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It is no longer acceptable to deal with rape just as an offense subordinate to present established crime categories under international criminal law. Sex crimes have to be handled as a separate crime category that clearly enjoys the boundaries of the legal norm. The issues of the legal recognition by international criminal law and its judicial and legislative institutions that involve problems of definition and classification.
Rape and sexual violence acts have been recognised as international crimes for a long time, and there is a traditional view that in times of war the international law has not been much of a useful exercise in protecting women. In this regard the majority of feminist critics and other scholars have focused and questioned particulars of the procedure, management and judgements of individual cases tried by international criminal tribunals for the prosecution of perpetrators held responsible for serious violations of international humanitarian law committed in times of armed conflict. Moreover, other scholars have doubted, questioned, shown limitations of the effectiveness of international tribunals for gender-based crimes. This essay will try to address and analyses the concepts and handling of sex and gender crimes under the jurisprudence of crimes against humanity of the international criminal law by exploring contemporary and past legal stages, from the beginning of the international criminal law and jurisprudence until its most recent formulation, the Rome Statute. The essay will try to look into insights about the development of the crime of rape, and show the silences in international law's handling and treatment of sex and gender crimes. The essay will also examine various important issues of sex crimes such as the gender-based sexual violence issue that needs to be recognised. This essay will try to show that, it is no longer acceptable to deal with rape just as an offense subordinate to present established crime categories. Sex crimes have to be handled as a separate crime category that clearly enjoys the boundaries of the legal norm. The essay will examine the issue of the legal recognition by international criminal law and its judicial and legislative institutions involving problems of definition and classification.
However, MacKinnon adopts a critical position to show that the law and culture have failed to provide proper legal and cultural care and remedy in the transnational status and treatment of women. In adopting such a position MacKinnon takes the gendered analysis and criticism of the state to the international stage. However, this hypothesis becomes even more controversial when she presents the repercussion and the meaning of the regular mistreatment of women and the persistent overlooking of this crime. Moreover, MacKinnon identifies new social, legal, and political approaches that help in the elimination of this current attitude towards treatment of women. In her work MacKinnon gives the portrayal of a nation state setting where the repression of women is exposed, present, and common. It is established that this community setting also defines the distribution of power within that society and government.
Many academics and scholars in this area of international criminal law and justice have long been engaged and shown concern of the various perceptions and understanding of the definitions surrounding the sex crimes. They often try to come up with principles that suit the various legal, social, political needs of the players and victims involved. The fact is that the literature in this area is large, which often lead to some confusion about the exact meaning of these concepts and crime categories that occur in sex crime acts. Further, the jurisprudential debates and the philosophical explanations of these legal terms and the boundaries of these legal norms that shape them have been the subject of much academic scrutiny, and theoretical disputes. Therefore, this paper adopts a strategy to make use of recent work to examine various approaches to the understandings of legal recognition by international criminal law. However, working within resent frames of reference, and recent academic critiques, this paper will attempt to assess different understandings, logic of the various international criminal law developments in recent years to present time. This work will also try to study how judicial and legislative institutions involved in problems of definition and classification of rape and sex crimes has been helpful in clarifying the meanings of the different definitions and categories of sex crimes under the jurisprudence of crimes against humanity of the international criminal law. Keeping in line with the primary focus of this entry, therefore, the sex crime definitions, the criteria for rape, and gender crimes provisions in the Rome Statute for the international criminal court are the themes that this paper will be, concentrating on, and examining.
Many scholars agree that, it takes many tragic incidents to get the public and communities to absorb the importance of these crimes and their impact on humanity. And that the disregarding of these areas of law, process, and institutions will undoubtedly affect the prospects, emotions, and practices in sexual relations in circumstances of recognised group conflict. However, Meron argues, that the systematic and enormous atrocities in former Yugoslavia forced the Security Council to accept the fact that the conduct of those atrocities amounted to imminent threat to the international peace. Further, that the creation of Ad hoc international criminal tribunals was a necessity if peace was to be restored.
As MacKinnon finds, the international criminal tribunals during the periods of the 1990s and 2000s disagreed over using various definitions of rape that included or excluded the words coercion and non-consent in the context of violent conflict. For this reason, it has become important for the international courts to apply the right criteria for the definition of crimes of rape that will not affect their credibility. In this regard, and in the 1990s and 2000s a number of rape cases were brought before the International Criminal Tribunal of Rwanda (ICTR) and the International Criminal Tribunal of the Former Yugoslavia (ICTY). However, the courts and the rulings showed that they were not in agreement on the definitions of rape.
In the case of Akayesu, 1998, the ICTR trial chamber decision held that rape as a criminal sexual conduct against humanity is "a physical invasion of a sexual nature committed on a person under circumstances which are coercive." It is observed that the judgment uses a definition of rape which does not include the word consent. In addition, coercion evidently has been accepted as the criteria to identify rape and that "Coercive circumstances need not be evidenced by a show of physical force" but "can be inherent in circumstances like armed conflict or military presence of threatening forces on an ethnic basis." These findings show that for the Akayesu ruling, consent was irrelevant.
In the case of Furundzija, 1998, the ICTY trial judgement shows that the lack of consent is necessary to the crime. The lack of consent required, showing penetration "acting without the consent of the victim." However, the Furundzija case required showing that various sexual and non-sexual organs had been used in penetrative sexual acts in which the organ enters the tract of entities of opposite sexes. As MacKinnon finds, the underlying principle behind these requirements were the need for the law to be more specific and accurate. The rationale behind this development was that the defendants would be sufficiently clear of what they were charged and accused of when guarding their prisoners in a concentration camp and that it was a crime. This ruling led to the opportunity of establishing the relevance of consent for rape prosecution.
In the case of Kunarac, 2001, the ICTY in the trial chamber judgement delivered in the proceedings against the accused ruled that the rapes that took place in brothel-like circumstances in Foca were sexual practices that constituted sexual slavery in nature and form. The trial chamber inferred from Furundzija decision to frame a conclusion and ruled that "sexual penetration will constitute rape if it is not truly voluntary or consensual on the part of the victim." However, the ruling concluded that the core principle seriously violated was sexual autonomy. However, in Kunarac et al. 2002, the ICTY, appeal judgment in the appeals chamber, referred to the trial chamber decision and inferred that it had rejected the tribunal's previous definition and understanding of rape by focusing on "the absence of consent as the condition" for the crime to constitute rape. The appeals chamber instead confirmed the need to "presume non-consent" when deciding on rape incidents in situations like genocide. The judgment further established that in circumstances like Foca where atrocities committed, authorities set up locations in which women were raped, "such detentions amount to circumstances that were so coercive as to negate any possibility of consent."
In Semanza, 2003, the ICTR in the trial chamber judgement which required non-consent element in rape, and departed from earlier coercive based definitions of rape in international criminal law. The Semanza trial chamber held that "the mental element for rape as a crime against humanity is the intention to effect the prohibited sexual penetration with the knowledge that it occurs without the consent of the victim." Furthermore, this judgement resulted in generating new perceptions of rape from being a physical act perpetrated on the body of a victim to a physical act perpetrated in the mind of the person committing a crime.
In addition, in the case of Kajelijeli, 2003, the ICTR trial chamber decision followed Semanza trend and returned to non-consent and consideration of the physical body parts when finding whether the perpetrator was liable for rapes executed by military officers in the perpetrator's charge. However, the perpetrator Kajelijeli was not found guilty of rape and genocide for the proven rapes his subordinates carried out. As MacKinnon argues, a double standard in the majority's decisions are evident where courts seem to be more willing to find murder on the part of superiors rather than rape happened by those under their command.
In the case of Muhimana, 2005, the ICTR trial chamber judgement indicated the refusal of accepting non-consent definitions of rape, ruling that "coercion is an element that may obviate the relevance of consent as an evidentiary factor in the crime of rape." Furthermore, the chamber agreed in the decision that since the nature of most cases brought under international criminal law include universally coercive acts, therefore, weakens the effectiveness of consent and as a result inappropriate for international prosecution. Therefore, and as Halley argues, there is a need to limiting the evidentiary requirements for proving rape or other sexual crimes and violence through a legal abolition or modification of the defence of consent.
However, the above analysis shows that, the criteria that are used to identify rape in international law constitute both coercion and non-consent. However, it is found that some laws seem to favour using and prioritising a particular criteria over the other. In contrast, other laws require that both coercion and non-consent be present in identifying rape. The judgements in both ICTR and ICTY rape decisions show that the international judiciary encounters immense difficulty in the application of these criteria in international law.
However, it is established that specific gender crimes are committed in times of armed conflict or in times of political upheaval or lack of stability. In this regard, Ellis argues that the 1998 Rome Statute of the International Criminal Court benefited and inferred from the reasoning made in the ICTY and ICTR concerning gender crimes. In addition, the 1998 Rome Statute assigns firmer principles and legal groundwork for the prosecution of those responsible for the sex crimes as part of the international laws, as well as taking necessary measures to assist and maintain the well-being of victims, and victim rights. The 1998 Rome Statute initiated the expansion of gender crimes by characterising rape as a separate crime, constituting other forms of violated and forced sexual experience, and clearly defining rape as a war crime and a crime against humanity. However, it is a fact that many thinkers and legal scholars in this area of protecting women have presented analysis and viewed the work of the ICC regarding gender crimes as "a defining moment in history and an indication of how far the issue of women's human rights has progressed."
As Hannah argues the International Criminal Court Statute drew on the jurisprudence of the ICTY and ICTR tribunals to build on and extend their definitions of rape in international law. The ICC Statute includes the following two key elements: "The perpetrator invaded the body of a person by conduct resulting in penetration...of any part of the body of the victim or the perpetrator ...." As it is clear from the quotation, this type of sexual assault as the actus reus of the crime of rape usually involves and starts with the invasion of the body of a person and by subjection to sexual intercourse of one or more victims by a perpetrator. And that "The invasion was committed by force, or by the threat of force or coercion...against such person...by taking advantage of a coercive environment or the invasion ...against a person incapable of giving genuine consent." Therefore, it is observed that, coercive circumstances that vitiate the capability of a victim to give genuine consent may represent the defining and significant characteristics and elements that shape the definition of rape. Furthermore, the International Criminal Court Statute identified, developed, and defined other aspects of sexual violence. The Rome Statute has significantly broadened from its original legal definitions or those used by the articles named grave breaches under the Geneva Conventions under which sexual violence is not included. For example The Rome Statute clearly identifies "...sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity" as grave breaches of the Conventions as well as Article 7 (1) (g) of the Rome Statute. Therefore, it is argued that this extensive recognition and the separate identification of a range of gender crimes in addition to rape by the Rome Statute is particularly important in order to increase awareness of the diverse characteristics of the different crimes. This approach provide for the recognition of the seriousness of harm suffered by the victim. The incorporation of the ground of gender in the Rome Statute marked a significant step towards making sure that gender based cases would get fairer and better attention.
The Rome Statute advanced the ICTR and ICTY decisions that genocide can be accomplished through rape. The fact that rape results in grave mental and bodily injury inflicted upon a person, thus, rape may constitute genocide in international law provided that the perpetrators intentionally aimed to obliterate the target group whether ethnic, national, or religious in whole or in part. The Rome Statute commits to the prosecution of gender based persecutions, in comparison with the ICTR and the ICTY the Rome Statute particularly forbids persecution based on gender, and that systematic persecution of civilian women is accounted for as a crime against humanity under the Rome Statute.
However, as Bedont and Martinez finds the gender crimes provisions in the Rome Statute are of a great importance in the area of international law development. Further, it is argued that the previous international humanitarian law provisions have failed to included sexual violence and adequately provide for the successful and just prosecution of sexual and gender crimes. This finding becomes even more controversial when finding that the previous international humanitarian law provisions for the prosecution of German war criminals identified rape as a crime against humanity and not as a war crime. This was particularly important because the definition of crimes against humanity would fall short of falling into the category of crimes under discussion if the atrocities did not form part of a widespread or systematic practice executed by the perpetrator. This approach often made the sexual violence perpetrated during war complicated to prove under these legal requirements. For this reason, Bedont and Martinez argue that in comparison, the fact that war crimes cases do not oblige any evidence of widespread or systematic practice and for that reason having a lower evidential standard required for a given claim which is more appropriate in determining sexual crime cases.
From the above case analysis and examining the jurisprudence of the tribunals in relation to sexual violence as crimes against humanity, it appears that a new category of justice namely sexual violence as a separate category emerges as a crime against humanity. Furthermore, Campbell argues that sexual violence as a crime against humanity is receiving greater attention and expansion than previously made as an area of jurisprudence in humanitarian law. The traditionally ignored gender-based crimes by international criminal law have now seen substantive advancements by the tribunal that manifests in the area of sexual violence.
Furthermore, Askin (1999) finds that the cases that have brought charges alleging various forms of gender-based violence make up "half the public indictments of the Tribunal in the ICTY". Thus, the Furundzija case is a good example of the ICTY tribunal's recognition of sexual violence as a separate crime category in its dealing with the first war crimes proceedings and charges that rape and sexual violence were the single charge. This case also served as the first authority to define the elements of the crime of rape under the jurisprudence of the international humanitarian law. The jurisprudential recognition of these crimes signifies an important and new appearance of international justice. These analysis of contemporary humanitarian law lead to the notion that the tribunal's judgements and cases pay particular attention to sexual violence as a humanitarian crime that help in shaping a ne w category of international justice for victims of sexual violence in violent conflict.
In particular, focusing on the contemporary legal debates surrounding crimes of rape as a crime against humanity, it is observed that only crimes of sexual violence are specified in the Tribunal's Statute. Further, Campbell finds that sexual violence is not recognised as a distinct crime under humanitarian law, but sexual violence crimes are tried under the grave breaches of the Geneva Conventions articles namely crimes against humanity under which the leading case that focused on sexual violence as a crime against humanity was tried. It is observed that, rape has not been sufficiently represented under the international humanitarian law. And that it was the ICTY creations that led to establishing definitions of rape in the provisions that it was contained.
Concluding, that this paper has intended to present concepts and use theories that are approved by the scholars in this area of international law to explain the changes and the understandings of sexual violence, gender-based crime perception and discourses. Despite the fact that most of these concepts hold and give a rational and sound judgment on the issues of rape, but they do not appear to be free of ideological tends or personal predilections therefore shaping an inconvincible representation of contemporary developments in international law policies, and the international criminal justice system function, and what it stands for. However, the ideas and arguments presented in this work appeared to be constituting various bodies' goals and expectations which sounded confusing at different stages of writing this paper. It seems that the international justice needs a change of not only the legal direction of social relations, but also of their political structure. Thus, to this effect, justice is "the very dimension of events... to come" as it involves "the transformation, the recasting or refounding of law and politics." The different theories of sexual violence read that as a humanitarian crime sexual violence requires a change of international justice and an expansion of its concepts.
The legal boundaries and effectiveness of the legal provisions on gender-based crimes in humanitarian law seemed insufficient, and that both Tribunals of the ICTY and the ICTR followed the same path in their statutes. The two tribunals appeared to be more comfortable with recognising the crime of rape as a crime against humanity, rather than including it under other categories of crimes such as a grave breach of the Geneva Conventions or breach of the laws or customs of war. Therefore, the rape crime is the only term that is named and accommodated in the provision of crimes against t humanity in both Ad Hoc Tribunals' statutes. This prejudice attitude towards sexual violence crimes lead to the understating of the seriousness and problematic nature of the crimes. This finding became even more controversial when international law scholars and theorists found that the Tribunals gradually started to approach and understand these crimes as grave breaches. The analysis of the acts in question additionally contained elements in the definition of other crimes incorporated as grave breaches. This judicial inquiry was adopted by the prosecutor at the ICTY and later the ICTR indictment of the crimes of rape both as rape and as a constituent element of another crime under the statute. However, the indictment was of major legal significance.
The including of gender in the Rome Statute was crucial because it established and recognized rape, forced prostitution, sex enslaving, enforced sterilization, forced pregnancy, as crime against humanity provided the crimes are part of a widespread or systematic practice. This position shows how far the international women's fundamental principles of international human rights and humanitarian law have come, and reveal a trend, and a dominant principal of women's rights into the patterned social, legal, political arrangements of international humanitarian law, a body of law in which women's rights were becoming or being made marginal in the past. Despite the facts that coercing political and public will among the majority of nations were increasing to address the atrocious crimes executed against women during wartime. Some governments and NGOs showed groundless opposition and are critical of the creation of the court and have neither signed nor ratified the Rome Statute. Therefore, and in the knowledge that in the contemporary time many examples of sexual violence and crimes have been witnessed where women being systematically raped and forced into other forms of gender violence that indicates the prospect of gender justice may be a view overindulged.
This work has aimed to establish that sexual violence against persons in time of war and armed conflicts seems to be a striking characteristic of these conflicts, and that sexual violence has received insufficient political, social, legal attention, recognition, and priority in international criminal law. It appears that both ad hoc tribunals of Rwanda (ICTR) and the former Yugoslavia (ICTY) to have initiated debates about these crimes and as Hannah argues instrumental in the advancement of the provisions that define rape and its constituent elements. An important aspect of the Akayesu conviction for incitement to sex crimes was the tribunal's view on the question of whether consent should be included or relevant in the definition of rape. However, it appears that in Kunarac the ICTY have adopted a position different to that of Akayesu. In addition, it is obvious that the Rwandan jurisprudence appear to have preferred Kunarac understanding of the nature of rape and legal reasoning to that of Akayesu. But in its recent judgement on the Gacumbitsi the international criminal tribunal for Rwanda has returned to the position of Akayesu. Finally these findings show that despite the fact that the international criminal jurisprudence of rape is getting large and far from settled.
It is evident from the above findings, that the suffering and pain that war victims of rape, forced pregnancy, and other sexual violence go through are considerably brutal and traumatic. And that it is far from possible for courts and criminal justice institutions to be able to remedy or treat the mental and physical injuries that perpetrated on these victims. For this reason an authoritative order is needed to eliminate any protection of these acts such as the Rome Statute which marked a significant step in this direction. As a result, the Rome Statute recognises gender-based crimes as both war crimes and crimes against humanity. This paper has taken into account and examined the fact that some of the definitions of rape have arisen in contexts and specific historical conditions that require different readings and understandings. However, consent seems to be irrelevant and ineffective to be found if circumstances vitiated consent and when the struggle is compromised by the fear of being killed or serious bodily harm, or where the sufferer is mentally and physically powerless to refuse to accept. In such a situation there consent is irrelevant and the forceful penetration executed will be sufficient.