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CRSV Under International Criminal Law

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).

Rape and Sexual Violence as a Crime against Humanity

Rape as a Crime Against Humanity

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]

[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

Rape and Sexual Violence as Genocide

Rape and Sexual Violence as Torture

Rape and Sexual Violence as War Crimes

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