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Smart Library on Globalization > Genocide > Topic 3: Rape and Genocide > Rape and Genocide > Overview: Rape and Genocide
The Statute of the International Criminal Court Protects against Sexual Crimes
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 provided 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.
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.
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.
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.
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.
Data and Methods:
Analysis of legal doctrine and jurisprudence.
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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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