Two basic premises for prosecuting sex crimes during conflict
1. Violations have to occur as part of an attack against the civilian population or during armed conflict
In international criminal law, sex crimes are not prosecuted in isolation of the context in which it occurs. They are not free-standing crimes as such. The prosecutor will also need to demonstrate that the violations occurred as an act of war, genocide, or crimes against humanity. For example sex crimes can be prosecuted as a crimes against humanity when it can be demonstrated to have occurred as part of a ‘widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds’; or as part of an ‘intentional campaign to destroy a people, in whole or in part’. Thus the general elements of these conditions will have to be met first before proceeding into the elements of the specific acts constituting crimes under these conditions. Lawyers can refer to the content page of most judgments to see how the prosecution’s case is first laid out.
2. Sex crimes can cover a broad range of acts, apart from rape.
In international criminal law, sex crimes can be described in terms of violations against one’s ‘physical integrity’ or causing ‘great suffering’, and ‘torture or cruel, inhuman, or degrading treatment’. Though they may overlap, they each constitute a specific type of violation. Their terms and legal categorizations are both useful and important because they cover a broad range of sex crimes. In legal terms this means that a broad range of sex crimes can incur individual criminal accountability. Characterizing an act as an affront to one’s ‘physical integrity’ for instance, will not require that the act was violent or had caused injury or great suffering. In this case, the ‘specificity of the sexed body’[1] is also understood in terms of one’s physical and sexual integrity. And one’s integrity can be violated through conducts that are not physically violent or cause injury or pain. For instance, being forced to parade nude is a form of sex crimes although it does not entail physical violence or even physical contact with the perpetrator. Thus, lawyers are urged to conceptualize sex crimes beyond the common parable of force and resistance. Taking another example, sex crimes may not be necessarily sexual in nature or be committed for sexual gratification:
[...] it would be inappropriate to place emphasis on the sexual gratification of the perpetrator in defining the elements of “sexual assault”. In the context of an armed conflict, the sexual humiliation and degradation of the victim is a more pertinent factor than the gratification of the perpetrator, and it is this element that provides specificity to the offence. [2]
In Akayesu, the Tribunal made a finding that rape had occurred when Witness KK testified that a woman lay dead as she was pierced with a piece of wood by the Interahamwes.[3] In this incident, there may not have been an intention by the perpetrator to sexually gratify. As she lay dead, she did not ‘suffer out of rape’ as such. But neither sexual gratification nor suffering per se constitute rape under the broad definition. Thus the different terms acknowledge a range of violations pertaining to integrity, dignity, mental health, physical safety, injury and suffering.
This is noteworthy point for lawyers as often acts that seem ‘short of’ rape fall out traditional definitions and become lost for lack of legal definition. Indeed rape in terms of penetration is not the standard by which to assess other kinds of sexual assault. Rape is a form of sexual assault. As long as a conduct violates a person’s physical integrity, or cause great suffering, then a crime has been committed.
[1] Debra Bergoffen, ‘February 22, 2001: Toward a Politics of the Vulnerable Body’ (2003) 18 Hypatia, 116, 117
[2] Prosecutor v. Milutinovic et al., (Trial Chamber) Case No. Case No. IT-05-87-T, (ICTY), 6 February 2009, para. 199
[3] The Prosecutor v. Jean-Paul Akayesu, (Trial Chamber) Case No. ICTR-96-4-T, (ICTR) 2 September 1998, para 686.
