167 Akayesujudgment (2 September 1998), paras 509–10.
168 Prosecutor v Ruggiu,Judgment (1 June 2000), Case No ICTR-97–32-I, paras 17, 44, 50.
169 Akayesujudgment (2 September 1998), para 555.
170 Ibid,paras 557, 559.
171 Krsticjudgment (2 August 2001), paras 574–80.
172 Geneva IV, Art 27; Protocol I, Art 76(1); Protocol II, Art 4(2)(c).
173 Hague Regulations, Art 46; Geneva Conventions, Art 3; Geneva IV, Art 147; Protocol I, Art 85(4)(c);
Protocol II, Art 4(1) and (2)(a).
been defined in any of the instruments in which it was contained. It was not elucidated even when prosecuted as a war crime at the International Military Tribunal for the Far East or its Charter.174Lack of specificity was not a pressing issue to the post-war tribunals because not only did rape not play a significant role in prosecutorial agendas that were then working under severe time constraints, but where reference to rape was made in the Tokyo Trials, its elements must have seemed to all parties as self- proven and in no need of further elaboration.175There is no doubt that Nazi and Japanese licence to commit rapes and forced prostitution (the so called practice of
‘comfort women’) was intended to both encourage soldiers and serve as an instrument of policy.176 In any event, neither the relevant provisions of the 1949 Geneva Conventions nor of the 1977 Additional Protocols listed rape amongst their grave breaches provisions.
The practice and variety of rape in the conflicts occurring in the former Yugoslavia was both widespread and deliberate.177The special rapporteur of the UN Commission on Human Rights clearly pointed out the purpose of rape therein as constituting an individual attack and a method of ethnic cleansing designed to degrade and terrify the entire ethnic group.178Indiscriminate and widespread rape was also practised in the Rwandan genocide. Any assessment of rape must be viewed particularly in the context of gender-based crimes, that is, whereas ‘sex’ refers to biological differences,
‘gender’ refers to socially constructed differences, such as power imbalances, socio- economic disparities and culturally reinforced stereotypes.179
Rape is a particular offence contained in the list of crimes encompassing crimes against humanity in both the ICTY180and ICTR Statutes,181and a war crime of internal conflicts under the ICTR.182Notwithstanding the absence of explicit reference to rape in the definition of other offences within the jurisdiction of the Tribunals, this egregious violation may also be prosecuted as a war crime or grave breach under
‘inhuman treatment’ or ‘torture’, as well as under genocide.183Although the two ad hoc tribunals basically agree on the definition of rape as a physical invasion of a sexual nature committed on a person under coercive circumstances,184there has been a substantial difference of opinion as to the sources of this definition and its scope.
TheAkayesujudgment viewed rape as a form of aggression and a violation of personal
174 4 Bevans 20.
175 Control Council Law No 10, Art II(1)(c) included rape as a crime against humanity.
176 T Meron, ‘Rape as a Crime Under International Law’, 87AJIL(1993), 424, p 425.
177 C Niarchos, ‘Women, War and Rape: Challenges Facing the International Tribunal for the Former Yugoslavia’, 17HRQ(1995), 649.
178 Report on the Situation of Human Rights in the Territory of the Former Yugoslavia,UN Doc A/48/92-S/
25341, Annex (1993), pp 20, 57;Kamdzicdecision (11 July 1996), para 64.
179 KDAskin, ‘Sexual Violence and Indictments of the Yugoslav and Rwandan Tribunals: Current Status’, 93AJIL(1999), 97, p 107.
180 ICTY Statute, Art 5(g).
181 ICTR Statute, Art 3(g).
182 IbidArt 4(e).
183 The use of rape as a process of ‘slow death’ was recognised as a means of deliberately inflicting on a group conditions of life calculated to bring about its physical destruction, thus, constituting genocide.
Kayishemajudgment (21 May 1999), para 116.
184 Akayesujudgment (2 September 1998), para 598;Prosecutor v Furundzija,Judgment (Furundzija judgment) (10 December 1998), 38 ILM (1999), 317, para 181.
dignity whose central elements could not be captured in a mechanical description of objects and body parts.185Variations of rape, the Rwanda Tribunal held, may include acts involving the insertion of objects and/or the use of bodily orifices not considered to be intrinsically sexual. This conceptual and flexible definition of rape, having subsequently been followed by other ICTR Chambers,186is in contrast with theFurundzijajudgment which, in fact, relied on a detailed description of objects and body parts.187In inquiring into the precise ambit encompassed by the term ‘rape’
and, specifically, whether this included ‘forced oral penetration’, the Trial Chamber in theFurundzijacase highlighted the lack of a definition in international law, but found that the various relevant international instruments distinguished between
‘rape’ and ‘indecent assault’. Unable to discover any relevant customary law or other definition based on general principles of public international or international criminal law, the judges turned their attention to general principles of criminal law common to the major legal systems. Although they ascertained that the forcible sexual penetration by the penis or similar insertion of any other object into either the vagina or anus is considered as constituting rape in all the examined legal systems, there was still some discrepancy concerning ‘oral penetration’, as in some countries it was classified as ‘rape’ while in others as ‘sexual assault’.188 The court ruled, nonetheless, that the principle of respect for human dignity dictated that extremely serious sexual outrage such as forced oral penetration could be classified as rape, amply outweighing any concerns the perpetrator might have of being stigmatised as a rapist rather than as a sexual assailant.189Although theFurundzijaapproach purports to be specific oriented, in reality it does not seem to differ much from the conceptual position adopted inAkayesu,especially since it is obliged to employ a non-specific principle to categorise forced oral penetration. TheFurundzijajudgment adopted, therefore, the following definition of the act us reus of rape under international law:
(i) the sexual penetration, however slight:
(a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or
(b) of the mouth of the victim by the penis of the perpetrator;
(ii) by coercion or force or threat of force against the victim or a third person.190 TheKunaracjudgment, although agreeing with this definition, argued that element (ii) of the definition is narrower than what is required under international law, since it omits any reference to factors that do not involve some form of coercion or force, especially factors that ‘would render an act of sexual penetration non-consensual or
185 Akayesujudgment (2 September 1998), paras 596–98.
186 Musemajudgment (27 January 2000), para 228.
187 Furundzijajudgment (10 December 1998), paras 175–84.
188 Ibid,paras 175–82.
189 Ibid,paras 183–84.
190 Ibid,para 185.
non-voluntary on the part of the victim’.191Finding that the common denominator underlying general principles of law with regard to the criminalisation of rape is the violation of ‘sexual autonomy’, it added two further components to theFurundzija definition. These are that:
(a) the sexual activity be accompanied by force or a variety of other specified circumstances which made the victim particularly vulnerable or negated her ability to make an informed refusal, or:
(b) the sexual activity occurs without the consent of the victim.192
These specified circumstances, explained the Chamber, may include situations where the victim is put in a state of being unable to resist, particular vulnerability, or incapacity of resisting because of physical or mental incapacity, or was induced into the act by surprise or misrepresentation. These factors clearly rob the victim of the opportunity for an informed or reasoned refusal.193
To the extent that an act of rape carries the attributes of the crime of torture—that is, infliction of severe physical or mental suffering by a State official whether for ascertaining a confession, rendering of punishment, intimidation, coercion or discrimination—it may be characterised as torture.194 ‘Outrages upon personal dignity’ as a species of ‘inhuman treatment’ under Art 2 of the ICTY Statute, comprising acts animated by contempt for another person’s dignity and whose aim is to cause serious humiliation or degradation to the victim, can also include rape.195 Physical harm in this case is not necessary as long as the humiliation has caused
‘real and lasting’ suffering, whose effect is based on that of a reasonable person, whom the perpetrator intended to humiliate or at least perceived this result as foreseeable.196
The inherently personal and sensitive object which rape violates should not allow for the use of regular principles of evidence pertaining to other offences. This notion was reflected in the Tribunals’ Statutes, which provide guarantees for the protection of victims and witnesses,197further implemented by the Rules of Procedure, which do not require corroboration in cases of sexual assault.198This influence is evident in the ICC context, where r 70 of its Rules of Procedure and Evidence provides that consent cannot be inferred by words or conduct under situations that undermined the victim’s ability to give voluntary and genuine consent, nor by silence or lack of
191 Kunaracjudgment (22 February 2001), para 438.
192 Ibid,para 442.
193 Ibid,paras 446–60; see concurring decisions, adopted inProsecutor v Kvocka and Others,Trial Chamber Judgment (2 November 2001), Case No IT-98–30/1-T, para 177, andProsecutor v Kunarac and Others, Case Nos IT-96–23 and IT-96–23/1-A, Appeals Chamber Judgment (12 June 2002).
194 Furundzijajudgment (10 December 1998), para 163.
195 Prosecutor v Aleksovski,Judgment (Aleksovskijudgment) (25 June 1999), Case No IT-95–14/2-A, paras 54–56. The application of this particular ruling was unrelated to acts of rape.
196 Ibid.
197 ICTY Statute, Art 22; ICTR Statute, Art 21. Such measures include, but are not limited to, the conduct ofin cameraproceedings and the protection of the victim’s identity. M Leigh, The Yugoslav Tribunal:
Use of Unnamed Witnesses against Accused’, 90AJIL(1996), 235; C Chinkin, ‘Due Process and Witness Anonymity’, 91AJIL(1997), 75.
198 ICTY Rules, r 96(1); seeProsecutor v Tadic,Opinion and Judgment, 36 ILM (1997), 908, para 536.
resistance. Moreover, the victim’s prior sexual life or character will not be admitted as evidence. Nonetheless, in the ICTY Rules of Procedure (r 96) the description of