Conflict-related sexual violence (CRSV) remains one of the most pervasive yet least prosecuted crimes in modern warfare. Only in the last century has CRSV been adequately codified under international criminal law. Meeting the crimes against humanity generally requires evidence at the macro scale, demonstrating that individual acts were not isolated but part of a command directive with clear organizational linkage.
These legal and doctrinal limitations, along with the normalization of sexual violence as a by-product of war, conspire to obscure justice. Building on the recent framework proposed by The Dinah Project, this column explores how legal systems might evolve to bridge the justice gap through expanding evidentiary approaches while centering survivor-sensitive methodologies to adequately prosecute CRSV.
The legal foundation for prosecuting CRSV is rooted in both international humanitarian law and international criminal law. Under the Geneva Conventions and their Additional Protocols, sexual violence is unequivocally prohibited in all contexts, and states are obliged to prevent, repress, and prosecute such acts. The Rome Statute of the International Criminal Court reinforces this framework by codifying sexual violence as both a crime against humanity and a war crime under Articles 7 and 8.
The accompanying Elements of Crimes outline the actus reus and mens rea of these offenses and define the contextual requirements that elevate individual acts to crimes of an international character. Together, these instruments set the evidentiary and conceptual standards that must be met to move from documenting atrocities to securing enforceable accountability.
Historically, sexual violence was rarely treated as a prosecutable offense. The post-World War II tribunals at Nuremberg and Tokyo catalogued widespread atrocities but failed to charge sexual violence directly, reflecting a broader gendered blind spot in early international law. It was only in the 1990s that this silence began to break. The Foca judgments of the ICTY and the Akayesu case before the ICTR recognized systematic rape as both a crime against humanity and an act of genocide, reframing sexual violence as a weapon of war. The United Nations Security Council subsequently reinforced this legal foundation through a series of landmark resolutions: Resolutions 1325 (adopted in 2000), 1820 (2008), 1888 (2009), and 2106 (2013), which each acknowledged sexual violence as a threat to international peace and security, mandated survivor protection and urged states to end impunity.
Yet, despite this robust normative framework, prosecutions remain strikingly rare and complex. The evidentiary demands of international law were not built with CRSV realities in mind. Even if multiple incidents are documented, courts require proof of geographic repetition, temporal consistency, or directives from command hierarchies to meet the burden of proof on the macro-level. The prosecutions in the war crimes tribunals pose a different challenge. An objective test is applied to determine whether the sexual violence was actually associated with the conflict, rather than the doing of criminal opportunists, overlapping militias, or soldiers gone rogue.
In Part 2 of this series, we will discuss how the Dinah Project is attempting to forge a new pathway in order to ensure justice for victims of conflict-related sexual violence.
Arthur L. Aidala is the managing partner of Aidala, Bertuna and Kamins and a former Brooklyn prosecutor.
Michael Jaccarino is a partner at Aidala, Bertuna & Kamins.
Ava Rosenberg is a legal intern at Aidala, Bertuna & Kamins. She earned her bachelor of laws from Cardiff University and is currently pursuing her LLM.
