International Criminal Law is an overarching term used to a refer to law designed to prohibit certain categories of conduct commonly viewed as serious atrocities and to make perpetrators of such conduct criminally accountable for their perpetration. The sections below present the law based on the categories under which rape and sexual violence are prosecuted under current-day International Criminal Law. The provisions listed include those from the Statute of the International Criminal Court (ICC Statute), the Statute of the International Criminal Tribunal for Rwanda (Statute of the ICTR), and the Statute of the International Criminal Tribunal for former Yugoslavia (Statute of the ICTY).

Crimes against Humanity are defined under Article 7 ICC, Article 5 ICTY and Article 3 ICTR. To amount to a crime against humanity, the act in question must be inhumane in nature and character, causing great suffering, or serious injury to body or to mental or physical health. It must be committed against members of the civilian population, as part of a “widespread or systematic attack.” The attack must be on national, political, ethnic, racial or religious grounds (discriminatory grounds). While knowledge that the accused’s act is part of a widespread or systematic attack on a civilian population is expected, the presence of a discriminatory intent not required for acts other than persecution.

Specific offences that constitute crimes against humanity include:

a) Murder;

b) Extermination;

c) Enslavement;

d) Deportation;

e) Imprisonment;

f) Torture;

g) Rape;

h) Persecutions on political, racial and religious grounds;

i) Other inhumane acts

Crimes against humanity must be inhumane in nature and character, causing great suffering, or serious injury to body or to mental or physical health.[1] It must have been committed as part of a widespread or systematic attack against any civilian population on discriminatory grounds.[2] “The concept of ‘widespread’ may be defined as massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims.”[3] They should specifically target members of the civilian population, namely those who do not take any active part in the hostilities, including members of the armed forces who laid down their arms and those persons placed hors de combat by sickness, wounds, detention or any other cause.”[4] Crimes against humanity may be committed within or beyond the context of an armed conflict – so the term “civilian” must be understood within the relative context of war and peace.[5] The emphasis on the term “population” is intended to suggest the collective nature of the crimes to the exclusion of single or isolated acts, which, although possibly constituting crimes under national penal legislation, do not rise to the level of crimes against humanity.[6] The presence of non-civilians does not strip a population of its civilian character.[7]

The act must be committed on one or more discriminatory grounds, namely, on national, political, ethnic, racial or religious grounds.[8] Political grounds include party political beliefs and political ideology.[9] A national group is understood to mean a collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and duties.[10] An ethnic group is defined as a group whose members share a common language or culture,[11] or distinguishes itself through self-identification or is identified as such by others, including perpetrators of the crimes.[12] The conventional definition of a racial group is based on the hereditary physical traits that are often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors.[13] A religious group is one whose members share the same religion, denomination, or mode of worship,[14] and includes a denomination or mode of worship or a group sharing common beliefs.[15] While the accused must have actual or constructive knowledge that the act committed is part of a widespread or systematic attack,[16] a discriminatory intent is not necessary.[17]

Rape is a form of aggression. Sexual violence which includes rape, is considered an act of a sexual nature, which is committed on a person under circumstances that are coercive.[18] Variations in the acts of rape may include acts that involve the insertions of objects and/or the use of bodily orifices not considered to be intrinsically sexual.[19]

References

[1] Akayesu, (n.1), para. 578

[2] Prosecutor v. Semanza, (ICTR) Case No. ICTR-97-20 (Trial Chamber), May 15, 2003, para. 326

[3] Akayesu, (n. 1), para. 580

[4] Akayesu, (n.1), para. 582

[5] Kayishema and Ruzindana, (n.5), para. 127-129

[6] Prosecutor v. Bagilishema, (ICTR) Case No. ICTR-95-1A (Trial Chamber), June 7, 2001, para. 80

[7] Akayesu, (n.1), para. 582; Kayishema and Ruzindana, (n.5) , para. 128

[8] Akayesu, (n.1), para. 578

[9] Kayishema and Ruzindana, (n. 5), para. 130

[10] Akayesu, (n.1), para. 512

[11] Akayesu, (n.1), para. 513

[12] Kayishema and Ruzindana, (n.5), para. 98

[13] Akayesu, (n.1), para. 514

[14] Akayesu, (n.1), para. 515

[15] Kayishema and Ruzindana, (n. 5) para. 98

[16] Kayishema and Ruzindana, (n.5) para. 133-134

[17] Semanza, (n. 3), para. 332

[18] Akayesu, (n.1), para. 596-598, 688-688

[19]Musema, (n.39), para. 220-221, 226-229

[Read a detailed report here]

Genocide is defined under Article 6 of the ICC Statute, Article 2 of the Statute of the ICTR, and Article 4 of the Statute of the ICTY. It is seen as a grave breach of international humanitarian law. The Convention on the Prevention and Punishment of the Crime of Genocide, or Genocide Convention, of 1948, does not explicitly mention rape or sexual violence. Rape is perceived as an act constituting genocide as it is an act which is seen as causing serious bodily or mental harm to members of a particular group; as an act which involves deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and the imposition of measures intended to prevent births within the group; conducted with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.

Interpreting rape and sexual violence as genocide

Under International Criminal Law, a crime of genocide comprises the following elements:

- Element 1: Actus Reus:

a) Killing members of the group;

b) Causing serious bodily or mental harm to members of the group;

c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

d) Imposing measures intended to prevent births within the group;

e) Forcibly transferring children of the group to another group.

Element 2: Mens Rea

An intent to destroy, in whole or in part, a national, ethnical, racial or religious group.

Element 3: Different levels of responsibility punishable

a) Genocide;

b) Conspiracy to commit genocide;

c) Direct and public incitement to commit genocide;

d) Attempt to commit genocide;

e) Complicity in genocide.

A “crime of genocide is proven if it is established beyond reasonable doubt, firstly, that one of the acts listed under Article 2(2) of the Statute was committed and, secondly, that this act was committed against a specifically targeted national, ethnical, racial or religious group, with the specific intent to destroy, in whole or in part, that group. Genocide therefore invites analysis under two headings: the prohibited underlying acts and the specific genocidal intent or dolus specialis.”[1] In addition to the intent to destroy a group in whole or part, actual conduct such as the intentional killing of one or more members of a targeted ethnic, racial, national, or religious group must be proven.[2] The bodily or mental harm caused to members of the group should be determined on a case by case basis,[3] but broadly “include[s] acts of bodily or mental torture, inhumane or degrading treatment, rape, sexual violence, and persecution.”[4]

Acts of rape can form an integral part of the process of destruction of a group.[5] The scope of “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” also includes rape.[6] Further, imposing measures “intended to prevent births within the group” includes: “sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages. In patriarchal societies, where membership of a group is determined by the identity of the father, an example . . . is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother's group.” According to the Trial Chamber of the ICTR, rapes and sexual violence constitute “genocide in the same way as any other act as long as they were committed with the specific intent to destroy, in whole or in part, a particular group targeted as such.”[7]

References

[1]Prosecutor v. Bagilishema, Case No. ICTR-95-1A-T (Trial Chamber), June 7, 2001, para. 55

[2]Semanza, (Trial Chamber), May 15, 2003, para. 319

[3]Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 108-113

[4]Rutaganda, (Trial Chamber), December 6, 1999, para. 51; See also Musema, (Trial Chamber), January 27, 2000, para. 156; Bagilishema, (Trial Chamber), June 7, 2001, para. 59.

[5]Akayesu, (Trial Chamber), September 2, 1998, para. 731; See also Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 95.

[6]Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 115-116

[7]Akayesu Judgment, para. 731

Rape and sexual violence are considered forms of torture as they inflict severe pain or suffering on the physical person in order to obtain information or a confession from them or a third person, or to punish them for an act that they or a third person has committed or is suspected of having committed, or to intimidate or coerce them or a third person, or for any reason based on discrimination of any kind. It is not necessary for such torture to be committed by a person in official capacity to attract penal consequences under international criminal law.

Article 1 of the 1984 Convention against Torture, Article 7 of the Rome Statute of the International Criminal Court, Article 5 of the Statute of the International Criminal Tribunal for the former Yugoslavia, Articles 2(b) and 2(c) of the Geneva Conventions, and Article 3 of the International Criminal Tribunal for Rwanda define the term “Torture.” The individual definitions are not identical, but can be interpreted to all constitute the same offence. The prohibition on torture is considered a norm of jus cogens, which means that the prohibition on it is a peremptory norm from which no derogation is permissible.[1]

Interpreting rape and sexual violence as torture

Under International Criminal Law the crime of torture comprises the following elements:

• An actus reus, or an overt action

• Mens rea, or deliberate mental intention

• Capacity, or official sanction to commit an act of torture

• Purpose to be achieved

The International Criminal Tribunal for Yugoslavia (ICTY) ruled that the objective severity of the harm caused must first be evaluated, and subjective criteria will then help assess the gravity of the harm caused.[2] “[R]ape may constitute severe pain and suffering amounting to torture, provided that the other elements of torture, such as a prohibited purpose, are met.”[3] When an individual is mistreated over a long period of time through various or repeated forms of torture– rape and sexual violence included, the severity of the acts should be assessed as a whole to the extent that it can be shown that this lasting period or the repetition of acts are inter-related, follow a pattern or are directed towards the same prohibited goal.”[4] The ICTY has also ruled that mental suffering can also qualify as torture – for instance, “[B]eing forced to watch serious sexual attacks inflicted on a female acquaintance was torture for the forced observer. The presence of onlookers, particularly family members, also inflicts severe mental harm amounting to torture on the person being raped.”[5] Accordingly, it is clear that acts of rape and sexual violence constitute the actus reus required to establish torture.

When an act of torture is intentionally inflicted on a person for the sake of obtaining information or a confession from the person targeted or a third person, punishing them for an act that they or a third person has committed or is suspected of having committed, or intimidating or coercing them or a third person, or for any reason based on discrimination of any kind, it is said to accompany both the mens rea or the deliberate mental intent as well as the purpose orgoal motivating the action.[6]

Third, the act must be inflicted either directly by, or at the instigation of, or under the consent and/or acquiescence of a public official or other person acting in an official capacity. This is mandatory under the Convention against Torture, but not so under the other definitions. [7] When rape and sexual violence are strategically used to intimidate individuals or to extract statements of confessions, those who commit it or sanction it are often individuals in positions of power. This element, though not mandatory, acknowledges the strategic use of sexual violence as a form of torture. “Rape is resorted to either by the interrogator himself or by other persons associated with the interrogation of a detainee, as a means of punishing, intimidating, coercing or humiliating the victim, or obtaining information, or a confession, from the victim or a third person. In human rights law, in such situations the rape may amount to torture.”[8] The perpetrator should either himself be an official, or should have acted at the instigation of, or with the consent or acquiescence of, an official or person acting in an official capacity.[9]

Fourth, the action of torture should seek to achieve a prohibited purpose or goal, that is, “[t]he act or omission must aim at obtaining information or a confession, or at punishing, intimidating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person.”[10] However, “[T]he prohibited purposes listed in the Torture Convention as reflected by customary international law ‘do not constitute an exhaustive list, and should be regarded as merely representative.’” “[H]umiliating the victim or a third person constitutes a prohibited purpose for torture under international humanitarian law.”[11] The prohibited purpose need not be the predominant or sole purpose behind carrying out the acts of torture.[12]

Applying the law prohibiting torture to penalize the use of rape and sexual violence as torture

Threats to commit rape have been considered acts of torture.[13] Further, the ICTY also acknowledged that certain acts establish per se the suffering of those on which such acts are inflicted, and noted that rape is such an act: “Sexual violence necessarily gives rise to severe pain or suffering, whether physical or mental, and in this way justifies its characterisation as an act of torture. Severe pain or suffering, as required by the definition of the crime of torture, can thus be said to be established once rape has been proved, since the act of rape necessarily implies such pain or suffering.”[14] Further, “whenever rape and other forms of sexual violence meet the [following] criteria, then they shall constitute torture.”[15] It has also been acknowledged that “The psychological suffering of persons upon whom rape is inflicted may be exacerbated by social and cultural conditions and can be particularly acute and long lasting. [I]t is difficult to envisage circumstances in which rape, by, or at the instigation of a public official, or with the consent or acquiescence of an official, could be considered as occurring for a purpose that does not, in some way, involve punishment, coercion, discrimination or intimidation. [T]his is inherent in situations of armed conflict.”[16]

References

[1]Prosecutor v. Furundzija, (ICTY) Case No. IT -95-17/1 (Trial Chamber), December 10, 1998, para. 139, 153

[2]Prosecutor v. Kvocka et al.,(ICTY) Case No. IT-98-30/1 (Trial Chamber), November 2, 2001, para. 142-143

[3]Kvocka et al., (n.6) para. 145

[4]Prosecutor v. Krnojelac, (ICTY) Case No. IT-97-25 (Trial Chamber), March 15, 2002, para. 182

[5]Kvocka et al., (n. 6), para. 149

[6]Prosecutor v. Kunarac, Kovac and Vokovic, (ICTY) Case No. IT -95-17/1(Appeals Chamber), June 12, 2002, para. 142

[7]Kunarac, Kovac and Vokovic, (n. 1)para. 148

[8]Furundzija, (n. 3), para. 163-164

[9]Prosecutor v. Akayesu, (ICTR) Case No. ICTR-96-4 (Trial Chamber), September 2, 1998, para. 593-595, 681

[10]Kunarac, Kovac and Vokovic, (n.1), para. 142

[11]Kvocka et al., (n. 6), para. 140

[12]Kvocka et al., (n. 6), para. 153

[13]Kvocka et al., (n.6) para. 144

[14]Kunarac, Kovac and Vukovic, (n. 1) para. 149-151

[15]Prosecutor v. Mucic et al., Case No. IT-96-21, (Trial Chamber), November 16, 1998, para. 494-496

[16]Mucic et al., (n. 22), para. 495

Under International Criminal Law, a war crime is a serious violation of the laws of war that invokes individual criminal responsibility.[1] War crimes are defined under Article 8 of the International Criminal Court as a grave breach of the Geneva Convention, and includes such crimes as wilful killing, causing great suffering or serious injury to body or health, torture, inhumane treatment, wanton destruction and/or appropriation of property, taking hostages, using civilians as shields, and rape, sexual slavery, and forced prostitution or forced pregnancy, among a range of other things.

Interpreting rape and sexual violence as a war crime

The legal elements of a war crime need to be proved for rape and sexual violence to be seen as constituting a war crime under the aforementioned definition. An offence shall be considered a violation of international humanitarian law if:[2]

- the violation constitutes an infringement of a rule of international humanitarian law

- the rule is of a customary nature; if it emerges from treaty law, the relevant conditions must be met

- the violation is serious and constitutes a breach of a rule protecting important values, and producing grave consequences for the victim, and

- the violation must entail individual criminal responsibility of the person breaching the rule in question.

To constitute a war crime, the foremost requirement is that an actus reus, or a physical or explicit conduct constituting the crime be present. This requires the following elements to be fulfilled:

- The presence of an armed conflict

- A close nexus between the armed conflict and the offence in question

o The acts of the accused must be related to the hostilities

o The armed conflict need not be causally linked to the crimes, but must have played a substantial role

o The crime may be temporally and/or geographically remote from the location of the actual fighting constituting the armed conflict.

Actus reus for a war crime

The actus reus, or the physical and outward conduct constituting the crime require the following elements to be fulfilled:

Element 1: Presence of an armed conflict

Element 2: Close nexus between the armed conflict and alleged offense

(2a) The acts of the accused must be closely related to the hostilities

(2b) The armed conflict need not be causally linked to the crimes, but it must have played a substantial role

(2c) The crimes may be temporally and geographically remote from actual fighting

Element 3: Act must be committed against civilians

In Prosecutor v. Kunarac, Kovac and Vokovic,[3] the court ruled that ‘[S]ome acts establish per se the suffering of those upon whom they were inflicted. Rape is . . . such an act. . . . Sexual violence necessarily gives rise to severe pain or suffering, whether physical or mental, and in this way justifies its characterisation as an act of torture. Severe pain or suffering, as required by the definition of the crime of torture, can thus be said to be established once rape has been proved, since the act of rape necessarily implies such pain or suffering.’ The ICTY also noted that ‘[T]he actus reus of the crime of rape in international law is constituted by: the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances.’ The ICTY has also clearly established that a narrow focus on force or threat of force could permit perpetrators to evade liability for sexual activity to which the other party had not consented by taking advantage of coercive circumstances without relying on physical force.’[4]

The ICTY expanded the scope of understanding the “impact” of rape and sexual violence in Prosecutor v. Mucic et al.,[5] where it observed that ‘The psychological suffering of persons upon whom rape is inflicted may be exacerbated by social and cultural conditions and can be particularly acute and long lasting. [I]t is difficult to envisage circumstances in which rape, by, or at the instigation of a public official, or with the consent or acquiescence of an official, could be considered as occurring for a purpose that does not, in some way, involve punishment, coercion, discrimination or intimidation. [T]his is inherent in situations of armed conflict.’ In Prosecutor v. Furundzija,[6] the ICTY recognized that ‘Rape is resorted to either by the interrogator himself or by other persons associated with the interrogation of a detainee, as a means of punishing, intimidating, coercing or humiliating the victim, or obtaining information, or a confession, from the victim or a third person. In human rights law, in such situations the rape may amount to torture........ ‘Depending upon the circumstances, under international criminal law rape may acquire the status of a crime distinct from torture.’

References

[1]Cassese, Antonio (2013). Cassese's International Criminal Law (3rd ed.). Oxford University Press. pp. 63–66.

[2] Prosecutor v. Kunarac, Kovac and Vokovic, Case No. IT-96-23 & 23/1 (Appeals Chamber), June 12 2002, para. 66 (internal citations omitted)

[3] Prosecutor v. Kunarac, Kovac and Vokovic, Case No. IT-96-23 & 23/1 (Appeals Chamber), June 12 2002, para. 149-151

[4] Kunarac, Kovac and Vokovic, (n 3) para. 127-132 (internal citation omitted)

[5] Prosecutor v. Mucic et al., Case No. IT-96-21-T (Trials Chamber), November 16, 1998, para. 495

[6] Prosecutor v. Furundzija, Case No. IT-95-17/1 (Trial Chamber), December 10, 1998, para. 153 (internal citation omitted)