Regarding Rights

Academic and activist perspectives on human rights

Beyond Rape – The evolving concept of ‘sexual violence’ under international criminal law

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By Rosemary Grey

University of New South Wales

Fatou Bensouda, Prosecutor of the International Criminal Court. Image - ICC

Fatou Bensouda, Prosecutor of the International Criminal Court. Image – ICC

In the past two decades the international tribunals for the former Yugoslavia and Rwanda have developed a rich jurisprudence on sexual violence crimes,[1]  and the younger international courts, the International Criminal Court (ICC) and the Special Court for Sierra Leone in particular, are beginning to follow suit.  There has also been a move to codify sexual violence crimes under international law, the current high water mark being the 1998 Rome Statute of the International Criminal Court (the Rome Statute), which entered force in 2002.

The Statute recognises ‘rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and any other form of sexual violence of a comparable gravity’ as crimes against humanity,[2]  and the same range of offences as war crimes in international and non-international armed conflicts.[3]   ‘Rape’ and ‘sexual violence’ are also recognised as acts of genocide in the ICC Elements of Crimes, the supplementary text that defines the crimes enumerated in the Rome Statute.[4] 
 
The inclusion of these crimes in the Rome Statute was seen by many feminist legal scholars and gender justice activists as a sign of a new norm of accountability for sexual violence under international law. In that context, the absence of sexual violence charges in the ICC’s first case, against Congolose warlord Thomas Lubanga Dyilo, was widely viewed as a step backwards. Human rights groups including Women’s Initiatives for Gender Justice, Human Rights Watch and Avocats Sans Frontières questioned the (then) ICC Prosecutor Luis Moreno Ocampo’s decision to charge Lubanga with the recruitment and use of child soldiers only, when it appeared his forces had also committed other serious crimes, including sexual violence crimes, against civilians in the Congo.[5] 

While the Prosecutor declined to expand the charges in response to these concerns, he and his team were careful to highlight sexual violence within the existing charges at trial.  But it was too little, too late. The Majority found that because the Prosecutor had not raised allegations of sexual violence when presenting the charges at the pre-trial stage, the accused could not be held responsible for any of the acts of sexual violence discussed at trial.[6]  

Fortunately, however, this first case was something of an anomaly insofar as sexual violence crimes have been concerned. The Prosecutor brought charges of sexual violence in several subsequent cases including Katanga and Bemba, which are currently at trial, and the current Prosecutor, Fatou Bensouda, has articulated her intention to ‘continue to prioritize the sexual and gender‐based crimes’ during her time in office.[7]  

In tandem with the increasing codification and prosecution of sexual violence crimes in international courts, sexual violence has also become more visible in the academic literature on international criminal law.  CIGJ’s own Professor Hilary Charlesworth has been at the forefront of this literature for over a decade,[8]  and many of the other leading and emerging voices in the field are represented in De Brouwer, Ku and Römkens’ 2013 edited volume Sexual Violence as an International Crime.

An interesting pattern to observe, in these important legal and academic discussions of sexual violence, is that the term ‘sexual violence’ is almost never defined. There are some benefits to this ambiguity: it leaves space for unanticipated forms of sexual violence to be recognised, and ensures that the term is adaptable to different cultural contexts. On the other hand, it is not always clear what the participants in these discussions mean when they/we talk about ‘sexual violence,’ nor whether they/we are all talking about the same thing.

This observation applies even in relation to what many consider the archetypal sexual violence crime – rape, the definition of which differs markedly across jurisdictions. In some penal codes, rape can be committed against women only, whereas in other jurisdictions the crime is defined in gender-neutral terms. In some jurisdictions, the definition hinges on the victim/survivor’s lack of consent, whereas in others it hinges on the perpetrator’s state of mind. The ICC’s definition of rape is particularly broad: it includes the penetration 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’, if such penetration is committed with ‘force, or by threat of force or coercion’ or ‘by taking advantage of a coercive environment’ or ‘against a person incapable of giving genuine consent.’[9] 

Once one moves beyond the crime of rape, the space for different conceptualisations of ‘sexual violence’ opens up even further. This point was illustrated recently in the ICC’s case against Uhuru Kenyatta, sitting President of Kenya. The case, which is scheduled to go to trial on November 12, is concerned with crimes against humanity allegedly committed during the 2007-2008 post-election violence in Kenya. This violence followed ethnic as well as political divisions, with the Party of National Unity (PNU) drawing support from Kikuyu people, and the Orange Democratic Movement (ODM) drawing support from the Luo, Luhya and Kalenjin.

In its initial application for a summons to appear, and again at the confirmation of charges hearing, the prosecution argued that the forced circumcision of Luo men by PNU supporters constituted a ‘form of sexual violence’ of comparable gravity to the other sexual violence crimes enumerated in the Rome Statute. The perpetrators were allegedly seeking to punish the men for being ODM supporters. The men were  identified as such on the basis they were Luo, and their ethnicity was ascertained after they were forced to undress in public, revealing that they were – as is customary in Luo culture – uncircumcised. 

The Pre-Trial Chamber rejected the prosecution’s characterisation of these acts as ‘sexual violence’. In the Chamber’s opinion, the acts were not of a ‘sexual nature’, and would be better characterised as ‘inhumane acts’ instead. The Chamber explained that ‘not every act of violence which targets parts of the body commonly associated with sexuality should be considered an act of sexual violence,’ but rather ‘the determination of whether an act is of a sexual nature is inherently a question of fact’.[10] 

The Chamber’s reluctance to define ‘sexual violence’ by reference to the physical elements of the crime seems unobjectionable – progressive, even – as it leaves room for a consideration of the cultural and psychological aspects of sexual violence. On the other hand, it does little to clarify what distinguishes ‘sexual violence’ from other types of violence, and the suggestion that this is a ‘question of fact’ seems problematic, given that the ‘sexual’ nature of an act is often a matter of opinion, rather than something inherent to that act.  

Further complications arise when the Chamber’s approach to defining ‘sexual violence’ is contrasted with the definition of rape. The ICC’s definition of rape (excerpted above) focuses on the parts of the body that are penetrated, and the circumstances in which the penetration occurred. In proving rape, the prosecution is not required to show that the penetration was intended as ‘sexual’, or experienced by the victim/survivor in that way. By contrast, it would appear that ‘sexual violence’ is not defined by the parts of the body subjected to violence, but rather with reference to something qualitatively ‘sexual’ about the act which must be demonstrated. This apparent inconsistency is not necessarily a problem, but further analysis of these issues by the Court is necessary in order to shed light on exactly what kinds of acts constitute ‘sexual violence’ for the purposes of the Rome Statute.

As more cases come before the ICC, it seems likely that the definition of ‘sexual violence’ will be further contested, and might ultimately become more settled. Such developments should be informed by a robust debate in the academic literature, in consultation with affected communities, about what it means to say an act of violence is ‘sexual’ in nature, and how ‘sexual violence’ should be defined under international criminal law.

*** 

1. See Brady, H. ‘The power of precedents: using the case law of the ad hoc international criminal tribunals and hybrid courts in adjudicating sexual violence and gender-based crimes at the ICC’. Australian Journal of Human Rights 18 (2) Dec 2012: 75-108.

2. Rome Statute, Article 7(1)(g).

3. Rome Statute Articles 8(2)(b)(xxii); 8(2)(e)(vi). Nb. There are some minor differences in the description of the residual crime of ‘any other form of sexual violence’ in each of these articles.

4. Elements of Crimes, Article 6(b), fn 3.

5. See, for example: Avocats Sans Frontières, Center for Justice and Reconciliation, Coalition Nationale pour la Cour Pénale Internationale RCD, Fédération Internationale des Ligues des Droits de l’Homme, Human Rights Watch, International Center for Transitional Justice, Redress, Women’s Initiatives for Gender Justice. 2006. Joint letter to the Chief Prosecutor of the International Criminal Court, 1 August 2006 [cited June 19 2012]. 

6. Prosecutor v Thomas Lubanga Dyilo, Trial Judgment, Trial Chamber I, 14 March 2012 (ICC-01/04-01/06-2842) at [896].

7. Bensouda, Fatou. Address to the Assembly of States Parties. Eleventh Session of the Assembly of States Parties, 14 November 2012, The Hague.

8. E.g. Charlesworth, H & Chinkin, C 2000, The Boundaries of International Law, Manchester University Press, Manchester, UK; Charlesworth, H, Chinkin, C & Wright, S 2005, ‘Feminist Approaches to International Law: Reflections from Another Century’, in Doris Buss and Ambreena Manji (ed.), International Law: Modern Feminist Approaches, Hart Publishing, Portland, pp. 17-47

9. Elements of Crimes, Articles 7(1)(g)-1; 8(2)(b)(xxii)-1; 8(2)(e)(vi)-1.

10. The Prosecutor v Uhuru Muigai Kenyatta, Confirmation of Charges Decision, Pre-Trial Chamber II, 23 January 2012, (ICC-01/09-02/11-382-Red) at 265.

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