"The historic development of the rights of women, like the development of nations, proceeded at an uneven pace” said Susan Brownmiller (Susan Brownmiller, Against our Will, p.34, 1993). From the feminist perspective, patriarchy and public/private dichotomy are still major issues for the women’s rights movement. In the field of public international law, the Second World War marked a turning point in the development of human rights law; however, it is a tragic fact that the human rights of women are still being disregarded in many places. After 1990, the number of armed conflicts in the world has increased. The rape cases committed in armed conflicts has always accompanied by the risk of torture, AIDS and death, and the victims often are those who are most vulnerable. The United Nations has taken progressive steps to end impunity for rape; their substantial efforts have ranged from condemnation by the UN Security Council resolution to the judicial work of the ad hoc tribunals for the former Yugoslavia and Rwanda. These courts all confirmed that rape cases in war did amount to the crime of torture, crimes against humanity, war crimes and genocide, with not only national but also international implications. The International Criminal Court was officially established in 2002 in accordance with the Rome Statute. The Rome Statute stipulates that rape could constitute a war crime and crime against humanity. Within the field of international human rights law, the prohibition of rape was recently acted upon through the practice of United Nations Committee against Torture, CEDAW Committee and the regional human rights court.

From their points of view, rape could be linked to torture, the protection of private life and non-discrimination principle, and can be regarded as a very serious violation of human rights. This thesis focuses on the case study on the prohibition of rape under international law, comparing the areas of international humanitarian law, international criminal law, and human rights law. The first chapter explores the origins of peacetime and wartime rape cases, both from the perspectives of culture and history. As to substantial discourses, this study goes through the decisions of the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, the International Criminal Court, the UN Committee against Torture, the Human Rights Committee, CEDAW Committee, the Inter-American Court of Human Rights, and the European Court of Human Rights. The study then goes on to summarize and analyze the jurisprudence and principles of international law concerning the crime of rape, the due diligence and positive obligations of State. Under the due diligence obligations, States have a duty to take assertive action to prevent and protect women from being raped, punish perpetuators and compensate victims. The final chapter summarizes the results of the study, and makes recommendations for international and Taiwan's law practitioners.

資料來源:http://handle.ncl.edu.tw/11296/ndltd/11240545838361281352