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Rape May Be a War Crime

Rape May Be an Act of Genocide in International Law

Rape May Be a Crime against Humanity in International Law

Consensus Increases on Rape in International Law

How Rape Became a Crime against Humanity

The 1998 Rome Statute of the International Criminal Court (ICC) builds on the advancements made in the area of protecting women made in the ICTY and ICTR. The ICC Statute expands gender crimes by making rape an individual crime, including other forms of sexual violence and explicitly defines rape as a war crime and a crime against humanity.

According to legal scholar Mark Ellis, the work of the ICC drafters with respect to gender crimes “is a defining moment in history and an indication of how far the issue of women's humans rights has progressed.”

Elements of Rape in the ICC Statute

The ICC Statute was able to take advantage of the work of the two tribunals in establishing a definition of rape in international law.

The definition of rape in the ICC Statute includes two key elements:

“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 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.”

“The invasion was committed by force, or by the threat of force or coercion, such as that was 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.”

One of the most significant aspects of the above elements is the presence of the “coercive environment” and the inability of a person to given consent. This moves away from an assumption of implied consent and recognizes that under certain coercive circumstances the assumption works the other way—namely, the assumption is that the sex was unwanted.

Other Aspects of ICC Statute

The ICC Statute includes other advancements with respect to gender crimes.

• Grave breach of the Geneva Conventions. Before the ICC Statute, rape was not explicitly stated as a grave breach of the Geneva Conventions. The ICC Statute makes this explicit and includes sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence as grave breaches of the Conventions as well (Article 8 (2)(b)(xxii)).
• Genocide. The ICC Statute is also in line with the ICTR and ICTY rulings that rape can constitute genocide. Because rape causes serious bodily or mental harm, it constitutes genocide when it is directed toward destroying a national, ethnic, racial or religious group.
• Torture. While both the ICTY and the ICTR adopted similar positions on the meaning of torture when it is a crime against humanity, the ICC Statute is less stringent. For instance, the ICC statute does not require that torture be used to either obtain a confession from the victim or third party, to punish the person for an act or to intimidate or coerce the victim or third party based on discrimination. The ICC statute should make it easier to convict rapists of torture since it recognizes that inflicting severe mental or physical pain is, in itself, a crime.
• Persecution based on gender. Unlike the ICTY and the ICTR, the ICC Statute specifically prohibits persecution based on gender. So, widespread and systematic persecution of civilian women (where the attacker is knowledgeable of the attack) is considered a crime against humanity under the ICC Statute.

Reparations for Rape and Sexual Assault

In the ICTY there was little focus on reparations. In order to obtain compensation, victims had to bring action in a national court or other competent body. However, with the ICC this is no longer necessary. The ICC has the authority to determine the extent of the victim's damages as well as the power to give reparations directly to the victims.

The ability to make reparations to victims is critical because it provides victims (often members of marginalized groups) equal rights relative to other citizens and will facilitate victims' trust in the court and state institutions.

Protecting Victims of Sexual Assault

The ICTY and ICTR documented the long-lasting emotional consequences to women who suffer sexual assault. In both tribunals, women who testified received psychological counseling and special protection. The ICC, building on this experience, incorporates a number of mechanisms to support the rights of victims of sexual violence.

• Consider victim views and concerns. Where the personal interests of the court are affected, the court considers the views and concerns of the victims at different stages of the proceedings.

• Psychological counseling. The ICC provides a Victim and Witnesses Unit staffed by professionals with expertise in trauma, especially trauma related to sexual violence.

• Gender and Child Unit. Another unit within the ICC Investigation Division of the Offices of the Prosecutor is the Gender and Child Unit. This unit is staffed by advisors with legal expertise on special issues including sexual and gender violence and violence against children. Their charge is to assist the prosecutor when dealing with issues surrounding victims and witnesses of sexual crime.

• Protection. Victims may put themselves in danger by agreeing to testify. As a result, the ICC Statute provides that the court will take appropriate measures to protect the safety and physical well-being of the victims. The court is directed to take factors such as gender and the nature of the crime (including whether it was a sexual crime) into account in deciding to grant special protections.

The experience of the ICTY and the ICTR demonstrated that mechanisms to protect victim rights were crucial to establishing the truth about these serious crimes.

Bottom Line

The 1998 Rome Statute of the International Criminal court built on and extended the advances made in the ICTY and ICTR with respect to gender crimes. In addition to providing a broader basis for prosecuting sexual crimes as part of the international laws on war, genocide and crimes against humanity, the ICC incorporates mechanisms to facilitate victim reparation and to protect victim rights.

Other Keytexts from this source

Consensus Increases on Rape in International Law

Rape May Be a Crime against Humanity in International Law

Rape May Be a War Crime

Rape May Be an Act of Genocide in International Law