Priority Concerns Related to the Elements Annex

Submitted to the 16-26 February 1999
Preparatory Committee for the International Criminal Court

I. GENERAL CONCERNS

Proposal 1:

The Elements Annex should state that acts of rape and other forms of sexual violence, in addition to constituting crimes in and of themselves under arts. 7(g) and 8(2)(b)(xxii) and 8(2)(e)(vi), can also constitute other crimes against the person (such as torture, killing, inhumanee acts) within the Court’s jurisdiction under Articles 6, 7 and 8. Such a statement would appropriately be included as part of a prefatory and overarching section on general elements.

Commentary.

This approach is required by the prohibition, contained in art. 21(3) of the statute, against gender discrimination in the application and interpretation of law. It is also required by the express provisions of the statute and supported by a wealth of customary international law.

The principle against discrimination requires, for example, that rape and other forms of sexual violence be prosecuted as torture just as are other forms of torture, such as beatings, electric prods or psychological forms of abuse. Otherwise, sexual violence risks not being understood as among the most egregious of offenses. The "also constituting" language of arts. 8(2)(b)(xxii) and 8(2)(e)(vi) was included in the statute to make this need for gender integration clear.

Moreover, in the ICTY and ICTR, acts of sexual violence have been charged and/or adjudged as constituting one or more of the enumerated grave breaches of humanitarian law, e.g. torture, willful killing, enslavement, inhuman treatment etc. See, e.g., references in the ICRC Non-Paper regarding rape and sexual assault as torture (ICRC pp. 18-21); inhuman treatment (ICRC pp. 26). Thus, in Tadic, sexual violence was charged as wilful killing and torture, though not proven causally as wilful killing. Rape has been charged and recognized as torture by the ICTY. See, e.g., Furundzija and Celebici decisions of ICTY and the confirmed FOCA indictment. The historic Akayesu decision of ICTR recognized crimes of sexual and reproductive violence as constituent acts of genocide and forced nudity and sexual entertainment as inhumane acts under crimes against humanity. The Women’s Caucus has cited other precedents for the treatment of rape as torture in the UN, Inter-American and European human rights system, in our war crimes submissions to the PrepComs (see particularly, Dec. l997).

While the inclusion of rape and other forms of sexual violence as explicit crimes within the Court’s jurisdiction was a crucial step toward ending the historic trivialization of such experiences, we now face the danger of marginalization-- that sexual violence will not be included when the charges of torture and other general violations are drawn and, thereby, be treated once again as less important. This danger can be averted by a clear statement that such acts must be considered in the charging of genocide, killing, torture, as well as other war crimes and crimes against humanity against the person

We note the US Elements paper suggests this idea in the commentary to war cimes. However, this point is an overarching one, applicable to crimes against humanity and genocide as well and should be more clearly and strongly stated in a preface to all crimes.

Proposal 2:

The references in Arts. 8(2)(b)(xxii) and 8(2)(e)(vi) to "any other form of sexual violence also constituting...." and in Art. 7(g) to "sexual violence of comparable gravity" should be understood as encompassing the same scope of acts and degree of gravity. Thus the term “of comparable gravity” in art. 7(g) must be understood to encompass all sexual violence constituting war crimes in both internal and international armed conflict and not only, as the US paper suggests, sexual violence which is comparable to rape.

Commentary.

There should be a statement in the Elements Annex to the effect that the above references to “other sexual violence” are commensurate. The difference between the two war crimes sections of the statute and their references to "grave breaches" (in 8(b)) and "other serious violations" (in 8(e)) is not intended to imply a difference in scope, degree of gravity or nature of crime. Rather, the two sections simply refer to provisions in the Geneva Conventions governing international as opposed to internal armed conflict, respectively.

The reference in those sections to grave breaches and article 3 violations was used to emphasize once and for all that sexual violence ranks among the most egregious and universally condemned crimes. It was not intended to suggest that sexual violence is more or less atrocious or prosecutable based on its being committed in an international v. an internal conflict. We believe that this problem can be solved by using the same definition of "other forms of sexual violence" in both.

The same principle applies to the interpretation of art. 7(g)(6) which includes "any other form of sexual violence of comparable gravity." The terms "comparable gravity" in this context refer to the comparability between sexual violence war crimes and sexual violence crimes against humanity.

The term “of comparable gravity” does not, as the U.S. suggests, require comparability to rape. Otherwise, there are many forms and circumstances of sexual violence, which, unlike rape, do not involve invasion or penetration however slight, and which have been and should be prosecutable as a war crime(s) and crimes against humanity. It would be totally illogical to prosecute certain violence as a war crime, but not as a crime against humanity even when it occurs on a widespread or systematic basis.

Moreover, the U.S. approach is inconsistent with the fact that the "other forms of sexual violence" clause was included to broaden the scope of actionable violence, not narrow it. As defined by the U.S., it becomes a redundancy and a limitation.

Finally, the U.S. proposal flies in the face of previous interpretations of sexual violence by the ICTR and the ICTY. Both explicitly recognize that acts which are different from rape constitute serious violations of humanitarian law. For example, in Furundzija, the Chamber states at para. 186:

As pointed out above, international criminal rules punish not only rape but also any serious sexual assault falling short of actual penetration. It would seem that the prohibition embraces all serious abuses of a sexual nature inflicted upon the physical and moral integrity of a person by means of coercion, threat or force or intimidation in a way that is degrading and humiliating for the victims dignity.

In addition, in Akayesu, at para. 688 the Chamber convicted the accused of “other inhumane acts” as a crime against humanity under art. 3(i) of the ICTR statute for encouraging sexual violence consisting of forced nudity and sexual entertainment.

II. ELEMENTS OF CRIMES OF SEXUAL VIOLENCE

A. RAPE:

“The physical invasion of a sexual nature, including but not limited to penetration however slight, committed against a person under circumstances which are coercive.”

Commentary:

The above definition reflects the more recent understanding of the crime of rape as encompassing a broader range of acts of sexual violence as well as coercive circumstances beyond direct force or threat thereof by the perpetrator.

The invasion element. Our proposal represents a melding of the principles that underlay the Akayesu, Celebici and Furundzija decisions. The Akayesu judgment requires a "physical invasion," thus dispensing with the idea of rape as sexual assault requiring penetration. Traditionally, the concept of penetration pertained to the insertion of the man's penis into an orifice of the victim's body and thus excluded other equally serious sexual assaults. The use of the term "invasion" provides a more accurate and comprehensive definition of the crime of rape. It encompasses a wider range of sexual assaults that are often equally devastating from the victim's perspective. For example, it would include such acts as forced oral sex and sexual or reproductive mutilations common in these situations.

In reaching its definition of rape, the Trial Chamber in Akayesu stated:

The Tribunal considers that rape is a form of aggression and that the central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts. The Tribunal also notes the cultural sensitivities involved in public discussion of intimate matters and recalls the painful reluctance and inability of witnesses to disclose graphic anatomical details of sexual violence they endured. (para. 688)

The ICTY also adopted the Akayesu definition of rape in the Celebici case. (Celebici, para. 479) The Special Rapporteur on Systematic Rape, Sexual Slavery and Slavery-like Practices during Armed Conflict also cast doubt on the requirement of, and traditional emphasis on, penetration: "Although this report retains 'penetration' in the definition of rape, it is clear that the historic focus on the act of penetration largely derives from a male preoccupation with assuring women's chastity and ascertaining paternity of children." (Final Report at para. 24) In light of article 9 which provides that the Elements shall “assist the Court in the interpretation and application of articles 6, 7, and 8,” it is appropriate to incorporate this broader approach and leave room for the Court to respond appropriately to egregious situations in accordance with developing international law. 2. Penetration,however slight. At the same time, we suggest that if the concept of penetration is to be used in the Elements Annex, it should be clear that it is one example of physical invasion and that "penetration, however slight" is sufficient. The ICTY explained in Furundzija that even though historically a greater stigma has been attached to vaginal and anal penetration by the penis, other forms of sexual violence -- such as penetration of sexual organs by objects or forced oral penetration by the penis -- can be "just as humiliating and traumatic for a victim." By recognizing that the slightest penetration is sufficient, the Trial Chamber stated that such a definition of rape is likewise in keeping with the fundamental principle of protecting human dignity. (Furundzija at paras. 174, 180, 182-185).¹ 3. Circumstances which are coercive. The term “circumstances which are coercive” should be used to express the element of violence or compulsion associated with crimes of sexual violence. “Circumstances which are coercive” is understood to encompass situations of violence or threat of violence, duress, detention, psychological oppression, extortion or other forms of coercion, including deprivation of or promise of the means of survival, affecting the victim or a third party. The statute should not require direct action or threats by the perpetrator where the circumstances are coercive. Proof of coercive circumstances affecting the victim or a third party establishes the element of force or compulsion and precludes any inference of consent.

Commentary.

1. The term "coercion" is preferable to that of “force” as it expresses a less direct, though no less menacing situation which is often present in cases likely to come before the Court. This recognizes that in these conflict situations which include hostilities, imprisonment, occupation and generalized terror and deprivation, direct acts or threats of force are not necessarily required; the perpetrator may accomplish rape and other sexual violence without directly coercing or threatening the person. This approach encompasses the approaches taken by the ad hoc International Criminal Tribunals. For example, in Akayesu, the ICTR stated:

[T]he tribunal notes in this context that coercive circumstances need not be evidenced by a show of physical force. Threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion, and coercion may be inherent in certain circumstances, such as armed conflict or the military presence of Interahamwe among refugee Tutsi women at the bureau communal. (Akayesu, para. 688)

          The ICTY has commented on this dynamic in its Celebici decision:

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. (para. 495) (emphasis added).

In Akayesu, the ICTR uses the phrase "under circumstances which are coercive" to resolve this problem. Furundzija which concerned sexual violence in captivity as a factual matter notes that "any form of captivity vitiates consent." (Furundzija at para. 271). Finally, to avoid requiring a particular act of force or threat by the accused, the Special Rapporteur on Systematic Rape, Sexual Slavery and Slavery-like practices During Armed Conflict, used the phrase "under conditions of force, coercion or duress." (Final Report, para. 24). 4. The scope of “circumstances which are coercive.” The description of "coercive circumstances" should include not only acts or threats of force, or situations where the victim has been or is disabled so as to permit perpetrating the violence, but also circumstances of coercion or duress including danger to self or third parties, detention, psychological oppression, abuse of authority, and threats to deny or promises to provide the means of survival. Most of these conditions are already recognized as precluding consent in ICTY and ICTR Rule 96(ii). The addition of abuse of authority and threats to deny or promises to provide the means of survival are critical if situations are to be included where women "choose" to trade sexual service in order to survive, such as forced temporary marriage and other slave-like conditions as discussed below. Once coercive circumstances or conditions have been shown, any discussion of the presence or lack of overt physical resistance or nonconsent on the part of the victim becomes an absurdity. To include such discriminatory elements, would be contradictory and would violate art. 21 of the statute. The Special Rapporteur makes this clear:

The manifestly coercive circumstances that exist in all armed conflict situations establish a presumption of non-consent and negate the need for the prosecution to establish a lack of consent as an element of the crime. In addition, consent is not an issue as a legal or factual matter when considering the command responsibility of superior officers who ordered or otherwise facilitated the commission of crimes such as rape in armed conflict situations. (Final Report, para. 25)

As an international law matter, courts have moved away from requiring any showing of resistance or non-consent on the part of the victim. The lack of discussion either of the issue of non-consent as an element or consent as a defense in the Tribunal decisions underscores the inappropriateness and irrelevance of such concerns in these circumstances. In addition, in Furundzija, the Trial Chamber stated there has been a trend in the national laws of many States to broaden the definition of rape and understanding of force.² See Furundzija at paras. 179-181. The traditional requirement in domestic rape laws that in addition to a showing of force, the prosecution had to show resistance or non-consent (or the treatment of these as essential to the proof of force) is both inappropriate to the situations before the ICC and based on the outrageous and now-repudiated sex-stereotyped attitudes about women and sex. 

Thus, it was not enough to show that the perpetrator used force or threat; the victim was supposed to resist, in fact, “to the utmost.” The resistance and non-consent standards played a big role in both allowing impunity for rape and other sexual violence committed against women as well as deterring women from participation in the legal system to vindicate themselves. Such standards served to shift the focus from the acts or conduct of the perpetrator to the ascribed failings of the victim in (a) not being successful in fending off her attacker; (b) for being too acquiescent or scared to attempt resistance; or (c) as was conveniently assumed, for wanting forced sex and inviting rape. Some national jurisdictions have modified their statutes to eliminate these elements. More frequently, they have been nullified through judicial interpretation. Indeed, although the U.S. paper incorporates the commentary on the US Military Code of Justice relating to force and resistance, in practice, these criteria have been transformed and effectively eliminated in the prevailing judicial decisions.³ The same is true of civilian laws in the trend-setting U.S. state jurisdictions as well as in countries in all parts of the world. Accordingly, the U.S. approach recognizing that consent can negate the element of force must be rejected. It also precludes any defense of consent as discussed in our Proposal for the Rules of Procedure in regard to draft Rule 101.

B. SEXUAL SLAVERY:

(i) The exercise of any or all of the powers attaching to the right of ownership or control (ii) when such exercise involves obtaining or imposing sexual service and/or access through rape or other forms of sexual violence.

Commentary:

The ICC Statute defines "enslavement" as "the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children." Thus, because sexual slavery is a form of slavery, it follows that the general definition of enslavement should be qualified to provide for instances when the enslavement involves acts and/or threats of sexual violence. The Special Rapporteur on Systematic Rape, Sexual Sslavery and Slavery-like Practices during Armed C onflict, defines slavery as: "the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including sexual access through rape or other forms of sexual violence." (Final Report, para. 27). She notes: "implicit in the definition of slavery are notions concerning limitations on autonomy, freedom of movement and power to decide matters relating to one's sexual activity." (Id. at para. 28) 

Sexual slavery can be institutionalized as with the "comfort women" organized by the Japanese Army during World War II or the rape camps in the former Yugoslavia; or it can be carried out on a more individualized basis. Thus, forced temporary marriage has been recognized as a form of sexual slavery. Sexual slavery embraces situations, such as in Rwanda, where women may be kidnapped or may choose this condition as a means of survival; where women may be physically confined to the home, or "free" to leave the situation albeit at the risk of being killed because she leaves the protected "marriage" status. The same is true of situations where the military occupies a town and demands sexual service from women in their own home. We know of situations where a woman still lives at home but knows that she must respond as another's property, allow him in her home, or meet him or provide sexual or domestic service as he demands. The Special Rapporteur identifies all these situations as slavery as well:

In addition, this report emphasizes that practices such as the detention of women in "rape camps" or "comfort stations"; forced temporary "marriages" to soldiers; and other practices involving the treatment of women as chattel, are both in fact and in law forms of slavery and, as such, violations of the peremptory norm prohibiting slavery. (E/CN.4/Sub.2/1998/13 para. 8)

The Foca Indictment provides another good example of how situations of sexual slavery, even involving detention, might not qualify as imprisonment because the victim or victims had apparent freedom to move around (in that case keys to the building where they were kept) would become a contentious and dispositive fact out of proportion to its significance. The ICTY correctly charged as enslavement the following situation:

10.2 In contrast to Partizan Sports Hall, the detainees at Karaman's house had sufficient food. They were not guarded or locked inside the house. The detainees even had a key they could use to lock the door and prevent soldiers, not belonging to Pero Elez's group, from entering. The detainees were also given the telephone number of the Miljevina motel, and were told that they should call this number if any soldier without authorisation tried to enter the house. When the women did call this number, either RADOVAN STANKOVIC or Pero Elez would come to prevent other persons from entering the house. Although the detainees were not guarded, they could not escape. They had nowhere to go as they were surrounded by Serbs, both soldiers and civilians. ... 10.4 During the entire period of their detention at Karaman's house, FWS-75, FWS-87 and the other female detainees were subjected to repeated rapes and sexual assaults at night. All the perpetrators were Serb soldiers who belonged to Pero Elez's group. Among the soldiers who frequently raped FWS-75 and FWS-87 (vaginal and anal penetration) was RADOVAN STANKOVIC.

Accordingly, it is important that the definition of sexual slavery follow that of enslavement and not preclude situations which amount to slavery by including an element like confinement which would not encompass many of the slavery-like practices or conditions.

C. ENFORCED PROSTITUTION:

It is widely understood today that the term "enforced prostitution" rooted in humanitarian law and previously applied to situations such as the "comfort women" and trafficking is usually a euphemism for sexual slavery. The Special Rapporteur on System Rape, Sexual Slavery and Slavery-Like Conditions During Armed Conflict noted in her June 1998 report, that nearly all situations termed "enforced prostitution" would amount to sexual slavery.(paras. 31-33) It is essential that the description of elements not continue to diminish the gravity of sexual slavery by calling it "enforced prostitution." Thus, it is critical to find a meaningful ground of distinction in the ICC statute, lest the gravity and pervasiveness of slavery-like practices be diminished and invisible. 

The Women's Caucus is seeking to come up with such a distinction, but it is not easy. As noted above, the presence or absence of imprisonment, does not define the limits of slavery-like conditions. The U.S suggests that the fact the accused received a pecuniary benefit distinguishes enforced prostitution from sexual slavery. This might work so long as it remains an extra requirement and is not used to convert remunerative slavery into enforced prostitution. Certainly the men who ran the comfort women's camps received compensation for doing so. In other words, there are pecuniary rewards for maintaining women in sexual slavery as well. Our considered suggestion at this point is that the issue of enforced prostitution be dealt with by taking note of the problem that the term has largely been used improperly in the past as a euphemism for sexual slavery and that working out an appropriate definition should be taken up at the second round of negotiation to permit more time for analysis and discussion.

D. ENFORCED STERILIZATION:

(i) Intentionally performing or causing to be performed upon any person, (ii) without that person’s informed and voluntary consent, (iii) a surgical or medical treatment or other act (iv) that is intended to and (v) does result in that person being rendered sterile.

Commentary:

This crime also constitutes one or more of the following: torture, mutilation, experimentation, sexual violence, gender violence and genocide.

E. OTHER FORMS OF SEXUAL VIOLENCE:

As stated earlier, the residual category "other forms of sexual violence" was intended to expand rather than contract the scope of actionable sexual abuse and should be co-extensive for international and internal armed conflict as well as crimes against humanity. It is also that other sexual violence is designed to encompass other forms that do not involve physical invasion, including penetration however slight. As explained in the Akayesu judgement at para. 688:

The Tribunal considers sexual violence, which includes rape, as any act of a sexual nture which is committed on a person under circumstances which are coercive. Sexual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact. The incident described by Witness KK in which the Accused ordered the Interahamwe to undress a student and force her to do gymnastics naked in the public courtyard of the bureau communal, in front of a crowd, constitutes sexual violence.

Additionally, the ICTY stated in the Furundzija judgment (at para. 186):

[I]nternational criminal rules punish not only rape but also any serious sexual assault falling short of actual penetration. It would seem that the prohibition embraces all serious abuses of a sexual nature inflicted upon the physical and moral integrity of a person by means of coercion, threat of force or intimidation in a way that is degrading or humiliating for the victim's dignity. As both these categories of acts are criminalised in international law, the distinction between them is primarily material for the purposes of sentencing.

We suggest therefore, that the definition of "other forms of sexual violence" throughout the statute recognize that this includes sexual violence once viewed as less severe than that of actual penetration and incorporate sexual violence or abuse, including but not limited to sexual contact or conduct, sexual mutilation, forced or coerced performance of sexual acts or sexual entertainment, forced or coerced nudity and persistent insult or unwelcome touching of sexual organs or other body parts, damage to or abuse of sexual or reproductive capacity, or other humiliating or degrading treatment involving sexual organs, or negatively affecting sexual identity, integrity or self-determination.

F. TRAFFICKING:

Trafficking in persons is not listed as a separate crime in the ICC Statute. Rather, it is specifically mentioned in the definition of enslavement, which is stated as: “the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.” (ICC Statute, art. 7(2)( c) While enslavement is not explicitly listed as among the grave breaches in the Statute, it is still considered and prosecuted as such, particularly under 8(2)(a)(ii), (iii) and (v). The U.S. definition defines enslavement in a way that would not necessarily capture all of the aspects of trafficking in persons. As a preliminary matter, it is important the crime be understood to include the components of the process of trafficking, not least of which can include:

The intentional kidnapping, acquisition and/or transportation of a person within or across borders for the purpose of placing the person in a situation of abuse or exploitation, such as in slavery, forced prostitution, sexual slavery, conditions of battering and extreme cruelty, sweatshop labor, exploitative domestic servitude or other forms of forced labor or domestic services or slavery-like practices.