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Although rape is not a stand-alone crime in international law, it can be prosecuted as a crime against humanity. However, this did not become clear until 1998 with a ground-breaking decision by the ICTR and the drafting of the Rome Statute of the International Criminal Court. Since that time, the ICTY has brought charges of crimes against humanity against perpetrators exclusively because of sexual crimes.
 

In 1998, the International Criminal Tribunal for Rwanda (ICTR) handed down a judgment in the case of Prosecutor v. Akayesu that broke ground by finding that rape could constitute genocide under international law. The Akayesu case was also important because it held Jean-Paul Akayesu responsible under the article of the ICTR Statute that prohibited rape as part of a widespread or systematic attack against a civilian population on national, political, ethnic, racial or religious grounds. In effect, this meant that rape was also punishable as a crime against humanity.

Rape as a Crime against Humanity in the Statute of the International Criminal Court

Rape was also codified as part of the definition of crimes against humanity in the Rome Statute of the International Criminal Court (ICC) in 1998. According to Article 7 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:

(a) Murder,
(b) Extermination,
(c) Enslavement,
(d) Deportation or forcible transfer of population,
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law,
(f) Torture,
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity,
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender...or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court,
(i) Enforced disappearance of persons,
(j) The crime of apartheid,
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

The ICC Statute is important because it expands the coverage of crimes against women to more than just rape. The ICC statute also makes clear that such crimes as sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and sexual violence are all punishable under international law.

Rape and Crimes against Humanity in the ICTY

In 2001, the International Criminal Tribunal for the former Yugoslavia (ICTY) convicted eight men of crimes against humanity. The case, Prosecutor v. Kunarac, Kovac, and Vokovic, was the first case where the allegations focused exclusively on sex crimes. Each of the men in the case were charged with various forms of sexual violence.

In deciding the Kunarac case, the Tribunal also clarified the concept of crimes against humanity. To be a crime against humanity, an “attack directed against any civilian population” must have five elements:

  1. There must be an attack,

  2. The acts of the perpetrator must be part of the attack,

  3. The attack must be “directed against any civilian population,”

  4. The attack must be widespread and systematic,

  5. The perpetrator must know the wider context in which his acts occur and know that his acts are part of the attack.

Bottom Line

Although rape is not a stand-alone crime in international law, it can be prosecuted as a crime against humanity. However, this did not become clear until 1998 with a ground-breaking decision by the ICTR and the drafting of the Rome Statute of the ICC. Since that time, the ICTY has brought charges of crimes against humanity against perpetrators exclusively because of sexual crimes.

 
Data and Methods:

Data Sources:

Analysis of legal doctrine and jurisprudence.

Funding Sources:

Not reported.

 
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Reference

Ellis, Mark. 2007. "Breaking the Silence: Rape as an International Crime." Case W. Res. J. Int'l L. 38:225-247.

 
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