Amnesty International identifies how the crimes of rape and sexual violence must, as a requirement of its own statute and a matter of international human rights law, be interpreted and applied with equality between men and women by the International Criminal Court (the Court). The Court has yet to rule on this matter in its jurisprudence.
Such incorporation of human rights law and standards in the prosecution of rape and sexual violence should be undertaken by other international courts, as well as national courts, in order to discharge states’ duties under treaty and customary law.

Contents

1. INTRODUCTION AND OVERVIEW

This document¹ identifies how the crimes of rape and sexual violence must, as a requirement of its own statute and a matter of international human rights law, be interpreted and applied with equality between men and women by the International Criminal Court (the Court). The Court has yet to rule on this matter in its jurisprudence.
Such incorporation of human rights law and standards in the prosecution of rape and sexual violence should be undertaken by other international courts, as well as national courts, in order to discharge states’ duties under treaty and customary law.
In order to incorporate human rights law and standards in its practice, the Court’s interpretation of the definition of the crimes should address the behaviour and actions of the perpetrator, and how this affects the victim’s ability to exercise free and genuine choice, that is, to enjoy his or her human right to physical and mental integrity and sexual autonomy, without discrimination. The Court’s deliberation should not just address the victim’s purported ‘consent’ in isolation.
Human rights law and standards requires that investigations and prosecutions of the crimes of rape and sexual violence must be undertaken with careful attention given to the task of challenging stereotypes, which tend to undermine women’s equality before the law. The integrity of investigations and prosecutions should not be tainted by stereotypical assumptions, including assumptions about sexual violence towards men and boys, as well as towards women and girls.
All references to the term ‘consent’ within the Elements of Crimes must be interpreted consistently with a fuller, more accurate and human-rights based understanding of the word consent – that a consensual decision is a decision made without force, threat of force, coercion, or taking advantage of a coercive environment. Where evidence of force, threat of force or coercion is present, there should absolutely be no additional element of law of consent for the prosecution to prove.
Acts of rape which are committed in the jurisdiction of the Court can be identified as war crimes and crimes against humanity of rape and torture. The requirement in human rights law to eradicate stereotypes requires all acts of rape within the jurisdiction of the Court to be prosecuted as torture, in order to address stereotypical assumptions that rape, particularly rape of women and girls, is not a serious crime, and to acknowledge and make clear the perpetrators’ use of rape and sexual violence to intimidate, discriminate and humiliate victims.

2. THE DEFINITIONS OF RAPE AND SEXUAL VIOLENCE MUST BE CONSISTENT WITH HUMAN RIGHTS PRINCIPLES

Sexual violence, including rape, is one of the most significant aspects of discriminatory violence against women.² The realities of rape and sexual abuse in armed conflict³ and in peacetime⁴ have been documented extensively over many years. The right to equality, including equality before the law, are violated by such crimes and the impunity that the perpetrators enjoy in the overwhelming majority of cases.⁵ Men and boys who are raped frequently fear bringing complaints of rape to the attention of the authorities, due to the victim’s fear of stigma.⁶
The scope of definitions of rape and sexual violence in the ad hoc International Criminal Tribunals for Rwanda and Yugoslavia have been the subject of intense scholarly attention⁷ and significant jurisprudence,⁸ mainly on the central question of how rape should be defined, whether by reference to the victim’s lack of consent, or whether the perpetrator used coercion, force, or threat of force, or took advantage of coercive circumstances. However, the way that international human rights law and standards relating to rape and other sexual crimes affect this central question of the definition of rape has so far not received a similar level of attention,⁹ even though Article 21(1)(c) and Article 21(3) of the Rome Statute of the International Criminal Court (the Rome Statute)¹⁰ require that the decisions of the Court must be consistent with “internationally recognized human rights law.”
Article 9 of the Rome Statute requires that the Elements of Crimes be applied, but solely to assist the Court in the application and interpretation of Articles 6, 7 and 8, the definitions of the crimes within the Court’s jurisdiction. In determining whether the Elements of Crimes is consistent with the Rome Statute, and in all interpretation of the Rome Statute, the Court must apply Article 21(3) which governs all other provisions in the Rome Statute.¹¹

3. THE DEFINITIONS OF RAPE AND SEXUAL VIOLENCE SHOULD BE INTERPRETED CONSISTENTLY WITH HUMAN RIGHTS LAW AND STANDARDS

The human right of equality and non-discrimination in the enjoyment of physical and mental integrity¹²requires that there should be equality in weight given to the free and full agreement to sexual contact¹³of both or all parties to that contact, whether or not such sexual contact involves penetration.¹⁴The use of force, or threat of force or coercion, by the perpetrator makes it impossible for the victim to exercise their right to physical and mental integrity, and therefore their sexual autonomy.
The approach outlined in the Elements of Crimes definitions of rape and sexual violence is consistent with the existing obligations under international human rights law, as the crime is defined in terms of the perpetrator negating the victim’s ability to give free and uncoerced agreement to sexual contact, through use of force, threat of force, or coercion. An open-ended and non-exhaustive list of the various forms and ways in which coercion can be applied is included in the definition.
The non-contextual elements of the definition of rape as a crime against humanity and a war crime in the Elements of Crimes are the same; the only differences in the elements of these two crimes are the legal contextual ones distinguishing rape as a crime against humanity from rape as a war crime. The common elements are:
“1.        The perpetrator invaded [A footnote here reads: ‘The concept of “invasion” is intended to be broad enough to be gender-neutral.’] the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of 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.
2.       The invasion was committed by force, or by threat of force or coercion, such as that 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. [A footnote here reads: ‘It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or age-related incapacity.’]¹⁵”
The non-contextual elements of the definition of sexual violence as a crime against humanity and a war crime in the Elements of Crimes are the same; the only differences in the elements of these two crimes are the legal contextual ones distinguishing sexual violence as a crime against humanity from sexual violence as a war crime. The common elements are:
The perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent.¹⁶
International human rights law relating to prosecution of rape refers to the requirement that for sexual contact to be legal, “Consent must be given voluntarily, as a result of the person’s free will, assessed in the context of the surrounding circumstances.”¹⁷
Where the perpetrator uses force, threat of force, or coercion, then it is not possible that consent is “genuine consent” – the term used in the Elements of Crimes footnotes – a consent given voluntarily, as the result of a person’s free will.
Indeed, the perception that women can exercise free will and agree to sexual contact (whether or not such contact involves penetration) when they are subjected to force, threats or coercion, is a significant part of the stereotyping which undermines women’s equality before the law: that the use of force and coercion are a lawful, appropriate aspect of sexual behaviour.

3.1 TO BE LAWFUL, SEXUAL ACTS MUST BE AGREED TO BY BOTH PARTIES EQUALLY

An individual’s sexual autonomy is an aspect of physical and mental integrity, the core human rights value protected by the criminalization of sexual violence. Unfortunately, however, sexual autonomy is frequently conflated with narrow views of ‘consent’ under domestic criminal law which do not capture the reality of how acts of rape and sexual violence are committed, and this misunderstanding affects how such acts are treated in criminal investigations, prosecutions and in criminal judgments.
Sexual autonomy and consent are two distinct concepts. The concept of ‘consent’ as used in domestic criminal law imports a notion of individual choice, typically without a consideration of the reality of abuse of power (whether evidenced through physical force, or other forms of coercion) and other factual conditions that may prevail before, during and perhaps after the sexual acts in question. A consideration of whether an individual was able to exercise sexual autonomy, by contrast, takes into account the overall dynamic and environment surrounding those sexual acts and how these had an impact on the victim’s ability to make a genuine choice.
Women’s right to equality before the law is frequently violated in domestic criminal jurisdictions because their evidence is distrusted. Women, therefore, have been treated unequally in that their right to freedom from sexual coercion by a perpetrator is extremely limited. In domestic jurisdictions, rape and sexual assault laws have often put people in terms of a ‘proposer’ of sexual acts, and the ‘acceptor’ is deemed to consent to the act unless their resistance is made clear, especially by using physical resistance. This is contrary to an approach to the criminal law which incorporates the human right to equality. As stated in an intervention to the European Court of Human Rights in the case ofM.C. v Bulgaria,
“The equality approach starts by examining not whether the woman said ‘no’, but whether she said ‘yes’. Women do not walk around in a state of constant consent to sexual activity unless and until they say ‘no’, or offer resistance to anyone who targets them for sexual activity. The right to physical and sexual autonomy means that they have to affirmatively consent to sexual activity.”¹⁸
In this case, the European Court of Human Rights noted that “the development of law and practice in that area [of the crime of rape] reflects the evolution of societies towards effective equality and respect for each individual’s sexual autonomy”¹⁹ and also made it clear that including references only to physical force and resistance in definitions of rape are contrary to human rights law:
“[A]ny rigid approach to the prosecution of sexual offences, such as requiring proof of physical resistance in all circumstances, risks leaving certain types of rape unpunished and thus jeopardising the effective protection of the individual’s sexual autonomy.”²⁰
Most recently, in their views on the case of Karen Tayag Vertido v the Philippines, the Committee on the Elimination of Discrimination against Women made the recommendation that the respondent state:
“[Enact] a definition of sexual assault that either:

• requires the existence of “unequivocal and voluntary agreement” and requiring proof by the accused of steps taken to ascertain whether the complainant/survivor was consenting, or
• requires that the act take place in “coercive circumstances” and includes a broad range of coercive circumstances.”²¹

Therefore, both logically and legally, both parties to sexual acts must be unforced and uncoerced in participating in sexual acts for those acts to be legal. As a significant academic commentator on international criminal law said:
“What is important is that the focus of the ICC definition is on the coercive circumstances, not on the lack of consent of the victim. Consent is not an issue when force, threat of force, coercion or coercive circumstances exist, or when the person is incapable of giving consent. With this wording, the [Elements of Crimes] seem to have incorporated the views of the Akayesu and Furundzija Judgments on the types of circumstances that turn sexual acts into criminal acts, and added thereto the factual impossibility of giving consent on the basis of natural, induced or age-related factors.”²²
The term “genuine consent” is a term used in the Elements of Crimes definitions of rape, enforced prostitution, and enforced sterilisation; also in Rule 70 of the Rules of Procedure and Evidence. In order to be consistent with international human rights law, all references to the term ‘consent’ or ‘genuine consent’ used in the Court’s practice should be interpreted and applied in the light of the treatment of consent in human rights law which calls for free consent, free of force, coercion, discrimination and violence.²³ In other aspects of human rights law, including the rights of internally displaced people²⁴and the freedom from enforced medical experimentation²⁵ references are made to conditions for assessing whether or not a real choice has been made about significant issues affecting the well-being of individuals. The reference to ‘natural, age-related, or induced capacity’ implies that an individual’s ability to perceive and reason in order to make decisions about their own interests and wishes should be paramount. Furthermore, in the reference to ‘genuine consent’ in the definitions of enforced sterilization as war crimes and a crime against humanity in the Elements of Crimes, it is noted that deception is incompatible with genuine consent. ²⁶
The International Criminal Court should take the opportunity of its first cases of rape and sexual violence to emphasise that the use of force, threat of force, and coercion necessarily defeat the possibility of ‘genuine consent’ and that any person who engages in sexual acts when he or she uses force, threat of force or coercion, including taking advantage of coercive circumstances, is acting illegally and committing an act of rape or sexual violence.²⁷
Some domestic courts might consider that for sexual activity to be legal, a requirement that both parties know clearly that any sexual acts between them are occurring in such an uncoerced and unforced way is both an interference in private life and burden on individuals in their private lives. However, protection of individuals’ physical and mental integrity is a primary duty of states, which should be implemented through the criminal law, as well as through other methods such as education, training of criminal justice officials, and action to address stereotypes in the media. In a ruling relating to domestic violence, and emphasising the need for the state to abide by this primary duty, the European Court of Human Rights said that “[i]n some instances, the national authorities’ interference with private or family life of the individuals might be necessary in order to protect the health and rights of others or to prevent commission of criminal acts.”²⁸ Human rights law recognizes that the state has duties of due diligence to prevent violence by private actors, as well as state agents or public officials, and should take a variety of actions in order to discharge that duty.²⁹
Logically and legally, therefore, the assessment of the perpetrator’s action, and whether or not that person used force, threat of force, or coercion, must be the primary consideration. Where the perpetrator has used such force, threat of force, or coercion, it is not possible for the victim to exercise free will, and, therefore, to exercise their right to physical and mental integrity. No further examination of the facts should be necessary.

3.2 EXAMPLES OF HOW FORCE, THREAT OF FORCE, AND COERCION UNDERMINE INDIVIDUALS’ SEXUAL AUTONOMY IN EXISTING JURISPRUDENCE AND INTERNATIONAL PRACTICE

The exercise of sexual autonomy is fundamental to lawful sexual conduct. The right to sexual autonomy has been expressed in positive terms by the Beijing Platform for Action:
“The human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence. Equal relationships between men and women in matters of sexual relations and reproduction, including full respect for the integrity of the person, require mutual respect, consent and shared responsibility for sexual behaviour and its consequences.” ³⁰
Examples of the circumstances in which sexual autonomy is violated are also necessary to illustrate the concept. As the ICTY Trial Chamber concluded in the Kunarac Trial judgment, the violation of sexual autonomy can be evidenced in a variety of ways:
“[T]he absence of genuine and freely given consent or voluntary participation may beevidenced by the presence of various factors specified in other jurisdictions, such as force, threat of force, or taking advantage of a person who is unable to resist. A clear demonstration that such factors negate the victim’s ability to give free and genuine agreement is found in those jurisdictions where absence of consent is an element of rape and consent is explicitly defined not to exist where facts such as use of force, the unconsciousness or inability to resist of the victim, or misrepresentation by the perpetrator.”³¹
As discussed below, there are at least four conditions under which, prima facie, the exercise of sexual autonomy is presumed to have been compromised, which reflect the Elements of Crimes definition of rape and sexual violence:³²
(1) Situations where the perpetrator uses force or threatened to use force;
(2) The perpetrator used coercion, or where he or she creates fear of violence, applies duress (including detention), psychological oppression, or abuses his or her power;
(3) Coercive environments, from which a perpetrator takes advantage of a victim; or
(4) Other conditions, including age, where various forms of natural incapacity or reduced capacity exist which affect the individual’s ability to give genuine consent.

(A) USE OR THREAT OF FORCE

The use or threat of force is the most obvious circumstance in which sexual autonomy is not exercised: it is “clear evidence of non-consent.”³³ Force or threats of force and coercion in various guises are listed as methods by which crimes of rape and sexual violence are perpetrated, therefore threats of force and force should not be seen as the required elements of the crime; coercion is sufficient. Moreover, resistance to force on the part of the victim or survivor is treated as irrelevant to the commission of the crime.³⁴ Rule 70 of the Court’s Rules of Procedure and Evidence provides that “[c]onsent cannot be inferred by reason of the silence of, or lack of resistance by, a victim to the alleged sexual violence.”³⁵This is consistent with human rights law, notably M.C. v Bulgaria, as outlined above.
Force should not be interpreted as “excessive physical force” or “life-threatening physical force” or “overwhelming physical force” as jurisprudence in national jurisdictions have often described it,³⁶ but, simply, “force” in the ordinary used of the term. It is significant to the proper interpretation of the definition of rape and sexual violence, that in other parts of the Elements of Crimes, the term “forcibly” is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment.”³⁷

(B) COERCION

The recognition of coercion as an essential element of the crime of rape and of other sexual crimes is a significant development because it recognizes an inequality between perpetrators and victims. The South African Law Commission has aptly described this development:
A shift from ‘absence of consent’ to ‘coercion’ represents a shift in the focus of the utmost importance from the subjective state of mind of the victim to the imbalance of power between the parties … . This perspective also allows one to understand that coercion constitutes more than physical force or threat thereof, but may also include various other forms of exercise of power over another person: emotional, psychological, economical, social or organizational power.³⁸
The European Court of Human Rights judgment in M.C. v. Bulgaria is an example of the kinds of circumstances which create a coercive environment. In this case, the alleged perpetrators created a coercive environment, which they then took advantage of, rather than taking advantage of an existing coercive environment. The Court noted that prosecutors failed to take the opportunity to “prove […] the perpetrators’ mens rea by assessing all the surrounding circumstances, such as evidence that they had deliberately misled the [victim] in order to take her to a deserted area, thus creating an environment of coercion.”³⁹ Investigators and prosecutors should look at all the surrounding circumstances before making recommendations and decisions on charging the accused in order to ensure effective prosecutions which fully uphold the rights of victims. Putting the surrounding circumstances before the court allows full consideration of whether and to what extent the act may have been coerced.
Five forms of coercive circumstances are discussed below, however, these provide non-exhaustive illustrations of the circumstances in which coercion is used in the commission of sexual violence.

(B)(i) FEAR OF VIOLENCE

FEAR OF VIOLENCE DIFFERS FROM SUBMISSION TO SEXUAL VIOLENCE DUE TO THREATENED VIOLENCE. FEAR OF VIOLENCE IS A MORE SUBTLE, BUT EQUALLY COMPELLING, FORM OF COERCION AS VICTIMS MAY SILENTLY AND WITHOUT COMPLAINT ACQUIESCE IN ORDER TO AVOID FURTHER RISK TO THEIR SAFETY. AS RECOGNIZED BY THE EUROPEAN COURT OF HUMAN RIGHTS INM.C. V. BULGARIA, “RAPISTS OFTEN EMPLOY SUBTLE COERCION OR BULLYING WHEN THIS IS SUFFICIENT TO OVERCOME THEIR VICTIMS.”⁴⁰ INDEED, FEAR OF VIOLENCE IS OFTEN A REACTION TO THE PERPETRATOR’S ACTIONS THAT SEEM LIKELY TO ESCALATE TO MORE OVERT THREATS OR ACTUAL INFLICTION OF FORCE: VICTIMS ARE COERCED TO SUBMIT TO SEXUAL ACTS QUICKLY AND QUIETLY LEST THE PERPETRATOR STEP UP HIS OR HER COERCIVE BEHAVIOUR TO VIOLENCE.⁴¹THE FEAR OF VIOLENCE THUS NULLIFIES THE POSSIBILITY THAT THE VICTIM IS EXERCISING HIS OR HER SEXUAL AUTONOMY AS AN EQUAL PARTICIPANT IN SEXUAL ACTS.

(B)(ii) DURESS

Duress is typically understood in domestic criminal law as a defence to conduct or circumstances that threatened the life or safety of the defendant or of another. Duress, however, should never be a defence to a crime under international law, but only a possible ground for mitigation of punishment. Duress as a mode of perpetrating crimes of sexual violence is a much broader concept; it includes extortion. In Akayesu, the Trial Chamber found that “threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion.”⁴² Duress also includes making “threats which a person in his [or her] situation would be unable to resist.”⁴³ An example of such duress is found in the Kvoca trial judgment, where the Trial Chamber emphasized that while the defendant did fulfil a purported ‘agreement’ with the victim to move her husband to better conditions within the detention camp in exchange for sexual acts, it was still coercive to threaten that the victim’s husband would remain in inhumane conditions and at risk of torture or cruel, inhuman or degrading treatment unless the victim submitted to the perpetrator’s demands that she participate in sexual acts.⁴⁴

(B)(III) DETENTION

Sexual conduct between inmates or detainees and persons in authority enforcing detention are presumed to be criminal acts of rape or sexual violence, due to the inherently coercive nature of detention.
The Kunarac Appeals judgment refers to the fact that In Germany⁴⁵ and the United States, this conduct is an offence even where the sexual conduct was identified as “consensual.”⁴⁶ Similarly, in Kunarac, the Appeals Chamber stated that in such cases, there is a “need to presume non-consent.”⁴⁷ InKunarac, the victims were “held in de facto military headquarters, detention centres and apartments maintained as soldiers’ residences. As the most egregious aspect of the conditions, the victims were considered the legitimate sexual prey of their captors.”⁴⁸ The women were repeatedly and regularly raped, often by more than one individual, and “those who sought aid or resisted were treated to an extra level of brutality.” ⁴⁹ The Appeals Chamber found that “such detentions amount to circumstances that were so coercive as to negate any possibility of consent.”⁵⁰ The Appeals Chamber in Krnojelacfound that the detainees were in a coercive situation, that is, a prison regime, which would negate any value to alleged consent to charges of deportation and expulsion.⁵¹
Detention is an inherently coercive environment, regardless of whether the accused individual was directly responsible for placing the victim into detention or not. Where detention is lawful, those responsible for initiating and supervising the detention have a duty of care not to abuse those in their power.⁵² Where detention is unlawful, this is further evidence of coercion.
There may be situations in which both the perpetrator and the victim are detained, and the perpetrator takes advantage of the coercive environment caused by the detention [see below, section 4 on “Taking advantage of a coercive environment”]. International human rights and humanitarian law standards governing detention, such as recommendations of the Special Rapporteur on Torture,⁵³ the Geneva Conventions⁵⁴ and the Standard Minimum Rules on the Treatment of Prisoners⁵⁵ make demands on states to segregate detainees by sex and by age. While these recommendations may protect detainees from some forms of violence at the hands of other detainees, they will not by themselves provide protection from same-sex violence or the abuse of power by persons in authority, including other detainees who wield de facto authority within the place of detention.

(B)(IV) PSYCHOLOGICAL OPPRESSION

The definition of rape in the Elements of Crime acknowledges that psychological pressure may constitute coercion in the commission of sexual violence. The definition of rape in Furundzija includes “a reasonable fear [that the victim] or a third person will be subjected to violence, detention, duress or psychological oppression.”⁵⁶ Rightly, the concept of force “is given a broad interpretation and includes rendering the victim helpless.”⁵⁷ In Kunarac, the Trial Chamber accepted that the definition of rape in various jurisdictions covered situations in which the victim was rendered “incapable of resisting.”⁵⁸
Psychological oppression can be more easily used by perpetrators where there is a pre-existing relationship or psychological bonds between the victim and the perpetrator, such as that between family members and children, teachers and students, doctors and patients, religious leaders and adherents, employer and employee and peacekeepers and members of protected populations: while sexual contact between people who maintain such relationships should not be seen in themselves as inherently coercive, courts should be more vigilant to the use of psychological oppression by alleged perpetrators where such relationships exist.⁵⁹
The shaming or humiliation of the victim is often part of the psychological oppression. This is especially potent where the fact of the sexual violence is publicized, or the perpetrator threatens to publicize the sexual acts as a form of blackmail to secure the victim’s submission. In many communities survivors of sexual violence may be doubly victimized – once by the original perpetrator and again by their communities as a blight on community or family ‘honour’. In its worst form, this re-victimization is violent and even fatal, but even the risk of ostracism and shunning from the community constitute potent psychological oppression.⁶⁰

(B)(V) ABUSE OF POWER

Although abuse of power in many circumstances may overlap with coercion in detention, it is a broader element including situations where the perpetrator is in a position of political, military or other power over the victim. Examples of such an abuse of power include coercion through promises that the victim will receive better treatment and assurances that third parties will be protected from harm in exchange for yielding to the perpetrator.
The Kvočka case provides a clear example of an abuse of power. Although the crimes charged occurred in the context of detention, the reasoning applies to other types of abuse of power situations. In Kvočka, the Trial Chamber accepted evidence from women who had been coerced into sexual acts with the promise of improved (albeit still abusive) treatment for themselves and their families and held that the accused had “grossly abused his position and took advantage of the vulnerability of the detainees.”⁶¹One witness testified that she had been forced into sex with the accused in exchange for food, water and assurances that her husband would be moved into better section of the detention camp. The Trial Chamber found that instead of discrediting the testimony of the witness, her evidence “suggests that [the accused] regularly attempted to bribe or coerce victims to ‘agree’ to sexual intercourse in exchange for favours.”⁶²
In Delalić, the Trial Chamber noted that the involvement of a state agent or public official was inherently coercive, especially in the context of armed conflict:
The condemnation and punishment of rape becomes all the more urgent where it is committed by, or at the instigation of, a public official, or with the consent or acquiescence of such an official.⁶³
The Trial Chamber went on to say that it is difficult to imagine circumstances in which rape by, or at the instigation of a public official, “could be considered as occurring for a purpose that does not, in some way, involve punishment, coercion, discrimination or intimidation.”⁶⁴
Abuse of power may be relevant even where the accused does not exercise official authority or power. For example, in Musema, the accused was the owner of a tea factory. The Trial Chamber held that he was in a position of power over his employees and others in his prefecture, as he was seen as someone who wielded considerable power in the region.⁶⁵ Although the Trial Chamber’s finding related to whether or not the accused was responsible for the acts of others, the decision recognizes that coercive power may be exercised outside formal state or military structures through other relationships of power and influence which come before the Court and are increasingly prevalent in armed conflict situations.
Relatively recent and highly publicized instances of abuse of power arose in the context of peacekeeper or humanitarian aid worker abuse of the populations they were discharged to protect and aid.⁶⁶ This abuse of power is especially troubling because of the de facto fiduciary relationship between the parties and the fact that peacekeepers may be immune from prosecution.
Allegations of peacekeepers and aid workers engaging in sexual abuse and exploitation surfaced in late November 2001.⁶⁷ In early 2004, the international media reported on the sexual exploitation and abuse of young Congolese women and girls by United Nations peacekeepers in the United Nations Organization Mission in the Democratic Republic of the Congo (MONUC).⁶⁸
Various United Nations texts define what amounts to sexual abuse and sexual exploitation. The MONUC Code of Conduct defines an act of sexual abuse and/or exploitation as (a) any exchange of money, employment, goods or services for sexual intercourse, (b) sexual activity with a person under the age of 18, or (c) other sexual misconduct that has a detrimental effect on the image, credibility, impartiality or integrity of the United Nations.⁶⁹ A more comprehensive definition was promulgated by the Secretary-General in a 2003 bulletin addressed to all staff of the United Nations, including staff of separately administered organs and programs on special measures for protection from sexual exploitation and sexual abuse.⁷⁰
The bulletin defines sexual abuse and sexual exploitation as two different concepts and violations. It defines sexual exploitation as “any actual or attempted abuse of a position of vulnerability, differential power, or trust for sexual purposes, including, but not limited to, profiting monetarily, socially or politically from the sexual exploitation of another.”⁷¹ Sexual abuse is defined as an “actual or threatened physical intrusion of a sexual nature, whether by force or under unequal or coercive conditions.” These are both comprehensive approaches, which define any form of sexual exploitation in the context of peacekeeping operations as a form of serious misconduct regardless of the purported consent of the victim.⁷²
Such rules function as a preventive measure, to make it part of a professional responsibility and duty to abstain from sexual activity while undertaking a responsible and authoritative role – in the same way that criminal law in certain domestic jurisdictions makes it a criminal act for a detention or prison officer to have sex with detainees or prisoners. While it functions to stop officials abusing people who lack power, it also stops them from giving beneficiaries who are willing to exchange sexual acts for improved access to services, goods, benefits or money an unfair advantage over others to whom the official owes a duty of care and fairness in distributing aid, protection, or other assistance.
These rules are to prevent rape and sexual violence, and in so doing, prevent abuse of power. Like detention, between peacekeepers and protected populations, there is a professional relationship which requires respect, to avoid any tainting by abuse of power. As with detention, these are reasonable and proportionate limitations on conduct in a professional context, rather than a limit on expression of sexuality in itself.

C. TAKING ADVANTAGE OF A COERCIVE ENVIRONMENT

It has been stated by various authorities, including the Special Rapporteur on Sexual Slavery,⁷³ that the very existence of an armed conflict constitutes an inherently coercive environment due to the pervasive potential for violence. In Akayesu, it was found that a military presence among displaced persons was sufficient to make the situation inherently coercive.⁷⁴
Taking advantage of a coercive environment differs from other forms of coercion in that the perpetrator is not directly responsible for creating the coercive situation. The coercive environment exists independently of the perpetrator’s actions but the perpetrator uses the existing coercive environment to his or her advantage, as mentioned above in the discussion of rape of one detainee by another. Inclusion of the term “taking advantage of a coercive environment” in the Elements of Crimes recognizes that the effects of armed conflict permeate every aspect of individuals’ lives and has impact beyond the battlefield. Increasingly, armed conflict is waged in towns and cities, among the civilian population, and therefore has a debilitating effect on the local economy and pervades nearly every facet of everyday life. Such conflict situations include active “hostilities, detention, occupation and generalized terror and deprivation.”⁷⁵
The conditions under which female detainees are often held offer one illustration of a coercive environment. One pattern identified by the 1992 Commission of Experts in the former Yugoslavia involved instances of civilians being allowed to enter the detention camps, select women, remove them from the camp, rape them and then either return them to the camp or kill them. Civilians were taking advantage of the coercive environment in the camps, but not responsible for the detention itself. This situation is distinguished from the detention situation described above (page 19) in that guards have specific obligations towards the detainees, while the civilians entering the camp owe no such duty of care,⁷⁶ but are still able to perpetrate abuse.
Peacekeeper and aid worker abuse of power over the populations they serve may be both coercion through an abuse of power and taking advantage of coercive environments that were not created directly by the presence of peacekeepers and aid workers in the region. Individuals of all kinds are able to take advantage of the situation of disorder, confusion and lawlessness to commit rape and other sexual crimes, including non-combatants, other displaced persons, criminals and gang members or members of quasi-independent groups unconnected to the armed conflict. An approach that takes into account these possibilities offers justice to greater numbers of victims.
The case of M.C. v Bulgaria gives a further example of the kinds of situation which constitute a coercive environment. In this case, the alleged perpetrators created (rather than took advantage of) a situation which was coercive, by luring the victim to an isolated rural area, late at night.

D. INCAPACITY

In addition to force, threats of force and coercion, the Elements of Crime recognize that rape and other sexual crimes can be committed against a person incapable of securing their sexual autonomy because they lack the capacity to do so. Incapacity is fully consistent with the concept of sexual autonomy because a victim of sexual crime is unable to exercise his or her autonomy if, in the words of the Elements of Crimes, they are affected by natural, induced or age-related incapacity.⁷⁷
A non-exhaustive list of circumstances in which an individual may be found to lack capacity to exercise sexual autonomy includes:

1. 1. natural incapacity, for example, mental incapacity to understand the quality of the act;
   2. induced incapacity, for example, diminished capacity due to ingestion of drugs and/or alcohol;⁷⁸ and
   3. age-related incapacity, for example, the competence of children to give free and informed agreement to sexual activity, as recognized in the Convention on the Rights of the Child.⁷⁹

Determinations about whether or not an individual lacked capacity to choose, freely and genuinely, to engage in sexual contact should be made on a case-by-case basis as they are largely questions of fact. In making that determination, however, the Court will need to consider such factors as the survivor’s capacity to perceive, understand and communicate and whether specific developmental, mental health or perceptual problems, especially those induced by drugs or alcohol, had rendered the individual incapable of genuine exercise of sexual autonomy.

3.3 ANY REFERENCE TO THE TERM “CONSENT” MUST ALWAYS BE UNDERSTOOD IN A MANNER CONSISTENT WITH HUMAN RIGHTS LAW AND STANDARDS.

While the definition of rape and sexual violence in the Elements of Crimes is focused on the perpetrator’s use of force, threat of force, or coercion, there are still many references within the text to consent (as set out in the footnote to Elements of Crimes).
Any reference to consent must be interpreted as genuine agreement and the exercise of sexual autonomy (as set out in M.C. v Bulgaria) and the Court should make it clear that consent cannot be exercised where there is force, threat of force, or coercion.
Rule 70 of the Rules of Procedure and Evidence of the International Criminal Court requires that
“In cases of sexual violence, the Court shall be guided by and, where appropriate, apply the following principles:

1. 1. 1. Consent cannot be inferred by reason of any words or conduct of a victim where force, threat of force, coercion or taking advantage of a coercive environment undermined the victim’s ability to give voluntary and genuine consent;
      2. Consent cannot be inferred by reason of any words or conduct of a victim where the victim is incapable of giving genuine consent;
      3. Consent cannot be inferred by reason of the silence of, or lack of resistance by a victim to the alleged offence.”

It is possible to apply to the Court to adduce evidence of consent. The closed court (in camera)procedure outlined in Rule 72 acts as a protection to the victim or witness from being obliged to give evidence relating to consent where it cannot have relevance, that is, where the perpetrator used force, threat of force, or coercion, or took advantage of a coercive environment. Given that the human rights protection of Article 21(3) of the Rome Statute is expressly mentioned in this Rule, as well as Article 69 (4) of the Rome Statute, relating to fair evaluation of testimony as well as fair trial, the right of women to equality before the law in relation to sexual crimes is reinforced. Where evidence of consent which relies on gender stereotyping is proposed, Article 21(3) references to human rights would make such evidence inadmissible.
All references to “consent” within the Elements of Crimes must be interpreted consistently with a fuller, more accurate and human-rights based understanding of the word consent – that a truly consensual decision is a decision made without force, threat of force, coercion of any kind, or taking advantage of a coercive environment. Where sexual contact takes place without such uncoerced and free decision-making, the victim’s right to physical and mental integrity, and sexual autonomy, is violated. Where evidence of force, threat of force or coercion is present, there should absolutely be no additional element of law of consent for the prosecution to prove to convict a defendant on a charge of rape or sexual violence.

3.4 IS IT POSSIBLE FOR GENUINE CHOICE TO BE EXERCISED IN A SITUATION OF COERCION?

Rule 70 of the Rules of Procedure and Evidence expressly guides the Court to not infer consent in situations where force, threat of force, or coercion have been used by the perpetrator, or the perpetrator has taken advantage of a coercive environment.⁸⁰ In cases relating to forced marriages⁸¹and slavery⁸²both courts were sceptical about arguments that women had become reconciled to their situation, and were, therefore, in a consensual marriage with men who had initiated the purported relationship through force or coercion. Similarly, in the Kunarac case where the defendant alleged that a victim had in fact “seduced” him the ICTY was robust in its rejection of his testimony. In Kunarac’s initial trial, he alleged that one witness had initiated sexual contact with him and therefore he had no reason to think that she was not consenting. The Trial Chamber’s opinion was that given the circumstances, it was “highly improbable” that he should realistically think that she was consenting, given “the general context of the existing war-time situation and the specifically delicate situation of the Muslim girls detained in Partizan or elsewhere in the Foca region during that time.” ⁸³ In the Bembaconfirmation of charges hearing, mention is made of evidence being admitted that some women in the area where attacks take place “had sexual relations with soldiers on a voluntary basis, thus challenging the requirement of force.”⁸⁴However, the Chamber found such evidence “untenable”⁸⁵ but appears to make this comment solely in relation to the specific witness statements before it, rather than the general comment that some women had voluntary relationships with soldiers.
The Kunarac Appeals Judgment states that:
It is worth observing that circumstances giving rise to the instant appeal and that prevail in most cases charged as either war crimes or crimes against humanity will be almost universally coercive. That is to say, true consent will not be possible.⁸⁶
The comment in the Kunarac Appeals Judgment should not be read as implying that there is a normative requirement of strict liability for rape where sexual contact in all forms of armed conflict or where crimes against humanity are taking place. Instead, it reflects the immediate factual reality of armed conflict situations and how coercion operates on the decision-making of those caught up in it. The coerciveness of such factual circumstances is a matter of evidence for the prosecution to prove beyond reasonable doubt in each case. Examples of such situations may include:

• a witness giving evidence that, through lack of safe and secure shelter or housing, she was unable to make herself secure from attackers;
• witnesses giving evidence that the presence of armed personnel acted as an overt or implied threat of violence;
• witnesses giving evidence that separated from their communities, while migrating or fleeing, a perpetrator took advantage of their inability to escape;
• a witness giving evidence that she had dependent children with her at the time of the attack, and that she was unable to refuse unwanted sexual contact for fear of diverting the perpetrator’s sexual interest or violence to a dependant child or children.

4. CRIMES OF RAPE AND SEXUAL VIOLENCE AGAINST CHILDREN MUST BE UNDERSTOOD IN TERMS OF COERCION, NOT CONSENT

Definitions of rape and sexual violence based on force, threat of force, and coercion should be applied in cases relating to children with awareness of the rights of children, particularly Article 34 of the Convention on the Rights of the Child. Girls and boys are more easily targeted, forced, threatened and coerced than adults. The definition of rape and sexual violence which uses force, threat of force, or coercion can be applied accurately to the evidence of how child victims experience these crimes, and how perpetrators take advantage of power differentials in order to commit these crimes. This demonstrates factually the benefits of this legal approach, in comparison with approaches based on consent alone.
For example, where the definition of rape and sexual violence is based on force, threat of force, or coercion, there is no need for statutory rape provisions, which specify an age limit below which it is assumed a child cannot consent to sexual contact. Such statutory rape provisions fail to do justice to victims where the age limit is set either too high or too low.
Where the age limit is set too high, it denies adolescents the right to make their own choices relating to sexual activity, as it makes them liable to criminal prosecution for exercising their human rights. ⁸⁷
Where the age limit is set too low, it tends to deny adolescents, particularly adolescent girls, the protection of the criminal law. Once girls are over the age stipulated in the statutory rape provision, they are frequently assumed to have agreed to sexual contact, irrespective of whether the evidence indicates that they were forced, threatened, or otherwise coerced.
Consent-based approaches to the crime of rape do not capture the reality of how children under 18 are targeted for sexual violence. The kinds of fearful submission to sexual acts that may be manifested by children (for example, as described in the case of M.C. v Bulgaria) are frequently portrayed as ‘consent’ by alleged perpetrators. This portrayal is particularly common when the alleged victim is an older child, especially an adolescent girl. The importance of the coercion-based approach to the definition of rape and sexual violence is that it focuses on the perpetrator’s actions, and how this affected the behaviour of the victim.
The human rights of children are essential to an effective integration of relevant human rights principles into the jurisprudence of the Court, as so many children, particularly girls, are targeted for sexual violence and rape.⁸⁸ With its reference to age-related incapability of giving genuine consent and its focus on coercion, as well as force and threat of force, the Elements of Crimes definition of rape is well equipped to address the particular situation of girls and boys, and how perpetrators use coercion to commit sexual crimes against children.
Sexual crimes against girls and boys are frequently reported in armed conflict and situations where crimes against humanity and genocide are taking place, as well as in peacetime. Although the ages of victims of rape and sexual violence are often emphasised in jurisprudence, which tends to show the egregiousness of these crimes, a stronger human rights approach, using international standards could be used to show how children fall victim to these crimes, and the kinds of coercion used by perpetrators against children.
Article 34 of the Convention on the Rights of the Child, requires the state to “protect the child from all forms of sexual exploitation and sexual abuse” including “the inducement or coercion of a child to engage in any unlawful sexual activity.”
Professor Paulo Sergio Pinheiro, appointed by the UN Secretary-General to prepare a global report on violence against children, noted that:
“Studies suggest that young children are at greatest risk of physical violence, while sexual violence predominantly affects those who have reached puberty or adolescence. Boys are at greater risk of physical violence than girls, while girls face greater risk of sexual violence, neglect and forced prostitution.”⁸⁹
In the follow-up report to Professor Pinheiro’s study, by UNICEF, it was noted that:
“Given vulnerabilities associated with their age, physicality and lack of negotiating power, it is likely that adolescent girls are among the highest of all risk groups for sexual violence perpetrated against them by members of their community. However, for many girls around the world, sexual aggression by boys and men is normative, and therefore not perceived by girls (or boys) as criminal unless it crosses the bounds into more conformist definitions of rape. […] Average estimates of coerced first sex among adolescent girls around the world range from 10 percent to 30 percent, but in some settings, such as Korea, Cameroon and Peru, the number is closer to 40 percent.” ⁹⁰
An approach to the definition of rape based on force, threat of force and coercion, such as that outlined in the Elements of Crimes, brings the focus of the criminal law back to the actions of the perpetrator, and particularly whether the perpetrator’s actions were particularly coercive because of the young age of the victim, and, therefore, can be used to good effect in further protecting the human rights of children and adolescents under the age of 18.

5. BEYOND THE DEFINITION: HOW HUMAN RIGHTS PRINCIPLES CAN BE APPLIED AND INTERPRETED IN THE INTERNATIONAL CRIMINAL COURT’S HEARINGS AND JURISPRUDENCE

The effective prosecution of rape and other crimes of sexual violence is frequently undermined by stereotypes and prejudice on the part of police officials, prosecutors and judges, as well as juries.⁹¹States are obliged by international human rights law and standards to dispel discriminatory practices and views in order to implement the right to equality.⁹²
This modification of prejudices and stereotypes is a task for governments as a whole, not just judiciaries, either international or domestic. However, judgments in individual cases have an important role in indicating to society the conduct which is criminal and unacceptable, and the reasons for such decisions, and particularly addressing attitudes which seek to excuse or justify criminal conduct,⁹³ identifying false stereotypes and through detailed reference to the evidence before the court, making clear the reality of how perpetrators commit crimes.⁹⁴
The definition of rape based on a force, threat of force and coercion approach outlined in the Elements of Crimes would lead to a much more respectful method of questioning and cross-examining victims and witnesses than a definition centred on the issue of consent. Instead of being required to ask directly whether or not the victim consented to the sexual act – questioning that has frequently caused extreme distress and humiliation to witnesses⁹⁵ – advocates should only ask about how the circumstances of the act, and the behaviour of the perpetrator, affected the victim or witness, whether they were able to make unfettered decisions about the acts in question. The jurisprudence and the application of human rights principles indicates that such an assessment under Rule 72 should be absolutely exceptional (see above Section 3.3).
Certain of the Rules of Procedure and Evidence reflect good practice adopted in some national jurisdictions, which seek to eradicate prejudice and stereotypes, primarily stereotypes denigrating women and girls. For example,
• Rule 63(4) takes steps to ensure that there is no place in the Court for any legal requirement that women and girls are likely to lie about sexual assaults, and, therefore, their evidence should only be considered probative when corroborated by other evidence.
• Rule 70(a) requires the Court to reject a defendant’s argument that consent can be inferred by words or conduct of a victim where the victim’s ability to give voluntary and genuine consent is undermined by force, threat of force or coercion.
• Rule 70(b) requires the Court to reject a defendant’s argument that consent can be inferred by words of conduct of a victim where the victim is unable to give genuine consent.
• Rule 70(c) requires the Court to reject a defendant’s argument that because the victim was silent in the face of force, threat of force, or coercion, or did not resist sexual violence, that the victim consented. This goes some way to addressing the discriminatory assumption that women are sexually available unless or until they express their rejection of sexual advances, as it refers only to silence in the face of force, threat of force, or coercion.
• Rule 70(d) requires the Court to disregard prejudicial attacks on a victim’s credibility as a witness through the use of evidence of that person’s previous sexual history; it also requires the Court not to infer from previous sexual history evidence that a victim or witness is “predisposed to be sexually available.” This will be a particularly important provision to consider if the Court is hearing evidence of sexual violence against sex workers.
Other stereotypes and prejudices which affect particularly women’s right to equality before the law which the Court should address as they arise in individual cases are:

• that women in particular are assumed to be sexually available unless or until they express their opposition; while Rule 70(c) goes some way to addressing this, it only refers to situations where a victim is subjected to force, threat of force, or coercion. In general, no-one should be assumed to be sexually available simply because she or he has not expressed opposition to sexual contact. Any party to sexual contact should only be assumed to be freely and genuinely agreeing if they have expressed that agreement;⁹⁶
• that women and girls bear responsibility for sexual attacks because they have been out late at night, or in isolated places, and have, therefore, failed to protect themselves;
• that women and girls are likely to make false accusations of rape and sexual violence.⁹⁷ This is a particularly irrational stereotype as women and girl complainants usually have very little to gain and everything to lose by making allegations of rape, there is rarely an incentive for them to lie; many complainants pursue their search for truth and justice at enormous cost to themselves, in terms of stigma and rejection by their families and communities. Furthermore, such discriminatory assumptions lead to a disproportionate and unreasonable emphasis being placed on having evidence other than the victim’s testimony – irrespective of how clear, detailed, and consistent such testimony is – such as medical evidence on examination of the victim’s body, traces of semen, and independent witness testimony. While there are detailed standards for the gathering of medical evidence to support claims of torture, including rape and sexual violence, the availability of competent medical examiners who can undertake such examinations in an appropriately sensitive and professional manner is often not available, especially in conflict situations. Given that perpetrators will often attack only when others are not present, independent witness evidence is often not available. According to leading commentators, “a Chamber could make a ruling on proof on the basis of a single testimony, after assessing its relevance, probative value and credibility.”⁹⁸
• that victims of rape are ‘shamed,’ ‘to blame’ or ‘guilty’ because they have been raped. This is a frequently-used stereotype which discourages women and girls from coming forward to bring complaints, due to fear of retribution, in some societies, prosecution, or ostracism by those around them. The Court should take every opportunity in its jurisprudence to make it clear that victims of rape are victims of a serious crime, and firmly reject any attempts to hold a victim culpable for its occurrence;
• that because such victims are perceived to have exchanged sexual acts for their lives or to protect others, victims should not complain about rape, or the harm caused by rape is minimised. Such cases should always be seen as rape involving threat or coercion, and the circumstances should not be used as a method of justifying or minimizing the crime committed by the perpetrator;
• that forms of so-called “persuasion” which involve applying psychological pressure on women and girls to agree to sexual contact are acceptable;
• that if a woman or girl agrees to spend time with a man in a private place, this constitutes agreement to sexual contact which detracts from the criminal liability of the perpetrator;
• that women or girls (even young children) “seduce” men by being dressed in a certain manner, that their appearance signals agreement to sexual acts.

Prejudices and stereotypes about men and boys who have been raped are also significant barriers to justice. Frequently male victims of sexual violence are unwilling to report crimes because they fear that they will not be believed; they fear ostracism: they fear homophobia (irrespective of whether they are homosexual or not) and may be at particular risk of further violations of their human rights, mainly that they will face prosecution themselves, if they complain of rape in countries where homosexual acts are illegal.⁹⁹ Furthermore, officials in criminal justice systems, and also, health service providers frequently deny male victims appropriate and professional service.¹⁰⁰
Therefore, the International Criminal Court should ensure competent and sensitive treatment of victims of sexual crimes in the hearing of evidence, irrespective of gender of the victim or the perpetrator,¹⁰¹and take steps to challenge stereotypes in its jurisprudence, for example, by referring explicitly to stereotypical assumptions and referring to the detailed realities of the evidence they have heard, and how the stereotypes undermine equality before the law.

6. ACTS OF RAPE AND SEXUAL VIOLENCE CAUSING SEVERE PAIN AND SUFFERING MUST BE CHARGED AS TORTURE.

All acts of rape amounting to crimes against humanity or war crimes charged within the jurisdiction International Criminal Court are factually and legally contiguous with the crime of torture as a war crime¹⁰² or a crime against humanity,¹⁰³ and should be charged as such, irrespective of whether the perpetrator is a man or woman, or the victim is a man or woman, in order to comply with Article 21(3) in relation to the right to equality before the law, without being subjected to discriminatory stereotyping.¹⁰⁴There are references to prohibited purposes in the definitions of torture as war crimes, not as crimes against humanity. However, the idea that torture need be purposive, premeditated and targeted is an important part of how and why it is understood to be such a serious crime, and a reason why a victim is seen as worthy of sympathy and care. Rape, in contrast, is commonly considered as an inescapable and normal part of life, particularly in armed conflict. Acts of rape should be co-charged as rape and torture in order to address the following stereotypes:

• That rape is a less important crime;
• That rape is inevitable and inescapable, rather than a intentional act of violence;
• That rape is a natural result of perpetrators’ sexual urges, rather than an intentional act of humiliation, discrimination and intimidation.

The crimes of rape in the jurisdiction of the Court should always be prosecuted cumulatively as rape and torture, due to the fact that such crimes inflict severe pain or suffering and, in the case of war crimes, because of use of reasons based on sexual and gender-based discrimination by rapists in perpetrating these crimes.¹⁰⁵ The effects of rape on victims lead to discriminatory outcomes in many aspects of their lives, which require acknowledgment and reparation. Women and girls are considered frequently after being victim of a rape to be “worthless” or “dishonoured” in a manner which would not be considered in this way to the same extent if the perpetrators were prosecuted for torture. It is therefore important for the Prosecutor and the Court reflect that the crimes of rape are correctly identified as torture in the jurisdiction of the Court, and to do so irrespective of the gender of the victim both in its charging practices and the elaboration of its jurisprudence.
Furthermore, the rule of international human rights law against stereotyping on the grounds of sex¹⁰⁶would require that acts of rape, whether perpetrated against men or women, be charged both as rape and torture, in order to address such stereotyping effectively. In the Bemba confirmation of charges decision, charges of rape as a crime against humanity alone were confirmed, as Pre-Trial Chamber II considered that although the two crimes could be prosecuted as both rape or torture,¹⁰⁷ to charge as both would be burdensome to the Defence.¹⁰⁸ The Pre-Trial Chamber also decided that the charge of rape would require that penetration be proved as a further specific element, therefore, of the two charges, to charge the criminal conduct as rape alone would be sufficient.¹⁰⁹ While specificity and efficiency are important principles, as long as there is clarity about the facts alleged, charging the conduct both as rape and torture still allow defence lawyers to prepare their case. The requirement under Article 21(3) is a significant factor to consider, given the legal obligation under human rights law to address stereotyping, and the effect of charging of torture as an aspect of how victims are perceived by, and treated by, others in their communities. Amnesty International notes that the Pre-Trial Chamber identified a power of the Trial Chamber to re-characterise a crime’s legal basis.¹¹⁰ Given the identification as rape as a specific form of torture in human rights law and standards, the Trial Chamber should identify these acts as crimes of rape and torture.

6.1 SEVERE PHYSICAL OR MENTAL PAIN OR SUFFERING

Studies of the physical and psychological harms caused by rape and sexual violence are severe and long-lasting. Medical conditions caused by physical injuries sustained during rape and sexual violence, include gynaecological injuries, sexually transmitted infections, and infertility. Pregnancy resulting from rape, the difficulties of seeking an abortion, or the challenges of raising a child born of rape, add to the pain and suffering inflicted upon girls and women of child-bearing age who are targeted for rape. The psychological injuries include depression, post-traumatic stress, and suicidal thoughts.¹¹¹
The leading human rights law judgments in Mejia v Peru,¹¹² Aydin v Turkey,¹¹³ and Miguel Castro Castro Prison v Peru¹¹⁴ all recognize that the pain and suffering caused by an act of rape is of a severity to constitute torture, both physically and psychologically. Successive Special Rapporteurs on torture and other cruel, inhuman or degrading treatment or punishment have also identified rape and sexual assaults as forms of torture.¹¹⁵ The Human Rights Committee has said that “[to] assess compliance with article 7 of the Covenant, as well as with article 24, which mandates special protection for children, the Committee needs to be provided information on national laws and practice with regard to domestic and other types of violence against women, including rape” ¹¹⁶
The Committee on the Elimination of All Forms of Discrimination (CEDAW) has identified gender-based violence, which includes rape, as a violation of the right not to be tortured.¹¹⁷
The Committee against Torture has also recognized rape as a form of torture.¹¹⁸
The Appeals Chamber in the Kunarac case was unequivocal:
“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.”¹¹⁹

6.2 DEGRADATION

The pain and suffering caused by rape is of a particular and individual type due to the sexual nature of the assault, and being put to sexual “use” which degrades the person who suffers the violation, increasing the psychological pain or suffering.
Perpetrators are aware of this effect of penetration of a sexual nature. Such penetration necessarily involves forcing partial or complete nakedness, and is targeted at the genital and anal areas of the body, areas of the body that are almost always kept private. In some contexts, these parts of the body are associated with pleasure and intimacy and, therefore, harm done to them is exceptionally psychologically and physically damaging. In other contexts, these parts of the body are seen as shameful, and any contact with them other than that specifically permitted (for example, in legally or religiously sanctioned marriage) is seen as degrading and humiliating in itself, and this adds to the victim’s experience of severe pain or suffering caused by the sexual violence.¹²⁰
Furthermore, there is a social context to sexual contact, whether wanted or unwanted: a stigma, normally of the person who is penetrated, due to perceptions of sexual orientation or sexual availability, which reinforces gendered hierarchies. For example, victims of male rape are often considered to “have been used as a woman”, something too shocking to be addressed; identified wrongly as gay because they have been raped, or if a victim is gay, he is assumed to have consented; furthermore, rape of men is seen as the normal and inevitable outcome of imprisoning men together.¹²¹
Frequently the perpetrator publicizes the rape, through carrying it out in the presence of others, in order to degrade and humiliate the victim further; in other cases, the perpetrator uses threats to publicize sexually explicit information or photographs of the victim in order to coerce the victim into submission. The judgment in Prosecutor v Akayesu, the first case on rape in the ad hoc criminal tribunals, identified rape as a form of torture:
“Like torture, rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person. Like torture, rape is a violation of personal dignity, and rape in fact constitutes torture when it is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. “¹²²
The identification of rape as a form of torture, including because both crimes contain the elements of “punishment, coercion, discrimination or intimidation,” was confirmed by the ICTY:
The Trial Chamber considers the rape of any person to be a despicable act which strikes at the very core of human dignity and physical integrity. The condemnation and punishment of rape becomes all the more urgent where it is committed by, or at the instigation of, a public official or with the consent or acquiescence of such an official. Rape causes severe pain and suffering, both physical and psychological. 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. Furthermore, it 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. In the view of this Trial Chamber this is inherent in situations of armed conflict.¹²³

6.3 DISCRIMINATION

The definition of torture in the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture) requires that the perpetrator acts for a prohibited purpose or reason, including “for any reason based on discrimination of any kind.”¹²⁴
Often, perpetrators commit their crimes in a way that expresses their discriminatory motivation, for example, as a method of intimidating the civilian population of a particular ethnicity within a territory to leave through public perpetration of rape and sexual violence against women and girls, or an aspect of the crime, for example, crimes are accompanied with insults which are sexually or racially demeaning.
However, the Appeals Chamber of the Yugoslavia Tribunal has ruled that as long as one of the perpetrator’s motives is for a prohibited purpose or reason, it does not matter whether the perpetrator has other motives, the criminal intent is still present.¹²⁵ This recognition is particularly important in situations, such as that described in the Kunarac Appeal Judgment, where perpetrators may say that they did not have a particular intent which would justify a prosecution of torture, that they engaged in sexual contact with the victims solely for reasons of sexual pleasure and gratification. The ICTY Appeals Chamber showed that it was aware of the discriminatory motivations behind the choice of victims who were targeted and that this can constitute a prohibited purpose which justifies a charge of torture.
“The Appellants argue that the intention of the perpetrator was of a sexual nature, which, in their view, is inconsistent with an intent to commit the crime of torture. In this respect, the Appeals Chamber wishes to assert the important distinction between ‘intent’ and ‘motivation’. The Appeals Chamber holds that, even if the perpetrator’s motivation is entirely sexual, it does not follow that the perpetrator does not have the intent to commit an act of torture or that his conduct does not cause severe pain and suffering, whether physical or mental, since such pain or suffering is a likely and logical consequence of his conduct. In view of the definition, it is important to establish whether a perpetrator intended to act in a way which, in the normal course of events, would cause severe pain or suffering, whether physical or mental, to their victims, in pursuance of one of the purposes prohibited by the definition of the crime of torture, in particular, the purpose of discrimination.”¹²⁶
Furthermore, the Committee against Torture in its General Comment 2, said that
”[…]elements of intent and purpose in article 1 do not involve a subjective inquiry into the motivations of the perpetrators, but rather must be objective determinations under the circumstances.”¹²⁷
The ICTY Trial Chamber has concluded that the rape of certain persons belonging to a particular gender has in itself been identified as a form of discrimination. In Prosecutor v Delalić, the Trial Chamber said that “the violence suffered by Ms. Ćećez in the form of rape, was inflicted upon her by Delić because she is a woman…this represents a form of discrimination which constitutes a prohibited purpose for the offence of torture.”¹²⁸ This reasoning was applied in a subsequent case, where multiple forms of discrimination were identified, including that of gender:
“The Trial Chamber further finds that the rape and other forms of sexual violence were committed only against the non-Serb detainees in the camp and that they were committed solely against women, making the crimes discriminatory on multiple levels. Radić did not rape any of the male non-Serb detainees. As recognized in Čelebići, raping a person on the basis of sex or gender is a prohibited purpose for the offence of torture.”¹²⁹
This principle was confirmed by the Appeal Chamber,¹³⁰ although the Appeal Chamber did not address sex or gender as a prohibited ground of discrimination: the Trial Chamber approach is more complete in its understanding of human rights principles and this ground of discrimination should be included by the Court in its jurisprudence, in order to fulfil the requirements of Article 21(3) of the Rome Statute.
Perpetrators’ use of sexual crimes embody gendered discrimination in that these crimes target the gender identity and sexual identity of victims – whether the victims are men or women. Due to the lower status of women in society, the harmful impact is often more serious to women. However, victims may experience the effects of rape as a crime as sexualised discrimination and humiliation, their identity within society, based on gender roles, is often entirely demeaned – in ways that play on discriminatory sexual stereotypes, of both genders (women are targeted for sexual violence as a way of humiliating men, emphasising that they cannot protect women in their families, when this is a social or cultural requirement).
Therefore, although the Pre-Trial Chamber ruled in the case of Bemba that charging rape as rape only, not as rape and torture, is for the sake of efficiency, Amnesty International suggests that there is an important human rights legal standard to be adhered to in cumulative charging; that is, that signalling rapes concurrence with torture emphasises that rape is a serious crime, identified as a form of torture, and a crime as serious as torture. Given gender stereotyping about rape, particularly rape of women and girls, this would be an important addition to the Court’s future jurisprudence, as well as a requirement under Article 21(3).

7.CONCLUSION

Article 21(3) has been described as “one of the more important provisions of the Rome Statute.”¹³¹ The obligation under Article 21(3) is potentially wide-reaching, requiring that all organs of the International Criminal Court demonstrate understanding of the human rights violations which constitute crimes under the jurisdiction of the Court, and how international human rights legal analysis can inform and elucidate the criminal law applied by the Court. Indeed, “[Article 21(3)] provides a standard against which all the law applied by the court should be tested.”¹³²
With regard to the prosecution of rape, the provisions of Article 21(3) that require interpretation in accordance with internationally recognized human rights; consistency with the principle of non-discrimination based on gender is particularly important. Rape laws have been traditionally riddled with and reflective of discriminatory views toward women. Though defined for centuries as a war crime, even the most obvious situations of rape were rarely prosecuted either internationally or domestically. It is only in recent decades that respect for women’s sexual autonomy has begun to reshape the law of rape both under international and, increasingly, under domestic law. Accordingly, the Court’s duty to ensure that the interpretation and application of the Rome Statute is consistent with international human rights and is stripped of gender discriminatory stereotypes and practices is of paramount significance if international justice is to be properly universal and gender inclusive.
Beyond that, the Elements of Crimes further detail the proof required to establish rape at the same time as the Rules of Procedure and Evidence establish the boundaries of relevance and fair inference consistent with the principle against gender discrimination. The Elements provide a useful starting place for judicial interpretation. Thus, hidebound, discriminatory notions of penetration, force or consent that are contained in domestic law or proposed by defence lawyers must be rejected by all Court personnel. At the same time, article 9 makes clear that the Elements are not binding on the Court but rather designed to guide the Court in its interpretation. Thus, where the Elements –or a given interpretation of the Elements—would conflict with the principles of article 21, the Elements should not be followed and the Court should craft a consistent human rights-based standard.
The Court’s determinations in this matter will have significant impact on the interpretation of the definition of rape in legislation and judicial deliberation in rape cases at the national level across the world. In this respect, the Rome Statute, with its principles of complementarity and consistency with human rights and non-discrimination based on gender, is not simply the vehicle for creating the Court, but also a potential model for the proper treatment of rape and sexual violence at the domestic level. This enhances the responsibility of the Court to apply these principles forthrightly and with understanding of the subtleties of gender discrimination—whether affecting female or male victims—especially in the arena of rape and sexual violence.
As well as the law and standards recognized by human rights courts and institutions relating to the prosecution of rape and sexual violence, successive resolutions by the Security Council relating to women, peace and security have underlined the importance of investigating and prosecuting sexual violence, which underscores the importance of this issue to the enhancement of international peace and security, as well as within national jurisdictions. ¹³³ The Court has a significant role in promoting women’s equality before the law in ensuring that rape and sexual violence is consistently, fully, and competently prosecuted. Domestic prosecutions for rape and sexual violence are usually not undertaken comprehensively, indeed, impunity remains the rule. The principle of complementarity should be a catalyst for improved prosecutorial strategy at the domestic level, as well to improve rules of procedure and evidence that respect the rights of victims and witnesses. The ability and willingness of domestic courts to prosecute rape according to procedures that respect the rights of victims and witnesses can be used to assess whether or not domestic courts are indeed willing and able to prosecute such crimes at all.
In a criminal trial, where the court hears directly from victims and witnesses, there are opportunities to improve understanding of the effects of these crimes on the victim’s human rights, and how they perceive the effect of the crime on their human rights. This document outlines the content of some of the human rights law and standards that are relevant to crimes of rape and sexual violence. Through the respectful and human rights-based provisions of the Rome Statute and Rules of Procedure and Evidence, the Court will benefit from information from witnesses and victims about how their human rights were violated by criminal acts, and this will, in its turn, provide more guidance to judicial systems across the world.

1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons.
2. The perpetrator inflicted the pain or suffering for such purposes as: obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind.
3. Such person or persons were protected under one or more of the Geneva Conventions of 1949.
4. The perpetrator was aware of the factual circumstances that established that protected status.
5. The conduct took place in the context of and was associated with an international armed conflict.
6. The perpetrator was aware of the factual circumstances that established the existence of an armed conflict.

Article 8(2)(c)(i)-4 War crime of torture
Elements:

1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons.
2. The perpetrator inflicted the pain or suffering for such purposes as: obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind.
3. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities.
4. The perpetrator was aware of the factual circumstances that established this status.
5. The conduct took place in the context of and was associated with an armed conflict not of an international character.
6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Jurisprudence identifies acts of rape as constituting severe pain and suffering of a type to constitute torture, and the comments in Akayesu (para 687) emphasise the purposes of rape, which reflect the second element of the war crime of torture. Potentially the crime of rape is more limited, given that it is only applicable if the victim or victims are protected persons under the terms of international humanitarian law.

1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons.
2. Such person or persons were in the custody or under the control of the perpetrator.
3. Such pain or suffering did not arise only from, and was not inherent in or incidental to, lawful sanctions.
4. The conduct was committed as a part of a widespread or systematic attack directed against a civilian population.
5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

In most situations in which rape takes place, victims will be in a situation of custody or control by the perpetrator, which permit the perpetrator to commit the crime through application of force, threat of force, or coercion.