ECCHR), based in Berlin, Germany, respectfully submits to the Court__________________ the present amicus curiae brief to the case ________________ .

a) Presentation

The European Center for Constitutional and Human Rights is an independent non-profit human rights organization registered in the municipality of Berlin-Charlottenburg. ECCHR works with a team of international lawyers and internationally recognized experts inter alia, Theo van Boven (University of Maastricht), Florian Jeberger (Humboldt University of Berlin), Annemie Schaus (Free University of Brussels), and Peter Weiss (Center for Constitutional Rights - CCR) on its Advisory Board, in addition to Michael Ratner (CCR), Lotte Leicht (Human Rights Watch) among others on its Board of Directors. ECCHR is devoted to protect individual persons as well as groups whose human rights have been violated or are at risk of being violated by state or private agents.

Through its Secretary General, Wolfgang Kaleck, ECCHR took part, along with other lawyers, in the criminal proceedings before German courts concerning the Argentine military dictatorship.

Co-signer Theo van Boven is an Honorary Professor of International Law at the European Law Department at Maastricht University. From December 2001 to December 2004, he was the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Previously, from 1977 to 1982, he served as Director of Human Rights of the United Nations. His firmness and determination in the fight against the

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violations of human rights committed in Argentina were remarkable. Under his mandate a working group was created devoted to elaborate a report about the forced abductions in the country. His defence of human rights in Argentina led to his UN contract being terminated in 1982 due to pressures from Argentina's de facto Government. He took part as a Member of the Sub-Commission of Human Rights and the UN Committee on the Elimination of Racism and Discrimination. Theo van Boven was also a Registrar at the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Head of the Netherlands Delegation to the Rome Conference. Nowadays he is a Member of the International Commission of Jurists and Member of the Board of the International Movement Against All Forms of Discrimination and Racism. In November 2009 he was given a doctorate honoris causa from the University of Buenos Aires as well as the Orden del Libertador San Martn by the Argentine Government, due to his defence of human rights in the country.

b) Purpose of the amicus curiae brief

The seriousness of the crimes committed by military and security forces in Argentina from 1976 1983 has damaged the entire international community. For that reason, several criminal complaints were submitted before domestic European courts under the principles of active and passive personality as well as universal jurisdiction, after the entry into force of the impunity laws in Argentina (Leyes de Obediencia Debida and Punto Final).

This amicus curiae brief is submitted in order to call the Court's attention to the universal acceptance of sexual violence and rape -as a special form of it- as torture when committed by state agents in the context of military repression, when those actions are perpetrated as a part of an orchestrated plan of repression.

It is also important to note that an interpretation and application of the crime of torture excluding the gender perspective, and in this case, excluding the sexual violence would be discriminatory and would have a substantially negative impact on international law and

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international human rights law. Sexual violence should therefore be considered as such in this case, precisely because the action was based on torture.

Finally, it is clear that sexual violence was committed in Argentina during the military repression against both men and women, and no matter the gender of the victim, these crimes must be considered torture. To be clear, however, this amicus curiae brief refers to those sexual crimes committed against women, since throughout history, women have been more likely to be victims of these types of crimes that aim to cause harm, in addition to attempting to humiliate, terrorize and insult its victims. Furthermore, these acts represent a form of discrimination that seriously inhibits womens abilities to enjoy equal rights and liberties.1

Consequently, Argentina, according to its exemplary trajectory on the confrontation and surmounting of its past, has in the present case the opportunity to develop model case law that can assist the international community and other countries undergoing similar historical proceedings, based on the notion of state sponsored sexual violence against women as torture.

c) Structure of the document The following amicus curiae brief contains three main Sections:

Section 1 analyses and describes the two crimes at issue: torture and sexual violence. Hence a description of torture is explored, within international treaties and customary law, crystallized as jus cogens. Then the incorporation of torture into the Argentinean Penal Code through the article 144 (3) is discussed. Next, a definition of sexual violence and rape as a special form of it will be explained from an international law perspective, highlighting the

L. Oppenheim, International Law: a Treatise, in: H. Lauterpacht (ed.), 7th ed. (London, New York: Longmans Green, 1948-1952), p.153.

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work of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, as well as its regulation by the Argentinean legislation through the articles 119 and following of the Penal Code.

Once these two general concepts are defined, Section 2 assesses sexual violence as torture including its evolution within international human rights and humanitarian law, pursuant to conventions, treaties and case law from international and regional courts.

Section 3 deals with the commission of sexual violence in the specific context of military repression in Argentina between 1976 and 1983. These crimes were generally committed in clandestine centres of detention as a part of a systematic and deliberate plan, orchestrated within the highest government levels. Due to the systematic nature of the attack against the civilian population, the actions committed should be considered crimes against humanity.2

The brief concludes with establishing the need for Argentina to investigate, prosecute and punish the perpetrators of the sexual violence committed against women during the dictatorship.

Inter alia Judgement of the Santa Fe Federal Criminal and Correctional Court of 15 February 2010 in BRUSA, Vctor Hermes- COLOMBINI, Hctor Romeo- RAMOS CAMPAGNOLO, Eduardo Alberto PERIZZOTTI, Juan Calixto - AEBI, Mara Eva - FACINO, Mario Jos S/ Inf. art. 144 ter, 1er. Paragraph of the Law 14.616; art. 144 bis incs. 1 y 2 y 142 inc. 1 last paragraph of the Law N 23.077 and art. 55 of the Penal Code", (File. No03/08) Lega description, pp. 365 and following. Judgement of the the San Martin Federal Criminal and Correctional Court No.1, August 2009 in the case 2005 and 2044, pp. 181 and following. Page 5

SECTION 1: Torture and Sexual Violence: General Overview

a) Torture

i) International Law

The international community has recognized torture as one of the most brutal and unacceptable assaults on human dignity, from which no region of the world has been able to free itself. The categorical and absolute prohibition of torture, inhumane and degrading treatment is expressly governed by numerous international conventions and also falls within the realm of customary international law. These prohibitions have crystallized into a jus cogens norm that cannot be derogated during peace, or during war, or under a pretext of imminent danger to national security.3 This unconditional and absolute prohibition against torture is recognized by every country as an international obligation, regardless of the treaties the state has ratified.

After the Second World War, on December 10, 1948, the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights, which includes Article 5 (No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment), which led to a subsequent regulation of torture on an international level. From that moment on, the international community encouraged the establishment of the International Covenant on Civil and Political Rights4 and the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment,5 which are the two main international instruments dealing with human rights violations by the state, including the human rights of persons under state custody.
M. Nowak and W. Suntinger. International Mechanisms for the Prevention of Torture, in: A. Bloed et al. (eds.), (1993) Observations of Human Rights in Europe - Comparison of the international procedures and mechanisms, Dordrecht, Nijhoff, 1993, pp. 145-168. 4 Art. 7 of the International Covenant on Civil and Political Rights, 16 December 1966. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984.
5 3

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Besides including situations of arbitrary detention and executions, both treaties contain international standards for the treatment of people within state custody.6 Torture is also prohibited under other international7 and regional instruments,8 as well as under criminal law and international humanitarian law.9

Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) defines torture as:

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.10

Radhika Coomaraswamy, Report of the Special Rapporteur on violence against women, its causes and consequences 1997/44 de la Commission (E/CN.4/1998/54) 26 January 1998, para. 147. 7 See e.g. Statutes of the International Criminal Tribunals for the former Yugoslavia, 25 May 1993, and Rwanda, 8 November 1994, and Rome Statute of the International Criminal Court, 17 July 1998. 8 E.g. American Convention on Human Rights (San Jos de Costa Rica, November 1969) and Convention for the Protection of Human Rights and Fundamental Freedoms (also known as the European Convention on Human Rights), 4 November 1950. 9 E.g. 1949 Geneva Convention and its Protocols. 10 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984). It came into effect 26 June 1987. Page 7

As Inter-American Court of Human Rights Judge Antonio Augusto Canado Trinidade expressed, the definition of torture11 contained in Article 1 of 1984 Convention against Torture of the United Nations, and in Article 2 of the 1985 Inter-American Convention to Prevent and Punish Torture,12 owes its meaning to international human rights jurisprudence, not to the definition of torture under domestic law.13 The defining elements of torture in both Conventions severe physical or mental suffering, intentionally inflicted to obtain information or a confession with the consent or acquiescence of officials or other persons acting in an official capacity were used in the holding of a 1970 case14 before the European Commission of Human Rights, and were subsequently elaborated upon by the European Commission and European Court of Human Rights in Ireland vs. United Kingdom.15 Regardless of whether it is covered by international treaties or conventions, or by case law, the absolute prohibition of torture emanates from the universal juridical conscience, which is the source of the most pre-eminent law.16

Accordingly, there are four principal elements necessary for conduct to be considered torture under the CAT:17 Severe pain or suffering, whether physical or mental: The intensity of the pain distinguishes torture from degrading treatment, but not from treatment that is cruel and inhumane. The severity does not need to be equivalent to the intensity of the pain accompanying serious physical harm.18
The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1987) refrains from defining torture. 12 Adopted and opened for signature, ratification and accession by General Assembly of the Organization of American States, at its fifteenth regular session, on 9 December 1985 in Cartagena de Indias, Columbia. Entered into force 28 February 1987 in conformity with Article 22, OEA No 67. 13 Concurring opinion of a judge on the Inter-American Court of Human Rights, A.A Canado Trinidade, in the case Maritza Urrutia v. Guatemala. Judgment 27 November 2003, p. 2. 14 Denmark, Norway, Sweden and the Netherlands v. Greece, Report of the Commission of 5 November 1969, Yearbook, Vol. 12, 1969. 15 Judgment of the European Court of Human Rights handed down January 18, 1978 in the case Ireland v. United Kingdom, Series A., N 25, paragraph 167. 16 Supra note 13, pg.3, para. 8 (Decision Judge Canado Trinidade). 17 Manfred Nowak, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (A/HRC/7/3), 15 January 2008. 18 Prior to the case Ireland v. United Kingdom, whose judgment was delivered by the European Court of Human Rights on 18 January 1978 (Series A No. 25, para. 96, 165 and 167), the European Commission on Human Rights indicated that the combination of 5 interrogation techniques (standing against the wall, hooding, Page 8
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The act should be perpetrated with intentionality: The intentionality requirement mandates an act that could foreseeably result in severe injury or mental or physical suffering. In this sense, it does not require that the person committing the crime specifically intend to commit torture or inflict severe injury or mental suffering, but rather it is enough that the cause of the suffering was a logical and probable consequence of the act.

The act should also be committed to achieve a specific purpose: Article 1 of the Convention lists a number of objectives for the infliction of torture, such as extracting a confession, intimidation or coercion, punishment, obtaining information regarding a third party, etc. This list is not exhaustive. Additionally, in the case Prosecutor v. Kunarac the International Criminal Tribunal for the Former Yugoslavia indicated that the conduct need not be solely perpetrated for one of the prohibited purposes but rather that the prohibited purpose must simply be part of the motivation behind the conduct and need not be the predominating or sole purpose.19

State Participation20: The Convention goes beyond the traditional concept of state

responsibility, including those acts which are not directly committed by state agents but
subjection to noise, deprivation of sleep, food and beverages) constituted torture. The European Court of Human Rights, however, concluded that while that such acts constitute inhuman and degrading treatment, they do not cause pain severity and cruelty required to be understood as torture. 19 Trial Court judgment of the ICTY in Prosecutor v. Kunarac, Kovac and Vukovic, 22 February 2001, para. 486, citing Prosecutor v Delalic and Others, Case IT-96-21-T, Judgment, para. 470 (ICTY, Nov. 16, 1998). 20 Judgment of July 29, 1988, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988), para. 119, in the case Velsquez Rodrguez v. Honduras, recognized that it was proved: a)That there existed in Honduras from 1981 to 1984 a systematic and selective practice of disappearances carried out with the assistance or tolerance of the government; b)That Manfredo Velsquez was a victims of that practice and was kidnapped and presumably tortured, executed and clandestinely buried by agents of the Armed Forces of Honduras, and c) That in the period in which those acts occurred, the legal remedies available in Honduras were not appropriate or effective to guarantee his rights to life, liberty and personal integrity. Thus the emphasis is on the work of the State to protect and ensure, with due diligence, the protection of the rights enshrined in international conventions.

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instead executed with the states consent or permission, either actively or passively, as well as those acts whose commission were possible due to a lack of state intervention. In terms of a public officials consent or acquiescence,21 state obligations extend to the private sphere, and as such the state should be responsible for protecting those within its jurisdiction from torture as well as from other degrading acts committed in private.22

Finally, it can be said that torture is the most serious violation of ones right to personal dignity and integrity, and therefore presupposes the helplessness23 of the victim, who is under total control of another without a way to defend him- or herself.

ii) Argentine Law

Torture is a crime that is also defined by Article 144 (3) of the Argentine Criminal Code.24 In

the Judgement from case 13/84, the Federal Court recognized that the physical and
21

Report of the Special Rapporteur on Torture, P. Kooijmans E/CN.4/1986/15, 19 February 1986, para. 38, states that: ...the authorities passive attitude regarding customs broadly accepted in a number of countries (i.e. sexual mutilations and other tribal traditional practices) might be considered as consent or acquiescence, particularly when these practices are not prosecuted as criminal offenses under domestic law, probably because the state itself is abandoning its function of protecting its citizens from any kind of torture. Similarly, Special Rapporteur Manfred Nowak, in his Report of the on torture and other cruel, inhuman or degrading treatment or punishment (A/HRC/7/3), 15 January 2008, para. 68, recognizes that the concept of acquiescence, aside from the protection obligations, entails a duty for the State to prevent acts of torture in the private sphere and recalls that the concept of due diligence should be applied to examine whether States have lived up to their obligations. 22 Radhika Coomaraswamy, Report of the Special Rapporteur on violence against women, its causes and consequences 1997/44 (E/CN.4/1998/54) 26 January 1998, II, Custodial Violence against Women, para 128, p. 31. 23 In this regard, Special Rapporteur Manfred Nowak, in his reports E/CN.4/2006/6/Add.1 para. 39-40 and Report of the on torture and other cruel, inhuman or degrading treatment or punishment A/HRC/7/3 para. 28, suggests the inclusion of a fifth element, the powerlessness of the victim, that is always the result of one person exercising total control See another, common in detention situations, in which a detained person can neither escape nor defend herself. 24 Article 144 (3): 1. Shall be punished with reclusion or imprisonment of eight to twenty five years and perpetual disqualification from any public official who imposes upon people, legitimately or illegitimately deprived of their liberty, any kind of torture. It is immaterial whether the victim is legally in the charge of the official; it is sufficient that the official has de facto power. The same penalty will be imposed on individuals committing the acts described. 2. If a victims death results by reason or result of torture, the prison sentence shall be detention or life imprisonment. If it causes any of the injuries pursuant to Article 91, the prison sentence shall be imprisonment of ten to twenty five years. Page 10

psychological abuse committed in secret detention centres was torture, as defined by Article 144 (3) of the Penal Code. The Court clarified that it was using the definition which existed at the time the crimes were committed, instead of the one in place during the cases proceedings. Currently, crimes perpetrated by state officials against detainees are still considered torture under Article 144 (3).25

b) Sexual Violence and Rape26

i) International Law

In International Law, no common definition of sexual violence had been developed before the promulgation of the Rome Statute.

When the International Criminal Tribunals for Former Yugoslavia and for Rwanda began their work, they encountered a lack of definition of sexual violence under international treaty and customary law and accordingly made great efforts to build a definition in accordance with international standards defining these crimes in such a way that they cover acts which were previously considered lesser offences, sexual assaults or indecent actions under national laws.27 The elements of the crime in the Rome Statute were formulated reflecting the case law of the ICTR and ICTY.

3. By torture it is meant not only physical torments, but rather also the imposition of mental suffering when they are of sufficient gravity. 25 E.g. Judgment of the trial Federal Criminal Court No. 1 of LA Plata, N 2251/06 Etchecolatz case pp. 99 and 106. 26 It is to note that along the whole document we will refer to sexual violence as a general crime and rape as a specific form of sexual violence. 27 Ad-Hoc Tribunal for the former Yugoslavia Trial Chamber, Prosecutor v. Furundzija, Judgment 10 December 1998, para. 179.

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The tribunals had to decide whether to follow a broad conceptual approach towards the crime or to apply a mechanical definition, which requires the penetration of certain parts of the victim's body by certain means. Additionally the discussion always involves the issue of consent.

Nevertheless, before focusing on the International Tribunals, it is to note that the United Nations Special Rapporteur Gay J. McDougall in her Report on systematic rape, sexual slavery and slavery-like practices during armed conflict defined sexual violence as any violence, physical or psychological, carried out through sexual means or by targeting sexuality.28 For her part, the Special Rapporteur believes that rape is included in the broader category of sexual violence, defining it as insertion, under conditions of force, coercion or duress, of any object.29

The Jurisprudence of the International Criminal Tribunals is embodied in the Akayesu case in which the ICTR formulated a definition of both rape and sexual violence. Refraining from using a mechanical description of objects and body parts, and from including the nonconsent requirement, the Tribunal defined the crime as follows:

Sexual violence, which includes rape, is considered to be any act of a sexual nature which is committed under circumstances which are coercive[...] Sexual violence is not limited to a physical invasion of the human body and may include acts which do not involve penetration or even physical contact.

Report of the Special Rapporteur Ms. Gay J. McDougall, about Contemporary forms of Slavery, E/CN.4/Sub.2/1998/13 of 22 de June of 1998, para. 21, quoting M. Cherif Bassiouni, Sexual Violence: An Invisible Weapon of War in the Former Yugoslavia, Occasional Paper No. 1, International Human Rights Law Institute, DePaul University College of Law (1996), p. 3. 29 Report of the Special Rapporteur Ms. Gay J. McDougall, about Contemporary forms of Slavery, E/CN.4/Sub.2/1998/13 of 22 de June of 1998 para. 24 "Rape" should be understood to be the insertion, under conditions of force, coercion or duress, of any object, including but not limited to a penis, into a victim's vagina or anus; or the insertion, under conditions of force, coercion or duress, of a penis into the mouth of the victim. Page 12

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Rape was formulated as:

a physical invasion of a sexual nature, committed on a person under circumstances which are coercive.30

The ICTY in Furundzija follows the definition established in Akayesu, but introduces additional criteria based on the criminal law principle of specificity, accepting objective elements of rape:

(i) Sexual penetration however slight: a. Of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or b. Of the mouth of the victim by the penis of the perpetrator;

(ii)

By coercion or force or threat of force against the victim or a third person.31

In Kunarac, the Trial Chamber found the emphasis on the coercive element in the Furundzija decision too restrictive and after a comprehensive comparison of several national criminal law systems highlights that the accent must be less on the exercise of coercion than on whether it occurred against the victim's will.32 Hence rape was defined as:

Sexual penetration, however slight: a. Of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or

Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, 598, 685 (Sept. 2, 1998) (International Criminal Tribunal for Rwanda, Trial Chamber), para. 688. 31 Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgment, 10 December 1998, para. 185. 32 Prosecutor v Kunarac and Kovac, Case IT-96 /23-T, and IT-96/23/1-T, 22 February 2001, paras. 441 et seq. Page 13

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b. Of the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victims free will, assessed in the context of the surrounding circumstances. The mens rea is the intention to effect this sexual penetration and the knowledge that it occurs without the consent of the victim.33

The Appeal Chamber however eased the need to prove the existence of coercion and the consent of the victim. It stated the need to presume non-consent in contexts like genocide, taking into account that such detentions amount to circumstances that were so coercive as to negate any possibility of consent as well as coercive circumstances presented, made consent to the instant sexual acts impossible.34 This decision was supported inter alia by the ICTR's Appeal Chamber in Gacumbitsi and the Trial Chamber in Muhimana.35 Thus, it was clarified that the prosecution may establish non-consent by proving coercive circumstances without having to introduce evidence of the victim's non-consent.36

Accordingly, an evolution can be noted not only of the acts committed in order to make a finding of sexual violence but also, and more importantly, an evolution when assessing consent of the victim and coercion on the part of the perpetrator. Regarding the former, International Jurisprudence has finally explained the irrelevance of consent in specific contexts, such as genocide and crimes against humanity, due to their inherent natures.

The Report of the Preparatory Commission for the International Criminal Court analyses the elements of crimes within the Rome Statute. The elements of rape, discussed in Article 7 (1)(g)-1 are:
Ibid., para. 460. Prosecutor v. Kunarac, Kovac and Vukovic IT-96/23-T and IT-96/23/1-A Appeals Chamber fo 12 June 2002, paras. 131, 132 and 133. 35 Prosecutor v. Gacumbitsi ICTR-2001-64-A , Appeals Chamber, 7 July 2006, para.153; Prosecutor v. Muhimana ICTR-95-1B-T, Trial Chamber III, 28 April 2005, para. 547. 36 Schomburg/Peterson, Genuine consent to sexual violence under International Criminal Law, American Jounal of International Law, Vol. 101, January 2007.
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1. The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.

2.

The invasion was committed by force, or by threat of force or coercion, such as that

caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.37

The elements of sexual violence pursuant to Article 7(1)(g)-6 are:

1. The perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such persons or persons incapacity to give genuine consent. 2. Such conduct was of a gravity comparable to the other offences in article 7, paragraph 1 (g), of the Statute.38

In both cases a person cannot give genuine consent if affected by natural, induced or age-related incapacity. In the same vein, article 70 of the Report of Evidence of Prosecution of the Preparatory Commission for the ICC is sufficiently broad to encompass a situation where a woman is seemingly consenting to sex, but is actually doing so because the alternativefor example a different form of violenceis less desirable.39
37

International Criminal Court, Elements of Crimes, U.N.Doc. PCNICC/2001/1/Add.2 (2000). One must note that the elements of rape and sexual violence are defined in the context of crimes against humanity. 38 Ibid. 39 United Nations Preparatory Commission for the International Criminal Court, Report of the Preparatory Commission for the International Criminal Court, U.N. Doc, Article 70, PCNICC/2000/1/Add.1 (2000). Page 15

Consequently, it is important to note that the definitions given by the ICC are a mix of the Akayesu and Furundzija definitions, as well domestic laws perspectives, focused in the coercion circumstances instead of the lack of consent. Unlike in Kunarac the consent of the victim is not included as an element of the crime in light of the context in which sexual violence is committed during international crimes such as genocide, war crimes and crimes against humanity, where the lack of consent can be presumed.40

Under both international human rights law as well as from international humanitarian law, the following conclusions can be drawn: - Sexual violence is not limited to the sexual act of penetration, but could include other behaviours. - Rape may be understood as a serious crime of sexual violence. - Women as well as men can be victim of these crimes given that the established elements are gender neutral.

Article 70 Principles of evidence in cases of sexual violence. In cases of sexual violence, the Court shall be guided by and, where appropriate, apply the following principles: (a) Consent cannot be inferred by reason of any words or conduct of a victim where force, threat of force, coercion or taking advantage of a coercive environment undermined the victims ability to give voluntary and genuine consent; (b) Consent cannot be inferred by reason of any words or conduct of a victim where the victim is incapable of giving genuine consent; (c) Consent cannot be inferred by reason of the silence of, or lack of resistance by, a victim to the alleged sexual violence; (d) Credibility, character or predisposition to sexual availability of a victim or witness cannot be inferred by reason of the sexual nature of the prior or subsequent conduct of a victim or witness. 40 L.M de BROUWER, Anne Marie, Supranational Criminal Prosecution of Sexual Violence. The ICC and the Practice of the ICTY and the ICTR, ISBN 90-5095-533-9. 2005, Intersentia. Page 16

- Coercion should be interpreted broadly, and not only in regard to physical strength, because there may be coercive circumstances in situations of abuse of power or psychological oppression, where it is not necessary to mediate physical strength. - Coercion presumes a lack of consent on the part of the victim, thereby rendering the conduct illegal.

Through the development of the definition of rape and sexual violence committed in a specific context, a precedent for investigating and prosecuting these crimes can be established, in order to ensure justice for victims and to help avoid the re-victimization that they often face.41

ii) Argentine Penal Law

Current Argentine penal law includes violations of sexual integrity in Title III of Chapter Two. After its modification through law 25087/99,42 this Title adopted the name Crimes against Sexual Integrity, substituting the former Crimes against Honesty. This modification protects the right of people to have a free, conscious, sexual relationship and to not have them against their will.

The amendment of the offences legal designation was broadened to 4 prongs:43 simple sexual assault, aggravated sexual assault (submission), sexual assault with carnal knowledge, and sexual assault performed by taking advantage of anothers sexual immaturity. Aggravated sexual assault set forth in paragraph 2 of Article 119 includes the type of abuse that by its

Amnesty International Media Briefing International Criminal Court: Clarifiying the scope of the crime of rape, 13 January 2009. AI Index: IOR 53/001/2009. 42 Law 25.087/99 passed 14 April 1999, promulgated 7 May 1999 and published in the Official Bulletin on the 14th of that month. 43 The three initial prongs are set out in Article 119, whereas the fourth is included in Article 120 of the Penal Code. Page 17

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duration or circumstances of its realization, has created a sexual submission that is gravely injurious to the victim, thereby introducing the elements of violence and threat or coercion. It is important to note that Law 25087/99 established new circumstances which render the proof of lack of consent unnecessary; however the existence of carnal contact is still required.44

SECTION 2: Sexual Violence as Torture

This section provides a chronological analysis of sexual violence as torture from international human rights and international humanitarian law, taking into account conventions, treaties and jurisprudence.

The struggle to achieve gender equality was still in its early stages when the United Nations was created in 1945. During the first three decades after its inception, its work on behalf of women centred on the recognition and codification of womens civil and legal rights, however it was clear that laws alone were not enough to ensure the equality of women.45 The United Nations Committee Against Torture, through its General Comment No. 2 on the Application of Article 2 by State Parties,46 took a large step forward towards the eradication of gender discrimination, recognizing that the status of women is combined with other characteristics or conditions peculiar to the person.47 This status often determines ways in which women and girls are put at risk for torture or maltreatment and its consequences. This achievement, although not sufficient, is the result of a series of actions undertaken by both international and regional courts, as well as by international organizations and womens

I + D CIC Project: Sexual violence and gender violence in state terrorism. Analysis of the relationship between sexual violence, torture, and human rights violations. Human Rights Center Emilio Mignone of the University of Quilmes and the Human Rights Center of the National University of Lans. December 2008, p. 30. 45 Extraordinary Session of the General Assembly of the United Nations to examine the Beijing Platform, New York, 5-9 November 2000. See www.un.org/spanish/conferences/Beijing/Mujer2011.htm 46 U.N. Comm. Against Torture, General Comment No. 2, Implementation of Article 2 by States Parties, U.N. Doc. CAT/C/28/Add.5, 24 January 2008, p. 7. 47 Ibid., para. 22. The characteristics stated are: race, nationality, religion, sexual orientation, age, or immigrant status. Page 18

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and human rights movements, to ensure that sexual violence committed against women under state custody is considered torture.

Stage 1: From Nuremberg to the Convention on the Elimination of All Forms of Discrimination Against Women in 1981

The treatment of sexual violence as torture, committed by state officials or under the consent or acquiescence of the state, is the result of a long process that has, over the years, overcome innumerable obstacles, both social and legal, to its full present day situation.

After the Second World War, there was no attention given to sexual violence offences. For example in the Nuremberg trial none of the major war criminals were indicted for crimes of sexual violence. In the Tokyo Trials, despite the 20,000 women and girls who were sexually exploited during the Nanking Massacre, there was also little significant progress.48 It is important to note that these crimes were also excluded from the Nuremberg and Tokyo charges, whose charges VI and V, respectively, list the offences that constitute crimes against humanity. Rather it had not been questioned that women working in military brothels, the so called comfort women were forced into prostitution as a form of sexual slavery by the Japanese military.49 The inattention to sexual

violence changed in the early 80's, when the debate about womens rights as human rights and the significance of protecting women from special forms of torture and violence gained prominence. And only in the 90s the large-scale sexist and racist abuse of the comfort women drew broad international attention but still no genuine reparations were afforded to the survivors. The current approach, mandates that crimes of sexual violence against women unlawfully deprived of their liberty, committed by state agents during the years of military dictatorship in Argentina, must in any case be regarded as torture, and therefore as crimes against humanity.

The charges against the accused were for having committed rape were for inhumane treatment, maltreatment and lack of respect for family honor and rights, charges that fall short of what actually occurred. 49 Yoshimi Yoshiaki, 2000, Comfort Women. Sexual Slavery in the Japanes Military During World War II, New York. Page 19

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Stage 2: From the Convention on the Elimination of all forms of Discrimination against Women to International Law

In 1981, the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) came into effect,50 and urged state parties to combat gender-based discrimination in order to establish a more egalitarian, peaceful, and just society. Nevertheless, sexual violence remained hidden yet again and was not expressly included within CEDAW.51 It was not until 1986, when the Special Rapporteur on Torture of the United Nations included sexual assaults, such as rape or insertion of objects into bodily orifices occurring in prison or in time of war, as a form of torture, asking that it be recognized under international human rights law and international criminal law.52

In 1991, Amnesty International denounced the lack of consideration of rape and other types of sexual violence as crimes which violate human rights. This report drew attention to the fact that women are especially vulnerable to state agents, and affirms that this type of violence is used to coerce, humiliate, punish and intimidate women. It also recognizes that sexual violence committed by state agents against women in custody, is no longer an act of private violence but an act of torture. Moreover it acknowledges that in many countries, the police use sexual violence as an interrogation technique. Apart from being one of the first reports that treats state-sponsored sexual violence as torture, it proposes eight steps to prevent rape, sexual assault, and other forms of torture and abuse of women in custody that are meaningless unless the government recognizes that sexual violence suffered by women is a major violation of human rights.53

On the Elimination of all forms of Discrimination against Women, adopted by the United Nations General Assembly in Resolution 34/180, 18 December 1979, and was entered into force 3 September 1981. 51 Copelon, Rhonda Gender violence as Torture: The contribution of CAT General Comment No.2., 11 N.Y City L. Rev. 229, 2007-2007, p. 234. 52 Torture and Other Cruel, Inhuman or Degrading Punishment: Report by the Special Rapporteur E/CN.4/1986/15, 19 February 1986. 53 Rape and Sexual Abuse: Torture and Ill-Treatment of Women in Detention (1991), available at: www.amnesty.org/en/library/info/ACT77/011/1991/en. Page 20

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Soon after, in 1993, the Declaration and Program of Action of the Vienna Conference recognized the United Nations concern regarding the various forms of discrimination and violence to which women are exposed.54 The human rights of women and girls were recognized as unalienable, integral and indivisible from universal human rights, and the Declaration called for women to have equal status and human rights, such that violence exercised against women would recognized as a violation of human rights.

Through the Declaration of the Elimination of Violence against Women, the United Nations made special reference to the definition of violence committed against women imprisoned in institutions or detained as:

Any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.55

Article 2 recognizes violence against women as Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs.56

The 1995 Fourth World Conference on Women in Beijing solidified what had been proposed in Vienna establishing once again that womens rights are human rights. It also identified twelve critical areas that required attention from member states, the international community and civil society, the most notable being violence against women.57

54 55

Vienna Declaration and Plan of Action, A/CONF.157/23, 12 July 1993. Convention on the Elimination of all forms of Discrimination against Women, A/RES/48/104 , 23 February 1994, Resolution of the General Assembly 48/104, 20 December 1993. The mandate of the Special Rapporteur on violence against women was created via Resolution 1994/45 of the Commission on Human Rights, 4 March 1994, to collect and analyze comprehensive information and recommend measures to eliminate violence against women on grounds of sex, at the international, national and regional levels. 56 Ibid. 57 Beijing Declaration and Platform, A/CONF. 177/20 (1995) and A/CONF. 177/20/Add. 1 (1995). Page 21

In 1995, the Inter-American Commission on Human Rights released the Report on the Human Rights Situation in Haiti58 in connection with human rights violations occurring in that country following the coup against the legitimate government of Jean Baptiste Aristide. In this report, the Commission shed light on numerous rapes and other types of sexual violence and abuse perpetrated by members of the army and the police against women, and recognized that the commission of these sexual assaults by members of the army and police as well as civil authorities with the authorization or consent of the illegal regime, constitutes a violation of Article 5 of the American Convention on Human Rights concerning the right to humane treatment, and a violation of Article 11 regarding protection of the right to honour and dignity.59 Similarly, it recognized violations of the American Convention the Prevention and Punishment of Torture and the Convention on the elimination of all forms of Discrimination Against Women.60

As such, rape and other sexual abuses against women present serious pain and suffering, not only physical, but also mental, that should be considered as inhumane treatment against womens physical and moral integrity, as recognized in Article 5 of the Convention, but also as a form of torture, that produces one of the most severe and long-lasting types of trauma.61

The Special Rapporteur on Violence against Women, Radhika Coomaraswamy,62 acknowledged a particularly egregious violation of human rights, the violence against women in detention. She emphasized the plight of women in police custody, whether it be arrest, detention, detention pending trial and /or detention pursuant to an arrest warrant. It is clear that following the collapse of the rule of law, numerous human rights violations can occur in a detention setting, including disappearances, extra-judicial executions and torture, including
58

Report of the Inter-American Commission on Human Rights on the situation in Haiti, OEA/Ser.L/v/II.88, 9 February 1995. 59 Ibid., para. 129 . 60 Ibid., para. 130. 61 Ibid., paras. 133 and 134. 62 See supra note 7, p. 28, para. 115. Page 22

rape. In such situations of armed conflict or violent civil unrest, torture, and rape, as a form of torture, is used to inflict both physical and psychological pain and suffering.

The Special Rapporteur's report clearly describes how the rape of female detainees is torture, and recognizes women as the main victims of these forms of torture, leading to a sexualization of torture.63

Sexual violence has been committed, not only to inflict physical or psychological pain on the victim, but to victimize a third party, usually a man who must witness the rape of his wife, partner, daughter, mother or sister. The Special Rapporteur has denounced the fact that in many cases, the only part that is considered torture is when a third party is required to watch the abuse, without considering the rape of the woman as torture in and of itself. In this sense there is a special conceptualization of rape, where rape of women has been viewed as a weapon of the torturer. Thus, the attack on the woman's body is perpetrated as an attack on the male and, in many cases, is perceived as such, except by the woman herself.64 In accordance with this statement, in a situation such as the one just described, the person who is forced to watch a rape or sexual assault is clearly a victim of torture, but unequivocally the rape itself should be considered torture and the victim of the rape should be considered a torture victim.

Stage 3: International and Regional Case Law

In the field of international criminal law, decisions of regional65 and international66 courts have contributed to international recognition of sexual violence as a form of torture when committed or accepted by state agents. In 1996, the Inter-American Court of Human

63 64 65 66

Ibid., p. 31, para. 130. Ibid., p. 32, para. 131. Inter-American Court of Human Rights and European Court of Human Rights. International Criminal Tribunals for Rwanda and the former Yugoslavia. Page 23

Rights, in the case of Fernando y Raquel Meja v. Per,67 declared for the first time that a womans
rape at the hands of a states security forces constituted physical and psychological torture, as described in regional human rights treaties and a violation of Article 5 of the American Convention on Human Rights.

The following year, the European Court of Human Rights, in the case Aydin v. Turkey,68 followed the Inter-American Courts interpretation, holding that rape of a detainee by an official of the State [sic] an especially grave and abhorrent form of ill-treatment as to constitute severe physical and mental pain and suffering tantamount to torture pursuant to the standards under Article 3 of the European Convention on Human Rights.

For its part, the International Criminal Tribunals have not only treated sexual violence as a form of torture, as has already been demonstrated, but they have also treated it as a type of crime against humanity, war crime, and genocide. As previously noted69, the international tribunals have expanded the scope of sexual violence crimes so to cover other behaviours, and have not reduced itself to carnal acts and the penetration of the male penis. Thus any form of sexual violence, not just strictly penetration, can constitute torture.
67

Fernando and Raquel Mejia v. Peru (1996), Inter-Am. Comm. H.R. No. 5/96, Annual Report of the Inter-American Commission on Human Rights: 1996, OEA/Ser.L/V/.91 Doc. 7 157. para. 186: Rape causes physical and mental suffering in the victim. In addition to the violence suffered at the time it is committed, the victims are commonly hurt or, in some cases, are even made pregnant. The fact of being made the subject of abuse of this nature also causes a psychological trauma that results, on the one hand, from having been humiliated and victimized, and on the other, from suffering the condemnation of the members of their community if they report what has been done to them. 68 Aydin c. Turqua ( 57/1996/676/866), EctHR, 25 September 1997, paras. 83 and 86: Rape of a detainee by an official of the State must be considered to be an especially grave and abhorrent form of ill-treatment given the ease with which the offender can exploit the vulnerability and weakened resistance of his victim. Furthermore, rape leaves deep psychological scars on the victim which do not respond to the passage of time as quickly as other forms of physical and mental violence. The applicant also experienced the acute physical pain of forced penetration, which must have left her feeling debased and violated both physically and emotionally. Against this background the Court is satisfied 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 amounted to torture in breach of article 3 of the Convention. Indeed the court would have reached this conclusion on either of these grounds taken separately. 69 Inter alia Judgments of the ICTR in Akayesu case and of the ICTY in Furundzija and Kunarac cases, mentioned along this document. Page 24

The ICTR, in the Akayesu case, analogizes rape to torture:

Like torture, rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person. Like torture, rape is a violation of personal dignity, and rape in fact constitutes torture when 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.70

As mentioned above rape was not included as a high crime in the ICTY penal statute, so the Prosecutor in the Celibici case had to treat the accusations of rape and sexual assaults of women in a Bosnian prison camp as serious breaches of the laws and customs of war, enshrined within Article 3 of the statute. Because of this limitation those offences were considered torture as defined by the Convention Against Torture because they had caused serious suffering, both mental and physical.

The presentation of various charges in this regard led to discussions that have provided clear evidence of the shift towards a broadening of the definition of torture to include rape and sexual violence. The result of this was the indictment on various forms of abuse not resulting in death, including the crime of rape as a form of torture. The trial chamber recognized the urgent need to punish these crimes when committed by state agents or under consent of the state, which should always be considered as torture.71

Moreover, the Tribunal took into account a new element, which is discrimination based on gender, to affirm that violence against women, including physical, mental or sexual abuse based simply on the fact that they are women, constitutes a form of discrimination that
See supra note 31, para. 597. Prosecutor v. Zejnil Delalic et al. ("Celebici Camp"), Case No. IT-96-21-T, Trial Chamber II, Judgment, 16 November 1998, para. 496.
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impedes the enjoyment of human rights and liberties inherent in the human condition, so that in many cases the discrimination prong of the definition of torture in the Torture Convention provides an additional basis for prosecuting rape and sexual violence as torture.72

The Prosecutor v. Furundzija case was particularly controversial in that it was the first case where only crimes of sexual violence were tried before an international tribunal. This case considered rape during the course of detentions and interrogations as torture, and therefore a violation of international law. In this regard, the tribunal specified that rape can be committed by an interrogator or by third parties participating in the interrogation as a means to punish, intimidate, coerce or humiliate the victim, or to extract information or part of a confession from the victim or third party.73

In Prosecutor v. Kunarac, the appeals court noted that sexual violence gives rise to serious harm and suffering, whether physical or mental, which justifies its classification as torture. As for the elements of the crime of torture, the trial court, unlike that which had been established in Celebici, concluded that the presence of a state agent or any other authority does not necessarily characterize an act as torture under humanitarian law, as the characteristic feature of the crime is not the authority or position of the perpetrator, so much as the nature of the act committed, an argument which was supported by the appeals court.74

Regarding International Tribunals, Article 7, paragraph 1(f) of the Rome Statute75 recognizes torture76 as a crime against humanity when it is committed as part of a
Ibid., para. 493, citing "Contemporary Forms of Slavery: Systematic Rape, Sexual Slavery and Slavery-like Practices during Armed Conflict"; Final Report submitted by Ms. Gay J. McDougall, Special Rapporteur, E/CNAISub.2/1998/13, 22 June 1998, para. 55. 73 See supra note 32, para. 163. 74 See supra note 35. 75 Rome Statute of the International Criminal Court art. 54(1)(b), U.N. Doc. A/CONF.183/9, July 17, 1998, 37 I.L.M. 1002, 1030 (entered into force July 1, 2002) , ratified by Argentina 8 February 2001. On 9 January 2007, the Official Bulletin of the Argentine Republic published law 26.200, which implements the treaty that gave rise to the International Criminal Court within Argentinas internal judicial framework.
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widespread or systematic attack directed against any civilian population, with knowledge of the attack. But it also defines sexual violence in itself as a crime against humanity in Article 7(1)(g)77 when committed in that context.

It is clear that sexual violence committed against a person under custody by state agents should always be considered torture, as has been established by case law both internationally and regionally. In this context, when torture, pursuant to Article 7(1)(f) of the Rome Statute, is produced as part of a systematic and widespread attach against the civilian population with knowledge of the attack, it should be considered as a crime against humanity, without prejudice that the sexual violence can itself be considered as such in accordance with Article 7(1)(g) of the Rome Statute.78

Stage 4: Considerations after the Rome Statute

In June 2000, the independent expert on minority issues Gay J. McDougall analyses in her Final Report on Contemporary Forms of Slavery, systematic sexual violence committed during armed conflict and stresses that rape and other forms of sexual abuse are crimes of violence that can constitute torture.79
Under Article 7(2)(e) of the Rome Statute, torture is defined as: the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions. 77 Under Article 7(1)(g) of the Rome Statute: For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. [...] g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity. 78 Similarly, sexual violence is considered genocide pursuant to Article 6(g) of the Rome Statute when it is perpetrated with the intent to destroy in whole or in part a national, ethnical, racial or religious group. That is considered a war crime according to Article 8(2)(b)(xxii) of the Rome Statute, as well as a breach of the Geneva Conventions of 12 August 1949. 79 The Special Rapporteur on the issue of systematic rape, sexual slavery, and slavery-like practices in armed conflict, Gay J. McDougall, Contemporary Forms of Slavery: Systematic rape, sexual slavery and slavery-like practices during armed conflict: E/CN.4/Sub.2/2000/21, 6 June 2000, para. 7:
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The 2008 Report of the Special Rapporteur on Torture, Manfred Nowak devotes a section exclusively to the strengthening of the protection of women against torture, in order to respond to gender mainstreaming initiatives and the fight against sexual violence. In this context, he suggests helplessness as an element specific to torture against women, given the indifference of some societies to the subordination of women, or even its support. The Special Rapporteur also discusses the existence of discriminatory laws that, like the inability of the state to punish perpetrators of these crimes and protect its victims, creates a context where women may be particularly subject to systematic physical and mental suffering. In particular, the report deals with rape and sexual violence in the public sphere, especially in cases where detained women are under police custody, where the suffering inflicted by public officials can go beyond the suffering caused by other classical forms of torture, due to the stigma that accompanies sexual violence.80

Conclusion

For decades it has been fully accepted on an international level that sexual violence should be considered torture, especially committed against women as victims who are particularly vulnerable to this type of crime, when committed in the specific context of police detentions or under police custody by state agents or with its consent or acquiescence. This requires a visibility of these crimes that enables their investigation, prosecution, and adjudication, to avoid the impunity of the perpetrators and the state that is unable or unwilling to protect its citizens from such horrible offences.

Purpose of the Report: []second, to emphasize that rape and other forms of sexual abuse are crimes of violence which, under certain circumstances, may constitute slavery, crimes against humanity, genocide, grave breaches of the Geneva Conventions, war crimes and torture. 80 Manfred Nowak, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A/HRC/7/3, 15 January 2008, paras. 29, 34-36. Additionally, this Rapporteur included this element in his paper, Report of the Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or punishment E/CN.4/2006/6. Page 28

SECTION 3: Sexual Violence as Torture committed in Argentina during the Military Dictatorship81

a) Sexual violence in the clandestine centres of detention

On March 24, 1976, after a coup detat, the military Junta of the Army, Navy and Air Force illegally usurped control of the constitutional government, instituting until December 10, 1983, a regime of terror and repression in the name of a Process of National Reorganization, designed to combat all those considered subversive citizens for having opposed the concept of a nation run by the military. As part of this process, they carried out mass tortures, physical eliminations and disappearances of thousands of people, along with rapes, looting, appropriation of newborn babies, and various other types of illegal acts.

The torture performed on the repressed took on various forms, among them sexual violence and gender violence systematically practised against women. The commission of sexual crimes was known by all the military establishments and was performed under absolute impunity by state agents under the apparatus of power. The sexual subjugation of prisoners was part of a mechanism of dislocation and humiliation of detained women not only involving the satisfaction of the captors wishes, but also a further acknowledgement that the victims were not autonomous subjects endowed with dignity, but rather they were mere objects to serve the whims and the desires of their captors. Equally, this course of action was also intended to obtain information from abused victims as third parties, forced to witness the torture.

Sexual crimes against detainee women were not isolated acts or merely excesses resulting by the wish of a few agents. Just as it is a proven fact that the majority of detainees under captivity were tortured, it must be considered as a proven fact regarding the testimonies

It is also to note that the torture as well as other crimes committed in Argentina during the repression were part of a systematic attack against civilinas and thus they are clasified as crimes against humanity. Page 29

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of victims, that sexual violence was systematically committed against women under detention as torture.82

b) Legal analysis of sexual violence committed during the military dictatorship It may be stressed that sexual violence was not an issue taken up by the authorities or human rights organization, nor did it form part of the social and political debate following the arrival of the Democracy in Argentina.83 During this search for truth and justice, in many of the victims testimonies before human rights organizations, courts, or before the National Commission of the Disappeared (CONADEP)84 one can find references to practices against sexual integrity, that remained obscured as mere anecdotes. Sexual abuses and violence were not treated as torture, and it was considered not necessary to individually examine in the victims testimonies. Furthermore, many of the victims refused to relate or detail the sexual assaults they suffered due to modesty or shame, daring to acknowledge in front of tribunals
See Sentences and other Judicial decisions inter alia Judgement of 19 of September 2006 of the Federal Oral Court N1 of La Plata case 2251/06 (Etchecolatz) pp. 11, 14, 16 and 51; Indictment in case No. 7273/06 "Scali, Daniel Alfredo and other illegal deprivation of liberty." of 1 October 2009 (Mansin Ser); Indictment 25 June 2008, case 14.216/03 Surez Masn, Carlos Guillermo aggravated illegal deprivation of liberty (Atltico-Banco-Olimpo) p. 438; Indictment in case 28.178 Damario, Hugo E. And others/ expansion of the proceedings of the Federal Judiciary No. 12 Secretara No. 23 Expte. No. 14.217/03/518, 21 October 2009 (ESMA); Indictment 22 July 2008 case N 14.216/03 Surez Masn and other s/illegal deprivation of freedom... of the Federal Criminal Court N 6 of Buenos Aires (Vesubio). 83 Intervention of Deputy Fappiano, cited in the Center for Legal and Social Studies (CELS) and the Latin American Justice and Gender Team, The Process and Repair of the Sexual Violence Against Women in Argentina. Article on file with the author. 84 Various survivor testimony from the CONADEP show that rape was a habitual practice in the detention centers. Highlighting: File 7372 A.C.G.F: They later proceeded to insert in my vagina what I later learned was a police baton or stickthey continued interrogating me, hitting me on the head and threatening to insert the aforementioned stick in my anus.They forced me to get naked next to the wall and with very ill verbal treatment and they lay me down on a metallic bed, they tied me up in a crucified fashion and they electrocuted me in the bottom portion of my vulva.On the 14 of June at 24.00 hours they told me that they were letting me go [and] they removed me blindfolded from the building, they put me in a car where the only people there were me and the driverhe turned off the motor he said he had orders to kill me, he made me touch the weapons that he had in the glove compartment of the car and he proposed saving my life in exchange for engaging in sexual relations with himhe drove the car to a temporary shelter, we had the required [sexual] relations under the threat of death, by which I felt and continue to feel raped, and he drove me to my in laws house. (Never Again, CONADEP Report p. 50). File No.6532. A.N When the aforementioned [woman] was in her cell one night, a man arrived who tied her up, beat her, threatening to rape her, preventing her from talking about what happened. (Never Again, CONADEP Report, p.51). File No. 2356 M. de M. She also clearly remembers that they walked her through the gallery naked, that they violated her many times. (Never Again, CONADEP Report). Page 30
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only that they were tortured, but not raped or sexually assaulted.85 Another difficulty for the victims to declare before the courts was the fact that the prisoners were hooded, so that in many cases victims did not exactly know who had been their tormentors.86

Through the Due Obedience Law,87 chief officers, junior officers, non-commissioned officers and enlisted personnel who served during the dictatorship to suppress subversion, claiming compliance with the orders from their superiors, were cleared of responsibility for those crimes perpetrated in relation to the tasks specifically corresponding to the armed forces. However, three offences were excluded: rape, kidnapping and concealment of children or the replacement of their civil status and the extortion of real estate. While child kidnapping and theft of property crimes were investigated and prosecuted, the lack of accusations88 prevented the investigations of sexual crimes.89

Nevertheless with the advent of Democracy, courts gently started highlighting the commission of sexual violence during the repression, and furthermore, a line of interpretation began which favoured considering sexual crimes as torture.

The Federal Court that tried the military junta in the 13/84 case did not sentence anyone for crimes against sexual integrity or honesty, as they were called before the 1999 reform. The
No. 03/08 (ex No. 152/07) "Brusa Vctor Hermes and others s/ inf. art. 144 CP" TOF of Santa Fe. Stella Vallejos declaration in the case Brusa, Vctor Hermes and others, violation of Art. 144 bis C.P before TOF Santa Fe, No. 03/08; I could not know who had raped and tortured me because I was always hooded. 87 Determination of Scope of Duty of Obedience Law 23.251, promulgated on June 8, 1987 and published the next day in the Official Gazette. 88 According to Article 71 of the Argentine Federal Penal Code (11.179): All penal actions should start automatically, with the exception of the following: 1. Those that are based on private complaints. 2. Private actions Article 72 recognizes as private actions those that originate from the following crimes: 1. The ones provided for in Articles 119, 120, and 130 of the Penal Code (rape, statutory rape and violation of the honor), when not result in the death of the person injured or injury of those referred to in Article 9). 89 I + D CIC Project: Sexual violence and gender violence in state terrorism. Analysis of the relationship between sexual violence, torture, and human rights violations. Human Rights Center Emilio Mignone of the University of Quilmes and the Human Rights Center of the National University of Lans, December 2008.
86 85

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Court considered rape and sexual violence committed as an application of torture,90 regulated by Article 144 (3) of the Penal Code, as part of a systematic and generalized attack against civilians, in which the responsibility was justified regarding the chain of command theory.

In 2006, the Federal Court No.3 of La Plata, in its Judgement of case 2251/06 considered torture the rape of a woman under detention. The Court stated that the sexual violence as torture was committed systematically and generally by the members of an apparatus of power as a part of a preconceived plan.91

The Public Prosecutor, in its April 12, 2007 indictment in the case of 14.216/03 indicates the possible connection between application of torture and the sexual crimes during the context of Argentine repression. It was found that both types of encumbrances involve, ultimately, an injury to human dignity that allows the sexual violence offences committed in the context of the dictatorship to be characterized as crimes against humanity.92

Accordingly, despite the initial invisibility of sexual violence crimes, reflected in the inactivity in the investigations and prosecutions, and judgements, substantial progress has occurred in attaching greater severity to crimes directed against detained women or those under state custody, by state agents, on their behalf or under their consent. That is to say regarding International as well as National Law, sexual violence perpetrated by the state agents in the context of the military repression cannot be treated as just ordinary crimes, but as torture.

Pursuant to the fifth section II of the Judgment 13/84 Such acts constitute the crime of torture, provided for in Article 144(3), first paragraph of the Penal Code, according to the text introduced via law 14.616, in force at the time of the commission of the deeds, as being more benign than the current one, which follows law 23.077 (Article 2 ibid). 91 Judgement of Federal Court No. 3 of La Plata, Case No. 2251/06, 19 September 2006 (Case Etchecolatz). 92 Indictment of Prosecutor Delgado, 12 April 2007, in the case No. 14.216/03 Surez Masn, Carlos Guillermo aggravated deprivation of liberty. Page 32

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CONCLUSION
Within clandestine centers of detention, where victims were in a condition of total helplessness and powerlessness, sexual violence against women under custody was committed by state agents or under their consent as a common practice, systematically orchestrated from the apparatus of power.

As previously mentioned, crimes against sexual integrity are defined under Article 119 et seq.of the Argentine Penal Code. Nevertheless, the crimes referenced in this brief cannot be considered common crimes, taking into account the context in which they were perpetrated. Therefore, after addressing the developments concerning the concept and treatment of rape as torture in international criminal, humanitarian and human rights law, as well as International customary law, the treatment of sexual violence as torture cannot be disallowed.

This remark is also significant under a gender perspective, in order to overcome the trivialization of rape and sexual violence as a result of discrimination, since its treatment as torture is consistent with internationally recognized human rights.

The Argentine government has approved and acceded to numerous international treaties93 for which it has responsibility to investigate, prosecute and punish those responsible for the sexual violence crimes committed against women illegally deprived of their liberty in the context of a military dictatorship and to wholly compensate and rehabilitate the victims whilst considering these crimes torture and as a consequence, crimes against humanity. Accordingly, Argentinas own Constitution gives legal preference to international treaties on human rights, whose violation is not only a violation of the treaty, but a violation of the Constitution. Therefore, the significance of treating sexual violence as torture is to be understood and preserved as a settled principle not only international but also within Argentine constitutional law.

E.g. The American Declaration of the Rights and Duties of Man, the Universal Declaration of Human Rights, the American Convention on Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belem do Para). Page 33

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